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Djokovic challenges Ministers Cancellation of his Visa due to his Anti-Vaccination stance.
This review is of all three Djokavic decisions relating to his Visa Grant, subsequant cancellation, quashing of cancellation and finally the challenge on the Ministers executive power to cancel the Visa again on public health grounds.
The applicant completed an Australian Travel Declaration and furnished a medical exemption for vaccination against Covid-19 that was assessed by the Department of Home Affairs of the Australian Government prior to the issuance of his visa, however on arrival in Melbourne, he was questioned and a decision was made by a delegate of the Minister for Home Affairs to cancel the applicant’s visa. The applicant was immediately placed in detention.
Facts:
The applicant, a Serbian citizen, is a professional tennis player of international renown. On 18 November 2021, the applicant was issued his temporary activity visa. The Australian Technical Advisory Group on Immunisation (ATAGI) expressly proscribed a general express requirement for vaccination in a document titled “ATAGI expanded guidance on acute major medical conditions that warrant a temporary medical exemption relevant for Covid-19 vaccines” that was updated on 26 November 2021. This guidance was augmented by further advice furnished by ATAGI on 14 December 2021 in relation to the definition of the expression “fully vaccinated” as applied, it seemed to apply to “people returning from overseas travel”.
ATAGI’s expanded guidance was stated as applying generally (i.e., across the board), but was framed in an orthodox manner such that the general requirement necessarily admitted exceptions. Relevantly, an exception that may be available in relation to what is contended to be a general requirement for vaccination is that which arises where a person has been granted a medical exemption. The applicant contends that he completed an Australian Travel Declaration and furnished a medical exemption from vaccination against Covid-19 that was assessed by the Department of Home Affairs of the Australian Government. Following the applicant’s arrival in Australia late on Wednesday, 5 January 2022, he was taken to immigration clearance where he was questioned during a series of interviews conducted over several hours until the morning of Thursday, 6 January 2022.
A decision was made by a delegate of the Minister for Home Affairs to cancel the applicant’s visa. When the making of the decision was communicated to the applicant, he immediately commenced a proceeding in court seeking to quash the decision. Interim relief was granted to the applicant late on 6 January 2022 and the matter was set down for final hearing to commence on Monday, 10 January 2022 (with a number of interim hearings being conducted on 8-9 January 2022).
The Minister then exercised his executive powers and made a second decision to cancel the applicant’s visa under the Migration Act, s 133C(3). The applicant approached the court seeking urgent interim relief in relation to the respondent’s cancellation decision.
In a media statement made by the respondent, the Minister advised that the exercise of his power under s 133C(3) “on health and good order grounds, on the basis that it was in the public interest to do so.”
The Minister further advised that his decision followed orders made by this court on 10 January 2022, quashing the first decision on procedural fairness grounds alone (and as to which it may be noted the parties were agreed in the making of those orders).
The Minister further stated that in making his decision he had “carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic.”
The Minister expressed the government’s firm commitment “to protecting Australia’s borders, particularly in relation to the Covid-19 pandemic.” The applicant has now been invited to attend upon immigration authorities for interview on Saturday, 15 January 2022. Upon the principles considered below he is liable to be placed in detention immediately.
Mr Djokovic had filed in the FCFC an originating application for review of the decision, together with supporting materials.
Issue:
I. Whether or not the respondent's decision is amenable to judicial review.
II. Whether or not the Minister validly cancelled the applicant's visa.
Applicable law:
Migration Act 1958 (Cth) - provides that a “privative clause decision” is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Attorney-General (NSW) v Quin (1990) 170 CLR 1 - held that the judicial review of an administrative decision is not a procedure in the nature of an appeal which permits a general review of the decision or a substitution of the decision which the court considers ought to have been made.
AZAFX v Federal Circuit Court of Australia [2016] FCA 1139; (2016) 244 FCR 401 - applied the principle that the Full Bench of the Commission would have committed jurisdictional error if, inter alia, it "misunderstood the nature of the opinion it was to form".
Hong v Minister for Immigration and Border Protection [2019] HCATrans 167 - Bell J applied the principles stated in Ex parte Fejzullahu above that it may be necessary to demonstrate exceptional circumstances before such relief would be granted
Minister for Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 - provides that the court’s role on judicial review is supervisory and confined: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.”
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 - provides that the formation of the relevant opinion or state of satisfaction will be a jurisdictional fact so that the power is not validly exercised if it does not exist.
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, 123 FCR 298 - provides that in determining whether a decision made in purported exercise of a statutory power is invalid for exceeding that power, it is necessary to consider the provision conferring the power and its constitutional and statutory setting.
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 - provides that the applicant bears the onus of demonstrating that the approach taken by the decision-maker manifested a legally erroneous view as to what the application for merits review was about such that the decision-maker thereby lacked authority to make the decision that was made.
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 - provides that the respondent’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu (2000) 171 ALR 341 - provides that the grant of relief in circumstances of the present kind requires the court to be satisfied that it is appropriate to preserve the subject matter of a dispute pending its final resolution, or otherwise to maintain the status quo so as to enable a court to do justice between the parties.
Shrestha v Minister for Immigration and Border Protection [2018] HCA 35 - where the High Court has confirmed it to be well-settled that the “satisfaction of the Minister or delegate required to meet that precondition is a state of mind formed reasonably and on a correct understanding and application of the applicable law”.
