It should be troubling for anyone, religious, secular or agnostic, to be told that a human being wields anything approximating to ‘God like’ powers. That very suggestion implies a power unreviewable, unaccountable and at odds with the earthly rule of law.
Under the Migration Act 1958 (Cth), such powers are vested in the immigration minister under section 133C, which cover visa cancellation powers. They were used against the tennis world number one Novak Djokovic after his initial victory in the Federal Circuit Court, which held that the Australian Border Force had procedurally erred in not giving him adequate notice in responding to their queries about evidence of a vaccine exemption.
The Djokovic case should cause much consternation. It has become a story of marked notoriety, and for all its noise and partisanship, threatens, in time, to become distant, forever associated with the man more than the issue. It was tribal and parochial in scapegoating the notable athlete. It demonstrated institutional inconsistencies — the conduct of Tennis Australia, for instance, and its reading of advice on vaccine exemptions seemingly at odds with the Commonwealth. But most of all, it affirmed that perceptions of risk to health or public order posed by notable visitors are far more pertinent than either their views or evidence of that fact.
Djokovic had originally entered the country availing himself of the vaccine exemption provisions he thought he had followed. On 30 December, 2021, he received a letter from the Chief Medical Officer of Tennis Australia explaining that he had been granted a ‘Medical exemption from COVID vaccination’ on the grounds that he had recently recovered from COVID-19. Two bodies had approved the exemption: the Independent Medical Review panel commissioned by Tennis Australia and the Victorian state government’s independent Medical Exemptions Review Panel. The Department of Home Affairs duly informed Djokovic that his Australia Travel Declaration has also been given the nod.
On 5 January, when Djokovic arrived in Melbourne, a delegated officer of the Australian Border Force informed him that he had not provided sufficient evidence to satisfy entry into the country. The visa was cancelled. It was subsequently found on appeal to the Federal Circuit Court that the official in question had given Djokovic insufficient notice to prepare his explanation on the morning of 6 January.
This bungle led to a remarkable ruling by Judge Anthony Kelly, who stated the following with unequivocal force: ‘Here, a professor and a physician have produced and provided to (Djokovic) 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 […] The point I am agitated about is, what more could this man have done?’
'The exercise of such ‘God’ powers shows the broken nature of Australia’s visa review system. Djokovic was at least fortunate to have resources to mount two legal challenges. Refugees and asylum seekers, in the main, do not, meaning that potentially unlawful visa cancellations stand.'
The Commonwealth, for its part, rejected claims that any deferral of vaccination should not have been read as an excuse not to get vaccinated. The Tennis Australia exemption letter did not constitute sufficient information for the purpose of entering the country unvaccinated.
With the decision cancellation quashed, Djokovic began training for the Australian Tennis Open. Immigration Minister Alex Hawke then exercised the ‘God’ powers in question on 14 January to re-cancel the visa ‘on health and good order grounds, on the basis that it was in the public interest to do so.’ Djokovic duly appealed to the Full Court of the Federal Court.
Arguments: The threat factor
In its submission to the Full Court of the Federal Court, the government saw Djokovic as a threat to the public interest indicating ‘publicly that he was opposed to becoming vaccinated against COVID-19’. He had ‘acted inconsistently with certain COVID-19 restrictions in the past.’ (He had knowingly, for instance, given a press interview on December 18, 2021 after receiving a positive COVID-19 test result the day before.)
It followed, as the second ground claimed, that Djokovic was stirring anti-vaccination sentiment: ‘[T]here are some media reports that some groups opposed to vaccination have supported Mr Djokovic’s presence in Australia, by reference to his unvaccinated status.’ His ‘high profile status and position as a role model in the sporting and broader community’ also exacerbated the matter.
The third ground followed on from the first: that encouraging scepticism and opposition against COVID-19 vaccinations and restrictions would present a problem for the health of individuals and ‘the operation of Australia’s hospital system’.
The defence outlined, plausibly, that Hawke had inflated the threat. It was one thing to deport an individual who, posing an individual health risk, had entered Australia lacking a medical exemption and inconsistently with the guidelines of ATAGI (Australian Technical Advisory Group on Immunisation). It was quite another to do so to a person ‘who poses negligible individual health risk, enter with an exemption, and consistently with ATAGI guidelines, etc.’ Nor had the Minister addressed ‘in express terms’ what the dangerous consequences to health and good order Djokovic posed might be.
