A Legal Perspective on Djokovic’s Visa Saga | How Did He Win? Why Is the Immigration Minister So Conflicted?

On Monday this week, Djokovic won his appeal at the Federal Circuit and Family Court of Australia (FCFCOA). After several hours of legal argument, the court hearing decided to quash the decision to cancel Djokovic’s visa. Judge Anthony Kelly said that Djokovic had not been given sufficient time to speak with Tennis Australia officials and his lawyers in order to respond to the notice that his visa was being cancelled.

After being released from immigration detention, he headed to Melbourne Park late at night for training, and finally got to touch a ball and racquet again.

In this section, we look at this case from a legal perspective.

First, why could he go straight to the Federal Circuit Court of Australia?

We all know that a primary decision from the Department of Home Affairs usually has to go through the tribunal — the Administrative Appeals Tribunal (AAT) — for administrative merits review first, before the FCFCOA has judicial jurisdiction over the case.

However, if the case itself is an AAT non-reviewable decision, the FCC can accept the case directly.

Because Djokovic was not within Australia at the time his visa was refused (although the plane had landed, he had not crossed the migration zone — that is, border officials had not legally admitted him into Australia), he could not appeal to the tribunal. And because of that, the FCFCOA could take the case directly.

Second, why could Djokovic win?

First, unlike the AAT, the AAT conducts merits review, also called facts review — a fresh assessment of the facts.

To give a simple example: if an applicant’s 485 visa is refused because their English did not meet the required standard, then at the AAT the fact is looked at again — whether the applicant’s English now meets the standard. This is the so-called re-assessment of the facts.

The FCFCOA is different. The FCFCOA does not conduct merits review; it conducts judicial review. Judicial review examines whether there was any error of law in the way the decision maker handled the case.

Taking the same 485 example: if the 485 applicant’s English still did not meet the standard at the AAT hearing and they lost at the AAT, and they then appeal to the Federal Court, even if their English reaches the required standard during the federal court proceedings, it makes no difference.

That is because judicial review does not re-assess the facts — it looks at whether there was any error of law made by the officers at the Department of Home Affairs and the AAT when they made their decisions.

Third, what error of law “helped” Djokovic overturn the decision

Let’s now look at the judicial review grounds Djokovic’s lawyers put forward — that is, the errors of law. His lawyers raised many grounds, but in the end the judge accepted only one:

Procedural Fairness — an error of law in procedural fairness

At 4:11 AM on 6 January 2022, Djokovic received a NOICC (Notice Of Intention To Consider Cancellation). This notice told Djokovic he was invited to respond to the notice by way of an interview to be held at 4:35 AM on 6 January 2022.

At 6:07 AM, Djokovic asked for more time because he needed to speak with his lawyers and seek advice. The ABF officer agreed, saying that he could provide further comments at 8:30 AM after consulting his lawyers.

However, at 7:30 AM an ABF officer told Djokovic that his lawyers could not assist him — that his lawyers could only help him after the decision had been made — and urged Djokovic to provide his comments as quickly as possible.

Less than 15 minutes later, at 7:42 AM, the decision to cancel Djokovic’s visa was made.

From the above, the injustice lies in the following:

The officer had already agreed that Djokovic could wait until 8:30 AM, after he had consulted his lawyers, before making any further response. But in the end that process was not followed, and his visa was cancelled at 7:42 AM, which is inconsistent with natural justice. Therefore, an error of law exists.

Let’s look at the judge’s final order, which also makes this point clear.

Judicial review and merits review are therefore fundamentally different. A lawyer needs extremely deep judicial interpretation skills to determine whether a case has valid grounds. If you have a need for judicial review, feel free to consult our professional lawyers.

But! This story isn’t over yet…

It has been revealed that Djokovic did not truthfully complete his incoming passenger card. On the incoming passenger card (one of the documents disclosed at the hearing), he declared that he had not been anywhere else in the 14 days prior — in other words, that in the 14 days before he arrived in Melbourne late on 5 January (from 22 December 2021 onward) he had been in Spain the whole time, and had then flown from Spain, transited through Dubai, and finally entered Australia.

However, videos and photos show Djokovic playing tennis on the streets of Belgrade, the capital of Serbia, during the Christmas period. In addition, the reason Djokovic obtained an Australian Open medical exemption was that he had tested positive on 16 December, but he was also photographed attending events after 16 December, some of them indoors and without a mask — meaning he took no precautions at all while infected.

Yesterday Djokovic posted a lengthy response on Instagram, saying that the incorrect information about whether he had been anywhere else in the 14 days before entering Australia was a “human error,” “not deliberate,” and that his team had already provided supplementary information to the Australian government as clarification.

As for his public appearance on the 17th, he said he did not know at the time that the test result was positive, because the rapid antigen test result was negative; it was only before a media interview on 18 December that he knew he had tested positive, and because he “did not want to let the reporter down,” he went ahead with the interview, during which he was careful to maintain social distancing and wear a mask, only removing the mask for photos — but going ahead with the interview was indeed a wrong judgement call.

At this point, Australian Immigration Minister Alex Hawke can exercise his discretionary power to cancel Djokovic’s visa, on the basis of whether Djokovic “is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community.”

What is God’s Power?

The Immigration Minister can exercise a personal power to cancel a visa. This power, referred to as “God’s Power,” comes from section 133A of the Migration Act.

The most critical part is the last line: the minister does not have a duty to consider whether to exercise the power.

In plain terms, the Immigration Minister is not required to exercise this discretionary power — he has no duty to do so.

This is different from an ordinary discretionary power. With an ordinary discretionary power, it must be considered; only after consideration is a decision made on whether to exercise it. But the Minister’s personal power does not have to be exercised — in fact, it does not even have to be considered.

However, this matter has now grown into an international event, even a diplomatic incident.

It is said that over the past few days the Immigration Minister and his office have been “cut off from the world,” studying this case, hoping to be seen as handling it independently. It was originally said that a decision would be made today, 13 January, but around 5 PM Australian media sources updated to say that the Minister is still considering the matter and will not make a decision today.

If the Minister ultimately decides to cancel Djokovic’s visa

He still has the right to challenge it — that is, to continue to pursue legal avenues — but this is not a quick process. If the Federal Circuit Court cannot hold a hearing tomorrow, it means delay until next week, and the Australian Open starts next Monday.

If he does not challenge the decision, Djokovic will need to arrange immediate departure, otherwise he will be deported. This also triggers PIC4014, which includes a possible three-year ban on entering Australia (a 3-year bar), unless special circumstances allow it to be waived.