Djokovic Case, Not a Joke By James Reed
The decision by the Full Federal court to dismiss number one world tennis star, Novak Djokovic’s application to overturn the cancellation of his visa, is no surprise. What is interesting is the reason given by the Immigration Minister in accordance with the Migration Act, that the Djokovic case might be a risk to Australian social order by giving support to anti-vax sentiment. What follows from this is that opposition to the Covid vaxes is regarded as not a matter of democratic debate, but is a national security threat, which shows how far the Australian state has fallen into totalitarianism, becoming a vaccine state of Big pHARMa. While not going as far as I would, James Ross over at The Conversation.com, gives a good critique of the decision from a civil liberties perspective.
Today, the full Federal Court, in a unanimous judgement, dismissed Djokovic’s application to overturn the cancellation of his visa. It is not surprising he lost his case. Although the evidence used by the immigration minister to cancel the visa was not overwhelmingly strong, the breadth of his powers under the Migration Act made it very difficult to successfully challenge his findings.
But the legal issues raised by this case do not end here. What are the broader implications of the government’s approach in future cases involving high-profile “anti-vaxxers” or people who may be seen as a risk to Australia’s social order?
Although the government may be very happy about this result, I would question whether this is a workable precedent to set for other sportspeople, or indeed anyone, who may be seen as posing a risk to the public interest of Australia.
The immigration minister has the power to cancel a visa if he or she is satisfied a person’s presence in Australia might be a risk to the health, safety or good order of Australia and the cancellation is in the public interest.
The use of the word “might” is important – the minister does not need to show Djokovic would pose a risk, only that he may do so.
When cancelling Djokovic’s visa on Friday, Immigration Minister Alex Hawke reasoned the tennis player’s conduct and stance against vaccination may encourage others to emulate him by reason of his high profile and status.
While the Federal Court’s decision may be viewed as legally justified given the breadth of the cancellation powers in the Migration Act, some thought must be given to the future implications of these powers and what this means for the ability of the government to cancel other people’s visas.
The basis of Hawke’s findings seemed to be it was enough to show Djokovic is an iconic sports star who is perceived as being anti-vaccination and therefore may foster anti-vax sentiment in Australia.
I have a number of concerns with this.
First, it is unfair if the perception or actions of others can determine someone’s eligibility to remain in a country. A person may wrongly be viewed as having a particular belief and still be subject to a visa cancellation.
Second, the minister relied on Djokovic’s claimed status as a “role model” and his capacity as a high-profile sportsperson to apparently influence society. What if a sportsperson is unvaccinated, but not high-profile?
Third, and this is the most concerning point, if we extend this logic to other people, it could justify the cancellation of any individual who is seen as a “role model” and who may be perceived as causing social unrest or protests.
As legal commentators such as Kate Seear pointed out,
This kind of logic - that athletes are role models and role models can influence society […] could be extended to other athletes wanting to come here in the future, including those with diverse political views, such as supporters of Black Lives Matter and defunding police.
Lastly, the idea a person can have their visa cancelled because their views might affect the health, safety or good order of the Australian community raises issues for freedom of expression.
A wide cancellation power allows the government to stop international visitors who may have an important message to tell Australians. That would pose significant concerns for political debate in Australia.”
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