If you have heard about the recent Novak Djokovic visa/vaccine debacle, you’d be forgiven for not understanding exactly what’s happened and why. Media coverage has been plentiful, but not always easy to follow. So, we thought we’d explain what happened to Mr Djokovic and why.
It is important to understand which entities in Australia have the power to grant visas to those who want to come to Australia and what the requirements are for the grant of visas. Only the Department of Home Affairs (herein referred to as the Dept.) has the power to grant visas to come to Australia pursuant to the Migration Act 1958 (Cth) (herein referred to as the Act). As part of the Australian Government’s response to the COVID-19 pandemic, Australia has also introduced a range of incoming and outbound travel restrictions. The framework for these restrictions is based outside the Act and is overseen by the Australian Border Force. At the time of Mr Djokovic’s entry to Australia, he had to not only have a valid visa, but also meet the requirements of Australia’s travel restrictions.
Mr Djokovic applied to the Dept. for his subclass 408 visa in October/November 2021 and it was granted on 18 November 2021. This visa has a number of streams, including a stream for sporting activities. An applicant’s vaccination status is not relevant to any eligibility criterion for that visa or stream and, once granted, the holder’s ability travel to, enter and remain in Australia is not subject to any condition that requires the holder to be vaccinated or otherwise be the subject of an exemption.
The travel restrictions that have been imposed during the COVID-19 pandemic require visa holders to complete a ‘travel declaration’ within 72 hours of their travel to Australia. This travel declaration asks a serious of questions, including regarding the visa holder’s recent travel history and vaccination status. As we all know, Mr Djokovic had not been double vaccinated but he had received an exemption from Tennis Australia, so that he could play in the Australian open. As part of the travel declaration, Mr Djokovic had answered ‘yes’ to the proposition “I declare I cannot be vaccinated for medical reasons” based on his view that the Tennis Australia exemption was valid for this purpose. Based on his answers to these questions, the travel declaration was accepted.
Refusal and Cancellation Powers
One of the main controversies in this case was and is why Mr Djokovic was able to travel to Australia in the first place.
It was open to the Dept. to consider any risk posed by Mr Djokovic well before he came to Australia and, considering that the Hon, Alex Hawke MP (Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs) (herein referred to as Mr Hawke) ultimately relied heavily on statements made by Mr Djokovic in early 2020 regarding his vaccination status, it is unclear why no action was taken prior to Mr Djokovic’s arrival.
In its policy manual, the Dept. explicitly recognises that applicants with a history of ‘controversial behaviour’ can be caught by the scope of the Character Test such as under s501(6)(d)(iv) of the Act, which relevantly provides that a person does not pass the character test if, in the event they were allowed to enter Australia, there is a risk that the person would incite discord in the Australian community or in a segment of that community. The Dept. has a specific section of policy dedicated to guiding decision makers’ considerations regarding controversial visitors and the use of these provisions to refuse a visa application is not uncommon, for example with respect to right-wing activists.
If the Dept. had chosen to refuse the visa application prior to his arrival, Mr Djokovic would not have been subject to the exclusion period that now applies to him (discussed below) because that refusal of his visa application would have occurred while he was outside Australia. An exclusion period only applies if a person’s visa is cancelled or refused under s501 when the person is in Australia.
However, it wasn’t until Mr Djokovic arrived in Australia that what’s known as a ‘s116 cancellation power’ was used to cancel his visa while he was in immigration clearance. ‘Immigration clearance’ is the part of the airport where a traveller scans their passports/presents their passport to Boarder Force Officials, before being allowed to ‘enter’ Australia and collect their luggage. The particular s116 cancellation power used provides that a visa may be cancelled if the decision maker is satisfied that the presence of the visa holder 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. This cancellation power requires certain procedural fairness steps to be followed, including giving the visa holder notice that cancellation is being considered and the reasons for that consideration and then giving a period for the visa holder to respond. This same s116 cancellation power was available while Mr Djokovic was outside of Australia and, had it been utilised before he entered Australia, the provisions built into the s116 cancellation framework would have provided Mr Djokovic with a much longer period (when compared to the mere hours he was provided in immigration clearance) to provide a response and for that response to be considered.
In the first instance, it was non-compliance with this procedure that resulted in Mr Djokovic’s successful judicial review application of the first decision to cancel his visa. Mr Hawke ultimately conceded that, in making a decision prior to the time that was agreed Mr Djokovic would have to provide a response, the decision was unreasonable. The Court made an order quashing the decision according to the consent of both parties. At that point and at law, the cancellation of Mr Djokovic’s visa had effectively never happened.
However, Mr Hawke then proceeded to cancel Mr Djokovic’s visa under s133C(3)(b) of the Act (public interest), following which Mr Djokovic applied for judicial review of that decision in the Courts. Given the nature of the case, the matter was heard before a full court of the Federal Court.
Unfortunately for Mr Djokovic, the Federal Court upheld Mr Hawke’s decision to cancel his visa and he declined to pursue any further applications for revocation of the Minister’s decision or appeal the Federal Court decision. The Act therefore required that Mr Djokovic be removed from Australia as soon as reasonably practicable.
