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Well, it’s game over
After so much time holding his breath (and us too), Novak Djokovic lost his appeal against his second visa cancellation today at the Federal court.
The hearing proceeded before a Full Bench of the Federal Court comprising three Federal Court justices, who unanimously held that the court could not revisit the merits (the facts and the actions of the Minister) of the case.
The visa cancellation therefore was upheld, meaning that Mr Djokovic will be deported from Australia on the first available flight back to Serbia, and he will also be subject to a preclusionary ban which prevents him from applying for any other temporary visa to return to Australia for three years (that is, if he ever wants to!).
The interesting and frustrating circumstances of today’s appeal
- The Minister conceded in his reasons for cancelling the visa, that he accepted that when Mr Djokovic entered Australia, he had a medical exemption from Covid vaccination, he posed a negligible health risk and the error the travel exemption form contained was of no consequence.
- The Minister also accepted that Mr Djokovic was no threat to the health of the Australian public in general.
In other words, the reasons that the visa was cancelled the first time (at the airport) no longer existed. This cancellation was overturned in any event by the Federal Circuit Court, on the basis the decision was procedurally unfair (which the Minister conceded in orders agreed with Djokovic’s legal team).
The second cancellation
The Minister cancelled Mr Djokovic’s visa the second time (on Friday night, 14 January at 6pm) using his personal powers under the Migration Act (section 133C(3)) on the basis that he would be a threat to the good order of Australia. He reached this conclusion primarily because he considered that Mr Djokovic would “excite” the sentiments of anti-vaxxers. In particular, the Minister stated:
.. I consider that Mr Djokovic’s presence in Australia may pose a health risk to the Australian community, in that his presence in Australia may foster anti-vaccination sentiment leading to (a) other unvaccinated persons refusing to become vaccinated, (b) other unvaccinated person is being reinforced in their existing view not to become vaccinated, and/or (c) a reduction in the uptake of booster vaccines.
An irrational decision
During the hearing, counsel for Mr Djokovic argued that the minister had made an irrational decision, as there were no facts to support the conclusion that he was a threat to “good order”. They also argued that there was more chance of inciting anti-vaccination sentiment if Mr Djokovic was forced to leave the country because of the cancellation.
Despite counsel for Mr Djokovic’s submissions that the Minister’s conclusions above, were not based on facts – and the Minister had not taken the time to ask Mr Djokovic about his current opinions about vaccinations, the court stated this was merely an impermissible examination of the merits of the case.
The court did not hand down a written decision, but stated in its orders that written reasons would be given at a later date.
A 3 year ban
As stated above, Mr Djokovic now has a three year ban from re-entering Australia on a temporary Visa, such as the one he was granted this time.
This ban can be waived if the Minister accepts that Mr Djokovic has compelling reasons for returning to Australia. This means that if he wants to compete in next year’s Australian Open, he will need to seek a waiver of the three year band before he is able to re-enter Australia to compete.
It is difficult to predict whether or not Mr Djokovic would be able to secure such a waiver, given the attitude of the government and the Australian public to his current predicament.
A Diplomatic Passport?
There was a report in the press that Mr Djokovic also holds a diplomatic passport. If true, this could facilitate him overcoming the three year ban if he applied for a diplomatic visa in the future.
Court documents
All of the court documents can be found here if you feel like a good read.
Thoughts
No matter the opinion of Novak Djokovic, he has been treated sub-optimally by Australian immigration authorities. If the Minister was as concerned he claimed to be about his anti-vax attitude (and not being vaccinated), why did the Minister not refuse his visa, or park his visa application until his vaccination status was regularised?
It’s difficult to articulate our legal frustration – especially after the Minister accepted in retrospect (following his loss at the Federal Circuit Court) the vaccination exemption and that Mr Djokovic effectively met the requirements for entry at the airport.
That he then decided on the “good order” reason to cancel the visa a second time was an extraordinary reason, to say the least.
Technically, the Minister could substitute a more favourable decision, before Mr Djokovic is bundled back on the plane (let me take a brief break here to to put a lid on my mirth at this ridiculous thought….)
World opinion
World opinion is unlikely to be kind to us, and whoever wins the Australian open men’s final will always wonder if they would have if Novak Djokovic was in the draw.
