On 6 January 2022, Novak Djokovic’s visa was cancelled by the Australian government, a decision that divided opinions across the world.
Brief background
On 19 March 2020, the Australian government announced that Australia would close its borders to all non-citizens and non-residents, taking effect on the following day. Exemptions to the travel ban would extend to specific groups including airline crew, persons with critical skills and a few others.
Djokovic received his subclass 408 visa on 18 November 2021 and subsequently arrived in Melbourne, Australia on 5 January 2022. He was greeted by Australian Border Force and was taken to immigration clearance, with his visa eventually being cancelled on 6 January 2022 (under section 116 of the Migration Act). Djokovic was taken to immigration clearance as he entered the country as an unvaccinated individual and seemingly relied on a Tennis Australia exemption based on a prior and recent COVID-19 infection.
Serve and volley!
On 6 January 2022, Novak appealed this decision with the Federal Circuit and Family Court of Australia (FCFCA) and it was later found that Djokovic was denied procedural fairness in his visa cancellation. Djokovic’s lawyers argued that his visa was wrongly cancelled given that his positive PCR test from 16 December 2021 provides that he meets the requirements for an exemption against being fully vaccinated against COVID-19.
From there, it seemed to be smooth sailing for Novak, who began his 2-week quarantine like other players competing in the Australian Open. However, on 14 January 2022, the Minister for Immigration exercised his discretionary powers (under section 133 of the Migration Act) and proceeded to cancel Djokovic’s visa for a second time. Djokovic appealed this decision again but was unsuccessful in his appeal and exited Australia on 17 January 2022. The Department claims that previous infection with COVID-19 is not considered a medical exemption or contraindication for COVID-19 vaccination and being unvaccinated means that Djokovic poses a risk to people and the Australian health system. It was also stated that no non-citizen is assured entry into Australia.
Since 6 July 2022 (exactly 6 months after Djokovic’s initial visa cancellation) travellers entering Australia no longer need to provide proof of vaccination. The shift from ‘proof of vaccination’ to vaccination irrelevancy is demonstrated best with the current travel restrictions affecting travellers entering Australia from China, Hong Kong and Macau. If you would like further information on these changes, you can read our latest blog piece regarding entering and leaving Australia.
Return of serve!
The Australian Open in 2023 marks Djokovic’s return. The Immigration Minister’s decision to exercise his ministerial powers under section 133(c)(3) of the Migration Act also carries a three-year ban on Djokovic being able to be granted a new temporary visa under Public Interest Criterion 4013. Exceptions to the ban may, however, apply under certain circumstances including where compelling reasons may be considered to apply following review by the Department of Home Affairs. Whether you like him or not, the clear difference in the way Djokovic has been treated shows a clear rift in the facts relied upon by the Australian Government to make its decisions, with the only difference between the 2022 and 2023 Australian Open being the passage of time.
One thing is for certain – Djokovic recently entered Australia on a subclass 408 (Sporting Activities) visa. This is a temporary visa that allows athletes to enter Australia to compete at sanctioned events or do high-level training with a sporting organisation for a longer period of time.
