As some may know, the Australian Open stars the world’s best tennis players as they battle it out for a share of the $75 million dollar prize pool. Superstars such as Ash Barty and Rafael Nadal may be familiar as ‘marquee’ players that will be participating, but there is one name which will not be appearing at this year’s tournament: Novak Djokovic.
Novak Djokovic arrived in Australia with every intention of participating in the tournament, instead what ensued was an 11-day-long saga of weekend court proceedings, two visa cancellations, and ultimately his removal from Australia.
The decisions made and processes followed throughout this saga give rise to many questions that can be applied to an average person attempting to enter Australia. For instance, what is the breadth of the Minister for immigration’s personal power to cancel visas, and, how can an unvaccinated person enter Australia without risk of visa cancellation?
Before we dive too deeply into the intricacies of immigration law and administrative review methods, it is helpful to outline the exact timeline of events for the sake of clarity and understanding.
Timeline Of Events
- 18 November 2021 – Djokovic was granted a Temporary Activity (subclass 408) Visa
- 05 January 2022 – Djokovic entered Australia
- 06 January 2022 – Djokovic’s visa was cancelled by a delegate of the Department of Home Affairs (DHA) in the early hours of the morning.
- 10 January 2022 – Federal Court orders the visa cancellation order to be quashed; reinstating his visa, and freeing Djokovic from immigration detention. Decision made on grounds of procedural fairness.
- 14 January 2022 – MP Alex Hawke as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, utilised his personal power afforded by section 133C of the Migration Act to cancel Djokovic’s visa, and bar him from entering Australia for 3 years.
- 16 January 2022 – Full Bench of the Federal Court rejects the challenge against the Minister’s use of personal power, and upholds the second cancellation of Djokovic’s visa.
- 16 January 2022 – Djokovic departs Australia soon after the decision was made.
If you’re struggling to follow this timeline, that’s OK! We’ve broken down the key issues for you below.
Standard Process for Unvaccinated Persons Entering Australia
From 15 December 2021 onwards, the rules of entry into Australia changed to allow fully vaccinated holders of an eligible visa to enter Australia without needing a valid Travel Exemption. Travellers with valid medical exemptions from vaccinations, or children under 12 years old may also access the same travel arrangements as fully-vaccinated travellers.
However, if you are unvaccinated or only partially vaccinated and do not have a valid medical exemption, the process for entering Australia is a little more complicated. Non-fully-vaccinated entrants must apply for a travel exemption pursuant to one of the grounds outlined on the Home Affairs Website prior to travelling to Australia. After arriving in Australia, these entrants are subject to the quarantine guidelines of the State/Territory in which they arrive: NSW mandates 14 days of quarantine, and Victoria requires 14 days in hotel quarantine if you are over 18.
Now how does this apply to Djokovic? Subclass 408 visas are included on the list of eligible visas which would allow a fully-vaccinated, or medically exempt holder of this visa to enter Australia without a travel exemption. Djokovic submitted that he had received a valid medical exemption from the Chief Medical Officer of Tennis Australia, and could therefore enter Australia without the need to seek a valid travel exemption.
Without delving into the question of whether the medical exemption was valid itself, it is important to highlight that Djokovic – as a non-fully-vaccinated traveller – could have potentially avoided the entire question of the medical exemption by applying for a travel exemption, and subsequently spending two weeks in hotel quarantine. Travel exemptions do not require applicants to disclose their vaccination status, and there are no limitations on visa conditions which require holders to be vaccinated. Whether it is feasible for a tennis superstar to be unable to train, stuck in quarantine for two weeks directly before one of the world’s largest tournaments is a different story entirely, but it is important to highlight that the option is there.
Nevertheless, it is likely that his visa may have been cancelled by the Delegate due to the public interest grounds relied upon as the basis of the cancellation given the highly politicised nature of his entry.
Grounds for Visa Cancellation
There are several grounds contained within the Migration Act that may act as the basis of a visa cancellation. The most common reasons that arise are non-compliance with visa conditions, such as undertaking employment without holding a visa that provides a right-to-work, or false information being provided on the visa application itself.
