A full bench of the Federal Court of Australia has rendered its judgment in the appeal launched by Novak Djokovic to have his visa cancellation overturned to enable him to play in the Australian Open.
At issue was the discretionary power of the Minister of Immigration, Alex Hawke, to cancel a visa held by a person if the “minister is satisfied that it would be in the public interest to cancel the visa.”
The minister said that Djokovic “has indicated publicly that he is opposed to becoming vaccinated against COVID-19” and that allowing Djokovic to stay in the country could lead to unvaccinated Australians “refusing to get the jab, anti-vaxxers having their views reinforced, and a reduction in the uptake of booster doses.”
For him, the ongoing presence of Djokovic in Australia and his participation in the Open might nurture anti-vaccination sentiments in the Australian community, “potentially leading to an increase in the civil unrest of the kind previously experienced in Australia with rallies and protests which may themselves be a source of community transmission.”
Djokovic’s lawyers argued that Hawke’s cancellation of the visa is based on illogical and irrational reasoning. But, unless illogicality and irrationality affect the legality of the cancellation order, the minister’s decision will be legally valid.
Although all surveys, prodigiously undertaken during the last couple of weeks, suggest that most Australians agree with Hawke’s decision, a reflection on the reasons offered for the cancellation reveals some inconvenient truths.
Section 133C (3) of the Migration Act, in giving power to the minister to cancel a visa if it is “in the public’s interest” is vague and ambiguous. There are no objective criteria that an applicant for a visa could consider. Indeed, the cancellation power under this section is based on the minister’s subjective understanding of what is in the public interest.
But even more disconcerting is that Hawke’s proffered reason—that Djokovic stance against vaccination might result in Australians questioning the value of vaccines—constitutes a frontal attack on freedom of speech.
Indeed, his reasoning reveals that the views of unvaccinated individuals, especially high-profile individuals like Djokovic, are potentially dangerous if they differ from the government’s preferred views, even justifying the removal of such individuals from Australia.
This frontal attack on free speech seeks to effectively punish and excoriate views that are incompatible with the preferred views of the government. It is reasonable to suggest that such an attack will cause lasting damage to the moral fibre of Australia and its once-proud record as a liberal country.
In limiting its judgment to the legal validity of the visa cancellation, the court may well have set a precedent which, in the future, will enable the minister to rely on the vague language of the Migration Act to deny a controversial person access to Australia.
Of course, the reason offered to justify the visa cancellation is speculative because Djokovic is not an activist, but it is true that his high profile could be mimicked by his Australian supporters.
But the lawyers for Djokovic correctly indicated in their address to the court that the cancellation of the visa could also inflame the vaccination sentiments among Australians who disagree with the government’s action.
There has been quite a bit of speculation as to why the minister announced the cancellation just before 6 p.m. on Friday, Jan. 14.
Among the reasons proffered is that the timing of the announcement is a political ploy to reduce journalists’ focus on the decision during a weekend, or to make it more difficult for lawyers to mount a legal challenge during a weekend.
Others argue that it is a cynical attempt by the minister to ascertain how an anticipated visa cancellation would play out in the court of public opinion. In this court, there has always been an extremely healthy majority in favour of cancellation.
In this context, it is possible to argue that people were frustrated by Djokovic’s perceived attempts to game the system and to play by his own rules.
This perception may have been exacerbated by the huge billboard prominently displayed on a building in Belgrade, Serbia (and reproduced in Australian papers and magazines) of a victorious and smiling Djokovic in the clouds with two dogs at his feet. The billboard clearly elevates him to a Serbian demi-God and an invincible warrior.
However, the popular support for the decision of the Federal Court of Australia cannot hide the reality that people are also frustrated with the confusing, ever-changing, and ridiculous COVID-19 regulations imposed by the political class on people who have been locked up in their own homes for lengthy periods of time during lockdowns.
The latest instalment in this insipid narrative of madness is the decision of the Western Australian government to ban unvaccinated people from visiting bottle shops.
Some general conclusions can be drawn from this Djokovic debacle. First, Djokovic proudly announced on social media, on Jan. 4, that he was heading to Australia because he had been granted a medical exemption.
He obviously drew attention to himself and enraged many people in Australia who themselves were unable to circumvent the inane regulations of the government. It immediately created a furore which ensured that the story would be international news for weeks and caused the intervention by the Australian authorities.
The lesson is not to draw attention to yourself and to fly under the radar. We will, of course, never know whether that would have influenced the course of events, but it might have.
Second, the Djokovic affair prevented tennis enthusiasts from focusing on the Open. Tennis news was constantly dominated by Djokovic who was fighting for the right to play and to surpass the stupendous grand slam achievements of Federer and Nadal.
There was a persistent perception, even among the tennis players, that Djokovic played by his own rules. For example, he was criticised by Stefanos Tsitsipas, the number four ranked male tennis player in the world. And Rafael Nadal also expressed the view that nobody is above the event, the Australian Open, regardless of Djokovic’s participation.
Djokovic’s litigiousness and obstinate pursuit of his, undoubtedly legitimate, dream was perceived as an unnerving and damaging attempt to be the greatest tennis player in the history of tennis.
Djokovic may have been defeated for now, but a great champion will always overcome the adversity—some of their own making—that life throws at them. This is an unfinished story!
