There are a number of ways the Australian Government can cancel a visa on short notice. Some visa cancellations occur on a mandatory basis on character grounds. Alternatively, a visa can be cancelled by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister for Immigration) through the use of their discretionary powers under the Migration Act 1958 (the Act).
The recent case of Novak Djokovic v Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs [2022] FCAFC 31 sets out two of the cancellation powers available to the Minister for Immigration. This article considers key aspects of Mr Djokovic’s case and why he had his visa cancelled not once, but twice, and for two very different reasons.
Why was Mr Djokovic’s visa granted and then cancelled upon his arrival in Australia?
Mr Djokovic was granted a Temporary Activity (subclass 408) visa (the visa) on 18 November 2021
by the Department of Home Affairs. Under the terms of the visa, he was eligible to enter and remain in Australia for a period of 3 months from his first arrival in Australia on the visa.
On 5 January 2022, Mr Djokovic arrived at Melbourne Tullamarine Airport at about 11:30pm. Soon
after his arrival, Mr Djokovic was detained by a delegate of the Department of Home Affairs (the
delegate) for questioning. Of particular significance was the fact that the questioning continued for
some 8 hours and, for the most part, Mr Djokovic was incommunicado with his team and his lawyers, because he was told to switch off his phone and put it away. Mr Djokovic was not able to call anyone, not even his lawyers, during the hours of 11:30pm to about 8:00am the following morning. As the questioning continued throughout the early hours of 6 January, the following events occurred:
(1) at about 4:11am Mr Djokovic was given a notice of intention to consider cancellation, known as an “NOICC”, under section 116 of the Act;
(2) an interview of Mr Djokovic subsequently commenced at about 6:07am;
(3) at about 7:29am, the delegate made the decision to cancel Mr Djokovic’s visa; and
(4) at or about 07:42am Mr Djokovic was notified of the decision to cancel his visa.
The delegate cancelled Mr Djokovic’s visa using section 116(1)(e)(i) of the Act, which relevantly
provides that the Minister may cancel a visa if he or she is satisfied that:
“(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of
the Australian community; or … .” (Emphasis added.)
After Mr Djokovic’s visa was cancelled, he was placed in immigration detention. This is standard
procedure.
What arguments were put forward objecting to the cancellation of Mr Djokovic’s visa?
Following the cancellation of his visa, Mr Djokovic’s lawyers filed injunctive proceedings in the Federal Circuit and Family Court of Australia (FCFCoA) and requested an immediate court hearing to set aside the delegate’s decision. A hearing was listed before Justice Kelly and Mr Djokovic’s lawyers made submissions on procedural fairness grounds, highlighting the unfairness and unreasonableness of the delegate’s questioning of Mr Djokovic that took place in the early hours of the morning. In particular, they argued that in all circumstances, the delegate did not allow Mr Djokovic enough time to supply the delegate with relevant information, especially as Mr Djokovic had been told by the delegate that he had until 8:30am on 6 January to seek legal advice and respond to the NOICC. Alternative arguments were also raised by Mr Djokovic’s lawyers, including that the power to cancel the visa under section 116(1)I(i) was not exercised properly because the NOICC in which the delegate gave his reasons was defective, and therefore invalid.
However, the crux of this case rested on whether Mr Djokovic’s visa cancellation decision met the test of legal unreasonableness. What constitutes a legally unreasonable decision was contemplated in the leading case of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and subsequent case law. The most persuasive part of Mr Djokovic’s arguments was the reliance on the following statement of the Court in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439:
“The implied condition of reasonableness is not confined to why a statutory decision is made; it
extends to how a statutory decision is made”.2 (Emphasis added.)
Partway through the hearing, the Minister for Home Affairs conceded that the decision of her delegate was legally unreasonable, by reason of a denial of procedural fairness, or what the Act refers to as a denial of “natural justice”. This was a significant concession by the Minister for Home Affairs.
Consent Orders were made reflecting the Minister for Home Affairs’ concession, and Mr Djokovic was released from immigration detention within 30 minutes.
Why did the Australian Government cancel Mr Djokovic’s visa for a second time?
At the end of the hearing in the FCFCoA, the Minister for Immigration’s legal representatives
foreshadowed a second cancellation of Mr Djokovic’s visa under another section of the Act, section
133C(3), which would allow the Minister to use his discretionary powers to personally cancel Mr
Djokovic’s visa.
A fundamental aspect of the discretionary power in section 133C(3) is that natural justice does not
apply. Sections 133C(3) and (4) are in the following terms:
“(3) The Minister may cancel a visa held by a person if:
(a) the Minister is satisfied that a ground for cancelling the visa under
section 116 exists; and
(b) the Minister is satisfied that it would be in the public interest to cancel the
visa.