1st Analysis - Case 1:
It is beyond the scope of the present application to determine whether or not the limitations on the power conferred by s 133C(3) serve to magnify or diminish the importance of demonstrating the existence of facts and circumstances upon which the Minister could properly determine that he or she should or should not be satisfied that: (a) a ground for cancelling the visa under s 116 exists, and; (b) it would be in the public interest to cancel the visa.
The applications for urgent injunctions, invoke the Court's power, in an appropriate case, to make an interim order which will, in practical effect, preserve the subject matter of a dispute pending its final resolution, or otherwise maintain the status quo so as to enable a court to do justice between the parties. The applicant’s prospects of success were not insubstantial and that the balance of convenience favoured the grant of relief, doing so in circumstances where no prejudice was identified by the Minister arising from deferral of the deportation until determination of the pending application. It cannot be overlooked that the rights which are inherent in a visa are of real and substantial value. The destruction of such rights, as by cancellation, are to be considered from that perspective.
Conclusion:
Interim orders are made on an urgent basis granting relief that will preserve the status quo pending the confirmation of a decision that the proceeding should be transferred to the Federal Court of Australia and for the hearing and determination of the substantive issues in contention between the parties in this proceeding.
The court is satisfied such interim relief should be granted as to do so is necessary to maintain the court’s authority to hear and determine the proceeding and to afford the parties an adequate opportunity to address the suggested merit of the grounds upon which the applicant seeks to challenge a decision by the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to cancel his Temporary Activity (Subclass 408) visa that was granted to him on 18 November 2021.
2nd Analysis - Case 2:
A decision, or a purported decision, made under s 133C(3) to cancel a visa falls within the definition of a privative clause decision under Pt 8 of the Migration Act 1958.
Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the decision. The respondent’s cancellation decision is a privative clause decision for the purposes of s 476 of the Migration Act 1958 and accordingly this court’s jurisdiction is confined by that section. Unless the applicant, who bears the onus of proof, is able to demonstrate that the respondent’s cancellation decision is tainted by jurisdictional error, the court has no jurisdiction to quash it, or to grant relief in relation to it, and the decision is thus final and conclusive.
The applicant has only ever advanced his entitlement to a visa permitting him to travel to, enter and remain in Australia temporarily on the basis that any general requirement to be vaccinated did not apply as he had sought and been granted a medical exemption for such vaccination and that such medical exemption had been provided by an Independent Expert Medical Review Panel comprising two highly qualified medical practitioners, such panel being commissioned by Tennis Australia and in circumstances where the exemption provided by that panel had been assessed and approved by a further Independent Expert Medical Review Panel which had been commissioned by the government of the state of Victoria.
The nature of the satisfaction of the Minister that is necessary and sufficient to cancel a visa “is a state of mind formed reasonably and on a correct understanding and application of the applicable law.”
The respondent considered it to be in the public interest to cancel his visa, by reason of a perceived need to quell the risk, as it seemed to be said, of so-called ‘anti-vaxers’, deploying the applicant’s presence in Australia as some sort of vehicle upon which to rally in support of their cause.
The issue to be determined is not whether Mr Djokovic is a risk to the health, safety or good order of the Australian community; rather it is whether the Minister was satisfied that his presence might be such a risk. The Minister considered that Mr DJOKOVIC’s presence in Australia may pose a health risk to the Australian community, in that his presence in Australia may foster anti-vaccination sentiment leading to:
(a) other unvaccinated persons refusing to become vaccinated,
(b) other unvaccinated persons being reinforced in their existing view not to become vaccinated, and/or
(c) a reduction in the uptake of booster vaccines.
It was further considered that behaviour by influential persons and role models, which demonstrates a failure to comply with, or a disregard of, public health measures has the potential to undermine the efficacy and consistency of the Australian Government’s and State and Territory Governments’ management of the evolving COVID-19 pandemic.
3rd Analysis - Case 3:
The applicant sought to contend that the second decision, purportedly made under s 133C(3) of the Migration Act, is tainted by material jurisdictional error and should be quashed.
The Minister did not consider the question of whether the cancellation and consequent detention and forcible removal of Mr Djokovic—being a person who the Minister recognised as a talisman of a community of anti‑vaccination sentiment —on the basis of a few lines of text he said about two years ago may also foster anti‑vaccination sentiment, and if so the significance of that to the assessment of public interest and the exercise of discretion. The Minister cited no evidence that supported his finding that Mr Djokovic’s presence in Australia may “foster anti-vaccination sentiment’.
There was no issue but that Mr Djokovic was not, by January 2022, vaccinated and therefore it was plainly open to the Minister to infer that Mr Djokovic had for over a year chosen not to be vaccinated since vaccines became available.
That he had a reason not to have a vaccination at the time of the decision in January 2022, apparently having contracted COVID‑19 on or about 16 December 2021, did not say anything as to the position for the many months from the availability of vaccines to December 2021.
It was plainly open to the Minister to infer that Mr Djokovic had chosen not to be vaccinated because he was opposed to vaccination or did not wish to be vaccinated. Whilst the Minister had not asked Mr Djokovic about his present attitude to vaccines that only meant that there was no express statement to the contrary of what could be inferred to be his attitude up to January 2022.
While there was no evidence that Mr Djokovic had urged people not to be vaccinated, it was open to infer that it was perceived by the public that Mr Djokovic was not in favour of vaccinations. There was material before the Minister and to which he referred in the reasons that anti‑vaccination groups had portrayed Mr Djokovic as a hero and an icon of freedom of choice in relation to being vaccinated.
The Minister reached that state of satisfaction on grounds that cannot be said to be irrational or illogical or not based on relevant material.
The decision to cancel the Visa of Mr Djokavic stands.
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