Was the Minister satisfied that a ground for cancelling a visa exists and that it would be in the public interest to do so under Section 116(1)(e)(i) and Section 133C(3)(b) of the Migration Act, 1958 (Cth), respectively?

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (16 January 2022)

Facts:-

The applicant, Mr Djokovic, is a citizen of Serbia. He is currently the world’s number 1 ranked men’s tennis player. Mr Djokovic was issued a Class GG subclass 408 Temporary Activity visa on 18 November 2021 for the purpose of competing in the Australian Open Tennis Championship.

He arrived in Australia on 5 January 2022. Upon his arrival, he was taken to immigration clearance and questioned by officers of the Department of Home Affairs until the early hours of 6 January 2022.

On the same day, his visa was purportedly cancelled by a delegate of the Minister for Home Affairs under s 116(1)(e)(i) of the Migration Act 1958 (Cth) (the Act). That provision is at the centre of the proceeding and is in the following terms:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
...
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community ...

Subsections (2) and (3) are not relevant.

Mr Djokovic immediately commenced a proceeding in the Federal Circuit and Family Court of Australia (Division 2) seeking to quash the decision to cancel his visa on the ground that the process adopted by the delegate of the Minister for Home Affairs in cancelling the visa was legally unreasonable.

A Judge of the FCFC granted Mr Djokovic interim relief late on 6 January 2022. The matter was set down for final hearing to commence on Monday 10 January 2022. At the hearing on that day, counsel for the Minister for Home Affairs conceded that the process adopted by her delegate was, as Mr Djokovic alleged, legally unreasonable by reason of a denial of procedural fairness, or to use a synonymous phrase and one used in the Act, “natural justice”. As a result, the Court made an order quashing the purported cancellation decision.

Immediately thereafter at the hearing, counsel for the Minister for Home Affairs said that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), the respondent in this proceeding, would be considering whether to exercise the personal power of cancellation (that is a power not capable of being exercised by a delegate of the Minister, but one only for the Minister’s consideration and exercise personally) pursuant to s 133C(3) of the Act.

Sections 133C(3) and (4) are in the following terms:

(3) The Minister may cancel a visa held by a person if:

(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and

(b) the Minister is satisfied that it would be in the public interest to cancel the visa.

Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).

(4) The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3).

As s 133C(4) makes clear, there was no requirement upon the Minister in exercising his powers under s 133C(3) to afford Mr Djokovic natural justice (that is procedural fairness).

Mr Djokovic and those who advised him, having been made aware of the Minister’s intentions, provided material and submissions to the Minister as to why the power in s 133C(3) should not be exercised. Late in the day on Friday 14 January 2022, the Minister exercised his power to cancel the visa relying on s 133C(3). By letter dated that day, the Minister advised Mr Djokovic of that decision, and provided a ten page statement of reasons.

Under the Act, the FCFC and not the Federal Court of Australia had original jurisdiction to hear what is referred to in the Act as a “privative clause decision”: see generally ss 476 and 476A of the Act.

The FCFC then transferred the proceeding to this Court, pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). That decision was confirmed by a judge of this Court on the following day, as a result of which the Federal Court has jurisdiction in relation to this proceeding pursuant to s 32AD(3) of the Federal Court of Australia Act 1976 (Cth).

In the meantime, Mr Djokovic had filed in the FCFC an originating application for review of the decision, together with supporting materials. Subsequently, an amended application dated 15 January 2022 was filed in this Court pursuant to leave granted on that day by the Court.

On the same day, pursuant to s 20(1A) of the Federal Court of Australia Act, the Chief Justice directed that the original jurisdiction of the Court in this proceeding be exercised by a Full Court. The Chief Justice explained the reasons for making the direction at the commencement of the hearing on the following day, 16 January.

The application was heard on Sunday, 16 January. At the conclusion of the hearing, the Court made orders dismissing the amended application, with costs, to be agreed or failing agreement to be assessed. The Court said that it would provide written reasons for the making of those orders. These are those reasons.

As will be explained in the reasons below, an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

The Relevant Statutory Provisions

We have set out ss 116(1)(e)(i) and 133C(3) above. The elements of s 133C(3) should be noted: a power or a discretion to cancel a visa (“may cancel a visa”) held by a person; if the Minister is satisfied that a ground for cancellation under s 116 exists; and (separately and in addition) the Minister is satisfied that it would be in the public interest to cancel the visa.

The elements of s 116(1)(e)(i) should be noted. As with ss 133C(3)(a) and (b), the power in s 116 is engaged by or conditioned upon the Minister being satisfied of certain matters, here satisfied of the matters in para (e)(i). Those matters are, relevantly for present purposes, that the presence of the visa holder in Australia is or may be, or might be, a risk to the health, safety or good order of the Australian community or a segment of it.

