Novak Djokovic vs the Australian Government
The controversy surrounding the world number one tennis player has dominated headlines since he was detained by Australian Border Force (ABF) officials upon arrival in Australia in early January.
The story that has dominated headlines
He was told, at the time, by ABF staff that he would have until 8.30am in the morning to speak with lawyers. Instead, he was told at 7.30am his Visa was being cancelled.
Djokovic’s lawyers took the case to court, where a Federal Judge ruled in favour of the tennis player. The Judge determined that he had met the criteria set by Australia’s advisory board on immunisation, received a travel declaration from the Federal Government, was granted a medical exemption by Tennis Australia, and also provided Border Force officials with evidence of the exemption.
The judge also ruled that he had been denied due process because he believed he had more time to consult with lawyers.
The Immigration Minister’s powers to cancel a Visa
This is when the case escalated, and the Federal Government began its own investigation into Djokovic’s Visa application.
Immigration Minister Alex Hawke eventually exercised his Ministerial powers under Section 133(c) of the Migration Act 1958, and cancelled the tennis player’s visa “on health and good order grounds, and on the basis it was in the public interest to do so”.
The Immigration Minister has further elaborated to media after making the decision that while, admittedly, Djokovic would have been a “negligible” risk of infecting Australians, his past “disregard” for Covid-19 regulations could have potentially posed a risk to public health and encourage people to ignore pandemic rules.
Again Djokovic’s lawyers challenged the decision. They lost the case.
The rest, as they say, is history. And with the world watching on, the high-profile incident is not likely to be forgotten for quite some time.
The three-judge panel which unanimously ruled in favour of the Federal Government and set in motion the tennis player’s deportation has not published it’s full judgement, but experts who work in the area of migration law have always maintained that challenging the Minister’s decision was always going to be difficult, particularly because of the powers afforded to him under the Migration Act.
What the incident also highlights is the complexity of Australia’s migration laws.
What does the Migration Act say?
In a nutshell, the minister has broad powers to cancel a person’s Visa, which can only be exercised by him personally, or a delegate appointed by the Minister.
In cancelling a Visa, the Minister must be satisfied that one of the grounds for cancellation set out in section 116 exists.
Section 116 of the Immigration Act provides that a person’s Visa can be cancelled for reasons including:
- the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that either did not exist or is no longer the case or that no longer exists;
- the visa holder has not complied with the conditions of the visa;
- the visa 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; or the health or safety of an individual or individuals;
- the visa should not have been granted because the application for it or its grant was in contravention of the Act or of another law of the Commonwealth.
The Migration Act also gives the Immigration Minister the power to grant Visas, which he did use last year to remove the Murugappan family from detention on Christmas Island and bring them to Perth, (where they remain in community detention) after their youngest daughter Tharnicaa suffered a long bout of illness.
The family’s legal battle for Visas continues.
PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.