The Novak Djokovic saga, which eventually resulted in the world number one male tennis player’s deportation from Australia, became a matter of possible electoral significance in Australia and led to protests on the streets of Belgrade. After successfully challenging the Australian Border Force’s original decision to cancel his visa (Djokovic v Minister for Home Affairs), the Australian immigration minister chose to exercise a discretionary power to cancel Djokovic’s visa. Djokovic was unsuccessful in challenging this decision (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3).

At both stages of the saga – the decision by the Border Force and the later use of the minister’s personal power – a lack of respect was shown for the value of procedural fairness. The requirement that public power be exercised in accordance with fair procedures is a fundamental component of the reciprocal relationship between the individual and the state. The Djokovic saga is a useful reminder of the ease with which such procedures can be both flouted by the executive and potentially eroded by the legislature.

The Original Decision by Australian Border Force

Djokovic, after declaring on Instagram that he had obtained an exemption from Tennis Australia’s vaccine mandate, and so would be able to defend his Australian Open title, found himself prevented by the Australian Border Force from entering the country. Djokovic had applied for medical exemption on the grounds that he had recently recovered from Covid. He had been told by Tennis Australia that this was sufficient grounds for an exemption to play in the tournament, and had been provided with travel documents by the Government of Victoria. Upon arrival at Melbourne Tullamarine Airport, however, Djokovic was denied entry to the country and his visa was cancelled.

Section 119 of the Migration Act 1958 provides that when considering cancelling a visa, immigration officers must give notice to the relevant person that there appear to be grounds for cancelling their visa. They must also give ‘particulars of those grounds’, and ‘invite the holder to show within a specified time’, either that those grounds do not exist or that there is a reason why their visa should not be cancelled. The procedure followed by the immigration officer seemed to flout at least one and possibly both of these grounds.

On the ‘particulars of the grounds’, it’s not terribly clear here what the reason for the decision was, and it is certainly evident, based on the transcript of the interview, that Djokovic himself was certainly unclear as to the reason for the decision. We can infer that the medical exemption that Djokovic had obtained was considered insufficient by the Border Force officials. The transcript does refer (p.11) to providing Djokovic with a copy of something, so perhaps more information on the grounds was provided in writing.

More serious, at least on a procedural level, was the approach taken by the immigration officer to the requirement that the visa holder be given time to make their case. As Djokovic pointed out (p.12), the time frame given to him, combined with the fact that notice of intention to cancel his visa was given in the middle of the night, presented some obvious difficulties when it came to showing that the grounds for cancelling his visa (which he wasn’t clear on) did not obtain.

The statute provides for responses either in writing, by telephone, or at an interview with an officer. The final option was presumably the only one realistically open to Djokovic in the circumstances. If the responses are to be given at an interview, then that interview is to take place ‘at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period’ (s 121(3)(b)). The immigration officer’s offer to give Djokovic twenty minutes to make his case was presumably his setting a ‘prescribed period’.

At around 5.20am, Djokovic asked for a delay until 8.30am, to give him time to contact the tennis authorities and other agencies that might be able to help him. The officers agreed to this request, however they subsequently returned at around 6.14am to tell Djokovic that he needed to give his comments then. The decision to cancel his visa was made at 7.42am.

Fair Procedures and the Rule of Law

The reception to the Federal Circuit and Family Court’s decision to reinstate Djokovic’s visa was interpreted, in some quarters, as Djokovic getting off on a technicality. But this elides the fundamental importance of procedural fairness under the rule of law. The notion that the state can exercise its coercive force against us only in line with fair procedures is central to that state’s continuing legal authority. This is at the heart, for instance, of Lon Fuller’s conception of the relationship between the citizen and state. Decisions made in accordance with fair procedures become in an important sense our decisions, decisions in which we can share as members of a political community. A state that fails or falls short in submitting ‘human conduct to the governance of rules’ (The Morality of Law) falls short in the constitution of a political community in which all are treated as agents possessed of dignity.

My point here is not just to bemoan the treatment of Djokovic specifically. He possesses vast resources to combat what, in the grand scheme of things, are fairly immaterial consequences for him. It is important, however, to point out how easily such standards are ignored in administrative decision-making, and perhaps particularly in immigration decision-making. We need not look far to see how those without Djokovic’s financial, cultural and political capital would fare when told that they have twenty minutes to present evidence of their case, and when faced with the prospects much more abject than Djokovic faced. In the hotel in which Djokovic spent a week, another asylum seeker, Mehdi Ali, has spent nine years.

Jeremy Waldron (‘The Concept and the Rule of Law’ (2008) 43(1) Georgia Law Review 1, 23-24) captures well the moral aspect of procedural requirements:

They capture a deep and important sense associated foundationally with the idea of a legal system – that law is a mode of governing people that treats them with respect, as though they had a view of their own to present on the application of a given norm to their conduct or situation. Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with.

One of the troubling aspects of reading the transcript of Djokovic’s interview is how quotidian the process followed by the immigration officers seemed to be. The reasons for the decision were given in extremely vague terms, at a time of night when no help was likely to be available, a miniscule timeframe in which to dispute the decision was given, and then the promise to extend this timeframe was reneged on. And this was the treatment of a powerful individual with easy recourse to expert legal advice.

The Immigration Minister’s Decision and Djokovic’s Subsequent Challenge

Following the Federal Circuit and Family Court’s decision to quash the cancellation of Djokovic’s visa, the Immigration Minister decided to exercise his personal power under s 133 of the Act, which states that he may do so if satisfied either that a ground for cancelling the visa under s 116 exists (i.e. that the Court got it wrong), or that it would be in the public interest to cancel the visa. The Minister stated that the decision was made ‘on health and good order grounds, on the basis that it was in the public interest to do so’. Djokovic challenged this decision too, this time unsuccessfully. He is now disqualified from applying for a visa again for three years, unless it is decided that there are ‘compelling circumstances that affect the interests of Australia’ that militate in favour of waiving this three-year period.