Note: The Minister’s power to cancel a visa under this subsection is subject to section 117
(see subsection (9) of this section).
(4) The rules of natural justice, and the procedures set out in Subdivisions E and F, do
not apply to a decision under subsection (3).” (Emphasis added.)
On Friday 14 January, the Minister for Immigration exercised his discretion to personally cancel Mr
Djokovic’s visa.
Urgent hearing before the Full Court of the Federal Court of Australia
Mr Djokovic filed an application to review the decision in the FCFCoA seeking to quash the Minister for Immigration’s decision to cancel the visa for a second time, on the basis that the reasons given by the Minister in his decision were irrational, illogical or legally unreasonable.
The FCFCoA transferred the proceedings to the Federal Court, where it was heard before the Full
Federal Court. The Chief Justice reasoned that the matters were of significance and importance to the life of Australians and preservation of the health system of Australia and that it required an
expeditious result. He also reasoned that the importance of the subject matter to both parties was
clearly a live and relevant issue and that the hearing was not just in the interest of the administration of justice. Whilst not all matters can be heard on an urgent basis, the novelty of the situation was a consideration that the Court took into account.
Written reasons of the Full Court of the Federal Court
Whilst Mr Djokovic argued that the Minister for Immigration’s decision was irrational, illogical or legally unreasonable, this argument was ultimately dismissed by the Full Court, with judgment delivered on 16 January and reasons published on 20 January.
The Full Court ultimately accepted that the Minister for Immigration had validly made the decision
pursuant to section 133C(3); i.e., that the above-noted elements of section 133C(3) had been
complied with.
The Minister for Immigration’s Statement of Reasons to cancel Mr Djokovic’s visa noted that Mr
Djokovic had not been vaccinated against COVID-19 and that it was assumed (and therefore
accepted by the Court) that his presence in Australia may “excite” some groups who were opposed
to vaccination, and those groups were keen to support Mr Djokovic’s presence in Australia, as an
unvaccinated athlete legitimatising their opposition to vaccination.
The Minister reasoned that Mr Djokovic was a high-profile person and a role model in the sporting and broader community. Consequently, the fact that not only was he unvaccinated but that it was publicly and widely known that he was opposed to being vaccinated, presented a risk because Mr Djokovic’s presence may foster anti-vaccination sentiment within Australia.
The Full Court reasoned that the Minister for Immigration had met the state of “satisfaction”; at
paragraph [20] of its judgement the Court concluded:
“Thus it is not the fact of Mr Djokovic being a risk to the health, safety or good order of the
Australian community; rather it is whether the Minister was satisfied that his presence is or
may be or would or might be such a risk for the purposes of s 116(1)(e)(i), through s 133C(3).
(Emphasis added.)
At paragraph [41] their Honours found that it was not necessary that “the visa holder himself or herself take action to create the risk. It was the presence of the person in Australia that must found the risk”. (Emphasis added.)
It was also held by the Full Court that even though the Minister for Immigration gave Mr Djokovic a
Statement of Reasons when cancelling his visa, the Minister was not obliged to give reasons, and that those reasons were not irrational and were not made unlawfully.
Conclusion
Novak Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
highlights the extraordinary discretionary powers that the Australian Government can use, without
notice, to prevent anyone from entering or remaining in Australia. It is a cautionary tale demonstrating that cancellation of a visa can and does occur, and the complexities involved in the process.
Even though Mr Djokovic initially won and had the first cancellation of his visa overturned, he ultimately lost his right to remain in Australia when the Minister for Immigration exercised his personal powers and cancelled the visa for the second time. Mr Djokovic now faces a three-year ban from entering the country. The only way he can return to Australia is if he requests to have the ban waived by demonstrating “compassionate and compelling circumstances”, which is required to be assessed at the time of a visa application known as “Public Interest Criteria 4013.”
It is always crucial to consult an experienced immigration lawyer when coming to Australia to ensure you are fully aware of the pitfalls and tension points that may arise at any time during transit, immigration clearance or whilst in or outside Australia, even if you have been granted an Australian visa. If you have received a notice of cancellation of your visa, it is critical to obtain legal advice on whether the delegate made the decision correctly and how that decision was made. If this is you, please contact us immediately for urgent legal advice.
Please note that this page states the law as at January 2022. Australian immigration law is complex
and changes frequently, and the law may have been changed since this article was drafted.
1 The decision of the Full Federal Court can be accessed here.
2 ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; at [19], approving Li (2013) 249 CLR 332 at [91].