Following on from yesterday’s blog…
….The matter was heard at the Federal Circuit (FCC) court by Judge Kelly on 10 January 2022.
Live access was promised but the video link soon crashed, much to the frustration of thousands of interested observers in Australia and around the world. Fortunately, the FCC broadcast the hearing via youtube from around lunchtime, making access so much better.
After a lot of toing and froing, adjournments and live stream blackouts, the Minister for Immigration finally capitulated (yes, lay down and counted herself out), and settled the matter in Djokovic’s favour – and agreed to pay his (one can only imagine – huge) costs.
The government conceded the interview was procedurally unfair.
The parties agreed that the interview process was procedurally unfair.
To quote from Judge Kelly’s orders,
“The respondent (i.e., the Minister) concedes that the delegate’s (i.e., the Australian Border Force Officer’s) decision to proceed with the interview and make a decision to cancel the applicant’s visa pursuant to s 116 of the Migration Act 1958 (Cth) was unreasonable….”
Was that the only point that was decided?
The court did not examine the actual decision made by the delegate – i.e., that Djokovic’s presence in Australia would endanger the Australian public (the original reason for the cancellation).
There was no assessment of whether this decision was legally unreasonable.
Given that the interview itself was found to be procedurally unfair, the question about whether the reasons for cancellation were legally sound are redundant. In other words, the interview was unlawful, which renders the cancellation reasons legally irrelevant.
Did the Judge hand down a judgment?
No Judge Kelly handed down the orders the parties agreed to by consent. As stated above, the Minister for Immigration conceded Mr Djokovic’s interview and the decision to cancel the visa were unreasonable.
In accordance with the proposed consent orders between the parties, Judge Kelly quashed the visa cancellation, awarded costs against the Minister and ordered Mr Djokovic’s release within 30 minutes of making the orders.
The Minister for Home Affairs, Minister Hawke, is currently considering whether to cancel Mr Djokovic’s visa using his personal powers under the Migration Act.
The Minister may exercise his personal power to cancel a visa under s 133C(3) of the Migration Act if he is satisfied that a ground for cancelling the visa exists, and it would be in the public interest to cancel the visa
According to the government,
Section 133C was introduced in 2014 because from time to time there may be a situation that requires visa cancellation action to be taken quickly and decisively and without notice. It is appropriate that the Minister is able to cancel the visas of high risk individuals, where it is in the public interest to do so, the cancellation decision is time critical, and it is appropriate for the individual to be invited to comment on the decision only after (but not before) the decision
Reasons for the cancellation under this section of the Act are also not given at the time of the cancellation but must be given a reasonable time afterwards. The Minister must also invite the cancelled person to make representations to the Minister as to why the visa decision should be revoked. If the visa is cancelled again, it is likely that Mr Djokovic would be detained again, and unlikely that the Minister would consider revoking the cancellation.
It remains to be seen whether the Minister for Home Affairs considers Djokovic to be such a high risk, that he should cancel the visa again, “in the public interest”.
Until the Minister makes his intentions clear, Djokovic and Tennis Australia can only hope…