APPLICANT PROFILE SUMMARY
Applicant Name: Novak Djokovic
Nationality: Serbian – Serbian Citizen
Visa: Class GG subclass 408 Temporary Activity Visa
Entry to Australia
Novak Djokovic arrived in Australia on 5 January 2022. Prior to this he had been granted a Class GG subclass 408 Temporary Activity visa and had made an Australian Travel Declaration as to a medical exemption from the Covid-19 vaccination. This medical exemption had been supplied to the Department of Immigration by Tennis Australia, having been given to Mr Djokovic following an Independent Expert Medical Review Panel (IEMRP) commissioned by Tennis Australia. This medical exemption had also been endorsed by an IEMRP commissioned by the State of Victoria. Therefore, Mr Djokovic believed he was entitled to quarantine free entry into Australia to play in the Australian Open.
Purported Cancellation Upon Entry – Successfully Appealed, Visa Reinstated
However, on 6 January 2022 it was purportedly decided by a delegate of the Minister that Mr Djokovic’s visa be cancelled under s 116(1)(e)(i) of the Migration Act 1958 (Cth), and that he be removed from Australia. Following this purported decision, Mr Djokovic was placed in immigration detention. This purported decision was challenged by Mr Djokovic’s legal team on the following grounds:
- Illogicality/irrationality in regard to the ATAGI Principles (legal unreasonableness)
- Illogicality/irrationality as to extenuating circumstances (irrelevant consideration, legal unreasonableness)
- Procedural Fairness
The initial challenge by Mr Djokovic was successful, and the decision was found to be unreasonable in the circumstances. This judgement of January 10 was based upon the denial of procedural fairness (natural justice) to Mr Djokovic by the delegate in the decision-making process.
In summation, at 5:20am on 6 January Mr Djokovic had been told that he would have until 8:30am to respond to a notice of intention to consider cancellation of his visa under s 116 of the Migration Act 1958(Cth). Rather than this occurring, Mr Djokovic instead had comments sought from him at 6:14am and the decision to cancel his visa was made at 7:42am. In being denied until 8:30am to make comments, it was found that Mr Djokovic was also denied the opportunity to consult others, such as his lawyers, to make fully informed submissions about why his visa should not be cancelled.
Thus, the initial ‘decision’ of the delegate to cancel Mr Djokovic’s visa was only a purported decision and Mr Djokovic was subsequently released from immigration detention. However, as is now common knowledge, this was not the final outcome for Mr Djokovic.
The Minister’s Cancellation – Appeal Unsuccessful
On 10 January the Court was informed that the Immigration Minister, Alex Hawke, would consider exercising a personal power of cancellation found in sub-section 133C (3) of the Migration Act 1958(Cth). S133C (4) states that “the rules of natural justice… do not apply under subsection (3)”, meaning that there was no requirement for Mr Hawke to afford Mr Djokovic procedural fairness in making this second cancellation decision.
Following submissions by Mr Djokovic’s legal team as to why this cancellation power should not be exercised by Mr Hawke, Mr Hawke eventually decided to exercise it on the evening of Friday 14 January. Mr Hawke publicly stated the decision was made “on health and good order grounds, on the basis that it was in the public interest to do so”. Mr Djokovic was advised of this decision and provided with a ten-page statement of reasons. “Public interest”, a regularly utilised phrase in legislation, is an exceptionally broad one. When used in reference to a Minister’s power it is in effect defined by the Minister himself, rather than through an attempted interpretation by the Court of what the public desires.
The risk to health posed by Mr Djokovic was explained in the statement of reasons by the Minister as being due to his presence potentially inhibiting Australia’s vaccine rollout, as opposed to any risk of Covid-19 transmission posed by Mr Djokovic himself. Mr Djokovic’s potential to be a role model for anti-vaccination groups, which had previously caused a disturbance to ‘good order’ through protests and rallies that involved “unsettling public actions”, was explained by the Minister as the threat he posed to the good order of the community. Mr Hawke also considered the counterfactuals against cancellation, such as Mr Djokovic’s previous good character, diplomatic considerations, and the perception of politically motivated decision making. On a weighing up of the factors, Mr Hawke concluded on balance that cancellation was in the public interest.
It is important to note here that the decision of the Minister under this sub-section is covered by a privative clause. Within Div.1 of Pt. 8, s 474(1) provides that “a “privative clause decision” is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.” Privative clauses such as this are not actually final and conclusive in Australia as judicial review by the Courts is entrenched via s 75(v) of the Constitution, a superior authority to the Migration Act, and thus such decisions can in fact be reviewed as to their legality by a Court of jurisdiction. However, they do necessitate a jurisdictional error (error of law) having occurred for the decision to be overturned. If faced with a privative clause yourself, it is essential you engage an immigration lawyer, as this is an extremely technical area of the law.
The grounds submitted by Djokovic’s legal team for this appeal were:
1) The Minister failed to consider the consequences of cancellation (relevant consideration not considered)
2) That it was not open to the Minister to be satisfied that the presence of Mr Djokovic is or may be a relevant risk (no evidence)
3) Unreasonableness and/or irrationality in regard to finding concerning Mr Djokovic’s “stance on vaccination” etc (legal unreasonableness)
Ground 1 may be summarised as a failure to take into account a relevant consideration, namely the protests that would arise as a result of the cancellation. Any consideration by the Minister of this potential consequence must have been ‘genuine and proper’ and not just mere general awareness. However, it is not for the Court to determine what weight should have been given to this consideration in comparison to others. Furthermore, the counterfactual of what would occur following cancellation was irrelevant as to what may occur due to Mr Djokovic’s presence in Australia. The Court placed great emphasis on this statutory language in their judgement. Further, it was acknowledged that there were multiple factors under consideration beyond that which was referenced by Mr Djokovic’s legal team. Thus, this ground was dismissed.
Ground 2 in essence required there being no relevant evidence whatsoever on which the Minister based his decision. In short, it was argued that there was no evidence of Mr Djokovic urging people not to be vaccinated or that he had fostered anti-vaccination sentiment in other countries. To this end, the Court found that reasoning “iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him” was “common sense” and “did not need evidence”. From that premise, conclusions as to what may occur in terms of public health and good order were available to the Minister. Therefore, this ground failed.
Ground 3 required the Minister’s decision to have been so unreasonable that no reasonable decision maker would have so found such a stance from Mr Djokovic on vaccination. Unreasonableness has a threshold that is ‘necessarily stringent’, with an ‘extremely confined scope’, and thus it will not be ‘lightly reached’. Some lack of logic may still be an error within jurisdiction and thus not a jurisdictional error. Given Mr Djokovic’s previous public statements and decision not to get vaccinated prior to getting Covid in December to 2021, it was not unreasonable to infer he was opposed to vaccinations. Therefore, this ground was dismissed.
FINAL OUTCOME OF THE CASE
Novak Djokovic was ultimately unsuccessful in appealing the second cancellation of his visa and has since been deported from Australia. He is unable to play in the Australian Open and the complexity of Australia’s migration law has been broadcast globally. From the initial case, it is clear that skilled and experienced immigration lawyers are essential to a successful review application and that decisions made regarding deportation can be overturned.