Novak Djokovic Visa Decision: What happened and what it means for other unvaccinated travellers
On the 6 January 2022, our lawyer Zefy Souvlakis was invited to speak on BBC News – World News to provide some insight into what may have occurred in relation to Serbian tennis player, Novak Djokovic’s (Djokovic) visa and subsequent visa cancellation by the Department of Home Affairs.
Here is an overview of the situation to date:
On 18 November 2021, Djokovic was granted a SC408 temporary activity visa enabling him to enter Australia temporarily to participate in the Australian Open tennis tournament.
On 29 November 2021, Federal Health Minister Greg Hunt advises Tennis Australia that players wishing to enter Australia quarantine-free must be fully vaccinated and cannot count a previous infection as a reason for exemption.
On 30 December 2021, Djokovic is informed via a letter from the Chief Medical Officer of Tennis Australia that he has been granted a medical exemption from the requirement to be fully vaccinated against COVID-19 on the grounds that he had recently recovered from the virus.
On 1 January 2022, Djokovic received an automated online confirmation via the Australian Travel Declaration website which confirmed that he had met the requirements to arrive in to Australia (where permitted by the jurisdiction of his arrival) under quarantine-free arrangements.
On the 5 January 2022, Djokovic landed in Melbourne in preparation for the Australian Open tennis tournament which commenced on 17 January 2022.
Shortly following his arrival, on 6 January 2022, Djokovic was issued with a “notice of intention to consider cancelling a visa” by Australian Border Force under the grounds that:
- 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; and
- Ensuring unvaccinated persons do not enter Australian is a key mechanism through which the Australian Government has slowed the spread of COVID-19 within the Australian community
On 6 January 2022, Djokovic was moved to an immigration detention centre and his lawyers filed an appeal against the decision in the Australian Federal Circuit Court.
On 10 January 2022, Judge Anthony Kelly in the Federal Circuit Court found Djokovic’s visa was unreasonably cancelled due to Border Force officials deciding to cancel his visa before the deadline (8:30am on 7 January 2022) given for him to respond and make submissions. Orders were also made for his release from immigration detention.
On 14 January 2022, Immigration Minister, Alex Hawke, elected to exercise his ministerial powers under section 133(c)(3) of the Migration Act to cancel Djokovic’s visa. The decision was made under “health and good order grounds, on the basis that it was in the public interest to do so.”
On 16 January 2022, Djokovic’s application to overturn the Immigration Minister’s cancellation of his visa was unanimously dismissed in the Full Federal Court of Australia with costs ordered to be paid by Djokovic.
On 16 January 2022, Djokovic departed Australia onboard a flight from Melbourne to Dubai.
Why was Djokovic’s visa initially cancelled?
The initial decision to revoke Djokovic’s visa was made under section 116 of the Migration Act under grounds that the Australian Government did not accept a valid medical exemption from the Victorian Government.
What was Djokovic’s argument?
In a 35 page submission, Djokovic’s lawyers argue that his visa was wrongly cancelled given that his positive PCR test from 16 December 2021 provides that he meets the requirements for an exemption against being fully vaccinated against COVID-19.
What is the Australian Home Affairs Department’s argument?
In rebuttal to Djokovic’s arguments, the Department claims that previous infection with COVID-19 is not considered a medical exemption or contraindication for COVID-19 vaccination and being unvaccinated means that Djokovic poses a risk to people and the Australian health system. It was also stated that no non-citizen is assured entry into Australia.
Does an exemption from the requirement to be fully vaccinated to enter Australia actually apply to those who have previously been infected with COVID-19?
As of 15 December 2021, fully vaccinated Australian citizens, permanent residents and eligible visa holders can travel to and from Australia without needing to apply for a travel exemption.
The Australian Government will consider a person to be fully vaccinated if they have completed a course of a Therapeutic Goods Administration (TGA) approved or recognised vaccine and have received the following vaccines and dosages (includes mixed doses):
Two doses at least 14 days apart of:
- AstraZeneca Vaxzevria
- AstraZeneca Covishield
- Pfizer/Biontech Comirnaty
- Moderna Spikevax
- Sinovac Coronavac
- Bharat Biotech Covaxin
- Sinopharm BBIBP-CorV (for 18-60 year olds)
OR one dose of:
- Johnson & Johnson/ Janssen-Cilag COVID Vaccine
At least 7 days must have passed since the final dose of vaccine in a course of immunisation for them to be considered fully vaccinated.
Travellers who cannot be vaccinated due to a medical contraindication will need to provide proof of a medical exemption. Previous infection with COVID-19 is not considered a medical contraindication for COVID-19 vaccination.
Will Djokovic be able to return to Australia in the future?
The Immigration Minister’s decision to exercise his ministerial powers under section 133(c)(3) of the Migration Act also carries a three year ban on Djokovic being able to be granted a new temporary visa under Public Interest Criterion 4013. Exceptions to the ban may, however, apply under certain circumstances including where compelling reasons may be considered to apply following review by the Department of Home Affairs.
Professional Assistance & Representation with Australian Travel Ban Exemption Applications
Should you find yourself or your employees in the position of needing a travel exemption to either exit or enter Australia, Ethos Migration Lawyers can guide you through the process and submit an exemption on your behalf maximising your chances of success.
We have gained a sound understanding of what the Department of Home Affairs is looking for in terms of evidence for these exemptions, and can put together a written submission on your behalf to attach with the travel exemption substantiating each piece of evidence and the reason for your travel.
We understand the challenging times being endured by citizens, residents temporary or permanent, and businesses in Australia, and aim to assist with preparing the strongest travel exemption application for you or your businesses needs.
Please feel free to call our office on 1300 083 843, contact us online or email us on [email protected] to speak with our friendly team regarding your current circumstances.
We have been getting some amazing results for our clients, and will provide you with a comprehensive assessment whether it is likely or very unlikely that you can be approved a travel exemption.
Visa Cancellations
Ethos Migration Lawyers have successfully represented many visa holders (and former visa holders) to avoid a visa cancellation or have their visa cancellation revoked.
We will thoroughly assess the reasons for the intended visa cancellation, or visa cancellation (if it has already been cancelled) and advise on what options you have moving forward. If the cancellation is being considered, we will represent you on your behalf to the Department to put forward a strong submission advocating why your visa should not be cancelled, and if it has already been cancelled, we can assist with your preparation and representation at the tribunal for a review of the cancellation.
Please contact us immediately for further assistance with a visa cancellation.