Why Novak Djokovic’s visa debacle matters

Dr Sanzhuan Guo is Senior Lecturer in Law at Flinders University and an international lawyer specialising in human rights & citizenship.

The world watched as Novak Djokovic’s visa showdown played out, with the case likely to define how tourists, foreign visitors and even Australian citizens view the nation’s immigration policies and ‘equality before the law’ for years to come.

When a hard decision needs to be made, a decision based on the rule of law is consistent with Australian values, and the public should win out in the long term.

On 14 January 2022, Federal Immigration Minister Alex Hawke decided to exercise his personal power under s 133C(3) of the Migration Act 1958 (Cth) to cancel Novak Djokovic’s visa.

That doesn’t mean the world number one can be removed immediately, given his legal team had indicated they would file an immediate injunction against the decision at the time.

The Minister’s decision under s 133C(3) is not subject to ‘natural justice’, which means Djokovic cannot appeal the decision on procedural fairness grounds. However, it was still possible to challenge the application of s 133C(3), in regards to whether the condition of s 116 of the act has been met.

Dr Sanzhuan Guo is a Senior Lecturer in the College of Business, Government and Law.

It was likely that a question must be answered on whether ‘the presence of Djokovic 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 or the health or safety of any individual or individuals’, under s 116(1)(e) of the act.

There are also questions surrounding a false declaration on the entry form which, in my opinion, could provide a relatively straightforward channel for the Minister and Department to cancel Djokovic’s visa, since providing false or misleading information to the Department is a serious offence.

Djokovic might claim human error, but this might not be supported. A cancellation relating to incorrect information would fall under the act, which would require some further procedures, before cancellation, such as issuing a notice and providing an opportunity to show causes.

Djokovic’s celebrity status makes this a textbook case for examining ‘equality before the law’. In the current situation, cancellation of his visa seems the right decision to make for the government; otherwise, how would the entry requirements be enforced in similar future cases?

In addition, the litigation may clarify the rule implemented by the Department of Home Affairs, which states that ‘The Australian Department of Health advises that previous infection with COVID-19 is not considered a medical contraindication for COVID-19 vaccination.’

The Department of Home Affairs has been exercising extraordinary powers during the pandemic, including reducing people’s freedom of movement, and introducing certain COVID-related border rules.

A potential legal challenge to the Department’s border regime in relation to COVID will be especially important for better understanding and protecting the fundamental rights of all Australian residents, temporary or permanent.

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