The Djokovic decision and the broad powers under the Migration Act

The recent decision of Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1] serves as a window onto the extraordinary scope of powers available to the Minister under the Migration Act 1958 (Cth) (‘the Migration Act’).

The power of the Minister under the Migration Act

The powers granted to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) under section s 133C(3) of the Migration Act are very broad indeed.

That section gave the power for the Minister to cancel the visa of Mr Djokovic—unrestricted by the rules of natural justice—provided that the Minister was “satisfied that there was a ground for cancelling the visa under section 116, and that it was be in the public interest to do so.

The Full Court stated that the requirement that the Minister be satisfied is “not an unreviewable state of mind”, that is to say, it would not satisfy the law had the Minister come to be satisfied unreasonably, or without proper material or lawful grounds: [21], cf. [29].

Thus, this decision turned upon whether the decision in question was so illogical, irrational or unreasonable that it was to be outside the broad scope of decision-making power provided to him under sections 133C and 116 of the Migration Act.

Health, safety and good order

The particular grounds for cancellation are found in subsection 116(1)(e)(i) of the Migration Act: The Minister considered that the presence of Mr Djokovic in Australia was or may have been a risk to “the health, safety or good order of the Australian community or a segment of the Australian community”.

Concerning the grounds of health and safety, the Minister was satisfied that Mr Djokovic “pose[d] a negligible risk of transmitting COVID-19 to other persons”: Minister’s reasons for decision (“D”) at 17.

Nonetheless, the Minister found that Mr Djokovic posed a risk to the health and safety by means of what he may be taken by some segment of the Australian public to symbolise: “a hero and an icon of freedom of choice in relation to being vaccinated”: [79], cf [53]. His presence in Australia might encourage some segment of the public not to be initially or repeatedly vaccinated against COVID-19, which would expose a portion of the Australian public to severe disease.

As to the ground of possible disturbance to “good order”, the Full Court referred to the decision of Tien v Minister for Immigration and Multicultural Affairs[2] (“Tien”). The concept of good order has

“an element of a risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.”

In this connection, the Minister cited Mr Djokovic’s “error of judgment” in attending a photoshoot on 18 December 2021, having tested positive for COVID-19 just the day before. He considered the possible effect that a role model such as Mr Djokovic might have to encourage others to disregard public health advice: D[33].

The Minister also referred to the perception of Mr Djokovic as possibly generating “anti-vaccination sentiment” and associated protests in the Australian community by his presence in the country, as well as stirring up an “adverse reaction” from those opposed to his presence in Australia.

Having established the possible risk to health, safety and good order in Australia, these same facts were the basis of the Minister’s finding that cancelling Mr Djokovic’s visa was in the public interest.

Considerations

Merits review

It is important to note that the decision of the Full Court was not an exercise of merits review, that is, it did not require a determination of whether the Minister’s decision to cancel the applicant’s visa was a good decision. Rather, it was an instance of judicial review: the key issue was whether the decision that the Minister was within the scope of the decision-making power afforded to him under the law, in this case, the Migration Act: [17].

The Full Court unanimously upheld the decision of the Minister and dismissed all three grounds of complaint relied upon on behalf of Mr Djokovic. Each of the grounds involved attempts to show that the decision made was outside the scope of reasonableness allowed under the Migration Act, and therefore unlawful.

The second and third grounds of complaint concerned findings of fact which, according to counsel for Mr Djokovic, were not open to the Minister to make.

With respect to the third ground, that Mr Djokovic was considered by the Minister to be “opposed to vaccination”, the Full Court referred to material available to the Minister reasonably supporting that very finding of fact. Accordingly, this ground was dismissed.

With respect to the second ground, that Mr Djokovic’s mere presence might stir up “antivaccination sentiment” in the Australian community, the Full Court determined that the Minister did not require actual evidence for such a finding but was able to consider the possibility on the basis of “recognition of human behaviour from a modest familiarity with human experience: [82].

No need to consider counterfactuals

The first ground of complaint was that the Minister did not consider that detaining and removing the applicant might result in the same “antivaccination sentiment” as the decision to allow him to stay in Australia—or perhaps even moreso: Amended Application at 18(b).

While it was acknowledged that the Minister did not consider the counterfactual, this ground of complaint was dismissed. Under the Migration Act, the Minister bears “[n]o statutory obligation to consider what risks may arise if the holder were removed from, or not present in, Australia”: [95].

This sheds some important light upon the power afforded to the Minister under the Act, namely, that the Minister is not required to balance the pros and cons of the decision to cancel a visa. While the Minister was at liberty to do so, he was not required to do so: [96]-[97].

The absence of a balancing approach did not prevent the Minister’s decision from being a lawful exercise of the decision-making power under the Migration Act.

Lawful protests as disruptions to good order

The Full Court raised in passing, but did not explore, the implication that the good order of Australia might be disrupted by a segment of the public engaging in “lawful, even if robust, rallies and protests in the free expression of [unpopular] political or social views”: [84].

In contrast to Tien (cited above), which emphasises the unlawfulness or illegality of the activity generated by the visa holder, a threat to good order here was the effect of large gatherings upon community transmission.

It seems reasonable to consider that under the Migration Act, the Minister would likewise have the power to cancel a person’s visa (for example, one for a political activist or religious speaker) where he considered it possible that, irrespective of the actual views espoused by the person, their mere presence in Australia might encourage people to gather (lawfully) in large numbers and thus transmit some communicable disease.

As a matter of judicial review, the Full Court found that this was a lawful decision, within the scope of powers granted under the Migration Act.

Press coverage

Though the actual words and actions of Mr Djokovic were considered in their place, considerable weight was placed upon the Australian community’s perception of Mr Djokovic, and the effect that such a perception might have upon the Australian community.

In such a context, the role of the press in narrating the meaning of Mr Djokovic’s presence in Australia is of great importance. The Minister alluded to this fact in his reasons for decision at D[36].

This decision demonstrates the great statutory power of the Minister to cancel a visa on the basis of the iconic or narratival role that an entrant to Australia might have, against which the actually articulated statements of the visa holder might have little weight.


[1]      [2022] FCAFC 3

[2]      [1998] FCA 1552; 89 FCR 80 at 93-94