A Tale Of Two VISA Cancellations
After a 12-day back-and-forth rally with Australian Government officials, tennis world number 1, Novak Djovokic, has officially been sent back home to Serbia. Djovokic will not be competing at the 2022 Australia Open tennis tournament.
There was plenty of news coverage both in Australia and across the world, and a lot was said about Novak’s vaccination status… Along with his alleged lack of concern for public health/safety, but not too much by way of reporting the actual legal issues at play in his case. So, we are here to address the crux of the issue and give a summary of the events that took place which ultimately led to his visa being cancelled. Twice.
Below is a summary of key dates and events along with the legal repercussions:
December 14, 2021: Djokovic attended a basketball game in Belgrade. It was later reported he was in contact with multiple people who tested positive to COVID-19.
December 16, 2021: After being notified he had been in contact with positive cases, he took a COVID-19 rapid antigen test in Serbia which came back negative. He also did a PCR test, but did not receive the result straight away.
This information was not made public until January, although his visa was cancelled prior upon arrival at Tullamarine Airport in Melbourne.
December 17, 2021: Djokovic attends a youth tennis player event in Belgrade, Serbia. He is seen across social media with young tennis players and parents.
Djokovic confirmed that on the morning of the event he did not have any symptoms. He confirmed that he took a rapid antigen test before the event that showed he was negative. However, the PCR test he did the day before came back positive only after the event.
December 18, 2021: Djokovic does an interview and photo shoot with the French newspaper L’Equipe. He does not disclose his positive COVID-19 PCR test.
He later came out in January and apologised on social media, stating “on reflection, this was an error” of judgement.
December 22, 2021: Djokovic tests negative for COVID-19 in Serbia and begins the process for a medical exemption to defend his Australian Open title in 2022.
January 4, 2022: Djokovic announces on social media that he is ”…Heading Down Under with an exemption permission”.
This was later confirmed by Tennis Australia stating Djokovic was on his way with a medical exemption. Also, he will be met with a thorough review process requiring two separate independent panels of medical experts. Neither Djokovic nor Tennis Australia reveals the basis for his exemption. Tennis Australia confirmed there were only a “handful” of exemptions granted out of the 26 applications from players or others.
At this stage neither Djokovic nor Tennis Australia have revealed the basis for his medical exemption. This sparks public clamour regarding his right to enter the country.
January 5, 2022: Djokovic arrives at Melbourne Tullamarine Airport at 11:30pm after a 15-hour flight from Dubai.
The Australian Border Force (ABF) held him at the airport for several hours due to concerns regarding his visa and medical exemption from vaccine requirements.
Eventually the ABF announced that his exemption was not valid. They confirmed that he failed to provide appropriate evidence to meet the entry requirements to Australia and his visa was consequently cancelled.
Furthermore, the Victorian state government announced that it had refused to formally support Djokovic’s visa application (despite being requested by Federal authorities to do so); on the grounds that the visa he attempted to enter Australia with does not allow for the exemptions for unvaccinated applicants.
Jaala Pulford (Victorian MP) stated “We will not be providing Novak Djokovic with individual visa application support to participate in the 2022 Australian Open ….We’ve always been clear on two points: visa approvals are a matter for the federal government, and medical exemptions are a matter for doctors.”
As far as the Australian Technical Advisory Group on Immunisation (ATAGI) is concerned, the criteria for an acceptable medical exemption range from:
Acute major medical conditions to any serious adverse event attributed to a previous dose of COVID-19 vaccine.
For those who have recently tested positive, that can be a temporary exemption from vaccination for six months – which is exactly what happened to Djokovic.
It has been reported and should be noted that the ATAGI was not involved in the procedures that Tennis Australia and the Victorian government put in place. A travel exemption from the border force was not requested and the Commonwealth was not engaged.
In essence, despite Djokovic having a medical exemption to compete, his visa application that will allow him into the country was a matter for the Federal Government. I.e: in the hands Australian Prime Minister, Scott Morrison or the Home Affairs Minister, Karen Andrews.
Scomo stated Djokovic provided insufficient proof for his medical exemption and that he wouldn’t be treated any differently to anyone else trying to enter the country.
Karen Andrews seconded the above statement suggesting Djokovic did not provide “acceptable proof”.
January 6, 2022: Djokovic is sent to an immigration hotel for four nights after having his visa cancelled.
Scomo tweets: “Rules are rules, especially when it comes to our borders.”
January 10, 2022: In support of his Court application, an affidavit is submitted by Djokovics’ legal team to overturn his visa cancellation. The affidavit states that he is not vaccinated for COVID-19 and the matter is heard in the Federal Circuit Court.