The Significance of the Federal Court Decision
The Court was required to judicially review the decision of Mr Hawke to cancel Mr Djokovic’s visa under s133C.
However, it’s important to understand that judicial review does not involve the Court determining whether the decision of Mr Hawke was the correct or even a fair or ‘right’ decision. Nor was the Court endorsing the decision itself or the reasons relied on by Mr Hawke.
In undertaking judicial review of Mr Hawke’s decision to cancel Mr Djokovic’s visa, the Court was only allowed to examine and decide whether the decision was made in accordance with the law. The Court was not allowed to consider the merits of Mr Hawke’s reasons for cancellation. Whilst the Court was asked to determine whether Mr Hawke’s decision making was illogical, irrational or unreasonable, that does not require, nor does it allow, the Court to consider whether the decision was correct or whether it ‘agreed’ with the decision itself.
The liberal use of modal verbs (such as ‘may’ and ‘could’) in the relevant legislation, results in Mr Hawke being able to consider mere possibilities (like whether Mr Djokovic’s presence in Australia may foster anti-vax sentiment) rather than certainties or even probabilities. This allowed Mr Hawke broad powers and resulted in it being almost impossible for the Court to find that the law had not been followed.
What if the Court had found Mr Hawke’s decision to be invalid?
It is the Dept’s practice to reconsider cancellations where the Court has quashed a cancellation decision. This means that if the Court had quashed Mr Hawke’s s133C(3) decision, it would have been open for the Minister to simply make a new cancellation decision that remedied whatever defect was identified by the Court. Such a course is relatively common. For instance, the team at MSM Legal has previously acted in a matter wherein it successfully had two decisions of the Minister quashed, only for the third decision to be upheld by the Court.
That being said, it would also have been open to the Minister to not make a new cancellation decision and allow Mr Djokovic to remain in Australia. However, in circumstances where the decision of the Court would have been based on a legal deficiency rather than any finding on the merits of the decision, this seems unlikely.
But what does all this MEAN?
The fact that neither of the provisions available to Mr Hawke to cancel Mr Djokovic’s visa were utilised before Mr Djokovic entered Australia and the subsequent decision of the Court to uphold the Minister’s decision to cancel Mr Djokovic’s visa whilst onshore, is significant.
The cancellation of Mr Djokovic’s visa under s133C(3) means that he now falls within the scope of a public interest criterion ‘risk factor’. This public interest criterion must be satisfied before Mr Djokovic can be granted any future temporary visa for which he may apply for three years following the cancellation.
Technically, given Mr Djokovic was removed from Australia, he will also face a separate 12 month exclusion period.
The key difference with the 12 month exclusion period, is that it applies to all visa applications, not just the temporary visas that Mr Djokovic will likely be reliant on to enter Australia in the future. However, the requirements to waive the 12 month exclusion period are the same as those to waive the 3 year exclusion period, being to satisfy the decision maker that there are compelling and/or compassionate circumstances affecting the interests of Australia, or compelling and/or compassionate circumstances affecting the interests of an Australian citizen or permanent resident. This decision is ordinarily made by a delegate (a case officer of the Dept.) but can be made by the Minister personally.
Interestingly, Mr Djokovic would only have the right apply for merits review (a review of the merits which formed the basis of the decision to cancel the visa, as opposed to the legality of the process used to make the decision to cancel the visa) of any cancellation decision that relied on the exclusion period, if his 408 visa was sponsored (e.g. by Tennis Australia).
The controversy surrounding all this happening onshore, is entrenched in the fact that if Mr Djokovic’s visa had been refused under the Character Test while Mr Djokovic was outside of Australia, he would not face any exclusion period at all. If his visa was considered for cancellation prior to arrival, he would have been afforded much more time to provide a response, so the likelihood of technical errors being made with respect to the procedural fairness steps would have been lower.
Whilst everyone’s entitled to their own opinion on Mr Djokovic’s views on vaccinations and his attitude in general, viewed objectively, it’s probably fair to say that his visa situation as it unfolded was a bit of a mess and could be viewed as setting various concerning precedents.
Australia is a party to seven core international human rights treaties. The right to freedom of opinion and expression is contained in articles 19 and 20 of the International Covenant on Civil and Political Rights. It should be asked whether the ability for the Minister to cancel someone’s visa because their (unproven) views might affect the health, safety or good order of the Australian community unlawfully curtails an individual’s right of freedom of opinion and expression.
All that being said, for those lawyers who routinely deal with visa cancellation matters, the fact that Mr Djokovic’s visa was cancelled the first time and that he successfully had that cancellation quashed in the first court hearing, was not surprising. It was also not surprising that Mr Hawke cancelled his visa again and that the Full Federal Court then upheld that cancellation. Mr Djokovic’s public profile has highlighted the very broad powers bestowed upon the Minister, which are routinely applied to less well known people on a daily basis.
MSM Legal are a leading Immigration Law firm, please feel free to contact us for advice about your situation.