How to get deported: Novak Djokovic

As the tennis season roars back to life at The Championships and the US Open, throw your mind back to the beginning of the tennis – and legal – year when the Djoker became the Djoke. 

The fault heard around the world

After competing in 2021 for a single-year Calendar Slam (holding each of Wimbledon, the Australian, French, and US Opens), the tempestuous Serb fell to Russian Daniil Medvedev at the final hurdle. Djokovic commented that although he had failed, it was the first time he felt like the US crowd – and tennis world – was truly behind him. 

Inevitably, pride goeth before the fall. 

Basking in public adoration, in January 2022, the fervent vaccine sceptic posted a grinning airport selfie on Instagram stating he had a COVID-19 vaccination “exemption permission” to play the 2022 Australian Open. On the morning of 5 January 2022, he touched down in Melbourne and was detained for the first time by the Australian Border Force. 

Djokovic v Minister for Immigration [2022] FCAFC 3

What resulted was a quasi-diplomatic incident as Serbia’s greatest modern cultural export was unceremoniously sent packing. But Australia issued a Class GG Subclass 408 Temporary Activity Visa in November 2021; so how and why did Djockovic find himself on a plane back to Europe? 

At play was section 133C(3) of the Migration Act 1953 (Cth) (Act), which permits the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to cancel a visa on the grounds of public interest – such as, say, where a vaccine sceptic tennis-GOAT is likely to win one of Australia’s premier sporting events and in doing so unintentionally rabble-rouse. 

The power in section 133C(3) must be exercised by the Minister personally. That is, in contrast to the operation of many other government powers, it may not be exercised by a delegate of the Minister (for example, an employee of the relevant department). Section 133C(3) is often used as a catch-all because the power need not be exercised according to the rules of natural justice (s 133C(4)). 

The section requires that the Minister be satisfied of two things: first, that there is a ground to cancel the visa arising under section 116 of the Act, and second, that it’s in the public interest to cancel the visa. The key to the Minister’s decision is not the fact of either requirement but that the Minister is satisfied.  

The FCAFC ended up rejecting Djokovic’s three grounds of complaint, finding broadly that:

  • It was open to the Minister to conclude that Djokovic’s stance on vaccination was “well known” and that he was broadly opposed to it. 
  • It was open to the Minister to conclude Djokovic’s presence in Australia could foster anti-vaccination sentiment. 
  • The Minister’s decision was not impacted by unreasonableness because he had failed to consider the binary counterfactual presented by Djokovic’s legal team. 

Regardless of your vaccine views, your views on Novak Djokovic, or your views of the Minister’s extreme powers, the tragicomic political mire of Djokovic’s arrival and deportation did not reflect well on us or our political class.

Game, set, and match. 

Soapbox is a Hearsay: The Legal Podcast add-on. If you liked this article why not try our CPD platform for Australian lawyers at htlp.com.au. Catch the latest episodes of the podcast on the Episodes page, but if you’re not quite ready for all that continuing legal education, try Sidebar – the fun, free, no-CPD version of the podcast.

By: Alexander Ross Davis, Producer, Hearsay: The Legal Podcast

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