Novak Djokovic v Minister for Home Affairs – the facts?

Headlines have been made around the world following the decision on 6 January 2022 by a delegate of the Australian Minister for Home Affairs (Delegate) to cancel tennis player Novak Djokovic’s (Djokovic) Temporary Activity (subclass 408) visa (Visa).  On 6 January 2022 lawyers for Djokovic applied to the Federal Circuit and Family Court seeking orders that the decision of the delegate be overturned.

The dispute involved issues of procedural fairness, particularly concerning the timeframes and the circumstances surrounding the visa cancellation.  On 10 January 2022 orders were made by Kelly J declaring the decision of the Delegate cancel Djokovic’s visa be quashed and to organise his immediate release from immigration detention.  This article discusses the background to this case, findings and what really happened.

Background to the decision of the Federal Circuit and Family Court

Djokovic arrived at Melbourne’s Tullamarine Airport from Dubai shortly before midnight on 5 January 2022, holding a Visa.  Around 4:11am on 6 January 2022 and following interviews with officers of the Australian Border Force (ABF), Djokovic was given a notice of intention to consider cancellation of the Visa (Notice) under s116 of the Migration Act 1958 (Cth)(Act).  Djokovic’s visa was subsequently cancelled at 7:42am by a Delegate of the Minister for Home Affairs (Respondent).

On 6 January 2022, Djokovic’s legal representative applied to the Federal Circuit and Family Court of Australia.  The application listed several grounds for setting aside the Respondent’s decision, including (initially) that:

• illogicality/ irrationality in regard to the Australian Technical Advisory Group on Immunisation (ATAGI) principles;
• illogicality/ irrationality as to extenuating circumstances; and
• procedural fairness.

We note however that the application was amended to include further subclasses of these points on 7 January 2022.

Breaches of The ATAGI principles

Djokovic’s lawyers argued that the Delegate failed to give requisite notice under the Act and erred in the purported formation of state of satisfaction.

Extenuating circumstances

Djokovic’s lawyers argued there was an error in purported exercise of discretion under s116 of the Act.

Procedural fairness

As part of Djokovic’s submissions, it was argued that the overall process involved practical injustice to the applicant.  The following relevant circumstances occurred on 6 January 2022:

• Djokovic was given the Notice at or around 4:11am;
• the Notice stated Djokovic was invited to provide comments at an interview at 4:35am the same day – some 24 minutes later;
• prior to 6:07am, Djokovic requested additional time to rest and speak with Tennis Australia and his legal representative – an ABF officer graciously allowed him to have until 8:30am;
• according to Djokovic’s affidavit, at or around 7:30am, an ABF officer allegedly said to Djokovic words to the effect that his lawyers would not be able to do anything to help him until a decision was made, so it would be best if he answered their questions about his medical condition then and there; and
• the decision to cancel Djokovic’s visa was purportedly made at or around 7:42am.

In total, the time taken from first issue of the Notice to the decision being made by the Delegate was approximately 3 hours and 31 minutes (and in the early hours of the morning).

A transcript of interviews conducted by the ABF shows that Djokovic explained he had been provided a medical exemption by a panel established by the Victorian Government and had been in close contact with Tennis Australia for weeks to ensure he was able to comply with the Australian entry requirements.

In response to the Notice, he said he:

“wanted some help and legal support and advice from [his] representative that [were] currently sleeping and [were] difficult to get a hold of at this early hour.”

According to Djokovic’s affidavit, conversations occurred outside of the interview and were not included in the transcript.   It was during one of these conversations ABF officials or supervisors allegedly told Djokovic:

“the sooner that they make a decision, the better for me and my representatives. They said that if they did not cancel my visa, then I would be free to go and I could go to where I was to stay while in Melbourne. They said that if they cancelled my visa, then my lawyers would know what they had to deal with, and could do their legal work to challenge the cancellation. At this point I felt that they were trying to persuade or convince me that it would be better if I responded to the notice earlier rather than later, and that I should do what they were saying.”

Djokovic told the ABF officers that he was confused and had done “absolutely everything” required of him to enter the country.  He repeatedly requested to speak with lawyers, his agent and Tennis Australia – all of which seemed impossible in the time provided.

During the hearing, lawyers for Djokovic argued procedural unfairness, as had the process to allow the interview at 8:30am been followed, Djokovic would have had a chance to consult others and make representations, however he was denied such an opportunity.  Access to his lawyer could have assisted Djokovic with aspects before a decision was made including addressing various reasons why the Visa should not be cancelled.

Orders

On 10 January 2022 Kelly J ordered the decision to cancel Djokovic’s visa be quashed and that he be immediately released from immigration detention.  Judge Kelly declared that he was somewhat “agitated” with the situation, particularly given that Djokovic had received a medical exemption by an independent panel, which was established by the Victorian state government and had done everything he possibly could have.  A notation in the order states the Respondent conceded that the delegate’s decision to cancel Djokovic’s visa was unreasonable in the circumstances.

Takeaways

There has been a lot of commentary and speculation by the media and on social media, however the order of Kelly J demonstrates the decision by the delegate to cancel Djokovic’s visa was unreasonable.  The decision shows that Djokovic followed directions and had a genuine belief that he was legally allowed to enter Australia, moreover he was denied natural justice by ABF.

The case might not be over yet – The Minister for Immigration has a personal discretion to cancel Djokovic’s visa, however this decision would result in a three (3) year ban from Australia.   As Kelly J put it in Court,  “what more could this man have done?”

Links and further references

Legislation

Migration Act 1958 (Cth)

Cases

Novak Djokovic v Minister for Home Affairs – links to actual material on the Federal Circuit Court website.

Further information about litigation and disputes

Dundas Lawyers does not advise on migration law, however we found this case interesting due to its high profile nature, the speed at which it was dealt with by the Court and the gossip running rampant throughout the media.  Kudos to Djokovic’s legal team for filing the application to the Federal Circuit and Family Court at such short notice and ensuring proper ventilation of the issues.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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