The defence also argued Djokovic’s actual views on vaccination were never sought. It was only assumed that his anti-vaccination stance was a ‘well-known’ one. Djokovic’s statement to the court should, the argument went, lead one to an inference that his public views had been ‘taken out of context’ and that he did ‘not accept the depiction by the ‘international media’ of his views on vaccination’. As the player had previously pointed out in other media reports not cited by the Commonwealth, he was ‘no expert’ on vaccinations and was keeping an ‘open mind’ on the issue, merely reserving ‘an option to choose’ what was ‘best’ for his body.
Hawke’s reasoning, it followed, was ‘perverse, illogical, or irrational’ and distinctly ‘out of keeping with the proper exercise of a power the purpose of which is to reduce risk to health’. This also ignored the prospect that the visa cancellation potentially created ‘a much larger health risk (or good order risk).’ The Minister’s one-sided approach, the defence alleged, had only considered the consequences of Djokovic’s presence, rather than absence. It might very well be that the visa cancellation, the Serb’s detention and deportation, rather his presence in Australia, could stimulate anti-vaccination sentiment.
The decision
On 16 January, the decision of the Full Court of the Federal Court was handed down in favour of the Commonwealth. The judges found the exercise of the cancellation power lawful. In reasons published four days later, the court accepted that it was open for Hawke to conclude that ‘Djokovic had a stance that was well-known on vaccination and that he was opposed to it.’ The onus was on the player to give any ‘evidence of any apparent change of attitude’; there was no need for the Minister to seek an ‘express statement to the contrary’.
It was also ‘open to infer that it was perceived by the public’ [emphasis added] that Djokovic did not favour vaccinations, and that he had been portrayed as ‘a hero and an icon of freedom of choice in relation to being vaccinated.’ He had also ‘recently disregarded reasonable public health measures overseas’.
The court put much stock in the role of an ‘iconic world tennis star’ influencing ‘people of all ages, young or old, but perhaps especially the young and impressionable’. There was no need to produce evidence of that fact, as it was not a ‘fanciful’ proposition. Nor was it ‘irrational to infer’ that the tennis player’s ‘presence may be taken up by some groups in the future in support of their [anti-vaccination] views.’
It was also unnecessary, according to the judgment, for Hawke to weigh ‘two binary ‘choices’’ in assessing whether cancellation would itself incite a threat to public order. That, contended the judges, was a mere ‘counterfactual’. All that was sufficient under the Migration Act was that the Minister was ‘satisfied’ that ‘the presence of [the visa] holder in Australia … may be … a risk … to the health, safety or good order of the Australian community’.
The judges also sidestepped the issue of whether ‘lawful’ rallies, even if robust and pursued in the name of free expression on social and political views, albeit unpopular ones, might constitute a threat. ‘In the absence of argument or of it being an issue, we do not comment any further on this.’
The trouble with God powers
The decision throws up a number of troubling aspects. It shows that merits review of a ministerial decision made after a tribunal or court has quashed a finding is virtually impossible. It suggests that such decisions to cancel visas can be made for political reasons. (Djokovic’s problematic stance on vaccination was well known to the government prior to arrival, something even the court acknowledged.) Indeed, the judges accepted that the Minister was never under an obligation to produce any reasons in the first place.
Such latitude also grants authorities the heaviest hand to target future dissent and protest on mere perception, especially if they pertain to a ‘role model’ figure. The Australian government will be able ‘to justify’, barrister and president of Liberty Victoria Mike Stanton warns, ‘the suppression of legitimate political expression because others might engage in unrest.’
Last, but by no means least, the exercise of such ‘God’ powers shows the broken nature of Australia’s visa review system. Djokovic was at least fortunate to have resources to mount two legal challenges. Refugees and asylum seekers, in the main, do not, meaning that potentially unlawful visa cancellations stand.
Djokovic’s profile was such that he was briefly detained at Park Hotel, not indefinitely in harsher detention facilities. Others, such as Mehdi Ali, are currently being held at the same facility, with Mehdi having spent time in offshore and onshore facilities for almost a decade. It is high time that such vast powers, entrusted to a mere mortal, be reviewed and curtailed.
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.
Main image: Novak Djokovic waiting at the net on day eight of the Tokyo 2020 Olympic Games. (Naomi Baker/Getty Images)