Tennis Australia officials and a good number of Aussie tennis fans were relieved to hear the ruling made by Federal Circuit Court Judge Anthony Kelly yesterday that Novak Djokovic can stay in Melbourne – for now. The judge also issued his immediate release from detention.
But the saga is not over yet. The Immigration Minister Alex Hawke still retains the power to cancel the tennis player’s visa at any time.
The controversy began when Mr Djokovic arrived in Australia, unvaccinated, with a medical exemption, having already suffered a bout of Covid-19 some months ago. Border officials detained Mr Djokovic on his arrival in Australia and cancelled his Visa.
Mr Djokovic’s lawyers took the challenge to court, arguing that the tennis star had been treated unfairly by Border Force officials and denied due process.
What more could this man have done?
In handing down his findings to the court, exasperated Judge Anthony Kelly remarked: What more could this man have done?”.
The court heard that the tennis player met the criteria set by Australia’s advisory board on immunisation, received a travel declaration from the federal government, was granted a medical exemption by Tennis Australia and also provided Border Force officials with evidence of the exemption.
The Judge ruled in favour of Mr Djokovic, finding it was unreasonable for an Australian Border Force official to cancel the visa when the tennis star had believed he had more time to consult lawyers. He also ordered the Home Affairs Minister Karen Andrews, that the government would pay costs and take “all necessary steps to release the applicant immediately” from detention.
Immigration Minister can still deport the tennis player
But the Judge’s decision is not a free pass. Immigration Minister Alex Hawke still has the ultimate power to determine whether Mr Djokovic can stay in Australia, under section 133C(3) of the Migration Act which gives the minister sweeping powers to cancel visas..
Under Section 116 of the Migration Act, the Minister has the discretion to cancel a Visa if he believes a person poses a risk to the “health, safety or good order of the Australian community or a segment of the Australian community” or the “health or safety of an individual or individuals”.
If Mr Hawke enacts these powers Mr Djokovic could contest any cancellation of his Visa, although it would not be straightforward, and any legal challenge would need to be rushed through the courts, given that the Australian Open begins in Melbourne next week.
The world has been watching on – thousands of people tuned into the live streaming of the case on YouTube – and the confusion and blame-shifting around the issue has not reflected well upon Australia.
Documents from Tennis Australia which were leaked to the media in the past few days show that the organisation asked the Department of Home Affairs to check the visa paperwork of Novak Djokovic and other players before they boarded planes in their home countries.
The request was denied by department officials, yet had it been granted, it could have prevented the Visa debacle and ensuing international embarrassment.
It’s understood that two panels of medical experts and Tennis Australia both signed off on an exemption, which did not meet the criteria set out by the ABF.
It has been a complex case, but it appears that some of the problems stemmed from the fact that the medical exemption required for bypassing state-based quarantine is completely separate to the federal process for approving entry to Australia for visa purposes. In other words, a quarantine exemption did not automatically ensure that players were cleared to enter Australia.
In other leaked correspondence, Dr Allison Cairns, an adviser to the chief medical officer of Australia, stated that medical exemptions are a state and territory issue.
Australia’s labyrinthine of confusing rules and regulations
The disparity between approaches by Federal and state and territory Government throughout the pandemic has been, and continues to be, a big problem. Because State and Territory leaders have the authority to put in place their own rules which are not consistent across the country, bewilderment and uncertainty across most of the rules and regulations remains.
Unfortunately, the potential consequences for anyone who inadvertently misunderstands the labyrinthine of convoluted processes and procedures can be very serious. Misinterpreting or misreading the rules is not necessarily an adequate defence. As we’ve seen time and again during the Covid-19 pandemic, our governments have a tendency to consider people guilty, until they are able to prove their innocence.