Djokovic’s visa cancellation by the delegate in the first instance was purported to be made in accord with section 116(1)(e)(i) of the Migration Act. The practical effect of this section is as follows:
- ‘The Minister may cancel a visa if he or she is satisfied that the presence of the visa holder in Australia may be a risk to the health, safety or good order of the Australian community’
This is a highly discretionary threshold due to its inherently broad nature, and there are few guidelines to inform us of concrete circumstances where a visa may be cancelled underneath this section. Djokovic’s visa cancellation also raises the question of whether all non-fully-vaccinated arrivals need to be concerned about their visa being cancelled on the same grounds.
In short, no. Arguably, this decision was made by the delegate based on the highly specific circumstances of Novak Djokovic; a non-fully-vaccinated, publicly renowned tennis superstar, infamous in the media for his stance of non-disclosure of vaccination status, preparing for a tournament where all spectators must either be fully-vaccinated or hold a valid medical exemption.
As long as non-fully-vaccinated travellers comply with the entry conditions as outlined above, there should be no concern regarding a visa cancellation for a standard traveller on the basis of vaccination status.
The Broad Discretionary Powers of the Minister for Immigration
Shortly after the initial Federal Court decision to overturn the visa cancellation order made by the delegate underneath section 116(1)(e)(i), the Immigration Minister, Alex Hawke, utilised the personal powers afforded to him under s 133C of the Migration Act to cancel Djokovic’s visa again.
The powers afforded by section 133C can only be exercised by the Minister personally, not via delegates, and provides the ability for the Minister to cancel visas for grounds contained in section 116. Additionally, section 133C(1)(e) gives the power to the Minister to cancel a visa if it would be in the public interest to do so. The scope of this ‘public interest’ criteria is virtually boundless and highlights the difficulty in challenging a decision/cancellation made personally by the Minister within this head of power.
It can be a grim reality to realise that the Minister for Immigration has an ‘absolute power’ to cancel visas when deemed fit to do so. However, administrative law provides methods of review for exercises of personal power in the form of judicial or merits review.
Merits review through the Administrative Appeals Tribunal (AAT) is the more commonly utilised method of the two, and focuses on the facts of the case and if the decision itself was correct. If the AAT concludes that the decision in question was incorrect, they may choose to remit the decision back to the original decision-maker or make a fresh decision to replace the incorrect one in question. However, applications to the AAT often take a large amount of time to process and it can be years until the matter is heard. A decision to cancel a visa may only be reviewed at the AAT if the person is ‘in the migration zone’. Unfortunately, Djokovic was not in the migration zone (but in immigration clearance) at the time the decision was made and therefore he would not have been able to appeal the cancellation at the AAT.
Judicial review on the other hand, as utilised by Djokovic’s legal team, is an application to the courts challenging whether the power has been used correctly. Judicial review applications do not concern themselves with whether the decision was correct or not, but instead focuses on procedural questions of the exercise of the power and if the decision-maker has breached the scope of their power in making the decision. Procedural fairness is often the only safeguard of the rights of visa holders, and it is essential to the courts that the intrinsic procedural rules are followed when cancelling a visa.
In standard circumstances, judicial review proceedings can also take a long time to process, but parties have the option to apply for an expedited hearing; that is, to rush it through the courts due to any number of extenuating factors. Djokovic successfully was able to seek an expedited hearing, due to both the looming presence of the upcoming Australian Open and the willingness of both sides of the party to cooperate within the limited timeframe. However, an average person would typically have to wait more than a year for either type of proceeding before a review could commence, with the potential for the decision to remain the same at the conclusion of proceedings.
An argument may arise that Djokovic received undue special treatment by the courts by allowing his hearing to be expedited. However, the reality is that Djokovic is not an average traveller to Australia. His visa cancellation under review likely only occurred due to his special status in the tennis community and wider global fame, and therefore it is only fair that he should be afforded special consideration when reviewing the decision itself.
It is important that the breadth of the personal powers afforded to the Immigration Minister are understood, however, they are typically only called into question in extremely special/specific scenarios. It is less likely that a compliant, average traveller to Australia, whether fully-vaccinated or not, would need to be concerned about the Minister’s use of personal power.
