The Djokovic Saga: Where politics and jurisprudence collide
/The highly publicised cancelling of Novak Djokovic’s subclass 408 – Temporary Activities visa, subsequent quashing of this cancellation and later re-cancellation through the personal powers of the Minister serves up more questions about executive power, jurisprudence and philosophical questions relevant to our times than just another immigration case.
Original cancellation of 408 visa
According to the Applicant’s submissions to the Federal Circuit and Family Court of Australia, Mr Djokovic had all the necessary requisite approvals to enter Australia, being:
a valid 408 visa,
an exemption certificate from a panel commissioned by Tennis Australia further endorsed by the Victorian government, and
a Travel Declaration.
Upon his arrival, a delegate of the Minister cancelled his 408 visa pursuant to section 116(1)(e)(i) of the Migration Act 1958 (Cth) (‘the Act’). This section allows the cancellation of a visa if the holder’s presence in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
Already there is a major issue with this matter. While 408 visa can enter Australia, they must be double-vaccinated or have a medical contraindication to COVID-19 vaccines, that is, they cannot be vaccinated for medical reasons. The Department of Home Affairs’ website clearly states that the Department of Health does not consider a previous infection of COVID-19 as a medical contraindication.
Interestingly, in a later submission to the Minister as to why his visa should not be cancelled and which was quoted in the notice of visa cancellation, it was argued that Djokovic was “at risk of suffering more severe and adverse side effects from vaccination, because he had been recently infected with COVID-19”. This alludes to an intention but inability to be vaccinated.
If not exempted for medical reasons, a visa holder should be seeking an individual travel exemption as these can be granted to the unvaccinated.
A travel exemption is not the same as a travel declaration. It was reported that the Department of Health had warned Tennis Australia back in November 2021 that a previous infection was not considered fully vaccinated for the purposes of travelling to Australia and the Australian Immunisation Register (AIR) was for domestic purposes only.
Furthermore, the exemption certificate from Tennis Australia may allow him access to quarantine free travel in Victoria but says nothing about entering Australia, which may have confused.
Why this was not resolved between the Department of Home Affairs and Tennis Australia in the final weeks of 2021 is unclear and the blame game between the federal government and Tennis Australia may linger for some time.
Why was Djokovic’s 408 visa not granted in the first place as argued by a former Prime Minister?
There is no public interest criterion requiring vaccination for the grant of a 408 visa or any other visa for that matter, nor should there be. As above, some may not be able to be vaccinated. Refusing on this ground would certainly be an unlawful decision. Also, travel exemptions were implemented as a temporary measure and an additional application needed to be made and approved before entering Australia.
Revocation of visa cancellation
The revocation of the cancelled 408 visa, appears successful on only one ground and due to an error by the delegate according to court orders.
While many grounds were submitted to the court, a scattergun approach no doubt to avoid any issue of Anshun estoppel, the doctrine that a party can be prevented from bringing a claim in a fresh proceeding which should have been brought in the original proceeding, in the end the cancellation was deemed legally unreasonable.
Legal unreasonableness is one type or ground of jurisdictional error and where a decision is so unreasonable that no reasonable person, acting reasonably, could have made it. It is a ground used by many self-represented and legally represented litigants, but which is a very high bar to pass. This is because the courts cannot pass judgement on the merits of a decision but only to see whether it was a legally sound one. A key theme explained below.
The error in Djokovic’s cancellation was that the time allowed for him to comment on a notice of intention to cancel his visa was cut short by less than one hour. This was in breach of section 124(2) of the Act, which requires the delegate to not cancel a visa within the period given to comment unless the holder tells them that they do not wish to comment. Effectively, moving the goalposts to the disadvantage of the visa holder is not allowed. Procedural fairness, also known as natural justice, in administrative law ensures the right to a fair hearing. This was not provided to Djokovic.
