It is not often that a celebrity tennis star becomes embroiled in not one, but two administrative law cases against the Australian government. However, this is what happened in January 2022 when Novak Djokovic flew into Melbourne to contest his title as the Australian Open champion. What ensued brought an abrupt end to his attempt at winning the Open for the tenth time.
As Mr Djokovic had not been vaccinated against Covid-19, the Australian government was under pressure to cancel his visa to not be seen as going soft on their public health position. This occurred despite Mr Djokovic being given a medical exemption to enter the country. After an unpleasant experience with Australian Border Force (ABF) and other officials upon his entry, Mr Djokovic’s visa was cancelled without an opportunity to respond. Mr Djokovic was then taken to hotel detention to await his removal from Australia. Subsequently it was revealed that some asylum seekers residing in the same hotel had been held in detention for nine years. As protestors mobilised outside the hotel, this turned what was already a tense situation into a media frenzy. The decision was successfully appealed by his legal team. Though after losing the case the government decided to dig its heels in, relying on the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’ seemingly impenetrable powers to cancel Mr Djokovic’s visa, again.
What Happened?
In December 2021, Mr Djokovic became aware that the Australian Government had changed the entry requirements for travel into Australia, meaning he either had to be vaccinated against Covid-19 or have a medical exemption.
As he had been ‘tested and diagnosed with SARS-CoV-2’ on 16 December 2021 and subsequently had tested negative on a PCR test on 22 December 2021, Mr Djokovic’s agent and Tennis Australia requested an exemption. On 30 December 2021, Tennis Australia advised Mr Djokovic that he was given a medical exemption based on his recent infection by an independent expert medical review panel commissioned by Tennis Australia that had also been ‘endorsed by an independent medical exemptions review panel of the Victorian State Government’. The medical exemption was valid until 16 May 2022. The exemption stated it was following the ‘recommendations of the Australian Technical Advisory Group on Immunisation (ATAGI)’.
On about 1 January 2022, Mr Djokovic authorised his agent to make an Australian Travel Declaration which notified the Australian Government Department of Home Affairs of his temporary visa and medical exemption. They replied stating the Declaration was assessed and on his arrival into Australia he would not have to undergo quarantine.
The next day the Victorian State Government issued a Border Travel Permit to Mr Djokovic, which he believed was the final requirement to gain lawful entry into Australia. However, his journey did not go as planned.
On arriving in Melbourne at approximately 11:30pm on 5 January 2022, Mr Djokovic and his entourage were asked to depart the plane before the other passengers. The passport control officer asked Mr Djokovic if he was vaccinated against Covid-19. Mr Djokovic replied that he was not, though he had a medical exemption, which he produced. He was then escorted to a room by an ABF officer and interviewed on and off by officers of the Department of Home Affairs for about 4 hours. At the conclusion of the interviews, he was issued with a Notice of Intention to Cancel his visa and told that previous Covid infection was not a ground for exemption. At 5am, confused as to what was happening, Mr Djokovic asked to have more time so he could contact Tennis Australia and get legal assistance during business hours. Seemingly ignoring his request, at 7:40am he was informed that his visa had been cancelled and he would be removed from Australia as an unlawful non-citizen.
The Legal Cases
Mr Djokovic’s visa was cancelled by the Minister for Home Affairs’ delegate under s 116(1)(e)(i) Migration Act 1958. Believing that the decision was made erroneously, he applied to the FCFCOA for judicial review of the purported decision. Mr Djokovic’s legal team advanced the argument that the visa he was granted enabled him to ‘enter and remain in Australia’ without any consideration of his vaccination status. Furthermore, they submitted there were several jurisdictional errors involved with the purported decision. The Minister for Home Affairs, Karen Andrews MP, argued against each ground raised.
At completion of the first case, Kelly J’s Court Order … quashed the delegate’s decision, ordering that Mr Djokovic be realised from immigration detention immediately. Also in the Order, it was noted that the respondent had informed the Court that the Minister for Immigration, Alex Hawke MP, ‘may consider’ exercising his ‘personal power’ to cancel the visa under s 133C(3) Migration Act.
On 11 January, following advanced warning that the Minister intended to use his personal powers to cancel Mr Djokovic’s visa, his legal team promptly made a submission to the Minister’s office, imploring him not to do so. Nevertheless, late on Friday 14 January, the Minister engaged his powers under s 133C(3), which encompasses s 116(1)(e)(i), to cancel the visa on ‘health and good order grounds’ and ‘on the basis that it was in the public interest to do so’. This included a ten-page statement of reasons from the Minister.