Can the Government Pick & Choose Who Enters Australia?
In theory, the government is able to pick & choose who they allow to enter Australia, pursuant to the personal power afforded to the Minister of Immigration. If a visa holder is deemed to place the ‘health, safety, or good order’ of the Australian community at risk, it is likely that the Minister will exercise his power to exclude them from entering Australia.
Logically, the question of fairness arises. How can it be certain that the power is being used fairly and within its scope? It is an extremely difficult question to answer, partially attributed to the broad scope of the personal power afforded the Minister.
Hypothetically, if Djokovic was not an internationally renowned tennis player, and instead was an average traveller to Australia, it is highly unlikely that his visa would have been cancelled. It is difficult to understand a scenario where an average traveller, whether fully-vaccinated or not, is placing the ‘health, safety, or good order’ of the Australian community at risk, if there is no requirement for vaccination in either the visa conditions, or the application for a travel exemption itself.
In these circumstances, it is doubtful that the Minister would take any action considering the number of travellers who are assumably in the same situation. The government IS allowing non-fully-vaccinated entrants to Australia, provided they obtain a travel exemption and quarantine for 14 days upon arrival, or hold a valid medical exemption and an eligible visa.
Therefore, it is only natural to come to the conclusion that if Djokovic was not a publicly renowned figure, the situation would have likely never occurred. Nevertheless, the saga goes to show the breadth of the personal power that the Migration Act affords the Minister for Immigration. It is difficult to challenge through either means of review, and there is a likelihood that the decision will never be changed. However, not all of us can be international tennis superstars, so hopefully we don’t have anything to worry about.
Djokovic’s 3-year ban
Despite the media outcry regarding the 3-year ban as a result of Djokovic’s visa cancellation, it is likely that it will be a non-issue for any future Australian Opens that Djokovic wishes to participate in. Under Public Interest Criteria contained in the Migration Regulations, the Minister for Immigration may waive the 3-year ban if it is satisfied that there are compelling circumstances which affect the interests of Australia.
It is highly likely that the global attention and positive economic impact that Australia will receive by allowing Djokovic to play in future Australian Opens would constitute compelling circumstances affecting the interests of Australia, and therefore the Minister would waive the 3-year ban. It is another question entirely whether Djokovic will ever even want to come back to Australia, in the wake of this recent saga, and the strenuous time he spent in immigration detention.
I’d like to leave you with an example of how we have assisted a non-vaccinated individual entering NSW to quash any potential concerns or qualms that future entrants to Australia may have.
The individual departed Australia for business purposes and applied for a Travel Exemption for re-entry prior to leaving. Their vaccination status was not specified on the travel exemption request, and the Department of Home Affairs did not inquire as to the specifics. We advised the client that whilst they held a valid travel exemption, they could re-enter Australia but would be required to quarantine for 14 days upon returning to NSW. However, when boarding the flight back to Australia, our client was initially denied boarding on the basis of being unvaccinated. The client was eventually able to board the aircraft after providing the airline with evidence of the valid travel exemption, subsequently allowing them to travel to Australia and quarantine for 14 days upon arrival.
For unvaccinated/not-fully vaccinated individuals, this experience should highlight that airlines mandate different policies on vaccination requirements to fly. Some airlines allow a restricted number of unvaccinated passengers per flight, whilst others mandate a strict requirement of full-vaccination in order to fly. However, if unvaccinated entrants into Australia are compliant with both the rules of the airline and the Australian border & quarantine restrictions, there is no reason to be concerned about travelling to Australia.
Whilst the procedures to enter Australia may appear daunting and severe as a result of the international attention received due to the Djokovic saga, in essence, it was a unique set of circumstances which arguably has no application to ‘everyday travellers’ to Australia, pursuant to their compliance with all other restrictions.
As the aftermath in the media continues to grow, I hope that this brief article has served to clear up some of the key issues and intrinsic facts related to the case, and provide an insight into the inner workings behind administrative & immigration law.
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Gilton Valeo Lawyers is a Sydney based incorporated legal practice specialising in corporate migration, founded in 1982.
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This article has been co-authored by Aidan Williams.