Let's do the Djokovic Jive!

Millions ???? of dollars in advertising could not have provided as much publicity for Tennis Australia's most prized event “the Australian Open”, as last week’s cancellation of the Australian visa issued to the world's Number 1 ranked tennis player Novak Djokovic.

Indeed no visa cancellation since that of Indian born doctor Mohammad Haneef, who was falsely accused of aiding terrorists, has placed Australia’s immigration decision makers into the world spotlight as much as this Djokovic visa cancellation. Dr Haneef left Australia after cancellation in 2007 of his visa by then Immigration Minister Kevin Andrews amid great political controversy. Dr Haneef’s visa was later reinstated and he was given compensation.?

The world is poised (link crash excepted ??) to learn what will now happen to Djokovic.

In a few minutes, Djokovic’s lawyers must argue that the decision to cancel the visa is infected with some legal error made by the delegate. Simply arguing that the decision is unfair or providing more information not previously made available to the delegate or arguing that a more favourable decision ought to have been made, won’t get Djokovic a win.?

If Djokovic’s lawyers are successful in identifying a material error by the delegate, this will pave the way for the delegate’s cancellation decision to be quashed. If successful, Djokovic would be immediately released from immigration detention - advantage Djokovic. The Immigration Minister has the power to seek to cancel his visa again, in which case Djokovic would be taken back into immigration detention - deuce.

The Minister’s lawyers will likely respond that Djokovic’s lawyers are not able to identify any legal error in the decision made by the delegate. They will seek to persuade the court that the decision of the delegate was a lawful exercise of power in all the circumstances and is consistent with the scope, object and purpose of the Migration Act. If the Minister’s lawyers are successful, Djokovic will not be released from immigration detention.?

Djokovic could then appeal against any unfavourable decision or he could exit Australia. If he exits in these circumstances he would ordinarily face a three year ban from having any further visa application for Australia approved.

Many are asking me whether the Prime Minister or the Immigration Minister would intervene to help Djokovic get his visa back. Recent public comments by the Prime Minister suggest the Morrison government is unlikely to come to Djokovic’s aid.

The court is expected to make a decision quickly after today’s hearing given that the Australian Open starts soon. Whatever the court decides, the world will be eager to see how Australia's politicians play this immigration game.

The story so far is this:

Djokovic last week boarded an Emirates flight and travelled to Australia to play at the Australian Open. Djokovic presented at the immigration counter at Melbourne International Airport seeking to be immigration “cleared” but he was unable to provide sufficient evidence to satisfy a decision maker (a delegate of the Immigration Minister) that he met the requirements for a travel exemption. Sufficient evidence, if provided, would have allowed Djokovic to leave the airport and travel into greater Melbourne and start preparing to defend his world number one ranking.

The delegate at Melbourne Airport then decided to cancel Djokovic’s Australian visa. The consequence of the visa cancellation was that Djokovic was to be immediately removed from Australia. When travellers have their Australian visa cancelled upon arrival at an Australian airport, they are typically returned overseas on the same aircraft in which they arrived.

Djokovic made an application to prohibit the Minister from removing him on the same aircraft and at least not until such time as his visa cancellation challenge was heard by a court. An urgent hearing of the court granted Djokovic’s request that the Immigration Minister be prohibited from removing him, at least until such time as the court was able to hear the matter in greater detail.

The court also ordered the Djokovic cancellation matter be heard at 10 am on Monday 10 January 2021 (like now). Djokovic will remain in immigration detention (a Carlton hotel) at least until the court has decided on his legal challenge. In the meantime it has been reported that Djokovic has asked for his personal chef, private residence and access to a tennis court. These requests have been denied by the Minister.?

(notes: Nilesh Nandan is An Australian Immigration Law Practitioner, Principal of MyVisa Lawyers and a Member of the Migration Advisory Group. These opinions are his own and do not represent the views of the Group).