Thread by @sangpillai

If the matter had ended up being heard by a single Federal Court judge, the losing party could have appealed up to a full court composed of 3 different Federal Court judges. Jumping straight to the full court basically means that one stage in the process gets skipped.

The losing party could still try to appeal to the High Court. But this isn’t a guaranteed right. The High Court is the final appeal court for all Australian courts, but it has discretion over which appeals it actually hears.

If whoever loses wants to take it all the way to the High Court they need to ‘seek special leave’ from that court. The High Court can then say yes or no.

But it’s not clear that an appeal would end up being practical for the losing party, with the Australian Open looming.

Djokovic’s lawyers have submitted almost 300 pages of documents. There’s an 11 page application (a submission) which you can read here: fedcourt.gov.au/__data/assets/…. There’s also a massive 268 page affidavit from Djokovic’s solicitor Natalie Bannister.

Immigration Minister Hawke’s reasons for cancelling Djokovic’s visa are summarised in the application. They’re also contained in full at pages 13-22 of Bannister’s affadavit, which you can read here: fedcourt.gov.au/services/acces…

First a quick refresher. For Hawke’s decision to be valid, he needed to be satisfied on reasonable grounds that Djokovic’s presence in Australia ‘might’ be a risk to the health or good order of the Australian community & that cancellation is in the public interest. It’s a low bar

Here are some new things we know. Hawke received advice from the Department of Health that Djokovic was of ‘low’ risk of transmitting COVID following his recent infection. The Health Department advised Hawke that the risk of a transmission event related to the Open was ‘very low’

Djokovic also submitted a number of journal articles & medical studies to Hawke, which he said suggested that he posed a ‘negligible’ risk of infection to others.

Hawke said that, because he’s not medically trained, he didn’t read these studies. But he was willing to assume that Djokovic’s assertion was correct, and that the risk that he might infect others is in fact only ‘negligible’.

Djokovic also sent Hawke documentation to support the case that his recent COVID infection was a ‘medical contraindication’ against vaccination. Hawke didn’t read this either, but was again willing to assume that Djokovic was correct in asserting that he had a contraindication.

You might also remember that there was an earlier dispute about whether Djokovic was trying to enter Australia in breach of federal entry rules, or whether he had in fact adhered to these rules by complying with ATAGI guidelines.

Once again, Hawke said in his reasons that he didn’t want to dig into this, so he’d assume that Djokovic was right in saying that he had met entry criteria.

A slightly technical but important point: Hawke isn’t *conceding* that Djokovic is correct about these matters. He’s basically saying ‘I don’t have time to think about these things, and I can reach a decision without doing so, so I’ll assume them in Djokovic’s favour & move on’

Having assumed ‘negligible infection risk’, ‘medical contraindication’ and ‘compliance with entry rules’ in Djokovic’s favour, Hawke acknowledged that these were factors that weighed against cancelling Djokovic’s visa.

Despite this, Hawke found that Djokovic’s presence may be a risk to the health of the Australian community. This is because he considered Djokovic to be a high profile unvaccinated individual who had previously expressed anti-vaccination sentiment in public.

Because of this, Hawke said that Djokovic’s presence in Australia might foster anti-vax sentiment, by encouraging people to refuse vaccination, avoid boosters or maintain anti-vax views. He said unvaccinated people may then become unwell and increase pressure on the health system

These were factors that weighed in favour of cancelling Djokovic’s visa.

Notably Hawke didn’t ask Djokovic his present view on vaccination. But he said this didn't matter - the public perception of Djokovic’s views was just as important as what his current views might be.

Another factor that Hawke said weighed in favour of cancellation was evidence that Djokovic had shown a willingness to disregard isolation requirements. This happened recently, when he attended an interview and photoshoot after returning a positive PCR test.

Hawke said that given ND’s high profile status, his presence might encourage others who test positive for COVID to disregard public health measures & that this could increase transmission. For these reasons, he found that Djokovic’s presence may pose a risk to community health.

Djokovic’s failure to isolate after a positive test also led Hawke to conclude that his presence might pose a risk to good order of the community, by increasing anti-vax sentiment potentially increasing civil unrest & by encouraging non-compliance w/public health requirements

Finally, Hawke said that cancellation was in the public interest bc of the possibility Djokovic might stoke anti-vax sentiment, the greater risk that unvaccinated people have of catching and transmitting COVID & the substantial cost of treating COVID.

Hawke acknowledged that visa cancellation was likely to cause inconvenience, distress & financial + reputational hardship to Djokovic, and that it might mean he faces a 3 year ban on returning to Oz. While he gave these things some weight, he ultimately decided to cancel the visa

Alright, onto Djokovic’s arguments. In order to successfully make out that Hawke acted unlawfully, Djokovic must show that there was no rational basis in the circumstances for him to conclude that Djokovic might pose a risk to the health or good order of the community.

This is where judicial review differs from what we call merits review. Under merits review, a new, impartial decision-maker would be able to step into Hawke’s shoes, and basically look at whether the decision was fair.

