A reflection on the Djokovic Australian visa saga in 2022

Marial Lewis
Crossover Law Group, Sydney, New South Wales
marial@crossoverlaw.com.au

Australia has some of the strictest rules relating to restrictions on entry, border control, visa cancellation, immigration detention and deportations from the country.

The world had something of a taste of what Australia’s immigration rules look like earlier in 2022, when tennis player Novak Djokovic was granted a visa to enter Australia to participate in the 2022 Australian Open Tennis competition with a medical exemption allowing him to enter without being ‘fully vaccinated’.

The first cancellation

Djokovic was, however, denied entry to Australia on 6 January 2022, following his visa cancellation at Melbourne airport due to his unvaccinated status which opposed border entry Australia’s requirement. He was then sent to an immigration detention centre while his appeal to the court was being processed.

The appeal was heard within a few days, on 10 January 2022.[1] In that hearing, Justice Kelly made a finding in Djokovic’s favour on the basis that he was not provided with a reasonable opportunity nor sufficient time to respond at the airport interview which was conducted very early in the morning. Djokovic was then released from detention and announced his participation in the tournament.[2]

The second cancellation

On Djokovic’s release, his visa was cancelled for the second time a few days later, on 14 January. The visa this time was cancelled personally by the then-Minister of Immigration, Alex Hawke. The reason for its cancellation was that it was in the public interest to do so with the idea that as a role model he would encourage others to follow his footsteps in refusing to take the Covid-19 vaccination. It also came to light that Djokovic lied on his travel declaration form, which is viewed very seriously in Australia, and that he had participated in a public event in his home country, Serbia, a day after testing positive with Covid-19.[3]

On 15 January 2022, Djokovic was taken back to immigration detention. His appeal before the full federal court was dismissed unanimously the following day, finding that the Minister’s decision was not illogical nor irrational.[4] The court finding was that:

‘It was not irrational for the Minister to be concerned that the asserted support of some anti-vaccination groups for Mr Djokovic’s apparent position on vaccination may encourage rallies and protests that may lead to heightened community transmission.’

The court further confirmed that the Minister did not have to give reasons for his decision, but he did anyway.[5]

Lessons highlighted from this ordeal

This whole saga reflects four aspects of Australia’s immigration system:

Broad ministerial power

The Minister has broad powers under the Australian Migration Act to cancel someone’s visa if they think it is in the public interest to do so. In fact, Australian laws allow for cancellations of visas either on a mandatory or discretionary basis through various sections of the Migration Act. In this case, the Minister for Immigration used his discretionary powers to cancel Djokovic’s visa because it was in his opinion that it was in the public interest to do so. Public interest is not defined in the Migration Act in Australia, and it is up to the Minister to decide on the issue, giving very broad powers to the Minister. The public frustrations were in relation to giving an exemption to a famous tennis player when Australians endured very harsh lockdown rules due to the pandemic including strict restrictions on normal day-to-day activities including attending funerals and conducting weddings and visiting sick loved ones in hospital.

Immigration detention

Djokovic’s detention which was for a total of five days sparked attention in relation to the whole immigration detention regime. People in Australia can be detained for several years while their appeal is being processed with some in indefinite detention.[6] The detention system in Australia is flawed, expensive, and unfair to many including refugees who are waiting for their applications to be finalised.

Expedited matters in courts

The speed of which the matters were heard in relation to both Djokovic’s court appeals is extraordinary. Of course, injunctions can be obtained on occasions when an applicant is faced with immediate removal from Australia, but the reality is that the court system and the appeal system is very slow in general and in many cases takes years. The unfortunate outcome is that people remain in detention during that period and, unlike Djokovic, that is not necessarily a matter of days but rather a matter of years.

Politics and immigration decision are intertwined

Immigration laws and actions can be politically motivated and heavily reflect a certain sentiment coming from the public. It was perceived by the public as extreme unfairness that a famous tennis player gets an exemption to compete in an international competition when for two years, Australia had refused travel exemptions in and out of the country to many separated families and loved ones including in many compassionate cases. Similarly, exemptions were not granted by the government to many in Australia to move freely within the country.

​​​​​​​Conclusion

Border entry, detention and deportation have always been part of any nation however during the Covid-19 pandemic, each country put in place its own rules concerning these procedures. Djokovic’s Australian visit in early 2022 highlights exactly what can occur in instances where a person’s belief or views are contrary to the country they are visiting. Furthermore, this situation highlighted other aspects of the Australian immigration systems such as the broad powers given to cancel someone’s visa then detain them and deport them from Australia.