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On rare occasions, high profile individuals make worldwide headlines for not satisfying Australia’s border entry requirements. The COVID-19 pandemic has complicated travel to Australia, as the recent events regarding Novak Djokovic, at the time the world’s number 1 ranked men’s tennis player, have shown. There were many factors at play in this case, but it was ultimately decided by migration law. This article will explain the migration law facts that ultimately led to the cancellation of Djokovic’s visa. 

Timeline of Facts 

The timeline of events is as follows

  • Djokovic received a 408 Temporary Activity visa to enter Australia on 18 November 2021.
  • Djokovic arrived at Melbourne airport on 5 January 2022. Australian Border Force Officers took him to immigration clearance and questioned him. A delegate of the Minister for Home Affairs subsequently cancelled his visa in the early hours of 6 January 2022 (cancellation 1). This was because Djokovic did not have an appropriate exemption to enter the country as an unvaccinated individual.
  • On 6 January 2022, Djokovic appealed the decision to cancel his visa to the Federal Circuit and Family Court of Australia (FCFCA). The Court found that Djokovic was denied procedural fairness. The Court quashed the decision to cancel his visa, and therefore reinstated the visa. 
  • On 14 January 2022, The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) exercised his personal powers to cancel Djokovic’s visa for the second time (cancellation 2). 
  • Djokovic appealed the Minister’s decision to personally cancel his visa to the Federal Court of Australia (FCA).  On 16 January 2022, the Full Court unanimously decides that the Minister acted within his powers and the cancellation of Djokovic’s visa was valid.
  • Djokovic leaves Australia on 17 January 2022.

What Are the Issues?

Djokovic applied for the correct visa type (408 Temporary Activity), which he received without delay. On arrival in Australia, the delegate decided that Djokovic received his visa correctly. However, the delegate also determined that Djokovic did not present an appropriate exemption to enter the country as an unvaccinated individual. Therefore, the delegate cancelled Djokovic’s visa.

The key issue here is that the FCFCA and FCA could not assess whether they agreed with the initial visa cancellation, or the second visa cancellation under section 133C, on its merits. They can only decide if the cancellation was legal.

The core issues were:

  • Cancellation 1 – why was Djokovic’s initial visa cancellation overturned?
  • Cancellation 2 – did the Minister for Home Affairs apply section 133C of the Migration Act correctly?

Outcomes

Cancellation 1

Based on the interview transcripts of Djokovic’s arrival at Melbourne Airport, the FCFCA found that the delegate had agreed to allow Djokovic time to respond to their intention to cancel his visa at 8:30 am the following morning. They were to allow him to speak to his lawyers and Tennis Australia. However, after agreeing to the timeline, the delegate cancelled his visa earlier than the agreed time. In this case, the FCFCA ruled that the delegate had made an error in managing this process. Therefore, Djokovic was denied procedural fairness in the cancellation process.    

Cancellation 2 

The FCA assessed whether, in applying section 133C of the Migration Act, the Minster had:

  • followed the law; and
  • acted reasonably and logically in concluding that Djokovic, who has not been vaccinated for COVID-19, might pose a risk to the health and safety of the Australian community.

    The FCA unanimously ruled in favour of the Minister, therefore cancelling Djokovic’s visa.

    Once Djokovic’s visa was cancelled, the immediate consequence was that his presence in Australia became unlawful. He was subject to detention and eventual removal from Australia. So, he promptly left Australia. 

    In addition, as Djokovic had his visa cancelled, this event triggered a re-entry exclusion period of 3 years. He cannot re-enter Australia for three years from the date of the visa cancellation. The Department of Home Affairs can waive this if there are compelling circumstances that affect the interests of Australia. 

    Key Takeaways

    This case has highlighted the Minister’s broad personal powers concerning migration law. Defending against a decision to cancel your visa is challenging and may require a court process.

    As you can see, a visa cancellation has dire consequences for you and your family. If you experience a visa cancellation, receive a notice that the Minister may cancel your visa, or you wish to appeal a cancellation, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

    Frequently Asked Questions

    Can I appeal a visa refusal or cancellation to the federal court system?

    Suppose your visa has been refused or cancelled. In that case, you have the right to appeal at the Administrative Appeals Tribunal (AAT). At the AAT hearing, you can present new evidence to support your case. Then, the AAT has the power to review the original decision on its merits and reach a new conclusion. However, suppose the matter is unsuccessful at the AAT. Then, the only avenue to appeal the AAT’s decision is in the FCFCA or FCA on the basis that there has been a legal error. 

    Can I re-enter Australia if my visa is cancelled?

    If your visa is cancelled under s133 of the Migration Act, you cannot receive an offshore visa for a period of three years. However, in certain circumstances, the Department of Home Affairs can waive this period.

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