MELBOURNE, Australia ( Associated Press) — Novak Djokovic has won his first legal round against Australian officials who want to deport him. But the world tennis No. 1 now faces a formidable challenge in his second round on Sunday as he comes down to what he described as the immigration minister’s god-like powers on visas and questions of public interest.
Djokovic won an appeal in court this week against a border official’s decision to revoke his visa. He won over procedural errors related to Australia’s misleading COVID-19 vaccination rules.
Djokovic’s lawyers intervened on Friday to revoke Immigration Minister Alex Hawke’s visa for a second time for what Djokovic described as “fundamentally different” reasons against Australian politics and law.
What are the powers of the minister?
Hawke has a “personal right” to revoke Djokovic’s visa under Section 133C of the Migration Act 1958.
Hawke needed to be satisfied that Djokovic’s presence in Australia “could be, or may be, or may be a risk to the health, safety or good order of the Australian community.”
The minister must also be satisfied that it would be in the “public interest” to order Djokovic’s deportation, a term that has no legal definition.
Unlike the decision of the government, “the rules of natural justice do not apply” to the decision of a minister. This means that the minister did not have to tell Djokovic that he was planning to deport him.
Hawke could have secretly revoked Djokovic’s visa and then informed the Serbian tennis star a few days later that he had to leave. If the Australian Border Force had come to take Djokovic into custody, they would have been legally told that he did not have a visa.
Under Section 133F of the Act, Djokovic could then request the minister to reverse his decision, but the only realistic option would have been to appeal it in court.
How does the minister exercise his power?
In Djokovic’s case, Australian government lawyers warned him that the minister was planning to intervene on Monday when a judge reinstated his visa. The high profile of the star athlete may have encouraged the government to show its hands as well.
Djokovic’s lawyers provided evidence as to why he had the right to keep his visa and why he was allowed to defend his Australian Open title in the days before the ministerial act.
While Hawke has broad discretion to define the public interest in revoking visas, he must also be thoughtful and detailed in his reasoning.
“These decisions are not straightforward. The case law is what compels a minister when exercising this power to personally engage in material with active intellectual engagement and judgment,” said immigration attorney Kien Bone.
“It’s not something that he (Hawk) can say with a one-liner: ‘Dear Mr. Djokovic, your visa has been revoked.’ For that no bureaucrat or any employee can write the decision, look at it for two minutes and sign it,” Bon said.
How do you overturn a minister’s decision?
Because the power of a minister is so broad and discretionary, the grounds for appeal are potentially less than they are for the decision of a public servant acting on the authority of a minister. But courts have in the past overturned decisions of ministers.
Greg Barnes, a lawyer experienced in visa matters, said the powers of the immigration minister are among the broadest of those granted under Australian law.
“One of the criticisms of this particular power is that it is so pervasive and it is effectively allowing the minister to play god with one’s life,” Barnes said.
Barnes said, “It is inevitable that political considerations will form part of the decision because the concept of public interest is so pervasive that it allows a minister to take political views into account effectively, even if theoretically it did not.” should go.”
Political views have risen for Prime Minister Scott Morrison’s conservative coalition, with the latest election by May.
Although Australia has one of the highest rates of COVID-19 vaccination in the world, the government is concerned about Djokovic’s popularity among those who oppose vaccine mandates or doubt the efficacy of vaccines.
Djokovic’s lawyers do not accept that these sentiments are a valid reason to deny the sports star an attempt to win a record 21 Grand Slam titles.
“The minister only considers the potential for exciting anti-vax sentiment in the event that he is present,” Djokovic’s lawyer, Nick Wood, told a court on Friday.
Wood said Hawke’s reasons do not take into account the potential impact on those attitudes if Djokovic is forcibly removed.
“The ministers don’t give any thought to the anti-vax sentiment and the impact it might actually have on public order,” Wood said. “It clearly seems irrational.”