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No joy for Djokovic as Federal Government wins drawn-out match on visa cancellation

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (20 January 2022) (Allsop CJ, Besanko and O’Callaghan JJ)

Here’s why it was always going to be almost impossible for Djokovic to beat the powerful backhand of Immigration Minister, Alex Hawke …

The facts

Novak Djokovic, the world’s number 1 ranked tennis player and a Serbian citizen, was on 18 November 2021, issued a Temporary Activity visa, to compete at the Australian Open.

He arrived in Australia on 5 January 2022. Upon arrival, he was questioned by officers of the Department of Home Affairs until the early hours of 6 January 2022.

On that same day, his visa was cancelled by a delegate of the Home Affairs Minister (Karen Andrews) under s 116(1)(e)(i) of the Migration Act 1958 (Cth) (the Act).

Section 116(1)(e)(i) allows the Home Affairs Minister to cancel a visa if satisfied that the presence of the visa‑holder in Australia “is or may be, or would or might be” a risk to “the health, safety or good order of the Australian community or a segment of the Australian community …”.

Djokovic challenged the cancellation decision in the Federal Circuit and Family Court (the FCFC).

That case was heard on Monday, 10 January 2022. During the hearing, the Minister for Home Affairs conceded that the process adopted by her delegate was – as Djokovic alleged – legally unreasonable because Djokovic was denied procedural fairness. As a result, the Judge in the FCFC made an order quashing (not “squashing” as some in the media mistakenly reported) the purported cancellation decision.

Then came the next rally …

On Friday, 14 January 2022, the Minister for Immigration (Alex Hawke), exercised his power under s 133C(3) of the Act to cancel Djokovic’s visa and advised Djokovic of that decision by a letter accompanied by a 10-page statement of reasons.

Section 133C(3) of the Act states:

(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.

Importantly, s 133C(4) of the Act states: “[t]he rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3)”.

The Minister’s reasoning in his 10-page statement was essentially that:

Djokovic was a high profile person and role model;
it was publicly known that Djokovic was unvaccinated against Covid-19 and opposed to being vaccinated; and
Djokovic’s presence in Australia may foster anti-vaccination sentiment, including amongst anti-vaccination groups who have or may participate in civil disturbances, and even amongst those people who might be wavering or unconvinced about the desirability of being vaccinated.

Djokovic approached the FCFC to challenge the Immigration Minister’s decision to cancel his visa. The matter was referred to the Full Federal Court of Australia.

It’s important to understand that it was not relevant to the case to investigate why Djokovic was somehow granted a visa by the Federal Government in the first place.

Djokovic loses in the Full Federal Court

The final hearing was heard on Sunday, 16 January 2022. The Australian Open was to commence the next day. That afternoon, the Court ruled to uphold the Immigration Minister’s cancellation of Djokovic’s visa.

On 20 January 2022, the Full Court issued unanimous reasons for its ruling. Those reasons stated at [17]:

… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness … decisions of the Executive branch of government … The Court does not consider the merits or wisdom of the decision … The task of the Court is to rule upon the lawfulness or legality of the decision ...

The legal principles

The Court affirmed the relevant legal principles, being that:

An exercise of power to cancel a visa under s 131(c) of the Act requires the Minister to be satisfied that the visa holder’s presence is or may be a risk for the purposes of s 116(1)(e) – reaching this state of satisfaction is what gives the Minister jurisdiction to exercise the power. It is known as a “jurisdictional fact”.
The Minister’s state of satisfaction is reviewable by a court, but only if the Minister makes an error so grave that it goes to his or her jurisdiction to exercise the power – that is, a jurisdictional error. This will arise if the Minister’s state of satisfaction is:
- formed in the absence of evidence or supporting material – this means literally, “not a skerrick of evidence”; and
- illogical, irrational or legally unreasonable.

The Court explained that not every lapse of logic will give rise to a jurisdictional error. Some errors can be within jurisdiction. To give rise to a jurisdictional error, the state of satisfaction, must be reached on such irrational or illogical grounds that no other rational decision-maker could have reached the same decision.

As a judge in a previous High Court case said, where the state of satisfaction turns upon “…factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.”

The Court’s conclusions

The Court rejected three grounds of challenge raised by Djokovic and concluded that:

It was open to the Immigration Minister to infer that Djokovic was unwilling to be vaccinated given that he provided no evidence that his attitude had changed since the media had reported on his vaccination stance. It didn’t matter that the Minister didn’t actually ask Djokovic about his present views on vaccination.
The Minister didn’t need evidence that Djokovic’s presence in Australia may foster anti‑vaccination sentiment. The Court said at [82]:

This is not fanciful; it does not need evidence. It is the recognition of human behaviour from a modest familiarity with human experience. Even if Mr Djokovic did not win the Australian Open, the capacity of his presence in Australia playing tennis to encourage those who would emulate or wish to be like him is a rational foundation for the view that he might foster anti-vaccination sentiment.

It was not a requirement of ss 116 and 133C of the Act for the Minister to consider whether cancelling Djokovic’s visa may itself foster anti-vaccination sentiment and unrest in Australia – that is, the Minister only needed to consider whether Djokovic’s presence in Australia, may be a risk to the “health, safety or good order”. He did not need to consider the counterfactual of Djokovic not being present in Australia. But in any event, the Minister’s 10-page reasons demonstrated that he was aware of different consequences of cancelling Djokovic’s visa, including unrest, but that it was not one that he decided to weigh in the balance.

As the Court said, perhaps a different Immigration Minister, may have made a different decision. But this Minister, Alex Hawke, decided to cancel Djokovic’s visa, and that decision was within jurisdiction.

Game, Set, Match, Championship: Hawke (…Nadal).