Three-Panel Judge Backs Immigration Official’s Right to Make Personal Decision over Visa Status
January 16, 2022—A three-judge panel made a decision today in the case of Novak Djokovic versus an immigration minister, and the decision is final.
The 20-time-Grand Slam title champion lost his appeal to stay in the country; the government’s deportation order stood, and Novak Djokovic left the country. Game over.
What Happened?
The troubling part of the story is the legal reasoning behind the decision. The court order on January 16 said, “reasons to be published at a later date.”
In short, it was not because of Djokovic’s vaccination status or visa status. Either one of those issues, if they had been issues, would have been reasonable. Australia, like every other country, is after all, within its right to determine immigration policies.
Legal Wrangling
Let’s start with a quick recap of this month’s events.
First, Djokovic had a visa when he arrived in Melbourne, Australia on January 5. But trouble soon ensued. The next morning, a border official canceled the temporary visa. (For those legal eagles out there, the official cited section 116 of the Migration Act of 1958.) And the official placed Djokovic in a detention holding center.
Then, Djokovic, through his attorneys in Australia, had his day in court on January 10. He and his team won. Judge Kelly quashed the cancellation. But the Ministry of Immigration — and to be specific, Minister Alex Hawke — had another chance to have a say over the matter. Another section of the law (133c(3)) gave Minister Hawke the ability to “make a personal decision to cancel a visa without notice” if he believes it’s in the public interest.
So on Friday, January 14, given another chance to speak on the matter, the immigration minister again canceled the visa. And the reason why is haunting.
‘Very Low Risk’ of Transmitting the Virus
What is exceptionally odd and ironic is that Australia’s Health Department had said Djokovic posed a “very low risk” of transmitting COVID-19 at the Australian Open—even if he was to be exposed to it there. And Minister Hawke acknowledged that advice. He cited the following quote by the Health Department in his decision:
“Mr. Djokovic is unlikely to be infectious with SARS-COV-@ and as such is likely to constitute a LOW risk of transmitting SARS-CoV-2 to others.”
The minister went on to say he was not medically trained and therefore did not read the material Djokovic provided to him about his health status and his reason for not getting vaccinated in December. (That related to medical advice on risks associated with getting vaccinated after testing positive for COVID.) Hawke wrote that he assumed the medical advice provided was correct—that Djokovic posed little to no risk.
‘High Profile Individual’
So why the cancellation? Well, it turns out, I was wrong in my previous post when I said it wasn’t exactly “cancel culture.” It was cancel-culture. The minister said Djokovic is a “high profile unvaccinated individual” who “indicated publically” he did not want to receive the vaccine. The minister went on to cite a comment Djokovic made in April 2020.
Djokovic’s lawyers pointed out in Sunday’s long court hearing that their client made those comments well before any government in the world had even approved a vaccine on an emergency-use authorization. Yet it was those comments that matter to Minister Hawke.
Today the three-judge panel upheld Minister Hawke’s authority as the final one.
And that decision coming down in a democratic country is a chilling condemnation against free speech everywhere.
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