But merits review isn’t available for decisions made under s 133C(3). So Djokovic is left with the tougher job of arguing that Hawke couldn’t have rationally arrived at the decision to cancel. It doesn’t matter if it wasn’t the optimal decision; it basically just needs to be sane

Djokovic is arguing that Hawke’s could not have reasonably arrived at the decision to cancel the visa for three reasons.

First, Djokovic’s lawyers say that it was illogical, irrational or unreasonable for Hawke to conclude that Djokovic’s presence might stoke anti-vax sentiment without also considering whether cancelling his visa & deporting him might have the same effect.

Second, Djokovic’s lawyers say that Hawke provided no evidence to support the view that Djokovic’s presence might foster anti-vax sentiment. Accordingly, they argue that it wasn’t open for him to find that Djokovic’s presence might pose a risk to public health/order on that basis

Finally, Djokovic’s lawyers say it wasn’t open to Hawke to find that Djokovic had a ‘well-known stance on vaccination’ or ‘anti-vax sentiment’ without seeking his current views on vaccination. They noted he’s made no recent comments & said old quotes were taken out of context

The Minister’s response isn’t online yet. I’ll update this thread when it is. In the meantime, a quick mea culpa - the first part of this thread somehow got split from the rest of it when I posted. If you’re interested you can find the start here:

https://twitter.com/sangpillai/status/1482309471120822272

UPDATE: Alright! The case is underway. The Minister’s submissions have also just gone online. You can find them here: fedcourt.gov.au/services/acces…. Unsurprisingly, they say that all three of Djokovic’s arguments are incorrect.

Djokovic’s 1st argument was that Hawke fell into ‘jurisdictional error’ when he cancelled the visa, bc it was ‘illogical, irrational or unreasonable’ for Hawke to conclude Djokovic’s presence would stoke anti-vax sentiment w/o considering whether cancellation would also do so

The Minister’s lawyers say Hawke *did* consider this (and that Djokovic can’t prove otherwise). They also say that even if he didn’t consider the counterargument this is not ‘illogical, irrational or unreasonable’. And even if they’re wrong on that too, it wasn’t material.

If Djokovic wants to argue that the Minister didn’t consider whether cancellation might stoke anti-vax sentiment, the ball is in his court to prove it.

This isn’t easy. And Hawke’s lawyers say that here it’s very hard because Hawke had no duty to provide Djokovic with reasons for cancellation at all. They say the court should be slow to infer that something wasn’t considered just because the reasons didn’t discuss it at length.

Hawke’s lawyers say that because Djokovic isn’t arguing that Hawke misunderstood the power under s 133C(3) his job is even harder. In other words, everyone agrees Hawke knew what he was meant to do, so it’s likely that he did it.

Hawke’s lawyers go on to say that the evidence suggests that he did, in fact, consider whether cancellation would itself stoke anti-vax sentiment. While he didn’t spell it out, they say it’s clear from the reasons that he considered the possible consequences of cancellation.

The Minister’s submission goes on to say that even if Hawke did not consider whether cancellation would stoke anti-vax sentiment, this would not be illogical, irrational or unreasonable.

The Minister submissions point out that that the bar for showing something is illogical, irrational or unreasonable is extremely high, and that even if it’s been met here, failure to consider whether cancellation would stoke anti-vax sentiment is not ‘material’.

‘It’s not material’ basically means something like: ‘even if Hawke didn’t consider these things, and he should have, it doesn’t really matter because it was never going to lead to a different outcome’.

Djokovic’s second argument was that it was not open to Hawke to find that Djokovic’s presence may foster anti-vax sentiment. Essentially this boils down to whether Hawke had evidence to reach this conclusion, and whether he reached the conclusion reasonably.

The Minister’s submissions point out that again the bar is high for Djokovic. There doesn’t need to be a ton of evidence, just some. The Minister’s submissions say it’s clear from Hawke’s reasons that there was some evidence…

…and that it’s not unreasonable to draw on that evidence to conclude that Djokovic’s presence ‘might’ stoke anti-vax sentiment. Again, Hawke has a pretty low threshold to get over to be on solid legal ground, which makes Djokovic’s job hard.

Djokovic’s final argument was that it wasn’t open to Hawke to make a finding that Djokovic had a ‘well-known stance on vaccination’ without asking his current views on vaccination. The Ministers subs once again say that this is a hard point for Djokovic to make.

The Minister’s subs point out that failing to make inquiries will only be jurisdictional error in ‘rare or exceptional cases’. Here, they say, Hawke made it clear that it wouldn’t have made a difference to his decision.

Hawke expressly said in his reasons that he was more concerned with the public perception of Djokovic’s views on vaccination than with what Djokovic’s current views actually are.

Moreover, the subs say it was reasonable to conclude that Djokovic is opposed to vaccination based on his previous public statements & the fact that he’s known to be unvaccinated. Hawke’s lawyers say it was thus open for him to infer that Djokovic had known anti-vaccination views

That’s all from the subs. If you would like to watch the hearing you can do so here: . And @karenlsweeney is live-tweeting again 😊