On 16 January 2022, the Full Court of the Federal Court affirmed Immigration Minister Alex Hawk’s decision to cancel Novak Djokovic’s visa to enter Australia to take part in the Australian Open. The tennis star had initiated judicial review of the Minister’s decision on the basis that the decision was unlawful. This article summarises the arguments that were made by both sides and the public response to the decision.
Basis for Djokovic’s visa cancellation
Djokovic’s visa was cancelled under section 116 of the Migration Act, which empowers the Minister to cancel a person’s visa if particular circumstances exist.
The circumstances relied on in this case were that:
- the presence of the visa-holder in Australia may be a risk to the health, safety or good order of the Australian community; and
- that it was in the public interest to cancel the visa.
Djokovic argued that the Minister’s decision was unlawful as neither of the circumstances relied on had been lawfully satisfied. He argued that he posed a negligible health risk to the Australian community as his chance of transmitting COVID-19 to others had been assessed as very low. Furthermore, he had entered the country with an exemption and consistently with ATAGI guidelines.
He further argued that the Minister failed to consider the consequences for public health and good order that would flow from Djokovic being removed from the country. He argued the Minister did not put forward any evidence that Djokovic’s presence would foster anti-vaccine sentiment.
Finally, he argued that the Minister did not seek Djokovic’s views on vaccinations but relied on what those views had been reported to be.
The Minister’s case
The Minister argued that Djokovic was unvaccinated and had publicly indicated he was opposed to vaccinations. He had acted contrary to COVID restrictions in the past. The Minister reasoned that this conduct and Djokovic’s high profile may cause others to emulate him, noting that media reports had referred to some anti-vaccination groups supporting his presence in Australia for that reason. If others were to be inspired by Djokovic to oppose vaccinations, this would pose risks to health and to the Australian hospital system.
The Minister further argued that Djokovic’s presence in Australia may be a risk to the good order of the community by influencing others not to get vaccinated or by causing rallies and protests to occur, which may become COVID-spreading events as well as provoking discord at a sensitive time in the pandemic.
The Minister maintained that Djokovic’s claim that he had failed to consider the possible consequences of cancelling the visa was untrue and that in any event, it was Djokovic as the appellant who bore the onus of proof.
The Minister’s stance was that Djokovic’s argument that no evidence had been produced of his anti-vaccination views was exaggerated. It could be put no more highly than to say that the Minister had not produced evidence of any recent statements by Djokovic on this issue, with evidence being before the court of statements he had made in 2020.
The application to have the Minister’s decision overturned was dismissed. Djokovic was ordered to pay the Minister’s costs. The Federal Court has not yet published the reasons for its decision.
Associate Professor of Law, Maria O’Sullivan has raised concerns about the precedent this decision sets. She has argued that Djokovic was essentially expelled from the country because he is a high-profile sportsperson with anti-vaccination views that may influence others and cause unrest. She argued, firstly, that it is unfair that the perceptions or actions of others can determine a person’s eligibility to remain in the country. Secondly, it is problematic that this decision rests on his status as a ‘role model’. Thirdly, this rationale could lead to the cancellation of the visa of any person seen as a ‘role model’ whose presence could cause protests or unrest. It also raises issues of freedom of expression.
Other legal experts have called the decision a ‘dangerous precedent’ for excluding other high profile persons from the country if they hold views contrary to those of the government.
Liberty Victoria President Michael Stanton was quoted as saying:
Deportation of a person because of a purported risk as to how others might perceive them can and will be used in the future to justify the suppression of legitimate political expression because others might engage in unrest.
Djokovic made a public statement expressing disappointment but saying he respects the court’s ruling.
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