COVID-19 Update – Vaccination and Immigration: Djokovic v Minister for Home Affairs

Yesterday, the Federal Circuit and Family Court of Australia (FCFCA) overturned a decision of the Minister for Home Affairs (Minister), made by a delegate, to cancel the current world number 1 tennis professional, Novak Djokovic’s (Djokovic) temporary visa (Minister’s Decision).  At 5.16pm yesterday afternoon, Kelly J of the FCFCA gave orders from the bench by consent that Djokovic’s visa be reinstated so that he can play in the Australian Tennis Open commencing on 17 January 2022 in Melbourne Park.

Although Kelly J’s orders were made orally without written reasons published, this article offers a high level outline of the background, arguments, orders and ramifications from yesterday’s hearing in Djokovic v Minister for Home Affairs, which will no doubt have impacts on the treatment of unvaccinated foreign passengers entering Australia in future. 

The FCFCA’s online court file, with each party’s written submissions, can be accessed here.

What does this mean?

By overturning the Minister’s Decision to cancel Djokovic’s visa and reinstating the visa, the FCFCA’s orders remind us of the importance of procedural fairness and natural justice, including in decisions made by Ministers of the executive branch of government.

It is clear from Kelly J’s orders that vaccination status may not stand in the way of visa approvals for foreign passengers arriving in Australia.  It is yet to be seen whether the Australian government will make changes to the current medical exemption rules around COVID-19 vaccinations for visas in light of Djokovic’s court victory.

However, it appears that Djokovic’s win in court yesterday was not actually game, set and match – watch this space for whether the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs exercises his personal power to cancel Djokovic’s visa, notwithstanding Kelly J’s orders.  It seems the ball is in the court of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

Background / facts

Djokovic is a 34-year-old Serbian male tennis professional, who is currently ranked number 1 in the world by the Association of Tennis Professionals.  Djokovic arrived in Australia ‘just before midnight on 05 January 2022’ to defend his championship ranking by competing in the Australian Tennis Open tournament taking place between 17 to 30 January 2022 at Melbourne Park in Victoria.[1]

At the time of arriving in Australia, Djokovic held a subclass 408 Temporary Activity visa, which was granted to him on 18 November 2021 without any conditions relating to his COVID-19 vaccination status.

Evidence and submissions considered by the FCFCA during the hearing indicated that Djokovic received prior written confirmation from both Tennis Australia and the Victorian State Government that his medical exemption from COVID-19 vaccinations would not interfere with his entry into Australia.

However, Djokovic’s court documents allege that at around 7.42am on 6 January 2022, the Minister through her delegate decided to cancel Djokovic’s subclass 408 visa.  On 6 January 2022, Djokovic commenced proceedings in the FCFCA to overturn the Minister’s Decision.  Djokovic remained in mandatory immigration detention until around lunch time yesterday, before the FCFCA gave its orders orally from the bench.

What did Djokovic ask the Court to decide?

Djokovic’s application filed on 6 January 2022 asked the FCFCA to make the following orders on an urgent and expedited basis to ensure that Djokovic would be able to compete in the Australian Tennis Open tournament commencing on 17 January 2022:

• An interlocutory order restraining the Minister from removing Djokovic from Australia until the determination of Djokovic’s court proceedings

• A final order that the Minister’s Decision be overturned and

• A final order restraining the Minister from making a future decision to remove Djokovic from Australia.

What did Djokovic argue?

Djokovic advanced several complex legal arguments why the Minister’s Decision ought to be overturned in 35 pages of written submissions.  Those arguments included: invalidity of the Minister’s notice of intention to consider cancellation of the visa, errors by the Minister in interpreting the rules for vaccination exemptions, and errors in the written form of the Minister’s Decision.

However, the crux of Djokovic’s argument was that it was unfair for the Minister’s delegate to cancel his visa on very short notice, early in the morning, before Djokovic was given an opportunity to seek advice and make submissions on why his visa should not be cancelled.

