The events that led up to Djokovic leaving Australia on the evening of 16 January 2022, only hours before he was due to play in the Australian Open, involved a whirlwind of characters and plot twists – the world number 1 tennis player and vocal anti-vaxxer, a visa grant, a travel exemption, a visa cancellation, an overturned decision, an appeal, immigration detention, a Friday evening cancellation decision, a Sunday afternoon court hearing, teams of lawyers and court personnel working tirelessly behind the scenes – all culminating in the tennis stars departure from Melbourne airport on the evening of Sunday 16 January 2022.
Chief Justice Allsop, Justice Besanko and Justice O’Callaghan of the Federal Court ordered on 16 January 2022 that Djokovic’s appeal to overturn the Minister’s decision to cancel his visa, be dismissed with costs. The written reasons for the decision were published on 20 January 2022. Now that we have the decision, let’s break down the reasoning so that we can finally understand just what in the world of tennis, happened.
18 November 2021 – Djokovic granted a Temporary Activity (subclass 408) visa to travel to Australia to compete in the Australian Open Tennis Championship.
5 January 2022 – Djokovic arrives in Australia and is promptly questioned by officers of the Department of Home Affairs, until the early hours of the next morning. Questions are raised by the Department about whether Djokovic met the travel exemption requirements as an unvaccinated individual and otherwise, whether there are public interest reasons to cancel Djokovic’s visa.
6 January 2022 – Djokovic’s visa is cancelled by a delegate of the Minister for Home Affairs, under section 116(1)(e)(i) of the Migration Act 1958 (Cth)(the Act) on the basis that his presence 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.
Djokovic’s legal team commences proceedings in the Federal Circuit and Family Court (FCFC) of Australia seeking to quash the decision to cancel his visa.
10 January 2022 – the FCFC quashes the cancellation decision.
14 January 2022 (Friday evening) – the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) exercised his personal power under section 133C of the Act to cancel Djokovic’s visa.
Djokovic’s legal team commence proceedings in the FCFC, seeking orders that his matter be transferred to the Federal Court of Australia for judicial review- that is, for a determination as to whether the Minister’s decision to cancel his visa was lawful.
15 January 2022 (Saturday)– the FCFC makes orders to transfer the proceedings to the Federal Court of Australia.
16 January 2022 (Sunday) – the Full Bench of the Federal Court of Australia (FBFCA) hears the matter and determines that Djokovic’s application for judicial review, be dismissed. Djokovic departs Australia later that day.
17 January 2022 (Monday) – The Australian Open begins – sans Djokovic.
The reasons behind the decisions
There were 5 main decisions made in relation to Djokovic’s visa.
The first decision was made by the Department of Home Affairs on 18 November 2021 when it granted Djokovic a visa which enabled him to travel to Australia. This decision was uncontroversial. The legal visa requirements under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) have not been amended to include requirements that travel exemptions be met in order to be granted an Australian visa. Rather, Australian travel exemptions and border entry requirements are found in a separate piece of legislation, being the Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2022 (the Biosecurity Determination). The Biosecurity Determination requires that all incoming international travellers provide, before they board their flight, proof of vaccination or proof from a medical practitioner of a medical contraindication to a COVID vaccination.
The second decision was made by the Minister of Home Affairs, Karen Andrews, via her delegates at the Australian border, on 6 January 2022, when she denied Djokovic entry into Australia on the basis that his visa should be cancelled under s. 116(e) of the Act, as Djokovic, by being unvaccinated, was or might be, a risk to the health, safety or good order of the Australian community.
This decision appeared to have been partly made on the basis that Djokovic did not in fact appear to meet the vaccination exemption requirements for entry into Australia, despite Tennis Australia having suggested that he did/would. Djokovic was refusing to be vaccinated not because he had a medical contraindication to the available COVID vaccines, but because he had recently been infected by COVID-19 and therefore considered to be unlikely to be reinfected or cause community transmission. The decision was also informed by information that suggested Djokovic had attended events while COVID positive, and also by the concern that allowing him entry into Australia as an individual who had made his anti-vax sentiments public, would not be in the public interest.
The third decision was that of the FCFC’s on 10 January 2022 when counsel for the Minister for Home Affairs conceded that the procedural requirements of the Migration Act were not complied with when Djokovic’s visa was cancelled, and subsequently that Djokovic was denied procedural fairness and natural justice. The FCFC therefore ordered that the decision to cancel Djokovic’s visa be quashed, and ordered for his immediate release from detention.
The fourth decision was made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Alex Hawke, (Minister for ICMSMA) on 14 January 2022, under s.133C(3) of the Act, to personally cancel Djokovic’s visa. Section 133C(3) provides that the Minister for ICMSMA may cancel a visa if the Minister is satisfied that a ground for cancellation exists under s.116 and if the Minister believes it is in the public interest to cancel the visa.
In a 10 page document provided to the FBFCA by the Minister for ICMSMA, the Minister held that:
- he accepted that Djokovic had a medical reason for not being vaccinated (although he stopped short of stating that having been recently infected by COVID met the contraindication requirements for entry into Australia);
- Djokovic was present in Australia during a time in which the Australian community is experiencing a significant, and rising, number of COVID-19 cases and an active, vocal minority of people in the community opposing vaccination (or compulsory vaccination) against COVID-19; and
- Djokovic is a high profile unvaccinated individual who has indicated publicly that he is opposed to becoming vaccinated against COVID-19.
The Minister ICMSMA ultimately reasoned that Djokovic’s presence could lend support to, or bolster, the growing anti-vax sentiment in Australia, leading to more Australian’s choosing to remain unvaccinated or unboostered.
The fifth and final decision (for now) was the FBFCA’s determination that there was no jurisdictional error or legal unreasonableness in the making of the Minister for ICMSMA’s decision to personally cancel Djokovic’s decision. This was because the FBFCA held the Minister for ICMSMA’s was satisfied that there was a reasonable ground for cancelling the visa under s.116, being that, like the delegate for the Minister of Home Affairs determined initially at Melbourne Airport, that Djokovic’s presence in Australia was or might be, a risk to the health, safety or good order of the Australian community, due to the anti-vax sentiment his presence might create.
Where to for Djokovic?
There has been noise that Djokovic may sue the Australian government for over $6 million for his “ill treatment” and loss of potential earnings associated with the Australian Open prize money. Whether Djokovic will pursue this path, is yet to be seen. However, his legal dealings with the Minister for ICMSMA are not over if Djokovic wishes to enter Australia to participate in the Australian Open 2023.
A person who has had an Australia visa cancelled under s.116 or s.133C is banned from applying for another Australian visa within 3 years from the date of the visa cancellation. However, this 3 year ban can be lifted by the Minister for ICMSMA if the Minister is satisfied that there are compelling circumstances that affect the interests of Australia, or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident, that justify the lifting of the 3 year ban.
Whether the 3 year ban will be lifted will no doubt depend on vaccination requirements in 2023, the global COVID situation and the case Djokovic puts forward to convince the Minister that it is in the interests of Australia or its citizens or permanent residents, for him to be allowed to play in 2023.
The resoundingly strong message that the Australian government has issued over this saga is that public health reasons for vaccination trump anti-vax sentiment. This is no doubt comfort for many businesses in Australia who are mandating compulsory vaccination for employees, and for those generally in the community who support the current push for vaccinations.
Lisa Qiu is a Senior Associate practising in employment and migration. If you require assistance with visas or employment advice in navigating COVID and vaccination requirements please do not hesitate to contact our Employment & Business Migration Team.