On the grounds that Djokovic was not given enough time to speak to his lawyers before the decision to deny him entry into the country; Judge Anthony Kelly reinstated Djokovic’s visa.
An order to release Djokovic from immigration detention was made by Judge Kelly.
The Court documents provided by Djokovics’ legal team state that his contraction of COVID-19 on the 16th of December was the reason for his medical exemption.
It is on record that this exemption and reasoning was accepted and an exemption was granted on the 30th of December by Tennis Australia as well as the independent medical panels of the Victorian Government. However, the Australian Border Force (which is a Federal Department) decided Djokovic against this and did not find that he had satisfied the entry requirements.
January 11, 2022: With his visa still up in the air, Djokovic was still installed as the No 1 seed for the Men’s Australian Open tournament.
At this stage, the social media images that were mentioned above began to surface and make waves across publications and media outlets.
The Australian Border Force then began investigating his pre-flight declaration following the news of his movements two weeks before his flight from Spain to Australia on 4 January, 2022.
Djokovic later released a statement. “I want to emphasise that I have tried very hard to ensure the safety of everyone and my compliance with testing obligations,” he said.
He confirmed that he attended the basketball game in Belgrade on the 14th of December as well as the youth tennis event on the 17th of December 2022.
He also confirmed that he did in fact do a PCR test on the 16th which later came back positive (the night of the 17th) but did have 2 negative rapid antigen tests results.
Unfortunately, he did admit to attending the L’Equipe interview on the 18th of December 2022; despite knowing he was COVID positive as he “felt obliged” and “didn’t want to let the journalist down”. He believes he socially distanced and wore a mask except while photos were taken.
After the interview, he went into isolation for the required period, and believes this was “an error of judgement” and states “I accept that I should have rescheduled this commitment”
January 12, 2022: Djokovic states there were mistakes made on his travel declarations by his agent which he referred to as “human error and certainly not deliberate”.
His declaration failed to mention that he had travelled to multiple countries 14 days before arriving to Australia.
January 13, 2022: Djokovic is included in the Australian Open draw.
January 14, 2022: Immigration Minister, Alex Hawke’s ministerial discretionary powers were used to revoke Djokovic’s visa for “health and good order grounds, on the basis that it was in the public interest to do so”.
Hawke believes Djokovics’ recent reckless behaviour while being COVID positive meant he was a “negligible risk to those around him; that he was being “perceived by some as a talisman of a community of anti-vaccine sentiment”.
Hawke was under the impression that-
“Mr Djokovic’s ongoing presence in Australia may lead to an increase in anti-vaccination sentiment generated in the Australian community. Potentially leading to an increase in civil unrest of the kind previously experienced in Australia with rallies; and protests which may themselves be a source of community transmission.” Especially considering he is a “person of influence and status”.
Alas, Djokovic’s visa was cancelled under the extraordinary and broad powers vested in the Immigration Minister. Under section 133C(3) of Australia’s Migration Act, introduced in 2014 (which FYI was enacted in 2014 when Scomo was the Immigration Minister).
Djokovic having his visa cancelled under this section means that he will be barred from entering Australia for the next three years, except in extraordinary circumstances. “That affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen”.
Djokovic’s lawyers immediately appealed the decision by Hawke.
January 15, 2022: Federal Court Judge David O’Callaghan in a 15-minute procedural hearing held via video conference. He states that Djokovics’ lawyers and the Australian Government must submit a written argument regarding the appeal of Hawke’s decision.
January 16, 2022: A three-judge panel in the Federal Court dismissed an appeal by Djokovic to overturn his visa cancellation in a unanimous and final ruling.
He was set to be deported and the tennis world number 1 was sent back to Serbia later that day.
Some people have said that, in the first instance, he “won on a technicality”, and in the second instance, the Court was “pro-vax”, but that is not the case at all. Both challenges, and decisions, were made within the bounds of the law; which was really only concerned with the process and procedure adopted, much like an administrative review.
In other words, in both cases, the issue was not whether the decision to refuse entry could legally be made (it could). Rather, the Court had to look to whether the decision-maker followed correct protocol and exercised the decision-making power correctly.
As such, the issue did not so much come down to the merits of the case, or whether someone was “pro-vax” or “anti-vax”. Whether all circumstances were relevant, taken into account and formed a proper basis for making a decision one way or another. It does, however, shed light on whether there are gaps in the immigration laws in our country. Others subject to such administrative or judicial review, and whether more specificity is required to guide those making decisions as to what grounds might constitute a refusal to allow certain things, and what can and cannot be considered.