The state of “satisfaction”

Thus it is not the fact of Mr Djokovic being a risk to the health, safety or good order of the Australian community; rather it is whether the Minister was satisfied that his presence is or may be or would or might be such a risk for the purposes of s 116(1)(e)(i), through s 133C(3).

The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [131]

Relevantly, where the satisfaction depends upon satisfaction of a factual state of affairs in particular one involving an opinion, the approach of Latham CJ in R v Connell, of Gibbs J in Buck v Bavone, of Starke J in Boucaut Bay (approved by Windeyer J in Brian Hatch Timber) and of Gummow J in Eshetu should be noted.

Chief Justice Latham in R v Connell approached the matter as presenting the question: “whether or not there was evidence upon which [the decision-maker] could be satisfied that [the] rates were anomalous”.

Justice Gibbs in Buck v Bavone said (amongst other things) the decision-maker must “act in good faith; [he or she] cannot act merely arbitrarily or capriciously” and “where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that ... [the] decision could not reasonably have been reached”.

Justice Starke in Boucaut Bay said, amongst other things, that the decision-maker “must not act dishonestly, capriciously or arbitrarily ... So long, however, as the Minister acts upon circumstances ... giving him a rational ground for the belief entertained, then ... the Courts of law cannot and ought not interfere”.

Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone, said the following at at 654 [137]:

.... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question

Findings of fact without relevant evidence or material

Related to the above body of principle is a ground of review, invoked in this proceeding in relation to two of the three grounds of review mounted, that a finding of fact, here connected to the formation of a state of satisfaction, was made in the absence of any evidence or supporting material. The High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) recently put the matter as follows in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17]:

If the Minister exercises the power conferred by s 501CA(4) [a provision in the Act concerning the Minister’s power to revoke the cancellation of a visa] and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence”.

Illogicality, irrationality and legal unreasonableness

As a statutory jurisdictional condition or jurisdictional fact (cf Aronson et al op cit at 258–260 [5.500]), the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 350–351 [26]–[29], 362 [63] and 370 [88]. At one level such is to take the matter, for the lawfulness of a jurisdictional state of satisfaction, no further than the cases to which we have referred above. The state of satisfaction is a jurisdictional precondition or jurisdictional fact and should be distinguished from the exercise of discretion for which the state of satisfaction is a precondition: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 624–625 [39]–[40].

As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3–4 [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at 445–446 [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an “outcome focused” conclusion without any specific jurisdictional error being identified.

That taxonomy should not, however, be taken to mask the interrelationship of result and specific error. Nevertheless here, as shall be seen, the complaints made were directed to identifiable errors: a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction, illogical or irrational reasoning central to the reaching of the relevant state of satisfaction, and such matters also affecting the exercise of discretion. It was not the applicant’s case that aside from the identified errors the outcome was so overwhelmingly wrong that it must be characterised as unlawful.

The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

The “public interest” for s 133C(3)(b)

The phrase “public interest” is a broad one and especially so when an aspect of the power vested in a Minister responsible to Parliament: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at 46–48 [39]–[46]; Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231. Further, it is to be recalled that the relevant inquiry is as to the lawfulness of the Minister’s satisfaction that it was in the public interest to cancel the visa, the Minister being satisfied of the ground for cancellation under s 116 (see s 133C(3)(a)), here satisfied of the matters in s 116(1)(e)(i).

Issues:-

Ground 1: Whether the Minister's decision was affected by jurisdictional error because the Minister reached the state of satisfaction illogically, irrationally or unreasonably and the discretion to cancel the visa was unreasonably exercised, because the Minister did not consider whether cancelling Mr Djokovic’s visa may itself foster anti-vaccination sentiment in Australia?

Ground 2: Whether it was open to find that the presence of Mr Djokovic in Australia is or may be a risk to the health or good order of the Australian community?

Ground 3: Whether it was open to the Minister to find or conclude that Mr Djokovic had a stance that was well-known on vaccination and that he was opposed to it?

Consideration:-

It is convenient to deal with the grounds in reverse order.

Ground 3

We reject the proposition that it was not open to the Minister to find or conclude that Mr Djokovic had a stance that was well-known on vaccination and that he was opposed to it.

