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.

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 21 st 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

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 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

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

and the decision that followed reveal about the nature of the Minister’s power to cancel visas.

The Court was at pains to get across to the tens of thousands of viewers of its livestream that it was not in a position to consider the merits or wisdom of the Minister’s decision; only its lawfulness by reference to the complaints made by Djokovic’s legal team.

Those complaints related broadly to the findings open to the Minister on the material before him, and to whether the Minister should have but did not compare the consequences of cancelling Djokovic’s visa against the position if he were allowed to remain in Australia.

Each was dismissed.

As to the proposition that it was not open to the Minister to conclude Djokovic had a well-known stance in opposition to vaccination, the Court simply noted he had previously expressed views about his opposition to vaccination, and had not by January 2022 become vaccinated: [71], [72], [74]. In those circumstances, it was plainly open to the Minister to infer Djokovic was opposed to vaccination or did not wish to be vaccinated: [74], [76].

Next, the Court dispensed with the argument that the Minister lacked evidence that Djokovic’s presence in Australia may foster anti-vaccination sentiment: [78]. It was open to the Minister to infer that Djokovic was publicly perceived as not in favour of vaccinations, had chosen not to be vaccinated, and that anti-vaccination groups portrayed Djokovic as a hero and icon of freedom of choice: [79]. While protests had occurred only after the first cancellation decision, the Court found Djokovic’s apparent position on vaccination may nevertheless encourage rallies and protests, and may lead to heightened community transmission: [81], [83], [85]. More than that, the Minister relied on Djokovic’s stance affecting those who may be uncertain or wavering as to whether to be vaccinated: [80]. The latter effect did not need evidence; it arose from common sense and human experience — an iconic world tennis star may influence people, especially the young and impressionable, to emulate him: [82]. Further, that Djokovic had recently attended public activities while COVID positive to his knowledge and without wearing a mask left open the inference that, if emulated, his behaviour may encourage breaches of public health

regulations: [86].

Finally, the Court addressed the contention that the Minister should have but did not consider whether cancelling Djokovic’s visa may itself foster antivaccination sentiment: [92]. It simply wasn’t necessary for the Minister to consider and weigh that potential consequence where the power to cancel Djokovic’s visa arose once the Minister was satisfied that his presence in Australia may be a relevant risk: [95]. The Minister was not required to consider the consequences of cancellation by way of a counterfactual: [95]. The Court noted, though, that it was open to the Minister to consider that potential consequence in assessing the public interest or in exercising his discretion: [96], [97]. The Court concluded the Minister was aware of ‘any number of’ consequences that might ensue from cancellation, including unrest, but was to be taken as not having regarded them as something necessary to weigh in making his decision: [100]. In any event, the Court identified that any failure to consider the potential consequences of cancellation would not affect the group that was hesitant or unwavering about getting vaccinated, who would not be influenced by

Djokovic’s absence from as they would his presence in Australia: [101].

In its decision, the Court explained how the Minister’s power to cancel visas arose.

First, it made plain that it need not be the fact that Djokovic was a risk to the health, safety or good order of the Australian community, only that the Minister be satisfied that his presence may or might be such a risk: [20], [41]. Those words, introduced into the Migration Act in 2014, lowered the requisite threshold of satisfaction to that of a possibility: [36].

Next, where the Minister’s satisfaction turned on factual matters on which reasonable minds could reasonably differ, Djokovic’s battle to show that no reasonable Minister could have cancelled his visa was ‘very difficult’ and ‘not easily made’: [27], [33].

Meanwhile, the Minister’s task was only to consider future possibilities by drawing inferences from known facts, based on reasonable conjecture within the parameters set by historical facts, and by taking into account common

sense, a reasonable appreciation of human experience and the Minister’s and Department’s personal or specialised knowledge: [39].

All of that highlights the hard task Djokovic faced in challenging the Minister’s decision. He set to that task with a highly paid and well-resourced legal team and eminent counsel. They were able to prepare for a final hearing within days. But they were unable to overcome the breadth of the Minister’s power.

Djokovic is exceptional in another way, then. Very few visa holders could hope to fund such a thorough legal challenge, and to have it heard in so short a time. Instead, many former holders of cancelled visas find themselves in immigration detention — somewhere Djokovic spent only days while others languish indefinitely. In the Park Hotel alone, which Djokovic endured for a countable number of hours, are refugees and asylum seekers who have spent years of their lives detained. 8 Assuredly, they are unlikely to all have been represented by leading silks and large law firms in their legal challenges.

What they have in common, though,

is how unlikely their challenges were to succeed in the face of a Minister’s unilateral power to cancel visas, once satisfied only of a future possibility, and whether or not a person in fact poses any risk at all.

Perhaps the inquiry that will inevitably flow from Djokovic’s deportation should not be into the tripartite debacle of the Commonwealth, Victoria and Tennis Australia, but instead into how our immigration system leaves the lives of the powerless subject to a single person’s whim.