Novak Djokovic has won his first legal round against the Australian authorities who want to deport him. But the world’s No. 1 tennis player now faces a formidable challenge on Sunday in his second round as he faces what some describe as the immigration minister-like powers on visa issues and the public interest.
Djokovic won his appeal in court this week against a border official’s decision to revoke his visa. He won over procedural errors related to Australia’s confusing COVID-19 vaccination regulations.
Immigration Minister Alex Hawke on Friday intervened to revoke the visa for the second time for what Djokovic’s lawyers called “radically different” reasons that put Djokovic against Australian politics and law.
What are the powers of the minister?
Hook has “personal power” to revoke Djokovic’s visa under Section 133c of the Immigration Act 1958.
Hook needed to be convinced that Djokovic’s presence in Australia “may, or may be, a danger to the health, safety or good order of the Australian community”.
The minister also needed to be convinced that an order to deport Djokovic would be in the “public interest,” a term that has no legal definition.
Contrary to the decision of the subordinate government, the “rules of natural justice do not apply” to the decision of the minister. This meant that the minister did not have to tell Djokovic that he was planning to deport him.
Hook could have secretly canceled Djokovic’s visa and then told the Serbian tennis star days later he had to leave. If the Australian Border Force had come to detain Djokovic, they would have been legally required to disclose that he did not have a visa.
Under section 133F of the law, Djokovic could then ask the minister to reverse his decision, but the only realistic option was to appeal it in court.
How does the minister exercise his authority?
In Djokovic’s case, Australian government lawyers warned him that the minister was planning to intervene on Monday when a judge returned his visa. The superstar sports star may have encouraged the government to appear as an equal.
Djokovic’s lawyers presented evidence as to why he was entitled to keep his visa and allow him to defend his Australian Open title in the days before the minister acted.
While Hooke has broad discretion to determine the public interest in visa cancellation, he must also be thoughtful and detailed in his thinking.
These decisions are not direct. Immigration attorney Kian Bohn said there is a statutory law that obligates a minister when exercising this power personally to actively engage with the material and decision.”
“It’s not something that (hook) can have a one-line saying: ‘Dear Mr. Djokovic, your visa has been revoked. “He can’t have a bureaucrat or an employee write him a resolution, look at it for two minutes and sign it,” Boone added.
How do you turn against the minister’s decision?
Since the power of the Minister is broad and discretionary, it is likely that the grounds for appeal will be less than they would be for the decision of a public official acting on the authority of the Minister. But courts have overturned ministers’ decisions in the past.
Greg Barnes, a lawyer with experience in visa issues, said the immigration minister’s powers are among the broadest under Australian law.
“One of the criticisms of this particular authority is that it is too broad and allows a minister to play the role of God in someone’s life,” Barnes said.
“It is imperative that political considerations form part of the decision because the concept of the public interest is so broad that it allows a minister to take political considerations into account effectively, although in theory this should not be done,” Barnes added.
Political considerations for Prime Minister Scott Morrison’s conservative coalition have been heightened with elections due in May at the latest.
Although Australia has the world’s highest COVID-19 vaccine rates, the government is concerned about Djokovic’s popularity among those who oppose vaccine mandates or are skeptical about the efficacy of vaccines.
Djokovic’s lawyers do not accept that these sentiments are a legitimate reason to deny the sports star a bid for 21 Grand Slam titles.
“The minister is only considering the possibility of arousing anti-violence sentiment if he is present” at the Australian Open, Nick Wood, Djokovic’s lawyer, told a court on Friday.
Wood said Hawke’s reasons do not take into account the potential impact on those situations if Djokovic is forcibly removed.
“The Secretary gives absolutely no consideration to what impact this might have on anti-extremist sentiment and public order,” Wood said. “This seems clearly illogical.”