The Djokovic saga and what it means for everyday travellers

Timeline Of Events

  • 18 November 2021 — Djokovic was granted a Temporary Activity (subclass 408) Visa
  • 05 January 2022 — Djokovic entered Australia
  • 06 January 2022 — Djokovic’s visa was cancelled by a delegate of the Department of Home Affairs (DHA) in the early hours of the morning.
  • 10 January 2022 — Federal Court orders the visa cancellation order to be quashed; reinstating his visa, and freeing Djokovic from immigration detention. Decision made on grounds of procedural fairness.
  • 14 January 2022 — MP Alex Hawke as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, utilised his personal power afforded by section 133C of the Migration Act to cancel Djokovic’s visa, and bar him from entering Australia for 3 years.
  • 16 January 2022 — Full Bench of the Federal Court rejects the challenge against the Minister’s use of personal power, and upholds the second cancellation of Djokovic’s visa.
  • 16 January 2022 — Djokovic departs Australia soon after the decision was made.

Standard Process for Unvaccinated Persons Entering Australia

From 15 December 2021 onwards, the rules of entry into Australia changed to allow fully vaccinated holders of an eligible visa to enter Australia without needing a valid Travel Exemption. Travellers with valid medical exemptions from vaccinations, or children under 12 years old may also access the same travel arrangements as fully-vaccinated travellers.

Grounds for Visa Cancellation

There are several grounds contained within the Migration Act that may act as the basis of a visa cancellation. The most common reasons that arise are non-compliance with visa conditions, such as undertaking employment without holding a visa that provides a right-to-work, or false information being provided on the visa application itself.

  • ‘The Minister may cancel a visa if he or she is satisfied that the presence of the visa holder in Australia may be a risk to the health, safety or good order of the Australian community’

The Broad Discretionary Powers of the Minister for Immigration

Shortly after the initial Federal Court decision to overturn the visa cancellation order made by the delegate underneath section 116(1)(e)(i), the Immigration Minister, Alex Hawke, utilised the personal powers afforded to him under s 133C of the Migration Act to cancel Djokovic’s visa again.

Can the Government Pick & Choose Who Enters Australia?

In theory, the government is able to pick & choose who they allow to enter Australia, pursuant to the personal power afforded to the Minister of Immigration. If a visa holder is deemed to place the ‘health, safety, or good order’ of the Australian community at risk, it is likely that the Minister will exercise his power to exclude them from entering Australia.

Djokovic’s 3-year ban

Despite the media outcry regarding the 3-year ban as a result of Djokovic’s visa cancellation, it is likely that it will be a non-issue for any future Australian Opens that Djokovic wishes to participate in. Under Public Interest Criteria contained in the Migration Regulations, the Minister for Immigration may waive the 3-year ban if it is satisfied that there are compelling circumstances which affect the interests of Australia.

Our Experience

I’d like to leave you with an example of how we have assisted a non-vaccinated individual entering NSW to quash any potential concerns or qualms that future entrants to Australia may have.

Considering Migration to Australia? Learn more about Moving to Australia as the world moves into a post-pandemic era

Gilton Valeo Lawyers is a Sydney based incorporated legal practice specialising in corporate migration, founded in 1982.

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