Novak Djokovic – A Cautionary Tale in Bad Vaccination Advice
The Federal Court of Australia dismissed the appeal of the decision made by Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alexander Hawke, to cancel the visa for the second time, of the world’s number one ranked men’s tennis player Novak Djokovic.
Djokovic who is also the nine-time Australia Open champion and has not been vaccinated for Covid-19, had been granted a Class GG subclass 408 Temporary Activity visa on 18 November 2021 as well as a medical exemption (having recently contracted COVID-19) by the Victorian Government for the purpose of competing in the Australian Open Tennis Championship.
On 5 January 2022 he arrived at Melbourne’s Tullamarine Airport in the early morning in advance of the Australian Open, but spent the following four nights detained in a hotel in Melbourne after the Federal Government interceded, and insisted that Djokovic would not be permitted to remain in Melbourne to defend his Australia Open title, and that his visa would be cancelled.
On 10 January 2022 Djokovic won his first appeal in the Federal Circuit and Family Court (FCFC) where Justice Kelly ruled that Djokovic was not afforded procedural fairness owing to the border force’s and the immigration delegate’s handling of his arrival at Tullamarine Airport. He was then released from his detention hotel and permitted to practice inside Rod Laver Arena, and later officially listed in the delayed players draw for the Australian Open.
However, on the evening of 14 January 2022 , the Immigration Minister used his discretionary powers under section 133C(3) of the Migration Act 1958 (Cth) to cancel Djokovic’s visa for the second time, being satisfied that there were grounds for the cancellation of Djokovic’s visa. The Minister was satisfied; under section 116(1)(e)(i) of the Migration Act, that Djokovic’s presence in Australia may pose a risk to the health, safety or good order of the Australian community; and that there were grounds under section 133C(3)(b) of the Act, whereby cancellation of Djokovic’s visa was in the public interest and his continued presence “may be counterproductive to efforts at vaccination by others”.
Djokovic lodged his second appeal, which was then heard by the full bench of the Federal Court of Australia after being transferred from the FCFC.
On 16 January 2022 Chief Justice Allsop, Justice Besanko and Justice O’Callaghan delivered their unanimous decision, rejecting Djokovic’s appeal and upholding the Minister’s decision. Included in the reasons that the Justice’s later provided for their ruling, were the following remarks:
“The central proposition of Mr Djokovic’s argument was that the Minister lacked any evidence and cited none that his presence may ‘foster anti-vaccination sentiment’…However, it was open to infer that it was perceived by the public that Mr Djokovic was not in favour of vaccinations…It was known or at least perceived by the public that he had chosen not to be vaccinated”
“There was a clear interrelationship among all parts of the Minister’s reasons. The themes of encouragement and emulation of a sporting hero and icon run through the reasons for satisfaction as to health and good order and the public interest”
“The Minister reached that state of satisfaction on grounds that cannot be said to be irrational or illogical or not based on relevant material…The complaints made in the proceeding do not found a conclusion that the satisfaction of the relevant factors and the exercise of discretion were reached and made unlawfully”
Djokovic was subsequently deported on the eve of the Australian Open and is automatically banned from re-entering Australia for 3 years (unless the Government waives this rule)
Koffels Solicitors & Barristers are members of both the Australia New Zealand Sports Law Association (ANZSLA) and the Global Sports Law Group, providing legal advice to sporting bodies and athletes both locally, and around the world.
If you have encountered challenges from the vaccination advice or directions provided by a government or non-government body or agency, that has adversely affected you or your organisation, we have the experience and we are here to help you navigate this ever changing intersection of Covid-19 vaccination and sport. How you deal with this either as an athlete or sports administrator will need a careful and considered approach.