As Djokovic’s visa was cancelled unlawfully, the court ordered Djokovic to be released immediately from immigration detention. Had the delegate given Djokovic the time originally allocated before cancelling his visa, it is quite likely there would have been no jurisdictional error.
The court orders noted, however, that the Minister was considering exercising his personal powers to cancel Djokovic’s visa. This was ominous.
Further visa cancellation
After a mea culpa on his whereabouts in the previous 14 days before flying to Australia (a potential grounds for cancellation in its own right under section 100 of the Act for an incorrect answer on his travel declaration), some questionable actions when recovering from COVID, and reportedly voluminous amounts of information provided to the Minister from Home Affairs and Djokovic, the Minister exercised his personal powers to cancel Djokovic’s visa pursuant to section 133C of the Act.
This section allows the Minister to personally cancel a visa on a ground provided in section 116 when a relevant tribunal or a delegate of the Minister decided that the ground did not exist or decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground). Having the court revoked the delegation’s decision enlivened this power.
The Minister may then set aside that decision and cancel the visa if:
the Minister considers that the ground exists; and
the visa holder does not satisfy the Minister that the ground does not exist; and
the Minister is satisfied that it would be in the public interest to cancel the visa.
The Minister personally cancelled Djokovic’s visa primarily because his presence may “foster anti-vaccination sentiment” leading to an increase pressure on Australia’s public health system by not being vaccinated or not obtaining a booster vaccine along with potentially civil unrest. He expressed the view that Djokovic was a negligible risk to public health based on his infection status.
Another application to quash this decision was made shortly after this cancellation. While the originating application was lodged with the Federal Circuit and Family Court of Australia it was transferred to the Full Court of the Federal Court of Australia, meaning the unsuccessful party’s only recourse is the High Court and special leave to appear would be required. This is a doubtful proposition when Djokovic was due to play in the Australian Open the next day.
Court outcome of Minister’s visa cancellation
Without access to the judgement, which will be released in the future, the court dismissed the application. The grounds of an illogical, irrational or unreasonable decision or that it was not open to find that the presence of Djokovic in Australia may be risk to the health or good order of the Australian community was not made out.
Djokovic left Australia hours later. He will likely be subject to a 3-year bar from the date of departure as Public Interest Criterion (PIC) 4013 applies to almost all temporary visas, however, this can be waived in the future if there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Separation of Executive and Judiciary
A memorable and crucial comment from the chief justice is that the court does not contemplate “the merits or wisdom of the decision”. This is a fundamental aspect to both court decisions and the legal system of many countries. It underpins the separation of the judiciary from the executive and legislative branches of government.
What some commentators fail to realise is that the court is purposely hamstrung to only adjudicate on points of law. They did not grant Djokovic a visa, but ordered that his previous visa be reinstated due to a legal error.
The decision to cancel (and re-cancel) Djokovic’s visa rests with the government, including the Minister’s broad power to set aside and personally cancel a visa, which many now question. The rationale for this is that the Executive’s decisions are accountable to its citizens. They can and often are criticised for their decisions. Public debate of the government’s actions is the hallmark of democracy, including its current policies towards the pandemic and its repercussions.
On the other hand, the judiciary’s impartiality is not held to the same standard. Critics of the court in certain aspects, even by politicians, can be held in contempt. A recent example of a possible breach of sub judice resulted in some very apologetic politicians.
Lastly, a careful note on language and particularly the misuse of terminology as many have used this affair for their own political mileage. Despite what the media says, Djokovic was not deported. Being deported requires a deportation order pursuant to section 200 of the Act, which is based on serious criminal offending or as a security risk of which neither applied. Instead, Djokovic was technically “removed” if he did not leave on his own accord.
Two other regularly mistaken pairs of terms are between a refugee and an asylum seeker, a person claiming but was not or not yet found to be a refugee, and an unlawful non-citizen, who is a non-citizen who is in Australia but does not hold a visa and an illegal immigration, which is not defined.