January 10, 2022 will be remembered as one of the odder days in the annals of sport. For one, it had little to do with
physical exertion. Tennis proved secondary to the claims of one Novak Djokovic, currently the world’s number one ranked
player. Instead of finding himself training on court in preparation for the Australian Open, he found himself with a
legal team in the recently created Federal Circuit and Family Court of Australia. His purpose: to challenge the decision
to cancel his Temporary Activity visa (subclass 408 in bureaucratic lingo), after his arrival in Australia just prior to
midnight on January 5.
The visa was granted on November 18 last year and, according
to his court submission, “was subject to no condition having the effect that his right to enter and remain in Australia
was qualified in any way in regard his vaccination status.” On December 30, 2021 the player received a letter from the
Chief Medical Officer of Tennis Australia noting that he had been granted a “Medical exemption from COVID vaccination”
on the grounds that he had recently recovered from COVID-19.
The letter also noted
a range of salient points. Djokovic, for instance, recorded the first positive COVID PCR test on December 16, 2021.
Fourteen days had expired; the player had shown no relevant symptoms of a fever or respiratory symptoms in the last 72
hours. The exemption certificate had been provided by an Independent Medical Review panel commissioned by Tennis
Australia and duly reviewed and approved by an independent Medical Exemptions Review Panel of the Victorian State
Government. These exemption conditions were also deemed consistent with the Australian Technical Advisory Group on
On January 1, 2021, the Department of Home Affairs informed
Djokovic that his Australia Travel Declaration had been assessed and approved. His “responses [i]ndicated that [he met]
the requirements for a quarantine-free travel into Australia where permitted by the jurisdiction of your travel.”
It then came as quite a shock that his visa was cancelled after arriving in Melbourne International airport by a
delegate of the Australian Border Force. He had been held, incommunicado, for eight hours (till approximately 8 am, January 6). After being notified of the decision, Djokovic was hurried off
to the infamous Park Hotel in Melbourne where he, in his defence team’s words
, was detained “notwithstanding his requests to be moved to a more suitable place of detention that would enable him to
train and condition for the Australian Tennis Open should this present challenge to the Purported Decision be
Judge Anthony Kelly had to confront a veritable blizzard of legal grounds, eight in all. Among other things, these
focused on the purported invalidity of the notice given to Djokovic in cancelling the visa. The immigration minister
could only exercise a discretion to cancel the visa after considering that notice. There were also time constraints in
making that decision, and considerations of natural justice.
The cardinal point remained the differing readings by Djokovic and the Commonwealth government on the nature of the
medical exemption. For the tennis player, testing positive on December 16 exempted him from the vaccination requirement
for six months, a reading based on ATAGI’s statement
to that effect.
The Commonwealth rejected
this interpretation, claiming that having a previous infection did not dispense with the need to be vaccinated before
entering Australia. A deferral of vaccination should not have been read as an excuse not to get vaccinated. Placing such heavy reliance on the Tennis Australia exemption letter did not constitute sufficient
information for the purpose of entering the country unvaccinated. The government also disputed
whether Djokovic had an “acute major medical illness” last month. “All he said is that he tested positive for COVID-19.
This is not the same.” (Djokovic did himself few favours in that regard, having been photographed
at public events following the positive test.)
In terms of the constitutional pecking order, the government lawyers were eager to pull rank. It did not ultimately
matter what Tennis Australia had concluded, or, for that matter, what the Victorian government had done. In submissions
to the court, the government asserted that there was “no such thing as an assurance of entry by a non-citizen into
Australia”. The Commonwealth had the final say.
Remarkably, and disturbingly, it is also clear that the same thing applies to Australian citizens, who have no formal constitutional guarantee
of a right to return or re-enter their country despite such a position being protected at international law.
At points, the denseness of the legal argument struck a nerve. The number of acronyms used stirred the judicial bench.
“You’re going to have to drag yourself back to the last century,” stated
the judge pointedly to Djokovic’s lawyer, Nick Wood. “I hate acronyms.”
But the government lawyers fared worse, being told witheringly
that, “Here, a professor and a physician have produced and provided to (Djokovic) a medical exemption. Further to that,
that medical exemption and the basis on which it was given was separately given by a further independent expert
specialist panel established by the Victorian state government […] The point I am agitated about is, what more could
this man have done?”
Both sides eventually agreed that the notice requirement for Djokovic had not been adequately satisfied. In the words of
the court order
, the “decision to proceed with the interview and make a decision to cancel the applicant’s visa pursuant to s.116 of
the Migration Act 1958 (Cth) was unreasonable”. This was because Djokovic had been told at 5.20am on January 6 that he would have until 8.30am
to “provide comments in response to a notice of intention to consider cancellation” under that same provision.
Impatiently, the authorities had sought comments at 6.14am, with the decision to cancel the visa being made at 7.42am.
Despite quashing the cancellation decision and mandating that Djokovic be released from immigration detention “without
limitation thereto […] by no later than 30 minutes after them making of this Order”, counsel representing the
Commonwealth made an ominous promise. The Minister for Immigration “may consider whether to exercise a personal power of
cancellation” under the Migration Act.
In response, Judge Kelly insisted
that he be “fully informed in advance” of such developments, warning that “the stakes had risen rather than receded.”
Any cancellation will promise further litigation and the prospect that Djokovic be barred from entering the country for
three years, though this requirement can be waived.
In this episode of pandemic bureaucracy has seen a number of inglorious achievements. The Commonwealth has done its bit
to conjure up a monster of its own making. It failed to follow its own notice requirements of visa cancellation in
shabby fashion. It created an exemption system lacking in clarity and liable to be interpreted, at points freely, by
state and sporting bodies. It aided the tarnishing of tennis and an international tournament whilst almost causing a
diplomatic incident with Serbia.
Even as the threat of cancellation for Djokovic hovers, the one thing that will not be cancelled will be the indefinite
detention regime for refugees of which the tennis star sampled, if only briefly. That the prominent Serbian was ever
asked to be an impromptu spokesman for those detained for years in Australia’s very own minted concentration camp system suggested
, in Behrouz Boochani’s words, “that politics is broken there.” His advice: that true power lay within the borders of a
country with its citizens, rather than that of a celebrity.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.