“Attachment H” referred to in the Minister’s reasons was an article entitled “What has Novak Djokovic actually said about vaccines?” which reported that, in April 2020, Mr Djokovic apparently said that he was “opposed to vaccination”. Although he had qualified this by saying that he was “no expert” and “would keep an open mind”, he apparently said that he wanted to have “an option to choose what’s best for my body”. He was reported also to have stated on Facebook that he “wouldn’t want to be forced by someone to take a vaccine” to travel or compete in tournaments. Further, he added that he was “curious about wellbeing and how we can empower our metabolism to be in the best shape to defend against imposters like Covid‑19”. His comments were apparently criticised by the Serbian Government epidemiologist at the time.

Whilst qualified, these views were expressed and publicly known even before there was a COVID-19 vaccine.

Further, there was no issue but that Mr Djokovic was not, by January 2022, vaccinated. 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: D[19] ([53] above), 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. Mr Djokovic had not volunteered any information when interviewed at the airport by officers of the Department of Home Affairs. He did not give evidence of any apparent change of attitude.

It was also open to the Minister to infer that the public would view his attitude as the media had portrayed: that he was unwilling to be vaccinated.

Ground 2

The central proposition of Mr Djokovic’s argument was that the Minister lacked any evidence and cited none that his presence may “foster anti‑vaccination sentiment”. There was no evidence, it was submitted, that he had urged people not to be vaccinated. Nor was there any evidence that in the past his circumstances had fostered such a sentiment in other countries.

However, it was open to infer that it was perceived by the public that Mr Djokovic was not in favour of vaccinations. It was known or at least perceived by the public that he had chosen not to be vaccinated. There was material (in Attachment H) 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.

It is important to recognise, however, that the Minister’s reasons can be seen to encompass the encouragement not only to anti‑vaccination groups, some of whom may have extreme views and some of whom may be a risk to the good order or public order in the community, but also to people who may simply be uncertain or wavering as to whether they will be vaccinated.

The evidence concerning the support or galvanising of the former group concerned the circumstances of the cancellation of Mr Djokovic’s visa by the delegate of the Minister for Home Affairs, rather than Mr Djokovic’s views regarding vaccination. Nevertheless, the evidence did display an affinity of these groups with his views.

The possible influence on the second group comes from common sense and human experience: An iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him. This is not fanciful; it does not need evidence. It is the recognition of human behaviour from a modest familiarity with human experience. Even if Mr Djokovic did not win the Australian Open, the capacity of his presence in Australia playing tennis to encourage those who would emulate or wish to be like him is a rational foundation for the view that he might foster anti‑vaccination sentiment.

There is a question, not explored in argument, as to the extent to which one can or should characterise lawful, even if robust, rallies and protests in the free expression of political or social views (even if unpopular or held only by a few people) as a threat to good order. In the absence of argument or of it being an issue, we do not comment any further on this. Common recent experience does, however, demonstrate that some rallies and demonstrations concerning COVID‑19 and measures to limit movement and activity of the public have involved some violent activity and have been the occasion for the spreading of the disease or at least that is open to be inferred.

It was not irrational for the Minister to be concerned that the asserted support of some anti‑vaccination groups for Mr Djokovic’s apparent position on vaccination may encourage rallies and protests that may lead to heightened community transmission.

Further, there was evidence at D[23] that Mr Djokovic had recently disregarded reasonable public health measures overseas by attending activities unmasked while COVID positive to his knowledge. It was open to infer that this, if emulated, may encourage an attitude of breach of public health regulations.

Ground 1

The Minister cancelled Mr Djokovic’s visa because he was “satisfied” that the presence of Mr Djokovic in Australia may be a risk to the health or good order of the Australian community:

In substance, Mr Djokovic contended that that decision was affected by jurisdictional error because the Minister reached the state of satisfaction illogically, irrationally or unreasonably and the discretion to cancel the visa was unreasonably exercised, because the Minister did not consider whether cancelling Mr Djokovic’s visa may itself foster anti-vaccination sentiment in Australia.

In their written submissions, counsel for Mr Djokovic put their contention as follows (emphasis in original):

The vice with the Minister’s reasoning, on this central premise, is that it involves an irrational, illogical or unreasonable approach to the purported formation of either or both of the requisite states of satisfaction in section 133C(3)(a) and (b), or the exercise of discretion:

(1) to address the prospect of Mr Djokovic’s presence in the Australia (consequent to a non-cancellation decision) “foster[ing] anti-vaccination sentiment”; but

(2) not to address the prospect of the binary alternative outcome (consequent to a cancellation decision that the Minister ultimately selected), being Mr Djokovic’s detention and expulsion from Australia and the attraction of consequential bars to re-entry “foster[ing] anti-vaccination sentiment”, including at least potentially of an equal of not more deep or widespread kind.

