In the past week, we have all been captivated by the unprecedented standoff between international tennis superstar and Australian Open defending champion Novak Djokovic against the Australian Government.
As an experienced immigration solicitor and keen spectator of the judicial match unfolding, I have replayed and analysed the series of events that have transpired over the past few days. The topic has become highly contentious and a bizarre ongoing saga. This has attracted the attention of many, provoking public comment and critique from political leaders both in Australia and abroad, predominant legal minds, renowned journalists and international and national sporting identities.
/ THE BACKGROUND
Djokovic held a visa subclass 408 (Temporary Activity) which was granted on 18th November 2021 and was deemed valid at the time of arrival into Australia. The visa specified no condition concerning the applicant’s vaccination status.
NOVAK DJOKOVIC v MINISTER FOR HOME AFFAIRS
10th JANUARY 2022
FEDERAL CIRCUIT COURT
Following submissions made by both the Commonwealth and Novak Djokovic’s legal representatives, Judge Kelly stated that “It would appear COVID-negative Novak has complied with all health entry requirements”. The judge further asked, “What more could this man have done?”
On decision, Judge A. Kelly outlined that Novak Djokovic does not appear to pose an unreasonable health risk to Australia. He agreed to grant Djokovic’s application to quash the decision to revoke his visa on the basis that he had been given insufficient time to respond to the intention to cancel under s. 116(1)(e)(i) of the Migration Act 1958 (Cth).
The order handed down late Monday afternoon notes that at 5:20 am on the day of Djokovic’s arrival into Australia, he was informed of the intention to cancel and given a deadline to respond by 8:30 am. However, the decision was in fact, made and issued at 7:42 am. He was requested to provide a response at 6:14 am. The order acknowledges that had he had the complete duration of time initially advised, he would have made further submissions and sought input from others as to why his visa should not be cancelled.
The Orders further provide that the Commonwealth pay Djokovic’s costs of the application, immediately release him from detention and return to him his passport and all other personal belongings.
The Minister has reserved the right to cancel Djokovic’s visa on other grounds under s. 133C(3) of the Migration Act 1958 (Cth). Section 133C(3) states that the Minister has the power to cancel a person’s visa if (a) he is “satisfied” a ground for cancelling the visa exists under s. 116 and (b) the Minister“ is satisfied that it would be in the public interest to cancel the visa”.
It will be very interesting to see what the Minister for Immigration does now. If he exercises his discretionary powers to cancel Djokovic’s reinstated visa, he will be banned from entering Australia for three years. This is a significantly more onerous penalty than what he would have incurred had the delegate not acted unreasonably in the first place.
/ WHAT DOES THIS DECISION MEAN?
What is refreshing about Monday’s decision is that the Federal Circuit Court demonstrated that the judiciary in Australia is independent and impartial. The matter was never an anti-vax vs pro-vax issue. It was an immigration issue, and the court did not depart from this focus. Whether we love or hate Novak Djokovic, the facts clearly show that he acted in good faith and that the delegate’s decision was in error.
On another front, this decision has ramifications for other migrants who have been refused entry into Australia by a delegate of the Minister and are informed of an intention to cancel their visa. It is evident based on this decision that a substantial and reasonable period within which to respond to that notice and that shortening that period may be unacceptable.
/ MINISTERIAL DISCRETION TO CANCEL VISA
If the Minister chooses to exercise his Ministerial powers and again cancel Novak Djokovic’s visa, it begs the question, what would be the ‘public interest’ the Minister could rely on in deporting the Australian Open Tennis Champion?
The Minister’s personal powers to cancel visas are intended to prevent contagious persons from entering our shores or criminals from abroad roaming our streets. Ministerial powers are not intended to assist in fulfilling current political agendas- and there is no escaping now that if he chooses to cancel the visa, it will be for political purposes. It would be a most peculiar and troubling outcome for what is considered an already globally embarrassing situation for our country- and the world is watching.
As a person born in Australia to migrant parents who sacrificed so much for the opportunity to live an incredible life here, I am very passionate that Australia is seen in a positive light globally as a leading country, and Australians generally succeed on an international scale. I believe Djokovic’s situation could have been more effectively managed if there had been clear communication, appropriate coordination and proactive measures as opposed to reactive stakeholder engagement.
A quote from one of my all-time favourite movies, ‘Any Given Sunday’ (1999), Al Pacino endows us with wisdom, “Life is a game of inches”. As we individually strive to be the best at what we do, be it sports, politics, health, law or in any area in life, there is little margin for error. Lessons must be learnt from this unique situation to ensure Australia continues to strengthen its reputation and profile as one of the most desirable destinations in the world.
VIC Managing Partner
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P: +61 3 9670 4033