It should be troubling for anyone, religious, secular or agnostic, to be told that a human being wields anything approximating to ‘God like’ powers. That very suggestion implies a power unreviewable, unaccountable and at odds with the earthly rule of law.
Under the Migration Act 1958 (Cth), such powers are vested in the immigration minister under section 133C, which cover visa cancellation powers. They were used against the tennis world number one Novak Djokovic after his initial victory in the Federal Circuit Court, which held that the Australian Border Force had procedurally erred in not giving him adequate notice in responding to their queries about evidence of a vaccine exemption.
The Djokovic case should cause much consternation. It has become a story of marked notoriety, and for all its noise and partisanship, threatens, in time, to become distant, forever associated with the man more than the issue. It was tribal and parochial in scapegoating the notable athlete. It demonstrated institutional inconsistencies — the conduct of Tennis Australia, for instance, and its reading of advice on vaccine exemptions seemingly at odds with the Commonwealth. But most of all, it affirmed that perceptions of risk to health or public order posed by notable visitors are far more pertinent than either their views or evidence of that fact.
Djokovic had originally entered the country availing himself of the vaccine exemption provisions he thought he had followed. On 30 December, 2021, he received a letter from the Chief Medical Officer of Tennis Australia explaining that he had been granted a ‘Medical exemption from COVID vaccination’ on the grounds that he had recently recovered from COVID-19. Two bodies had approved the exemption: the Independent Medical Review panel commissioned by Tennis Australia and the Victorian state government’s independent Medical Exemptions Review Panel. The Department of Home Affairs duly informed Djokovic that his Australia Travel Declaration has also been given the nod.
On 5 January, when Djokovic arrived in Melbourne, a delegated officer of the Australian Border Force informed him that he had not provided sufficient evidence to satisfy entry into the country. The visa was cancelled. It was subsequently found on appeal to the Federal Circuit Court that the official in question had given Djokovic insufficient notice to prepare his explanation on the morning of 6 January.
This bungle led to a remarkable ruling by Judge Anthony Kelly, who stated the following with unequivocal force: ‘Here, a professor and a physician have produced