It was further contended that “[i]t is even more obvious that a decision to detain and expel Mr Djokovic based on two historic statements about vaccination would be apt to ‘foster anti‑vaccination sentiment’”, in circumstances where the Minister assumed or found that Mr Djokovic posed a negligible COVID-19 risk to others, had a medical reason for not being vaccinated, had entered Australia lawfully and consistently with ATAGI documents and in circumstances where almost every discretionary factor weighed against cancellation.

Ground 1 should be dismissed. It was not necessary for the Minister to consider and weigh in the balance the two “binary” choices contended for by Mr Djokovic. The power to cancel relied upon by the Minister in this case arose once he was “satisfied” that “the presence of [the visa] holder in Australia ... may be ... a risk to ... the health, safety or good order of the Australian community”. The words of the statute direct attention to the “presence” of the visa holder in Australia. No statutory obligation arose to consider what risks may arise if the holder were removed from, or not present in, Australia. The provision cannot be interpreted as requiring the Minister to examine the consequences of cancellation by way of a counterfactual, directed as it is to the considerations of risk by reference to presence.

That the statute does not require such a consideration to be examined does not foreclose the possibility that not to do so in a given circumstance would or might be irrational or unreasonable. However, it is not easy to contemplate such a circumstance. There is nothing by way of logic that demands it, bearing in mind that the statute refers to the consequences of presence of the visa holder in Australia. It may be that there would be an even greater risk to good order or health by the fostering of demonstrations if the visa was cancelled and the erstwhile visa holder removed from Australia, but that says nothing about the risk arising from the visa holder’s presence in Australia, which is the statutory enquiry. The notion that the Minister must, to be logical, examine both hypotheses is only to force the Minister to adopt one way of approaching the exercise of the discretion.

That is not to say that if the Minister chose to examine the risk in the posited counterfactual, he could not do so (given the terms of the provision are directed to presence, it would be in evaluating the public interest or the exercise of the discretion to exercise the power). The Minister would not be prohibited by the section from doing so; and it is not an irrelevant consideration for these purposes in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24.

In any event, the Minister was, because he recognised it in his reasons, aware of the fact that “unrest” in the community occurred following the decision of the Minister for Home Affairs to cancel Mr Djokovic’s visa on the day following his arrival into Australia. At D[46] the Minister said as follows: “I also acknowledge that Mr DJOKOVIC is now in the community, and that some unrest has already occurred, such that it is too late to avoid it. This weighs in my mind against the public interest in cancellation”. Whilst it is far from clear to what event this is a reference, the Minister can be taken to be aware of protests that occurred in Melbourne on 11 January 2022 involving supporters of Mr Djokovic.

The Minister also, at D[44], recited arguments raised by Mr Djokovic’s lawyers as to why he considered it would not be in the public interest to cancel his visa. Those reasons included that cancelling the visa would “be likely to adversely affect Australia’s global reputation and call into question its border security principles and policies”, “prejudice Australia’s economic interests, and jeopardise the viability of Australia continuing to host the Australian Open”, and “create the appearance of politically motivated decision-making”.

Although the Minister did not weigh in the balance the binary choices contended for by Mr Djokovic, it can be taken that he was aware of any number of different consequences that might ensue if the visa were cancelled, including unrest, but that having noted each of those matters referred to, the Minister is to be taken as not having regarded them as something that, within the exercise of his discretion, he regarded as necessary to weigh in the balance of things.

Further, the weighing of the counterfactual as to unrest and encouragement of anti‑vaccination sentiment would not affect the second group of people to whom we have referred as the hesitant or wavering. These people, who may, it can be inferred, be influenced by Mr Djokovic’s presence, would not be influenced relevantly in the way we have described by his absence.

For the above reasons ground 1 must fail.

Further matters

Parliament has made clear in s 116 that the Minister may cancel a visa if he or she is satisfied that presence of its holder in Australia may be a risk to the health or good order of the Australian community. The Minister reached that state of satisfaction on grounds that cannot be said to be irrational or illogical or not based on relevant material. Whether or not others would have formed that state of satisfaction and the state of satisfaction as to the public interest is a consideration not to the point. The relevant states of satisfaction were of matters which involved questions of fact, projections of the future and evaluations in the nature of opinion. As Gummow J said in Eshetu 197 CLR at 654 [137]: “where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question”.

That is the position in this case. Another person in the position of the Minister may have not cancelled Mr Djokovic’s visa. The Minister did. The complaints made in the proceeding do not found a conclusion that the satisfaction of the relevant factors and the exercise of discretion were reached and made unlawfully.

Conclusion:-

The amended application be dismissed with costs, such costs to be agreed or failing agreement assessed.