Novak Djokovic's 'health risk' to Australia will determine fate of Serbian tennis star's visa
The world awaits the decision from Immigration Minister Alex Hawke on whether he will use his ministerial power to cancel tennis player Novak Djokovic's visa.
The question he must answer is this: Is Djokovic "a risk to the health, safety or good order of the Australian community or a segment of the Australian community", as stated in the immigration act?
According to Australian policy at the time that Djokovic boarded his flight on January 5 in Dubai, he was not a risk. By the time he landed, he had become one.
Border Force policy changed while Djokovic was on flight
The grounds stated for Djokovic's original cancellation were that the Australian government did not accept a valid medical exemption from the Victorian government.
As explained by former deputy secretary of the Department of Immigration Abul Rizvi on the 7.30 program, "Until and including the fifth of January, the policy was that Border Force would accept exemption medical certificates from state governments, such as the Victorian state government, at face value … [on] the sixth of January the policy changed."
Prime Minister Scott Morrison was asked about the exemption prior to Djokovic's arrival.
"That is a matter for the Victorian government," he said. "They have provided him an exemption to come to Australia, so we then act in accordance with that decision, and that's been happening for the past two years."
It is also on the public record that prior to January 5 at least one other player and an official had flown into Victoria with the same exemptions.
After January 6 they were arrested and deported with Czech player Renata Voracova, who is deciding if she will now sue Tennis Australia for costs.
A statement from Australian Border Force to the ABC says: "Claims that Australia's policies changed on 6 January are incorrect." The ABC is awaiting further clarification.
Border Force reveals intention to cancel
Border Force first issued Djokovic with a "notice of intention to consider cancelling a visa" at an interview at 4:35 am on January 6, about five hours after he landed and was escorted off the plane with his entourage before other passengers were allowed to disembark.
During that interview he asked for any decision to be delayed until around 8am so he could speak to his lawyers and officials at Tennis Australia.
The request was accepted by the Border Force delegate.
Then, according to documents, at 6:07 am began another interview detailed in the "record of decision whether to cancel visa" filed with the Federal Circuit Court.
It starts with Djokovic's thoughts on why the visa should not be cancelled.
"Mr Djokovic stated the grounds do not exist and that he is surprised the Commonwealth Government had insufficient information, because his medical exemption was granted by an Independent Expert Medical Review panel commissioned by Tennis Australia."
It notes he had provided all medical reports, PCR tests and a blood sample for the review to take place.
The Border Force delegate then details the evidence and findings that provide satisfaction there are grounds for cancellation.
"Previous infection with COVID-19 is not considered a medical contraindication for COVID-19 vaccination in Australia.
"Unvaccinated persons create a greater health risk of contracting COVID-19 and spreading COVID-19 to others, either of which will further burden the Australian health system.
"Ensuring unvaccinated persons do not enter Australia is a key mechanism through which the Australian Government has slowed the spread of COVID-19 within the Australian community.
"Based on the above information, I am satisfied there are grounds to consider cancelling the visa holder's subclass GG-408 visa."
Delegate weighs up cancellation
The delegate is then required to measure a series of other factors in weighing up the decision to cancel, or not. Legal ramifications, behaviour, previous record and compelling need for the visit to Australia are all measured.
Does the visa holder have a compelling need to travel to or remain in Australia, the document asks.
The delegate writes: "The visa holder has stated on his IPC that his purpose of travel to Australia is Business. Furthermore the visa holder stated he is travelling to Australia to participate in Australian Open.
"Base[d] on the above, I consider the visa holder has a compelling need for travel to Australia and I assign reasonable weight in favour of not cancelling the visa."
Next up, a question of compliance:
"The Visa holder has a compliant travel history, with no evidence of non-compliance with visa conditions. I therefore lend this factor some weight in favour of not cancelling the visa."
This is followed by an assessment of the degree of hardship caused if the visa is cancelled:
"The visa holder has made no specific claims regarding hardship in relation to potential visa cancellation, however I acknowledge that the cancellation of his Subclass 408 visa will likely result in a reasonable level of inconvenience and/or financial or emotional hardship.
"Based on the above, I lend some weight in favour of not cancelling the visa."
Extenuating circumstances beyond the visa holder's control are then considered:
"The visa holder stated that Tennis Australia facilitated his medical exemption from COVID-19 vaccination requirement and completed the Australian Travel Declaration on his behalf.
"I consider that Tennis Australia would have facilitated his medical exemption and Australian Travel Declaration based on information the visa holder provided to them.
"As such, I don't consider these constitute extenuating circumstances beyond the visa holder's control.
"Based on the above, I apply significant weight in favour of visa cancellation for this factor."
The visa holder's behaviour in relation to the Department, now and on any previous occasion (whether they have been truthful and cooperative in their dealings with the Department) is also weighed up:
"There is no indication the visa holder has been uncooperative in any dealings with the department. The visa holder has been cooperative during the current process.
"I therefore give some weight to this factor in favour of not cancelling the visa."
Finally, any other relevant reasons (including mandatory legal consequences) enter calculations:
"I have considered the legal consequences of a decision to cancel the visa holder's visa and not that if the visa is cancelled he:
- will be subject to a s48 bar on applying for certain visas
- will be affected by a risk factor under Public Interest Criteria 4013 which may affect the eligibility for other visas in the future
- may be liable for detention and removal from Australia
"Considering the visa holder regularly travels to Australia to compete in tennis tournaments, I consider the above consequences to be significant.
"As such, I assign reasonable weight in favour of not cancelling the visa for this factor."
The "significant weight" applied to one question in support of visa cancellation outstripped the five other questions which all earned a response of not supporting cancellation.
The delegate ticked the appropriate box and so began one of the most bizarre stories in Australian sport's history.
At 3pm on Thursday, the main draw will be conducted by Australian Open officials. Interest in this year's tournament lies elsewhere: on whether the defending champion gets to play, or whether he gets deported for a policy change that happened while he was mid-flight.