Novak’s Immigration Saga started earlier in 2022 when he was interrogated at the Australian airport. Djokovic was earlier granted a visa to participate in the Australian open in Melbourne and the grant required valid Covid vaccination or alternatively a medical exemption which he got. However, that same visa that was granted to him was cancelled at the airport and he was then taken to immigration detention.
The first visa cancellation decision was taken on judicial review to the Federal Circuit Court where Judge Andrew Kelly overturned the cancellation decision given that Novak was not given procedure fairness nor a fair hearing. The main legal argument was that the cancellation occurred a couple of hours prior to the initial timeframe they
gave Djokovic to respond to the notice of intention to cancel his visa. In that matter, the government conceded that the process at the airport was not lawful and Djokovic won the court appeal.
A further cancellation was then made by Minister Alex Hawk, the Minister for immigration at the time under his own personal powers as authorised by s133C of the Migration Act 1958 on the basis that it was in the public interest to do so because the Serbian tennis star was a “talisman of anti-vaccination sentiment” and that
his presence in Australia might lead to “civil unrest” given his anti-vaccination views. This personal power is not subject to merits review. The Full Federal Court unanimously dismissed an application by Djokovic confirming that the Minister acted within his powers under legislation to cancel his visa.
Djokovic then departed Australia on 16 January 2022 after remaining in detention during the time of
his legal battle facing a 3 year ban of re-entering Australia.
Wide powers given under the Migration Act
The Migration Act gives very wide powers to government officials to cancel, refuse or revoke cancellations as they are pleased with real limitations on review depending on who made the decision. Another example is s116(e) of the Migration Act where a Minister’s cancellation can be simply based on a mere satisfaction (no actual evidence required) that the person “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”.
What is the 3-year ban exclusion period
The 3-year ban is authorised by Public Interest Criteria 4013 imposing a 3-year exclusion period if a person has previously had their visa cancelled starting from the date of cancellation. Most visas including a Subclass 408- Temporary Activity visa which Djokovic and other sportsperson would likely use to allow them temporary entry to compete in competitions such as the Australian Open is subject to this criterion.
The 4013 criterion can however be waived if “the Minister is satisfied that, in the particular case compelling
circumstances that affect the interests of Australia’ or ‘an Australian’ … ‘justify the granting of the visa within 3 years after the cancellation or determination’. This is the decision that was recently made for Djokovic allowing him to be granted a visa for Australia Open 2023.
However, as we learnt, being granted a waiver or a visa does not mean a successful immigration clearance at the
borders. Australia has very wide powers to refuse entry under the Migration Act or cancel a visa after being granted for any reason or another (as long as authorised by the law and within powers and following the correct
Australia’s public interest idea is very relevant when it comes to migration decisions. The Minister has a wide
discretion and decisions are made based on what is deemed fit to the public interest at the time. Public interest is not defined in the Migration Act and very hard to explain. For instance, in January 2022 the public interest was
deemed by the Minister that Djokovic remaining in Australia will lead to civil unrest given his anti-vaccination views. In November 2022, allowing Djokovic to come back to Australia to compete in the next Australian Open was deemed to be in Australia’s interest.
This idea of Australia’s interest/public interest is decided by the relevant minister and government at the time which is why immigration policies and impacts vary significantly with a change of government and since we have a new labour government since May 2022, we can expect to see some ongoing changes of policies and how powers are exercised.
Even though waiving PIC 4020 was a big win for Djokovic, as we learnt from his previous immigration battle, the
match was not finished, this was only the first round. The real win was the grant of Djokovic visa and his successful entry in Australia in December 2022.
This may or may not be the last time we hear about Djokovic’s visa and the only time we can be assured this has
ended is when we see him on the tennis court for the Australian Open.
If you require assistance with coming to Australia, feel free to contact our office on email@example.com or book a 10 minutes free chat with our lawyer.
DISCLAIMER: Immigration law is complex and is subject to constant regulatory and policy change by the Australian government. The information provided above is a general guide only and does not constitute legal advice. If you require legal advice please get in touch with our office.