Was the Djokovic saga really about strong borders?

Following the second Djokovic court case, the Prime Minister said he “welcome[d] the decision to keep our borders strong and keep Australians safe”.

The fact is the two court decisions, and the Djokovic case in general, highlight how dysfunctional Australia’s border management arrangements have become.

Novak Djokovic arrives back in Belgrade after being deported from Australia.Credit: AP

The second court case merely affirmed that the Minister followed the right legal processes in coming to his visa cancellation decision. The court has made that clear in its statement of reasons published on Thursday.

In communicating the court’s decision, the Chief Justice said the court’s judgment was not a reflection on the “merits or wisdom” of the decision to cancel Djokovic’s visa.

The court did not examine the strength of the evidence on which the Minister based his cancellation decision – it only needed to be satisfied a skerrick of evidence existed – or the veracity of the Minister’s argument that Djokovic’s views on vaccination would stoke “anti-vaccination sentiment” in Australia or create civil disorder.

The Djokovic case actually highlights how poor the Morrison government is on border management.

If the government really had the concerns it now says it has about Djokovic’s presence in Australia and his anti-vaccination views, it would have instructed the Department of Home Affairs and Australian Border Force to place Djokovic on the Movement Alert List before Djokovic applied for a visa.

This is a standard mechanism used for decades to alert senior officials in Canberra of any potentially controversial visa applicant. The alert triggers a high-level consideration process to ensure the application is sensitively handled. This did not happen in Djokovic’s case.

The application went through to visa grant without any questions being put to Djokovic about his vaccination status, any medical exemptions or his current views on vaccination.

On November 18, Djokovic was granted a visa with no attached conditions regarding vaccination status – this was around six weeks before the Victorian government gave Djokovic a medical exemption.

Immigration Minister Alex Hawke.Credit: Alex Ellinghausen

Even if the Department of Home Affairs/Border Force forgot to put Djokovic on the Movement Alert List prior to visa grant, they could have done so after they were alerted to Minister Hunt’s letter of November 29 to Tennis Australia warning that having COVID-19 six months prior to travel would not be accepted as a reason not to be vaccinated.

But again, the department and Border Force failed to put Djokovic on the list. Indeed, it appears they both did not even issue instructions to airport officers that they must look behind medical exemptions granted by state governments in response to Hunt’s letter.

That is perhaps understandable given that as late as January 5, the Prime Minister said the Commonwealth accepted medical exemptions granted by state governments at face value.

But a media release from Home Affairs Minister Karen Andrews on January 5 suggests policy/practice changed that day. Contradicting Morrison’s earlier statement, Andrews made it clear Australian Border Force would look behind medical exemptions granted by state governments.

Morrison chimed in with his “rules are rules” comment even though his government had just changed the rules.

Even as late as the morning of January 6, it was possible to put Djokovic on the Movement Alert List as an alert for Border Force staff at Dubai airport to prevent Djokovic from boarding a plane to Australia.

Once again, Border Force did not.

It was not until Djokovic arrived at Melbourne airport around midnight on January 6 that Border Force finally acted.

Novak Djokovic presents his travel papers after arriving at Melbourne Airport.Credit: Nine News

Under extreme ministerial and prime ministerial pressure, a junior Border Force officer cancelled Djokovic’s visa because his medical exemption was not satisfactory and that Djokovic posed a material risk of transmitting COVID-19 in Australia – a view that would subsequently be refuted by the Commonwealth’s Chief Medical Office.

That cancellation was overturned on appeal by Judge Kelly.

On January 14, Minister Hawke used his personal power to cancel Djokovic’s visa using a totally new argument – that Djokovic’s presence in Australia would stoke anti-vaccination sentiment and may cause civil disorder.

Presumably this new policy is not just about Djokovic but all prominent non-citizens who have anti-vaccination views. Indeed, Sports Minister Colbeck has announced that famous surfer Kelly Slater will not be allowed to come to Australia because of his anti-vaccination views.

Will Slater be placed on the Movement Alert List to enable his visa application to be refused or will his visa be cancelled when he arrives at an Australian airport as was the case with Djokovic?

Morrison likes to talk about strong borders because it is apparently a vote-winner.

But gratuitous cruelty and denigration of refugees who arrived by boat almost 10 years ago should not be confused with efficient or effective border protection.

Distracting the Australian public with the myth the Morrison government is strong on borders is pure politics. The objective evidence shows the Morrison government is in fact very poor at managing borders and visa systems.

This will again be tested as international movements ramp up because checking vaccination status, medical exemptions and anti-vaccination views at the airport, where Border Force officers are under severe pressure to process passengers quickly, will simply not be sustainable.