Australian Immigration Minister Alex Hawke intervened on Friday to revoke Djokovic’s visa for the second time
Novak Djokovic won his first legal round against Australian officials who want to deport him. But now the world tennis number 1 has a tough challenge on Sunday. in his second round As some describe the immigration minister’s god-like powers on questions of visa and public interest.
Djokovic wins court appeal Against a border official’s decision to cancel a visa this week. He won over procedural errors related to Australia’s misleading COVID-19 vaccination rules.
Immigration Minister Alex Hawke’s intervention on Friday cancel visa for the second time Djokovic’s lawyers describe “fundamentally different” reasons that pit Djokovic against Australian politics and law.
What are the powers of the minister?
Mr Hawke has a “personal right” to revoke Djokovic’s visa under Section 133C of the Migration Act 1958.
Mr Hawke was required to be satisfied that Djokovic’s presence in Australia “may be, or may be, or may be a risk to the health, safety or good order of the Australian community.”
The minister also needed to be satisfied that it would be in the “public interest” to order Djokovic’s deportation, a term that has no legal definition.
Unlike the government’s decision, “the rules of natural justice do not apply” to the minister’s decision. This means that the minister did not have to tell Djokovic that he was planning to deport him.
Mr Hawke could have secretly revoked Djokovic’s visa and informed the Serbian tennis star a few days later that he had to leave. If the Australian Border Force had come to take Djokovic into custody, they would have been legally told that he did not have a visa.
Under Section 133F of the Act, Djokovic could then request the minister to reverse his decision, but the only realistic option would have been to appeal it in court.
How does the minister exercise his power?
In Djokovic’s case, Australian government lawyers warned him that the minister was planning to intervene on Monday when a judge reinstated his visa. The high profile of the star athlete may have encouraged the government to appear hand-in-hand.
Djokovic’s lawyers provided evidence as to why he had the right to keep his visa and why he was allowed to defend his Australian Open title in the days before the ministerial act.
While Mr Hawke has broad discretion to define the public interest in revoking visas, he must also be thoughtful and detailed in his reasoning.
“These decisions are not straightforward. The case law is what compels a minister when exercising this power to personally engage in material with active intellectual engagement and judgment,” said immigration attorney Kien Bone.
“It’s not something that he (Hawk) can say with a one-liner: ‘Dear Mr. Djokovic, your visa has been revoked.’ He can’t write the decision for a bureaucrat or an employee, look at it for two minutes and sign it,” Bon said.
How do you overturn a minister’s decision?
Since the power of a minister is so broad and discretionary, the grounds for appeal are potentially less as they are for the decision of a public servant acting on the authority of a minister. But courts have overturned ministers’ decisions in the past.
Greg Barnes, a lawyer experienced in visa matters, said the powers of the immigration minister are among the broadest of those granted under Australian law.
“One of the criticisms of this particular power is that it is so pervasive and it is effectively allowing the minister to play god with one’s life,” Barnes said.
Barnes said, “It is inevitable that political considerations will form part of the decision because the concept of public interest is so pervasive that it allows a minister to take political views into account effectively, even if theoretically it did not.” should go.”
Political views have risen for Prime Minister Scott Morrison’s conservative coalition, with the latest election by May.
Although Australia has one of the highest rates of COVID-19 vaccination in the world, the government is concerned about Djokovic’s popularity among those who oppose vaccine mandates or doubt the efficacy of vaccines.
Djokovic’s lawyers do not accept that these sentiments are a valid reason to deny the sports star an attempt to win a record 21 Grand Slam titles.
“The minister only considers the potential for exciting anti-vax sentiment in the event that he is present,” Djokovic’s lawyer, Nick Wood, told a court Friday.
Wood said that if Djokovic is forcibly removed, Hawke’s reasons do not take into account the potential impact on those attitudes.
“The ministers don’t give any thought to the anti-vax sentiment and the impact it might actually have on public order,” Wood said. “It clearly seems irrational.”
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