World number one tennis player Novak Djokovic had his Visa cancelled on Thursday, 5 January 2022, after he arrived in Australia as the holder of a valid visa to play in the Australian Open which commences on 17 January 2022.
Whether you like the man or not, or agree or disagree with his stance on vaccination, the whole episode is intriguing from a legal perspective (and a debacle for the Australian government, despite the gleeful response from many Australians).
Here we take a legal peek at the events….
Initially, the Federal government blamed Victoria for providing Djokovic with a medical exemption to enter Australia – however, these allegations cannot, and did not fly, because all decisions with respect to visas, and travel exemptions, rest with the federal government via the Department of Home affairs. The Victorian government has no jurisdiction to make visa decisions.
Mr Djokovic entered Australia on a Subclass 408 Visa. This visa type allows elite sportspeople (amongst others) to enter Australia to participate in an event.
Towards the end of last year, Subclass 408 visas were added to the list of “eligible visas”, meaning that 408 visa holders did not require a travel exemption to enter Australia. On the Department of Home Affairs website however, it states that where someone has an “eligible Visa” but is unvaccinated, they must apply for, and be granted a travel exemption before departure.
What is unclear, is whether the people advising Mr Djokovic about his visa and his travel to Australia knew about the requirement to apply for a travel exemption, did not know they were required to apply, or simply ignored it. Perhaps, they hadn’t asked the vaccination question, despite the fact that Djokovic appeared for all intents and purposes to be an anti- vaxxer for ages befoer. It’s unlikely that Mr Djokovic would have applied for his visa himself.
It seems apparent now that Djokovic believed he had a valid visa and a medical exemption to enter Australia.
The Department of Home Affairs website states that it is up to the airline to establish that a person travelling with them to Australia has a travel exemption when required to do so. Given that the Subclass 408 Visa that Mr Djokovic was travelling on however, at face value did not require a travel exemption, it is possible that the airline took note of the particular visa, and decided that no travel exemption was needed – or alternately, the Mr Djokovic was in possession of an appropriate exemption to board the flight to Australia (but who knows what goes on in 1st Class/VIP checkins, with superstars).
Maybe Mr Djokovic did not know that he required a federal travel exemption. It appears, when he made his controversial bomb igniting tweet, Djokovic was under the apprehension that he had valid exemption which allowed him to travel to Australia to participate in the Australian Open.
Meanwhile, on arrival…
During Mr Djokovic’s flight, all hell broke loose at federal level and with the public, after said tweet. Public opinion targeted anything from Djokovic being a spoilt brat entitled elite sportsman, a public health risk, loony anti-vaxxer, to being disrespectful of all we’ve been through being Australians dealing with Covid for the past two years.
One can only imagine the frantic activity at the Department of Home Affairs and in the Australian Border Force offices – and with the Prime Minister and Karen Andrews, the Minister for Immigration. One wonders if any thought was given to the potential repercussions that a dead set populist decision against the impending arrival would create.
Ultimately, it was decided that whatever exemption Mr Djokovic held, (if any) did not meet the requirements of a federal travel exemption. It was on this basis that Djokovic’s visa was cancelled.
And oh yes they thought, there are others here who shouldn’t have been let in for the same reason – and they cancelled them too, even though they’d been here for a while.
None of those whose visas were cancelled had been reported as being Covid positive.
What is not clear, is which cancellation power the ABF used to cancel the visa (there are lots). We can only speculate.
The government has not provided any detail about whether or not it regarded itself is having a discretion to allow Mr Djokovic to hold onto his visa and enter Australia despite the fact he was not apparently vaccinated. The reason this is mentioned is that there are is at least one visa where there is a discretion to waive vaccination, which is set out on the DHA website. These visa holders must quarantine on arrival.
Following the Visa cancellation, Australian Border Force immediately detained Mr Djokovic, and transported him to a detention hotel in Carlton. This hotel already houses refugees, some of which have been incarcerated for several years. The general state of the hotel is poor by all accounts, and there’s nowhere for Mr Djokovic to practice or train.
The court appearance
When a Visa is cancelled at the airport, the general course of events is that Australia Border Force officials will detain the person until the next available flight to return them to their country of origin (or country of passport). Mr Djokovic however briefed his lawyers to apply for an injunction at the Federal Circuit Court, which was heard almost immediately by Judge Kelly. Injunctions are generally heard very quickly, as their aim is to urgently restrain a person from doing something.
Judge Kelly granted an injunction restraining the government from deporting Mr Djokovic until Monday at 4 pm, and listed a final hearing on 10 January where he will hear evidence and decide whether the ABF made a legal error in the visa cancellation decision.
When the ABF cancels a visa at the airport, and an application for an injunction is lodged at the court, the Department of Home Affairs has a discretion to either detain the person or issue them with a bridging Visa to allow them to leave the airport. The government in this instance decided to detain Mr Djokovic, and not allow him into the rented accommodation that had been arranged for him for the Australian Open.
Judge Kelly has listed the matter for a final hearing on Monday, 10 January 2022 at 10 am. At this hearing Judge Kelly will hear evidence and decide whether or not there ithere has been a legal error in the cancellation decision.
If Judge Kelly finds that there is a legal error in the decision (see below), he will revoke the visa cancellation. If not, the ABF will be at liberty to deport Mr Djokovic.
Even if Mr Djokovic’s legal team is successful, the Minister for immigration has the power to cancel the visa again.
What will the court look at?
The court cannot look at the “merits” of the matter, but only whether or the decision maker identified a wrong issue such as,
- asking a wrong question;
- ignoring relevant material;
- relying on irrelevant material; or
- an incorrect interpretation and/or application to the facts of the applicable law,
– in a way that renders the exercise of the power of the decision maker to be tainted with a legal error.
Update : Saturday 8 January 2022
The Minister for Immigration sought an adjournment of the final hearing until Wednesday 12 January. Judge Kelly refused the Minister’s request. Mr Djokovic’s legal team (2 x QC’s and 2 x Junior Counsel) will present their arguments a 10am, tomorrow 10 January and the Minister’s legal team (2 x Junior Counsel) will present theirs at 3pm, unless they seek and are granted another adjournment.
What do we think?
Without knowing anything about the apparent travel exemption or medical exemption, or what Mr Djokovic was told by the Dept of Home Affairs before travelling, it is really difficult to predict.
Mr Djokovic has alleged in the papers this weekend that he received correspondence from the Department of Home Affairs prior to his departure, which stated that he had a travel exemption to travel to Australia without having to quarantine. If this allegation is true and correct, there may be a legal error in the ultimate decision by the Australian Border Force to cancel his Visa, under the veil of procedural fairness.
There is an extremely unlikely chance that the Minister for Immigration could substitute a more favourable decision (think Mr Dutton and the au pair girls) – however given the public outcry against Mr Djokovic and his playing at the Australian Open, this seems to be a highly unlikely, (as common as hens teeth) possibility.
If nothing else, it will be interesting!
We will keep you posted.