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What happened on 10 January 2022?   

On 10 January 2022, the Federal Circuit and Family Court of Australia (FCFCA) decided in favour of Mr Djokovic’s application to quash the Department of Home Affair’s decision to cancel his visa. The Court ordered the immediate release of Mr Djokovic from immigration detention facilities. Given this, Mr Djokovic may still compete at the upcoming Australian Tennis Open.

 

What caused the Court Case?

Mr Djokovic arrived in Australia on 5 January 2021 to compete in the Australian Tennis Open commencing on 17 January 2022. Before he entered Australia, he held a Temporary Activity (subclass 408) visa granted on 18 November 2021. Prior to his arrival, Djokovic received a medical exemption from the COVID vaccination letter from the Chief Medical Officer of Tennis Australia approved by the Victorian State Government. In addition to this, Mr Djokovic also received a document from the Department of Home Affairs informing him that he had met the requirements for quarantine-free arrival. In light of this, Djokovic travelled to Melbourne under the impression that he was entitled to enter Australia to compete in the Australian Tennis Open.

 

However, upon his arrival at Melbourne Airport, the tennis star’s visa was cancelled by a delegate of the Minister for Home Affairs under section 116(1)(e)(i) of the Migration Act 1958 (Cth)(“Act”). In essence, under this section of the Act, Djokovic was deemed to be a potential risk to the health, safety and good order of the Australian community. Following the visa denial, he was detained in the hotel until his release. In response Djokovic filed an Application on 6 January 2022 before the Federal Circuit and Family Court of Australia to quash the Minister for Home Affairs’ decision to cancel his visa.

 

What were Djokovic’s Arguments?

At Court, Djokovic’s legal counsel ran several complex legal arguments which can be summarised into three broad categories: –

 

  1. the Minister of Home Affairs failed to give notice according to the Migration Act 1958 (Cth);

 

  1. the delegate of the Minister for Home Affairs wrongfully interpreted the Migration Act 1958 (Cth) and did not have the ground to cancel Mr Djokovic’s visa; and

 

  1. that Djokovic was denied procedural fairness, and the delegate for the Minister for Home Affairs acted unreasonably.

 

The Court’s Decision:

Out of these three main arguments, the Court accepted that the Minister for Home Affairs’ delegate’s decision to interview and cancel Mr Djokovic’s visa was unreasonable. The Court noted that Djokovic was denied the opportunity to make comments in response to the notice of intention to consider cancellation under section 116 of the Act. In particular, the Court took note that at 5:20 am on 6 January 2022, Djokovic was told that he could have until 8.30 am to provide comments in response to a notice of intention to consider cancellation. However, Djokovic was requested to provide his comments at 6:14 am, two hours before the 8:30 am deadline. Subsequently, the Department of Home Affairs delegate decided to cancel Mr Djokovic’s visa at 7:42 am. In considering it decision in relation to these actions, the Court reasoned that, had Mr Djokovic been allowed until 8:30 am, he could have consulted others and made further submissions to the delegate about why his visa should not be cancelled. Given the above, the Court decided that the delegate’s decision to cancel Mr Djokovic’s visa was unreasonable, and the delegate’s decision ought to be quashed.

 

Our Support to You:

If you require assistance with obtaining visas or the appeal process, H&O Lawyers are here to help. We are now offering online services in both English and Chinese.

 

Simply book an online consultation with us via this link: https://straits-lawyers.square.site/product/online-consultation-/11?cs=true or email us at info@straitslawyers.com or call at 08 8410 9069 to arrange an appointment.

 

Straits Lawyers is evolving! With our recent growth and development, we have expanded and are excited to announce the launch of our new name H&O Lawyers. Stand by for the new age of legal representation brought to you by H&O!

 

Please note that this article does not constitute legal advice, and H&O Lawyers will not be legally responsible for any actions you take based on this article.