Thread by @sangpillai

Visa cancellation take 2! Australian Immigration Minister Alex Hawke has decided to cancel #Djokovic’s visa again. Hawke is cancelling the visa using personal powers granted to him under s 133C(3) of the Migration Act. You can find his statement here: minister.homeaffairs.gov.au/AlexHawke/Page…

S 133C(3) allows Hawke to cancel a visa if he is satisfied that a ground for cancelling it exists under s 116 of the Act, and he is also satisfied that cancellation would be in the public interest.

S 116 is the same ground that the original ABF officer at Tullamarine Airport drew on to cancel Djokovic’s visa.

As you may remember, the ABF officer’s decision to cancel was quashed by Judge Kelly in the Federal Circuit Court on Monday.

It’s not yet clear what Djokovic will ultimately do, but his legal team signalled earlier that he would challenge Hawke’s cancellation decision, and seek an injunction preventing deportation until the new challenge has been heard.

It’s quite likely the new challenge will be heard by Judge Kelly again. On Monday when Hawke first indicated he was considering re-cancellation, Kelly said that if another challenge occurred it was unlikely any other judge would have time to get on top of the case in time.

But wait - if the first cancellation was made under s 116, and Judge Kelly already quashed that, and Hawke is drawing on s 116 again, doesn’t that mean that Kelly is likely to strike this new decision out too?

Not quite.

In Monday’s case, Djokovic and the Minister agreed that when the ABF officer cancelled Djokovic’s visa, he followed a process that was ‘legally unreasonable’. This was largely because he didn’t give Djokovic enough time to respond before going ahead and cancelling.

No agreement, and no decision, was made on whether the ABF officer *could have* cancelled Djokovic’s visa under s 116 in a watertight way. All that was found was that the process he followed was deficient enough that the original cancellation couldn’t stand.

Basically this means that nothing that has happened so far suggests that Hawke can’t be satisfied that a s 116 cancellation ground applies to Djokovic.

Today when re-cancelling, Hawke seemed to draw on the same part of s 116 as the ABF officer: s 116(1)(e)(i). It says that the Minister may cancel a visa if satisfied that the visa holder’s presence ‘might be’ a risk to the health, safety or good order of the Australian community.

So in order to be on solid ground with this re-cancellation, Hawke must be ‘satisfied’ that Djokovic ‘might be’ a risk to the health, safety or good order of the Australian community, and that cancellation is in the public interest.

It’s a pretty low threshold.

In his statement, Hawke said that he was cancelling the visa on ‘health and good order grounds’. He didn’t make any mention of community safety.

So what are Djokovic’s chances of challenging Hawke’s decision successfully? Well, he’s got the right to go to court and seek judicial review of the decision, but it’s going to be harder this time around. This is the case for two reasons.

First, because he made a decision under s 133C(3), Hawke doesn’t need to give notice of his intention to cancel Djokovic’s visa. This reduces the risk of him making a fatal procedural error, like the original ABF officer did. Basically, Hawke is more likely to be on solid ground.

Secondly, the rules of natural justice do not apply to decisions made under s 133C(3). This means that while Djokovic still has the right to challenge Hawke’s decision, he can only do so on narrower grounds. Specifically, his scope to argue that the decision is unfair is reduced.

There’s no suggestion that he intended to do so, but cancellation under s 133C also means that Djokovic can’t seek merits review in the Administrative Appeals Tribunal. Going to court is his only option if he wants to challenge.

In the last few days, information came out about how Djokovic had misrepresented which countries he had been in on his Australian entry form. It was also revealed that he had attended various gatherings in Serbia after registering a positive PCR result. Is that relevant now?

For now, the travel misrepresentation seems legally irrelevant. That could potentially have formed a separate basis for cancellation under s 109 of the Migration Act, but Hawke used s 133C(3) instead. If Djokovic wins his challenge though, Hawke could re-cancel again under s 109.

Many paths to the same end in the Migration Act. The Minister gets many bites at the cherry!

The stuff about mingling while +tive may be relevant. While Djokovic isn’t currently COVID +tive, it might suggest that if he were to get it he would not be responsible and therefore may pose a health risk. Or the fact that many people are so mad about it might be an order risk.

Some of you will probably find this kind of reasoning compelling. Others will find it very far fetched. The important thing to remember is that the threshold is low. Hawke, who doesn’t have any public health training, only needs to be satisfied that Djokovic ‘might’ pose a risk.

All this makes me feel that Djokovic’s prospects of a successful challenge are probably quite slim. Certainly his legal team are in a much tighter corner than they were on Monday. And even if they manage to wrangle a win, Hawke still has the option of re-cancelling under s 109.

If Djokovic is deported, he may face a 3 year ban on returning to Australia. This is because of Public Interest Criterion 4013 of Schedule 4 to the Migration Regulations 1994. PIC 4013 says that if he applies for a visa in that time, the general rule is that it must be refused.

But PIC 4013 also says that, despite the general rule, the Minister may choose to grant a visa if there are ‘compelling circumstances that affect the interests of Australia’.

If, after getting deported, Djokovic does want to return to play in the Open, his status as a top player may amount to ‘compelling circumstances’ that affect Australia’s interest. His presence would bring in more crowds.

But who knows, he may not want to come back.

Quick footnote to flag something I forgot to mention earlier in the thread. The fact that Hawke needs to be satisfied that cancellation is in the public interest might look like a potential card up Djokovic’s sleeve.

It’s not though. Australian courts have overwhelmingly deferred to the Minister’s judgment when it comes to deciding whether something is in the ‘public interest’. See this article by @Gabrielle_J_A & @alexreilly40 (which also suggests an alternative!): bit.ly/3KaSNZ7