Australia’s visa cancellation regime has been exposed as “dysfunctional and dangerous” by the Novak Djokovic case, legal experts have said, arguing his expulsion is a “terrible precedent” that could lead to “political and populist” deportations.
The Djokovic case has drawn public attention to the so-called “God powers” held by Australian immigration ministers, granting them extraordinarily broad powers to summarily cancel visas.
Migration law experts say the Djokovic case – his visa was cancelled because the government believed he was a “talisman of anti-vaccination sentiment” – demonstrates the laws could be used to exclude a person who has previously expressed political views the government did not agree with.
“Deportation of a person because of a purported risk as to how others might perceive them and then act sets a terrible precedent,” Michael Stanton, the president of Liberty Victoria said.
“It can and will be used in the future to justify the suppression of legitimate political expression because others might engage in unrest.”
“One danger of largely unfettered discretions, or ‘God powers’, is that decision making just becomes political and populist … eroding the integrity of the executive and the rule of law.”
Liberty Victoria said thousands of visa cancellations had been summarily made since the Migration Act was amended in 2014, but are often legally defective, and carry severe consequences for those affected, including separation from family, indefinite detention and even forcible return to harm.
The organisation said Djokovic was an exceptional case: the world’s number one tennis player had significant institutional support, the resources to mount a strong legal defence, and massive media attention on his case.
“Because of the regime’s complexity, the timeframes, a lack of support and advice, and a lack of access to review, we cannot know how many people have been subject to unlawful decisions that they could not challenge. Even when people are able to challenge a decision, there is a clear inequality of arms given the vast resources of the commonwealth.”
Greg Barns SC, spokesperson for the Australian Lawyers Alliance, said the government had established, for itself, a “very low bar” for excluding a person from Australia, “troubling in a society supposedly committed to freedom of speech and freedom of thought”.
“The federal government’s attitude could see other high-profile visitors to Australia refused entry in an attempt to suppress alternate views. If, for example, a high-profile visitor to Australia expressed negative views about the Australia-US alliance, would the government ban this person because this view may encourage people to protest at Pine Gap?
“This government’s obsession with harsh border policies combined with its arbitrary approach to visa cancellation and detention has created a debacle this week but, more importantly, risks setting a very dangerous precedent.”
The immigration minister, Alex Hawke, cancelled Djokovic’s visa, arguing that his previously held views expressing scepticism about Covid-19 vaccines could incite “civil unrest”, encouraging others to eschew vaccination or protest publicly.
In rejecting Djokovic’s appeal against the cancellation, the full bench of the federal court expressly said its decision did not reflect “the merits or wisdom of the decision” but only whether it was so irrational as to be unlawful.
“Our concern is the federal government’s view that it did not have to prove that Mr Djokovic would foster views about vaccination that are contrary to the government, but simply that he may foster those sentiments,” Barns said.
“This is a very low bar for excluding a person from Australia particularly in circumstances where the power to review or appeal the decision is so limited.”
Djokovic, the defending Australian Open champion, cannot compete at this year’s event: it started Monday morning without him. But he might never play in the tournament – which he has won a record nine times – again.
Because his visa was ultimately personally cancelled by the minister under section 133C(3) of Australia’s Migration Act, he has been automatically banned from applying to re-enter the country for three years.
There are grounds for this ban to be overturned but they are defined narrowly, as extraordinary circumstances “that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen”.
The home affairs minister, Karen Andrews, confirmed that Djokovic is now subject to a three-year exclusion.
“It can be waived in compelling circumstances but that’s not a matter for today or tomorrow, that’s a matter for some time in the future,” Andrews told Sky News.
“Anyone who has been excluded from entry to Australia or who had their visa cancelled; it is not going to be an easy or a straightforward process to get any entry into Australia.”
The Visa Cancellations Working Group, the Asylum Seeker Resource Centre, and the Refugee Advice & Casework Centre have repeatedly argued for an urgent inquiry into Australia’s “dysfunctional and dangerous visa cancellation regime”.
Ministerial visa cancellation powers were vastly expanded in 2014 – when the prime minister, Scott Morrison, was immigration minister.
“Since then, there has been a huge increase in visa cancellations, including in ‘immigration clearance’ at the airport. The system is now cumbersome, opaque, and alarmingly prone to error and injustice.”
Visa cancellations made in “immigration clearance” at the airport – such as Djokovic’s – cannot be reviewed on their merits, they can only be challenged through the courts on narrow legal and procedural grounds.
“At the airport, people are given as little as 10 minutes to respond if their visa is being considered for cancellation, often after a long flight or at irregular hours. They are not given access to legal advice or other support. As a result, visa cancellations made under a veil of secrecy remain unchallenged, and visa holders are summarily removed from the country and barred from re-entry.”