When transferring the case to the FCA, Kelly J had reservations on whether the requisite conditions for s 116(1)(e)(i) were enlivened, which is a prerequisite for using the Minister’s additional powers under s 133C(3)(a)…; as under ss 133C(3)(a) and (b) the Minister must be satisfied that there is both a ground for cancellation of the visa under s 116 and that it is in the public interest to do so.
His Honour suggested that because there is nothing to demonstrate that Mr Djokovic’s visa was granted erroneously (such as a requirement for a medical exemption or the source of an ‘enforceable obligation’ to be vaccinated against Covid-19 for entry into Australia), as these were both beyond the ambit of the Migration Act as well as the Migration Regulations 1994 (Cth), this precluded the Minister from being able to be ‘satisfied’ that there is the existence of a ground to cancel the visa under s 116. His Honour stated that the High Court had recently confirmed it to ‘be well-settled that the “satisfaction of the Minister or delegate required to meet that precondition is a state of mind formed reasonably and on a correct understanding and application of the applicable law.”’
It is unclear why Mr Djokovic’s legal team did not explore this avenue in their submissions to the FCA.
Ultimately the Court held that the Minister’s decision reached the level of satisfaction required for ss 116(1)(e)(i) and 133C(3) to be engaged, dismissing the application with costs. As such Mr Djokovic became an unlawful non-citizen subject to removal.
Legal Analysis
The term ‘public interest’ mentioned in s 133C(3)(b) is used extensively in the Migration Act. It has been described by the High Court as enabling a Minister to ‘determine general policy or the interests of the general public free of procedural constraints’. [This power has been used arguably without due consideration for the ramifications of its use, overused and abused by some Government’s in the past] … the Minister’s powers are so extensive they are practically impenetrable. Yet parliament appears to have no intention to mitigate them. A major issue the authors of In Unveiling the Public Interest: The Parameters of Executive Discretion in Australian Migration Legislation have outlined is the need for the Minister to operate within the framework of the Act itself (this was also Kelly J’s argument). They say ‘the rule of law requires that any exercise of discretionary power … [needs to be] consistent with the statute enunciating the power’. They continue, ‘the rule of law is offended by conferrals of power that are so vague they fail to provide guidance to the individual and [therefore] vest arbitrary power.’
How to Fix Migration Law
In its mistreatment of Mr Djokovic, the Morrison government was accused of acting for populist reasons… public policy scholar Anne Tiernan voiced her concerns about the government’s populist leanings, saying it was ‘eroding’ the ‘core tenants of Australian democracy.
Running parallel to the populist problem is the legislature’s reliance, especially in migration matters, on the plenary nature of parliament which stems from the doctrine of parliamentary sovereignty. This places limitations on the ‘judiciary’s ability to consider international legal obligations or common law rights’. It has also led to parliamentary override of court decisions that are not favourable to the government’s agenda.
Chief Justice Robert French …explains that academic writings on the topic of common law constitutionalism importantly ‘give rise’ to different understandings of the ‘essential and defining characteristics of the branches of government and their relationships with each other, and the body of common law principles which inform … the rules … of … constitutions, statutes, delegated legislation’ and the statutory powers of executive government and their agencies. His Honour says this leads to ‘an informed consciousness of what we can properly regard as essential characteristics of democratic government in the common law tradition.’
As the Chief Justice acknowledges, it would take ‘considerable judicial courage … to concretely assert the primacy of the rule of law over parliamentary sovereignty’. Nevertheless, as Novak Djokovic regrettably experienced, there does not seem to be a better or more convincing solution to mitigating the executives’ ability to abrogate common law rights than embracing a wider conception of judicial review.
Mary Crabb
From Passage Migration
Mary has recently completed her Juris Doctor degree at Griffith University and is an amazing lawyer to be. She is an honorary Passage Migration blog writer following completion of her research thesis.
Thank you, Mary for your excellent paper and analysis of the Djokovic cases. This paper is informative, well-written and a joy to read. We look forward to seeing where your legal career takes you!
Mary has recently completed her Juris Doctor degree at Griffith University and is an amazing lawyer to be. She is an honorary Passage Migration blog writer following completion of her research thesis.
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