The recent events, even saga, concerning Novak Djokovic when he arrived in Australia to play in the Australian Open Tennis Championship (www.ausopen.com) received global and extensive media attention. It was remarkable that such a globally renowned sportsperson, being the world’s number one ranked men’s tennis player, should have had the issues that he had and should subsequently have been required to leave Australia without having played in the tournament. It was an unheard of situation. The events that occurred drew significant criticism of a number of stakeholders including the Australian Government, Tennis Australia (being the tournament organiser) and Mr Djokovic’s management team.
The events that unfolded prompted many questions to be asked and the authors have prepared this paper with a view to trying to provide some answers and some explanations. The paper constitutes a summary of events.
A visa and a medical exemption
All entrants to Australia need to have a visa. There is a variety of types of visa that can be issued. The grant of a visa to Mr Djokovic was never an issue in this case, and visas are routinely granted almost automatically to any participant in the Australian Open, or similar events, The problem lay with the information and documents provided by Mr Djokovic in relation to the medical exemption that he claimed from the requirement that all entrants to Australia had to be double vaccinated. The requirement for double vaccination for any entrants to Australia has been in place for some significant time prior to Mr Djokovic’s entry into the country and that requirement has been strictly enforced by the Government, with a view to trying to control and restrict the number of Covid related infections in Australia.
Mr Djokovic, like many other people, had expressed his own anti-vaccination views and, to some degree, was held in very high esteem by members of the anti-vaccination movement. Much was made in the media and in commentary of those views but, so far as concerns the legal aspects of the events that transpired, his personal views became irrelevant. All that mattered was whether or not he had complied with the necessary legal requirements.
Mr Djokovic’s entry into Australia
Mr Djokovic arrived in Melbourne on 5 January 2022 at about midnight. Prior to his departure from the Middle East for Australia, Mr Djokovic, on 4 January, uploaded a post in which he stated that he would be going to Australia as he had obtained a medical exemption. When he arrived, he was questioned, in immigration clearance, by Officers from the Australian Border Force (“the ABF”). They questioned the grounds and the validity of the medical exemption. Mr Djokovic was kept in immigration clearance until the early hours of 6 January when the ABF decided that the information and material that had been provided by Mr Djokovic was not sufficient to justify the grant of the medical exemption. The Government’s guidelines for the grant of an exemption had been openly and clearly published online for some time. As with all regulations or requirements, sometimes there is scope for argument as to the correct interpretation of them.
Following the decision of the ABF, they cancelled his visa and Mr Djokovic was taken to a quarantine hotel in Melbourne where he stayed. The decision to cancel was made by Officers of the ABF pursuant to delegated powers held by them.
Mr Djokovic’s first application to the Federal Circuit and Family Court of Australia (“the FCFCA”)
On 6 January 2022, Mr Djokovic applied to the FCFCA to challenge the decision made earlier that day cancelling his visa. The hearing of the application was, understandably so, heard on an urgent basis and a Judge of the FCFCA granted an interim injunction restraining Mr Djokovic’s removal from Australia. The application was listed for final hearing on 10 January. On that day, the Court found in favour of Mr Djokovic and ordered that the cancellation of his visa be set aside. The Court found that Mr Djokovic had been denied procedural fairness, or, alternatively described, natural justice…
The exercise of Ministerial discretion
Pursuant to Section 133C of the Migration Act 1958, the Minister for Home Affairs has a discretion to cancel a visa This is a power vested in the Minister personally, it is not a power that can be delegated (unlike in respect of the earlier cancellation). The Minister may cancel a visa if satisfied that ti would eb in the public interest to do so. Section 133C of the Act expressly provides that the Ministerial power is not subject to the rules of natural justice (unlike the earlier decision to cancel, which was).
After lengthy and careful consideration, on 14 January, the Minister decided to exercise his discretion and decided to cancel Mr Djokovic’s visa. As is clear, the grounds upon which the Minister decided to exercise his personal discretion differed from the grounds upon which the ABF originally cancelled Mr Djokovic‘s visa. That decision was one of enormous importance given the imminence of the commencement of the tennis tournament and given the wider debate about the extent to which Governments around the world impose restrictions upon the freedoms of their citizens. The potential for political backlash was enormous.
Mr Djokovic’s second application to the FCFCA
On 14 January, Mr Djokovic made oral application in the FCFCA challenging the decision by the Minister to cancel his visa, with written material to be provided very promptly. Given the significant importance of the challenge, both in relation to Mr Djokovic personally and the consequences of a judicial ruling in so far as it may have concerned others, the FCFCA transferred the matter for determination to the Federal Court of Australia (“the FCA”), a superior Court to the FCFCA. In the normal course, applications to the FCA are heard by a single Judge. However, on this occasion, with a view to excluding the possibility of an appeal, the Chief Judge of the FCA decided that the application should be heard by three Judges of that Court.
On 16 January, the FCA dismissed Mr Djokovic’s application. The Court emphasised that, in giving its judgment, it expressed no view whatsoever on the merit of the various pro and anti-vaccine arguments. The hearing before the Court was simply to determine whether or not the Minister, in exercising his personal discretion, had made any error of law. The Court was only concerned with any errors of law on the part of the Minister. The Court did not find any such errors. The Court hearing was not concerned with any issue as to whether or not the medical exemption held by Mr Djokovic was valid or otherwise.
Mr Djokovic’s departure from Australia
In view of the decision of the Court, Mr Djokovic left Australia. The media frequently suggested that Mr Djokovic had been deported but, so far as is known, that was not the case. A person is only deported once a deportation order has been signed by the Minister. Deportation orders are routinely not issued when a person decides to voluntarily leave the country. Given the events that occurred, undoubtedly Mr Djokovic simply decided to voluntarily leave the country.
Summary
The events that occurred caused considerable consternation in many respects. It caused consternation politically, both domestically and internationally, it caused consternation within the tennis community, it caused consternation between pro- vaccination groups and anti-vaccination groups and otherwise detracted from one of the world’s major sporting events. This paper does not seek to attribute blame to any individuals or any organisations. It appears that, upon reflection, a number of interested stakeholders could and should have attended to matters in a more effective way, and which would have avoided the events that occurred.
Copies of the two judgments may be found at:
https://www.fcfcoa.gov.au/migration-law/online-file/djokovic
https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/djokovic
This paper has been prepared by Barrie Goldsmith, Special Counsel, and Josh Miller, Law Clerk, of Rostron Carlyle Rojas Lawyers, with offices in Adelaide, Brisbane, Melbourne, Perth and Sydney.