The tactical retreat by the government in the Novak Djokovic court case saved it from a far worse scenario – a scathing judgment that would have exposed serious flaws in the visa cancellation process.
It was procedural fairness issues that led to the parties agreeing to consent orders by Judge Anthony Kelly that the decision to cancel Mr Djokovic’s visa at Melbourne Airport on January 6 be quashed, and that the Commonwealth pay Djokovic’s considerable costs.
But leading immigration lawyers say Djokovic’s team had sound arguments on at least two other points.
Nigel Dobbie and Carina Ford told The Australian Financial Review that arguments by the tennis player that border officials did not even fill out his cancellation notice properly were compelling.
Ms Ford was also sympathetic to his team’s argument that officials got it wrong in saying that prior COVID-19 infection was not a relevant reason for a medical exemption from vaccination.
“The procedural errors, and, in my view, also the technical notice errors, doomed the case for the minister,” said Nigel Dobbie of Dobbie & Devine Immigration Lawyers, referring to Home Affairs Minister Karen Andrews, who was the official government face of the case because of her responsibility for borders.
“The minister wisely bailed out before the learned judge handed down what would have been a most interesting set of reasons.”
How the tennis superstar was treated at Melbourne Airport late at night, and into the early hours of last Thursday morning, by Australian Border Force officials became a flashpoint in his court challenge of the decision to cancel his visa.
Judge Kelly noted that the Commonwealth had conceded the decision to proceed with an interview with Djokovic in the early hours of Thursday morning – after reneging on a deal to wait until 8.30am – and then cancel the visa under section 116 of the Migration Act “was unreasonable”.
Mr Dobbie suggested this was the “soft point” for the government to concede on.
“The danger the minister faced – and which is why she conceded – was that the judge might have given strong reasons in relation to that conduct [by Border Force officials].
“The guy is asleep, you wake him up, and you haul him in there to continue the process.”
Mr Dobbie said the way officials proceeded was “not permitted by law” because before proceeding a cancellation, under section 116 of the act, they first had to give a valid notice of cancellation that included the grounds for the action.
“Otherwise it is just a purported notice – and therefore a purported decision,” Mr Dobbie said.
“When you look at the delegate’s notice, it combined part of 116d and 116e. He took one ground and lumped it with the other ground. That’s not permitted by law.
“You can’t give someone particulars of the ground if what you have given them is a blend of two grounds …
“The process was unlawful at the outset because the notice was unlawful.”
Not normally ‘so wrong’
Mr Dobbie, who identified in 2005 that the automatic cancellation of many student visas was unlawful, said the case law on section 119 was “very strict”.
This error was referred to by Djokovic’s barrister as a “mash up” at the hearing.
Mr Dobbie said the Djokovic case was “quirky”.
When a visa is cancelled at the airport, there is no right of appeal to the Administrative Appeals Tribunal.
“If a visa is cancelled when you are in the community, you go to the AAT,” Mr Dobbie said. “But in a section 116 case, the tribunal can ignore this failure to comply (with the act).
“Which is why practitioners must go to court to get relief if they want to quash the original decision.”
He said border officials “don’t normally get them [the cancellation notices] so wrong”.
“The problem for people at the airport is they normally get turned around and they don’t want to appeal to the courts.”
In written submissions, Djokovic’s lawyers said there was “no ground for cancellation which involves combining sections 116(1)(d) and (e) in the way stated by the [Border Force] delegate”.
“In short, the delegate gave Mr Djokovic notice of proposed cancellation where the notice specified a purported ground of cancellation that did not in fact exist.“
Carina Ford, of Carina Ford Immigration Lawyers, agreed that Djokovic “was likely to succeed on more than one ground”.
However, she said that if Djokovic had won on the notice issue, the government could have simply given another notification to cancel.
‘Misread’ ATAGI guidelines
Ms Ford, who has represented the Tamil family who wanted to stay in Biloela, said another issue was whether Djokovic had taken all the required steps for a medical exemption from COVID-19 vaccine requirements.
“I don’t think it was clear-cut as to what was required as proof for a medical exemption.
“When you go to look at what’s available on the Department of Home Affairs website it doesn’t refer to the ATAGI (Australian Technical Advisory Group on Immunisation) guidelines.”
Djokovic’s lawyers suggested the border official had misread the ATAGI guidelines and that an infection within the past six months was regarded as a medical contraindication.
“The delegate radically and fundamentally, in a way that no reasonable decision-maker could have done, misapplied that advice to Mr Djokovic’s situation,” the submission said.
Ms Ford said it appeared that it was unclear as to which version of the ATAGI guidelines was meant to be relied upon between the parties. “That indicates there was confusion.
“The thing that cuts against that is the [government’s] correspondence with Tennis Australia. But that only related to quarantining – not whether they would get an exemption.
“There should have been a consensus approach taken before someone attempted to enter Australia so it was very clear what the process was.”