Case Notes Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Before January, not many of us knew a great deal about the Minister for Immigration’s power under s 133C(3) of the Migration Act 1958 (Cth) to cancel visas without any requirement to afford natural justice. The decision in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 highlights the extraordinary breadth of that power, and the very limited prospects that even an exceptional visa holder has of seeking to quash a cancellation decision. And the visa holder in this case truly was exceptional.
Novak Djokovic and his views on vaccination For the past decade, Novak Djokovic has dominated men’s tennis. One of the key contributors to his success has been said to be his complete professionalism in taking care of his body and mind. This dedication has led him to hold the world no. 1 ranking for a total of 356 weeks, to become the only man to win all majors twice, and to have almost been in position to reach his coveted 21st slam in January of 2022. Had he not been deported, he could have overtaken his rivals’, Roger Federer and Rafael Nadal’s, joint record of 20 majors each. Throughout the 2010s, Djokovic repeatedly indicated a preference for alternative methods of medicine. His 2013 book, Serve to Win, details his decision to adopt a gluten-free diet following consultation with a ‘holistic practitioner’ and in 2016-18, Djokovic added Spanish former-player-turnedmeditation-guru Pepe Imaz to his team, who brought the philosophy of Amor Y Paz (Love and Peace) to tennis coaching. During this period, Djokovic was affected by an elbow injury that many in his team (including his then coach Andre Agassi) believed would require surgery to heal satisfactorily. After some time off from competition, and a drop to 22nd place in the rankings, Djokovic grudgingly agreed to undergo the procedure in 2018, telling Simon Briggs of The Telegraph, ‘I am not a fan of surgeries or medications … I am
20 | BRIEF LAW WEEK | MAY 2022
Chris Burch
Chair, Young Lawyers Committee
just trying to be as natural as possible, and I believe that our bodies are selfhealing mechanisms’.1 Later, in 2020, Djokovic hosted several Instagram interviews with Chervin Jafareih, a former real estate agent and hedge fund manager turned wellness guru. These discussions became a platform for Jafareih to peddle various ‘wellness’ products such as ‘brain nutrients’, and included discussions on topics such as how prayer and gratitude can change toxic foods into healthy/ healing ones.2 In a livestream discussion with other Serbian athletes in April 2020, Djokovic stated he is opposed to vaccination and would not wish to be forced to take a vaccination in order to compete in international tournaments.3 Though Djokovic has more recently narrowed these remarks by referring specifically to a COVID-19 vaccine, such a vaccine was not available at the time and the comments led to widespread speculation within the tennis community that he may have been opposed to vaccinations more generally. In early 2020, Djokovic faced heavy criticism for the lack of social distancing procedures enforced during the Adria Tour; an exhibition tennis tour that was Djokovic’s brainchild. The tour was held across Serbia and Croatia, and resulted in a cluster of COVID-19 cases.4 Throughout 2021, Novak continued to decline to reveal his vaccination status, declaring it a private matter and reiterating his freedom of choice stance. Conversely, the 2021 Serbia Open — a clay court tournament which Djokovic was heavily involved in organising, and at which his younger brother Djordje held the role of the tournament director — offered vaccination clinics for players, coaches and officials.5 That led to speculation that perhaps Djokovic was honestly opposed only to being obliged to be vaccinated in order to compete, or that he might have been vaccinated but merely unwilling to disclose his vaccination status for privacy reasons. On 4 January 2022, Djokovic shared a post on Instagram with a caption stating
Vaughan Jameson
Law Student University of Notre Dame Fremantle
that he was heading to Australia with an ‘exemption permission’, providing what was at the time the most definite answer to the question of his vaccination status. 6 Djokovic landed at Melbourne airport late on 5 January 2022, was quickly escorted to passport control and was later formally interviewed by Australian Border Force officers. The interview lasted for 8 hours and resulted in the decision to cancel Djokovic’s visa and relocate him from the airport to the Park Hotel where he would remain under detention until the Federal Circuit Court later ordered he be released. The first definitive response Djokovic gave to an enquiry as to his vaccination status is found in the transcript of the interview with the Border Force officers in the early hours of 6 January. In response to the question ‘… regarding your vaccination, are you vaccinated[?] - - -’. Djokovic responded ‘I am not vaccinated’; repeating again in response to the clarification ‘- - - for COVID-19? Not vaccinated?’, ‘I am not vaccinated’.7
The visa cancellation and the Federal Court challenge When the decision made at the end of that long interrogation to cancel Djokovic’s visa was quashed, the Commonwealth’s Counsel informed the Court that the Minister for Immigration would consider whether to himself cancel Djokovic’s visa under s 133C(3). That power, relevantly, gives the Minister discretion to cancel a visa if they are satisfied that the presence of the visa holder in Australia is or may be, or might or would be, a risk to the health, safety or good order of the Australian community or a segment of it, and are satisfied that it would be in the public interest to do so. Its exercise also results in a person being excluded from Australia for three years, absent limited exceptions. The Minister exercised that power four days later, cancelling Djokovic’s visa for a second time. The hearing that followed before the full court of the Federal Court was remarkable both for how quickly it convened — on a Sunday morning within 2 days of the decision, and for what it