Djokovic said that he was held in immigration clearance without his phone or any communication devices from around midnight until 8.00am on 6 January 2022.  Djokovic’s submissions state that at 4.11am, the Minister’s delegate gave Djokovic a notice of intention to consider cancelling his visa.  Djokovic was interviewed at around 6.07am, the delegate made the Decision at about 7.29am, and only informed Djokovic of the Minister’s Decision at around 7.42am.  However, the Minister’s Decision was made despite the delegate agreeing to give Djokovic until 8.30am to provide his comments on why his visa should not be cancelled.  By cancelling his visa before the agreed time for Djokovic’s responses at 8.30am, Djokovic says the delegate denied him procedural fairness.

What did the Minister argue?

In her defence, the Minister argued that, even if there were some imperfections in the Minister’s Decision (which the Minister denies), then any imperfections fall short of illogicality or unreasonableness as alleged by Djokovic.[1]  Further, the Minister argued that unvaccinated persons carry greater health risks of spreading COVID-19 and further burdening the Australian health system and thus the Minister’s Decision to cancel Djokovic’s visa was valid and should be upheld.[2]

In addition, the Minister disagreed that Djokovic was denied procedural fairness and said that it is irrelevant whether the Minister’s delegate made a ‘grossly inadequate summary’ of Djokovic’s representations.  Rather, it matters only whether the Minister considered the representations at all, which she says she did.

Ultimately, though, the Minister conceded by agreeing to orders overturning the Minister’s Decision, and freeing Djokovic from detention, which were made by Kelly J.

What did the Court order?

Kelly J made the following orders at 5.16pm on 10 January 2022 orally from the bench:

• The decision of the delegate (of the Minister) to cancel Djokovic’s temporary subclass 408 visa made on 6 January 2022 be quashed.

• The Minister pay Djokovic’s legal costs (including any reserved costs) as agreed or assessed.

• The Minister is to take all necessary steps to cause:

  • Djokovic to be released immediately and forthwith from immigration detention and, without limitation thereto, such release must occur by no later than 30 minutes after the making of the order and

  • Djokovic’s passport and all other personal affects to be returned to him as soon as reasonably practicable after the making of the order.

The Court also read the following notations onto the record as part of the orders made: 

• The Minister concedes that the delegate’s decision to proceed with the interview and decide to cancel the visa under s 116 of the Migration Act 1958 (Cth) was unreasonable in circumstances where:

  • Djokovic was told at 5.20am on Thursday, 6 January 2022 that he could have until 8.30am to provide comments in response to a notice of intention to consider cancellation under s 116 of the Migration Act

  • Djokovic’s comments were then sought at about 6.14am instead

  • The delegate’s decision was made at 7.42am

  • Djokovic was thus denied until 8.30am to make comments

  • If Djokovic had had until 8.30am, he could have consulted others and made submissions to the delegate about why his visa should not be cancelled.

By the above orders and notations, Djokovic’s argument that he was denied procedural fairness apparently prevailed.  At one point, Kelly J referred to the ‘deal’ between the delegate and Djokovic (that Djokovic be given until 8.30am to respond to the notice before a decision was made) as having been ‘reneged’ on by the delegate. 

Earlier in the hearing (at approximately 11.30am), Kelly J remarked:

‘Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption. Further to that, that medical exemption and the basis on which it was given was separately given by a further independent expert specialist panel established by the Victorian state government and that document was in the hands of the delegate.

The point I am agitated about is ‘what more could this man have done?’

Sensationally, after Kelly J read the Court’s orders onto the record, counsel for the Minister informed the Court for the record that ‘the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (not the Minister in these proceedings) will consider whether to exercise a personal power of cancellation [of Djokovic’s visa] under s 133C(3).’  In effect, it was foreshadowed that the Australian Federal Government might have another shot at cancelling Djokovic’s visa.

In light of this statement from the Minister’s barrister, Kelly J expressed concerns to the parties about increasing stakes, time restraints and the interests of justice.  Time will tell whether further action is taken to cancel Djokovic’s visa again.

[1] Applicant’s Outline of Submissions 8 January 2022, 1 [1].

[2] Respondent’s Outline of Submissions 9 January 2022, 7 [45].

[3] Respondent’s Outline of Submissions 9 January 2022, 7 [46].

If you have any questions arising from the contents of this article, or public/administrative law generally, please get in touch.

Authors: Adam Cutri and David de Mestre