Djokovic was facing an uphill battle when he challenged the Minister’s decision. A challenge to such a decision, in the dual contexts of immigration and the pandemic, was unlikely to succeed. Moreover, this second challenge opened him to more searching examination of his own conduct. After obtaining a positive PCR test on 16 December, Djokovic attended several public events, including ones with several children present, without wearing a mask. He has admitted breaking Serbia’s self-isolation rules. On his Australian visa form, he falsely declared (as a result, he says, of the mistake of an assistant) that he did not travel abroad after testing positive, when in fact he had travelled to Spain.

Taking these factors into account, the minister concluded that allowing Djokovic to remain would pose a threat to health and good order in the community. Specifically, Djokovic’s continuing presence might encourage others to act against advice to get the vaccine, and may lead to ‘an increase in civil unrest of the kind previously experienced in Australia with rallies and protests which may themselves be a source of community transmission’.

Djokovic challenged the decision on three grounds. First, the Minister’s decision to cancel Djokovic’s visa on the grounds that allowing him to remain might stir up anti-vaccination sentiment was illogical, irrational or unreasonable, given that a decision to cancel the visa might itself stir up such sentiment. Secondly, that it was not open to the Minister to decide that Djokovic’s presence might ‘foster anti-vaccine’ sentiment, because he lacked any evidence to reach that conclusion. Thirdly, that it was not open to the Minister to conclude that Djokovic had a ‘well known’ stance on vaccinations. All three arguments were rejected, with the Court taking a deferential posture to the minister’s weighing of the various reasons at play, including the possibility of unrest in the event of Djokovic’s deportation.

This was largely to be expected. It merits dwelling, however, on why Djokovic was limited to challenging this decision only under the grounds of unreasonableness. Section 133(C)(4) of the statute relied on by the Immigration Minister specifically provides that the rules of natural justice do not apply to exercises of ministerial power like the one at issue here. In practice, this meant that Djokovic did not have the right to be heard before the decision was made (though his legal team did submit materials to the Minister). The Minister explained (summarised at [44] of the judgment) that he believed that it was in the public interest to use this expedited procedure, saying the following:

That public interest includes: (a) the upcoming start of the Australian Open; (b) the prospect of litigation challenging my decision and the desirability, if possible, of affording the Court time to hear arguments and make its decision; and (c) a situation where Mr DJOKOVIC is in the community while he may be a risk to health and good order.

The Court accepted these reasons. The first two reasons may at first glance make some practical sense, but there is cause for concern here. The Minister’s reasoning that the right to be heard could be foregone because the case was likely to be challenged in court, in particular, is problematic. First, Djokovic was only going to challenge the decision if it went against him. Saying that he does not need to make his case before the decision is made because he is going to challenge that decision anyway is tantamount to saying that the decision is already made, regardless of what procedure was used. Secondly, the case that Djokovic would make to the Minister in order to try to influence his decision is not equivalent to the case he would need to make to the Court to challenge the legality of that decision. The availability of judicial review is not a replacement for procedurally fair decision-making procedures.

The third reason given by the Minister for using the expedited procedure – that Djokovic posed a risk to health and good order while in the community – is similarly unconvincing. The minister mulled his decision amidst growing public speculation for four days before delivering it. It is difficult to see how the extra time that might have been afforded to Djokovic to make his case more robustly would have heightened any risk to good order.

It is notable that part of the Court’s reason for holding the Minister’s decision reasonable was that the Minister was entitled to infer that Djokovic maintained anti-vaccination attitudes, in part because:

[T]here was no express statement to the contrary of what could be inferred to be his attitude up to January 2022. Mr Djokovic had not volunteered any information when interviewed at the airport by officers of the Department of Home Affairs. He did not give evidence of any apparent change of attitude. [75]

The procedure used by the Minister, however, removed at least one opportunity to give precisely such evidence. The absence of a specific procedure at the decision-making stage, in other words, could potentially have directly contributed to the likelihood of success under unreasonableness grounds at the judicial review stage. It is highly unlikely, of course, that Djokovic would have recanted his previous comments on vaccines had he been given time to make his case to the Minister. That does not, however, mean that he should not be afforded the opportunity to be heard and to make his case however he saw fit, before the decision against him was made.

The procedural protections on which citizens can rely, this makes clear, are subject to erosion by statute. Here, the statute relied on by the Immigration Minister in Djokovic’s case created a decision-making process that is excepted from the demands of procedural fairness, and this process then directly affected the strength of Djokovic’s challenge to that decision.

None of this is to say that the Minister should have allowed Djokovic to remain in Australia. The creation of decision-making procedures that explicitly eschew the demands of natural justice, however, and the apparent ease with which resort to such procedures is made, present obvious general concerns. A similar problem, for example, is presented by the plans in clause 9 of the UK’s Nationality and Borders Bill to allow notice of deprivation of citizenship to be disposed with by Ministers.

The Djokovic saga, ultimately, is the story of an extremely rich sportsperson being mildly inconvenienced. But it serves as an opportunity to reflect on the need for administrative systems that operate in accordance with the principle that all individuals are entitled to have the decisions that affect them made in accordance with fair procedures.

Dr Conor Crummey, Lecturer in Public Law, University of Glasgow

(Suggested citation: C. Crummey, ‘Mr Djokovic Has No Challenges Remaining’, U.K. Const. L. Blog (1st February 2022) (available at https://ukconstitutionallaw.org/))