How Djokovic plans to fight deportation in court

MELBOURNE – Novak Djokovic has won his first legal round against Australian authorities who want to deport him. But the world tennis No. 1 now faces a formidable challenge in its second round on Sunday as he takes on what some describe as the immigration minister’s divine powers over visas and public interest.

Djokovic won his appeal this week against a border officer’s decision to revoke his visa. He won procedural errors related to Australia’s confusing COVID-19 vaccination regulations.

Immigration Minister Alex Hawke’s intervention on Friday to revoke the visa a second time for what Djokovic’s lawyers describe as “radically different” reasons pits Djokovic against Australian politics and the law.

WHAT ARE THE POWERS OF THE MINISTER?

Hawke has “personal authority” to cancel Djokovic’s visa under section 133C of the 1958 Migration Act.

Hawke had to be convinced that Djokovic’s presence in Australia “might be or could pose a risk to the health, safety or good order of the Australian community.”

The minister also had to be convinced that ordering Djokovic’s expulsion would be in the “public interest”, a term that has no legal definition.

Unlike the decision of a government subordinate, the “rules of natural justice do not apply” to a minister’s decision. That means the minister didn’t have to tell Djokovic that he intended to evict him.

Hawke could have secretly canceled Djokovic’s visa and informed the Serbian tennis star days later that he had to go. If the Australian Border Forces had come to arrest Djokovic, they would have had to legally reveal that he did not have a visa.

Under Section 133F of the law, Djokovic could then have asked the minister to reverse his decision, but the only realistic option would have been to appeal to the court.

HOW DOES THE MINISTER EXERCISE HIS POWER?

In Djokovic’s case, Australian government lawyers warned him that the minister planned to intervene on Monday when a judge reinstated his visa. The star athlete’s high profile may have encouraged the government to appear honest.

Djokovic’s lawyers provided evidence as to why he was allowed to keep his visa and defend his title at the Australian Open in the days before the minister acted.

While Hawke has a wide discretion in defining the public interest in canceling a visa, he must also be thoughtful and detailed in his reasoning.

“These decisions are not easy. There is case law that compels a minister when personally exercising this power to be actively intellectually involved in the material and decision,” said immigration attorney Kian Bone.

“It’s not something that he (Hawke) can have a one-liner that says, ‘Dear Mr. Djokovic, your visa has been cancelled.’ He can’t have a bureaucrat or an executive write a decision for him, look at it for two minutes and sign it,” Bone added.

HOW DO YOU MOVE A MINISTER’S DECISION?

Because the minister’s powers are so broad and discretionary, there are potentially fewer grounds for appeal than for a decision by a civil servant acting on the authority of a minister. But courts have in the past overturned ministerial decisions.

The immigration minister’s powers are among the broadest offered by Australian law, said Greg Barns, a lawyer experienced in visa matters.

“One of the criticisms of this particular power is that it’s so broad and it basically allows the pastor to play God with someone’s life,” Barns said.

“It is inevitable that political considerations will be part of the decision, because that public interest concept is so broad that it allows a minister to effectively take political considerations into account, even though in theory it shouldn’t,” added Barnes to it.

Political considerations are tightening for Prime Minister Scott Morrison’s conservative coalition, with elections by May at the latest.

While Australia has one of the highest rates of COVID-19 vaccination in the world, the government is concerned about Djokovic’s popularity among those opposed to vaccine mandates or skeptical about the vaccine’s efficacy.

Djokovic’s lawyers do not accept that those feelings are a legitimate reason to deny the sports star an attempt at a record 21 Grand Slam titles.

“The minister will only consider the potential for exciting anti-vax sentiment if he is present” at the Australian Open, Djokovic’s lawyer Nick Wood told a court on Friday.

Hawke’s reasons do not consider the potential impact on that stance if Djokovic is forcibly removed, Wood said.

“The secretary is not taking into account the effect that could have on antivax sentiment and even public order,” Wood said. “That seems patently irrational.”

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