It has been a subject of so much controversy that the Top World Tennis player ranked Number One is in detention since his arrival in Australia, had his visa cancelled and was not granted immigration clearance on arrival by Border Force on the basis that his presence “might be” a risk to “the health, safety or good order of the Australian community”. Novak Djokovic was not even granted a bridging visa to legally enter the country and remain in the community while arguing his case. Rather was detained as an undocumented non-citizen and since Thursday residing at the same location as a number of refugees and asylum seekers who were brought to Australia from offshore detention and were held for years in a visa status limbo.
On the back of the world record of 262 days of strict lockdown, Melbourne now has a new claim to fame, due to the decision of the Australian Department of Home Affairs to detain Novak Djokovic. It is not the sort of welcome Downunder message we would like to send. It also continues the narrative of otherness and creates one more avenue for unnecessary divide between vaccinated and non-vaccinated in the aftermath of the two years of global pandemic.
Furthermore, the detention of Novak Djokovic highlights the degree of discretionary power vested in the Australian Government in respect of border and visa management. As an immigration lawyer working throughout the past two years of Covid19 and closed borders I must admit the case of Novak Djokovic is showing the lack of proper administrative measures and processes to deal with a system which spits out automatic visa approvals, giving overseas nationals the confidence to board a plane and land in Australia to be faced with further barriers to entry including visa cancellation on arrival. In my 20 years of practice, there have not been many cases where the overseas nationals subject to cancellation had the resources to engage a team of lawyers in the short time-frame available to argue the cancellation on appeal.
The excellent case build on behalf of Djokovic is showing reasonable prospects of success. His application with the Federal Circuit Court of Australia is public and available for those interested. May be also interested in following the hearing which should be streaming live unless Judge Anthony Kelly exercises a lawful discretion to not make it public.
Whilst this is of course an academic proposition, there is no doubt that Novak Djokovic could have been granted an Australian permanent residency under the Global Talent provisions in a matter of days or weeks despite his vaccination status. Once a permanent resident he would have been able to come and go as he pleases for a period of at least five years. Novak Djokovic was travelling on an automatically granted temporary visa, he was at the discretion of the delegates of the Minister in respect of being able to enter Australia and compete at the Australian Open.
The saga of Novak Djokovic is showing a visa and immigration system which certainly lacks clarity. A lot more could be done to ensure procedural fairness for each individual seeking entry and residency in Australia.