Home > News > Power of Judicial Review: Federal Court’s Decision on Djokovic Visa

Power of Judicial Review: Federal Court’s Decision on Djokovic Visa

Spread the love

By Philip Colman and Shreya Dutt

The recent issue between the Australian Government and Novak Djokovic has been no less than a game of tennis. The saga kept engaged not only the Australian tennis community but lawyers and the general public from across the globe. The dispute was full of surprising moves by the Australian Government and till the end, it was unclear who would win; would Djokovic be allowed to stay in Australia and defend his title or would he be deported from Australia.

Background

Djokovic was granted a visa by the Australian Government to enter Australia and participate in the Australian Open. In addition, he was also granted a medical exemption from vaccination against the COVID-19 virus. However, upon his arrival in Australia, a delegate for the Minister of Home Affairs (Minister) purported to cancel Djokovic’s visa under section 116(1)(e)(i) of the Migration Act 1958 (Cth) (the Act). This section grants the delegate the power to cancel a visa if there is a likelihood of risk to the health and safety of the Australian community.

Initial application

Djokovic filed an application with the Federal Circuit and Family Court for an order quashing the delegate’s decision to cancel his visa.  This application was heard by Judge Kelly but the Minister ultimately conceded that the process at Melbourne Airport whereby an earlier decision to give Djokovic until 8.30 am in the morning to consult with Tennis Australia and his advisors before responding to the notice of intention to cancel his visa, was revoked and the delegate simply cancelled his visa. At the hearing, Counsel for the Minister conceded that the decision by the delegate was legally unreasonable by reason of a denial of procedural fairness. Consent orders were made quashing the delegate’s decision and ordering the Minister to pay Djokovic’s costs.

At the end of this hearing Counsel for the Minister advised Judge Kelly that the Minister may exercise his personal power to cancel Djokovic’s visa pursuant to subsection 133C(3) of the Act. This is a ‘public interest’ power that gives extreme powers and discretion to the Minister to personally cancel a visa if the Minister is satisfied that grounds for cancellation are available under s116(b) of the Act.

The Minister’s power

Subsection 133C(3) allows the Minister to cancel a visa if satisfied that it would be in the public interest to do so, without giving the visa holder the opportunity to establish that the ground for cancellation does not exist (though the Minister is still required to invite the visa holder to make representations in accordance with subsection 133F(3)). The Explanatory Memorandum (page 30) to the Bill which became the Migration Amendment (Character and General Visa Cancellation) Act 2014 which introduced subsection 133C(3) notes that this provision was introduced to allow the Minister in certain circumstances to cancel a visa quickly without notice (though is silent to what circumstances were envisaged). Where the Minister has chosen to proceed down this pathway, the procedures set out in Subdivisions E and F of the Act (subsection 133C(4)) and the rules of natural justice do not apply. As noted by academic Mary Crock ‘the Act gives the minister “god-like powers” to cancel visas and if “they really decide to … the power is there”’.

Subsequent decision to cancel visa

On 14 January 2022, the Minister exercised that power and cancelled Djokovic’s visa citing that Djokovic’s presence in Australia would pose a risk to the Australian community (Minister’s Decision). The Minister’s Decision focused on the issue of whether Djokovic’s presence could provoke the anti-vaccination supporters in Australia.

Judicial review of the Minister’s Decision

Djokovic sought a judicial review of the Minister’s Decision claiming a judicial error. Djokovic relied upon three grounds, namely,:

  • There was an Illogical or unreasonable approach to the question of public interest and exercise of discretion;
  • There was no evidence that supported his finding that Mr Djokovic’s presence in Australia may “foster anti-vaccination sentiment’, and it was not open to the Minister to make that finding; and
  • It was not open for the Minister to make a finding concerning Mr Djokovic’s “well-known stance on vaccination”.

Furthermore, Djokovic also argued that the Minister failed to take into consideration that Djokovic’s deportation from Australia may create further unrest amongst his supporters.

A full bench of the Federal Court was convened to hear this matter.  This is very unusual but we suspect that given the urgency of the matter the Court did not want there to be a further appeal against a single Judge’s order.

The Court noted that it had the power of judicial review of the Minister’s Decision under s476 of the Act and additional powers under section 26(1) of the Federal Court of Australia Act 1976 (Cth).

In its written reasons for the decision, the Court summarised its power of judicial review. The Court observed that using its power of judicial review, a court of law can review a decision made by the executive branch of the government (in this case, the Minister) but that the review needs to be done by reference to legality or lawfulness of the decision and not by considering the merits or wisdom of the decision; or by remaking remake the decision.

Looking at the relevant statutory provision, being, section 133C of the Act, the Court noted that the requirement of the section was that the Minister was satisfied that the cancelation of the visa would be in public interest, that there may be, or might be, a risk to the health, safety or good order of the Australian community or a segment of it [emphasis added] . Thus, the actual fact of there being risk was not required for the Minister to exercise his powers under section 133C of the Act.

The Court confirmed that the Minister’s exercise of power under section 133C of the Act is not beyond judicial review. If upon review of a decision, the Court finds that the decision was reached unreasonably or was not capable of being reached on proper material or lawful grounds, then such a decision cannot be said to have been made with lawful satisfaction, as required under the Act.

While examining whether the Minister’s satisfaction was lawful, the Court looked at several previous decisions on requirements of lawful satisfaction; findings of fact without relevant evidence or material; illogicality, irrationality and legal unreasonableness; and the public interest factor under section 133C(3)(b) of the Act.

The Court examined the written reasons for the Minister’s Decision and noted that the Minister was advised Djokovic posted ‘negligible’ risk of infecting others. However, based on the material before him, including the fact that Djokovic publicly acknowledged that he was against the vaccination, the Minister had concluded that Djokovic’s presence in Australia may foster anti-vaccination sentiment leading to other unvaccinated persons refusing to become vaccinated; other unvaccinated persons being reinforced in their existing view not to become vaccinated, and/or a reduction in the uptake of booster vaccines.

After the matter was heard by the Court, the Court ruled that the three grounds relied upon by Djokovic in his application did not establish that the Minister’s Decision was not legally regular. Djokovic’s anti vaccination sentiments were well known and documented in the media. The second ground cited by Djokovic was also not maintainable because based on the evidence, it was reasonable for the Minister to infer that Djokovic’s presence in Australia may encourage an attitude of breach of public order. Thus, on a judicial review of the Minister’s Decision, the Court found that the Minister’s satisfaction was lawful and not unreasonable. The Minister’s Decision it could not be quashed by the Court. Accordingly, Djokovic’s application was dismissed with costs.

Despite being a highly publicised matter involving a world-renowned athlete, this decision is a reminder that a Court is limited by its power to judicially review a decision by the Minister under this subsection 133C(3) of the Act. The Court cannot step into the shoes of a decision maker and look at the merits of the original decision. The power of the Court is confined to determining if the procedure adopted by the decision maker was legally acceptable and reasonable.