Djokovic farce at airport the product of a chain of Australian failures

Health Minister Greg Hunt has confirmed tennis star Novak Djokovic’s visa has been cancelled and he is now being held in immigration detention while he challenges the visa cancellation decision in the courts.

But it should never have come to this farcical situation.

What has transpired is unfair to both Australians who have gone out of their way to get vaccinated and to Djokovic who could argue he did everything required of him by Australian authorities yet now finds himself in immigration detention.

World No.1 Novak Djokovic is in limbo thanks to bungling by Australian authorities.Credit: AP

While Tennis Australia and the Victorian government gave Djokovic an exemption to play at the Australian Open, apparently on the basis of a decision by two independent panels of medical experts who applied the exemption rules developed by the Australian Technical Advisory Group on Immunisation, that does not determine the right to enter Australia.

That power rests solely with the Department of Home Affairs and Australian Border Force.

Given the high-profile nature of the case, it is surprising these two bodies did not act earlier.

Djokovic has made his views on vaccines very clear. The Department of Home Affairs should have asked Djokovic questions about his vaccination status, and any exemptions he might have been seeking, when he initially applied for a visa.

If he refused to satisfactorily answer these questions, his visa application should have been refused.

Public Interest Criterion 4007 of the Migration Act provides that a visa applicant must be “free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community”.

But the Department of Home Affairs granted Djokovic a visa despite, it seems, without knowing his vaccination status or any grounds for exemption that he may have had.

Having been granted a visa, Djokovic had every right to think he would be allowed to enter Australia. Indeed, he did have a legal right. He would have used that visa to board a plane to Australia.

At all major overseas airports with direct flights to Australia, there are Australian Border Force officers who assist airline staff to decide who can board a plane to Australia.

Why didn’t the relevant Border Force official advise airline staff to prevent Djokovic from boarding, given the uncertainties about his vaccination status and his eligibility for an exemption?

Did senior Border Force officers in Australia fail to advise the more junior official at the overseas airport where Djokovic boarded a plane to Australia that he should be asked further questions before he was allowed to board?

It seems Border Force was again asleep at the wheel on this.

But having let Djokovic board a plane to Australia, it seems likely Border Force has used section 116 of the Migration Act to cancel Djokovic’s visa. This section of the Migration Act provides Border Force officers with a wide range of circumstances under which a visa can be cancelled assuming the visa holder is given proper procedural fairness.

The most likely reason for cancelling Djokovic’s visa is that “the presence of the visa holder in Australia is or may be … a risk to the health, safety or good order of the Australian community”.

If that is the case, Djokovic could reasonably argue that since nothing has changed since he was granted a visa and allowed to board a plane to Australia, why is he now a risk to public health?

The Herald is reporting that Border Force says he failed to provide documentation necessary to meet the entry requirements to Australia on arrival, but good practice is for all requirements to be addressed at the time a visa is being granted. This reduces the risk of people being messed about on arrival. If the requirements were addressed solely at entry, we would risk having thousands of people being turned around at the border. If this has now become the norm at Australian borders, it is a matter of some concern.

The question of whether Djokovic’s visa was lawfully cancelled will be up to the courts.

Border Force and Djokovic will need to answer some difficult questions.

But it would never have come to this if Home Affairs and Border Force had been on the ball.

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