The ongoing saga following the highly controversial cancellation and reinstatement of Novak Djokovic’s visa continues as new information comes to light.
His case is complex as Djokovic entered Australia with a COVID-19 medical exemption from the Victorian State Government to play in the Australian Open, however this did not meet the Commonwealth COVID-19 entry conditions.
The Victorian medical exemption was approved on the basis that he’d had a positive PCR test on 16 December 2021.
To meet the Commonwealth medical exemption for entry requirements, Djokovic had to provide medical evidence that he is a person who is unable to receive a dose (or a further dose) of a COVID-19 vaccination due to a medical contraindication. A vaccine contraindication is limited to those who are at risk of anaphylaxis or are significantly immunocompromised. Evidence of previous infection with the same pathogen, namely COVID-19, is not considered a sufficient contraindication for entry purposes.
His visa was cancelled eight hours after his arrival as it was considered his entry to Australia presented a risk to the health, safety or good order of the Australian community due to his vaccination status.
The hastily convened Court did not consider the merits of the cancellation reason. The consent order to reinstate his visa was, rather, made on the basis it was unreasonable for the delegate to cancel his visa at 7:42 AM having previously advised Djokovic he would have until 8:30 AM to consult with others to provide further comments explaining why his visa should not be cancelled.
We have since been waiting to see if the Minister of Immigration will exercise his personal power to cancel the visa, should he be satisfied there are grounds for cancellation and it would be in the public interest to do so.
More recently, Djokovic announced that while he was COVID-19 positive, he attended a media interview - for which he has now apologised.
He also acknowledged that his travel declaration was incorrect, however stated that it was a human error, and his agent had completed it for him.
The travel declaration is an agreement between the traveller and the Commonwealth of Australia represented by the Department of Home Affairs. It requires a traveller over the age of 15 years to personally complete the travel declaration and make a full and frank disclosure of their movements in the previous 14 days. It cautions “you must not provide false or misleading information” as doing so “could result in prosecution and criminal penalties” and “information provided through the travel declaration will be treated in the same way as providing false and misleading information on a form, for website, or in person”.
Djokovic is solely responsible for the information provided in the travel declaration, even if the information provided is inaccurate or incomplete and was completed by an agent. The penalties for breach of travel declaration requirements under the Biosecurity Act 2015 (Cwh) can include prosecution with criminal penalties and a jail term of up to 12 months.
As well as the Minister’s personal power to cancel his visa, the Migration Act 1958 also contains numerous provisions allowing for cancellation of the visa for providing false or misleading information and powers to cancel the visa, including under section 116.
Djokovic’s bid to remain in Australia uncertain
The Department of Home Affairs is unlikely to cancel the visa in the same way they did when Djokovic first entered the country. The policy provides it will not generally revisit a case where a cancellation has been reviewed and the visa has been reinstated.
However, Immigration Minister Alex Hawke has a personal power to cancel a visa if he is satisfied there are grounds for cancellation under section 116, and it would be in the public interest to do so.
Where the Minister is considering exercising his power to cancel a visa under section 133C (3), the Department provides the Minister with all relevant details and evidence available to inform his consideration.
If the Minister cancels the visa, Djokovic will be given a “notice of the cancellation decision with particulars of the relevant information and invited to make representations about revocation of the decision”.
If the Minister accepted Djokovic’s representations and is satisfied that the grounds for cancelling the visa do not exist, he may revoke the decision. If this happens, the decision is taken as not to have been made.
If the Minister does not revoke the decision, as natural justice principles do not apply the decision is only open to judicial review on very narrow grounds.
Contrary to widespread reporting, there is no blanket three-year re-entry ban if this power were to be exercised. The Minister can waive the ban on a future visa application if he considers it is in Australia’s interests to do so. This means that in the right circumstances, Djokovic could still be eligible for entry to Australia to compete in the 2023 Australian Open… should he meet Australia’s visa entry requirements.
Australia arguably has the most complex and dynamic immigration laws and border control measures in the world, and these have been re-shaped and sharpened in response to the pandemic.
Australia’s federation, the division of Commonwealth and State/Territory responsibilities and responses to the pandemic, and the interface between visa law and entry requirements add to the complexity.
The Australian Government, with the National Cabinet, has adopted a phased approach to the reopening of Australia’s borders, effective 15 December 2021.
The Department of Home Affairs will continue to review visa border control measures, with particular focus on “eligible visa holders” who are not vaccinated being allowed entry to Australia, consistent with its ongoing commitment to minimise the ongoing impact of COVID-19.
Australia’s immigration laws will continue to be complex and restrictive in response to an ever-changing world.
Lessons learned for non-citizens wishing to enter Australia
This case has demonstrated that:
- Being granted a visa to Australia does not mean you meet the entry requirements
- To be an 'eligible visa holder' who can be permitted entry, a person must either be fully vaccinated or have a medical contraindication to vaccination
- Having had COVID in the last six months does not meet the Commonwealth requirements for entry as it is not considered a medical contraindication to vaccination
- You must comply with the Commonwealth Government’s requirements for entry into the country, and the relevant State or Territory’s for quarantine requirements
- Do not allow someone else to fill in an Australian Travel Declaration on your behalf; and if someone else does fill it in for you, you (not they) are responsible for the disclosures made
- Providing false or misleading information on the travel declaration form is a serious offence and can result in a jail term of up to 12 months
- Providing false or misleading information on visa applications can result in penalties for breach and in some circumstances visa cancellation or refusal
- Australia’s visa and entry requirements are complex, highly codified and subject to frequent change in response to the objectives of the Commonwealth Government and Australia’s Migration Program.
Seeking specialist advice will best enable visa and entry to be achieved while ensuring compliance.
Contact Maria Jockel, Global and National Immigration Leader, Legal Principal and Accredited Specialist in Immigration Law, for expert advice in addressing visa applications and migration-related needs.
This article has, in part, been reproduced with the author’s permission by The Age on 13 January 2022: Novak Djokovic COVID: Djokovic in limbo as case reveals visa complexity (theage.com.au)
Additional media commentary provided by Maria Jockel is listed in the following table.
In addition to the above, interviews also included Today FM (New Zealand radio) on 13 January and CNN Live on 14 January.