Morrison vs Djokovic
Today all of Australia — well, perhaps the whole world — is watching the Morrison vs Djokovic match.
The day before yesterday,Djokovic announced he had received a medical exemption to enter Australia, and would compete in the Australian Open starting 17 January. He said ‘see you in 2022’ and boarded a flight to Melbourne.
After a 14-hour flight, however, he arrived — and yet it was as though he hadn’t arrived at all.
His coach and support team were all granted entry,but he himself spent several hours in a police-guarded room at Melbourne Airport before being informed that his visa had been cancelled, and the ABC has since reported that he was temporarily relocated to a hotel at around 10 o’clock this morning.
The Australian Border Force (ABF) issued a statement giving the reason as: “failed to meet the entry requirements.”
Australian Prime Minister Scott Morrison took to Twitter to firmly back the ABF’s decision: ‘Mr Djokovic’s visa has been cancelled. Rules are rules, especially when it comes to our borders — no one is above the rules…’
Thenthe Serbian President posted on Instagramsaying,that they would fight for Djokovic’s right to enter Australia, and that all of Serbia would stand beside him. Morrison also confirmed that the Serbian embassy had formally raised the matter with the Australian Government, and added that Djokovichad failed to provide medical evidence that he was entitled to a vaccine exemption.“
By this point, the situation had escalated to a whole new level. No matter how it unfolded, it always came back tovisa and exemption— these two pivotal concepts.
Djokovic in all likelihood held aSubclass 408 visa(reports suggest it was approved back in November last year), yet someone who had obtained an exemption failed to meet the exemption requirements? The fact that this has escalated to this level suggestsit is very likely that there were misunderstandings, misinterpretations, and mistakes made along the way.
First,
he would not get vaccinated.
Then
that all players and staff participating in the Australian Open must be fully vaccinated,unless they had received a medical exemption.
According to the relevant rules, only the following circumstances may qualify fora Medical Exemption:
-
– A serious health condition or having undergone major surgery
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– A severe reaction to the vaccine
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– Having contracted COVID-19 within the past six months
(Djokovic tested positive for COVID-19 in mid-2020, though his subsequent status is uncertain)
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– Posing a risk to oneself or others during the vaccination process due to a developmental or mental health condition
Next,
that Djokovic had been granted a Medical Exemption following ‘a rigorous review process involving two independent panels of medical experts’.
Immediately after,
that any player granted a medical exemption would undergo a two-stage independent review process to verify that their genuine health condition met the exemption criteria.
The problem
may lie precisely in this Medical Exemption.
Department of Home Affairs: a Medical Exemption allows entry without vaccination
On the Department of Home Affairs website, under the entry requirements page for vaccinated travellers,there is detailed information about what requirements unvaccinated travellers with a medical exemption must meet in order to enter or depart Australia.This further distinguishes between those with and without a record on the Australian Immunisation Register (AIR),and airlines are required to verify valid proof of exemption before allowing boarding.
But this Medical Exemption may not be the same as that Medical Exemption.
It appears Djokovic boarded the plane on the strength ofthe Victorian Government / Tennis Australia-issuedMedical Exemption..
But wait — isn’t border entry a matter for the federal government to decide? Can a state government grant a border entry exemption?
The thing is,the Medical Exemption Djokovic held from the Victorian Government or Tennis Australia was a medical exemption for the purpose of participating in the tournament or for waiving certain state-level COVID requirements(the Department of Home Affairs website also notes that state governments have the authority to determine their own post-arrival quarantine requirements),but whether someone can actually cross the border is a federal decision — federal requirements must be met..
(This is similar to a previous situation where the NSW Premier said overseas arrivals could simply home quarantine — many assumed this meant temporary visa holders could enter Australia, but Morrison said ‘no, no, no — border entry is a federal decision’).
The Australian Border Force (ABF) has determined that Djokovic’s grounds for a vaccine exemption — reportedly that he had contracted COVID-19 within the past six months — were insufficient, and therefore refused his entry. Furthermore, at the time of check-in, if the airline was unable to confirm his eligibility, they should have checked with the ABF before allowing him to board — and it appears this did not happen either.
The lack of alignment and the communication breakdown between the state and federal governments bears some responsibility here,and now Morrison and the Victorian Government are trading blame.Moreover, some of those involved in the process were far too presumptuous and failed to follow procedures carefully.
Of course,Djokovic’s camp also failed to fully understand every step of the processand made the same mistake of taking things for granted.
The result: detained in a holding room and stripped of his visa.
Now, down to business.
A group chat for timely updates on returning to Australia has been set up.
Those who wish to join
are welcome to add our customer service contact and note: ‘returning to Australia’.
Special thanks to the Newstars professional team for their support of the following content:
Australian Solicitor Tony
MARA-registered Migration Agent Kirk
MARA-registered Migration Agent Jack
Australian MARA-registered Migration Agent and Solicitor Vincent
What causes a visa to be cancelled?
Under the Migration Act 1958, there are many circumstances in which a visa may be cancelled. The following are some of the main grounds:
Breach of visa conditions — Section 116 — If the visa holder has not complied with the conditions of their visa,or if their presence may pose a risk to the health, safety, or good order of Australia,or if the circumstances that permitted the grant of the visa no longer exist, the Department of Home Affairs may cancel the visa.
At present, the Australian authorities have not disclosed the specific reason for Djokovic’s visa cancellation (which may involve personal privacy considerations),but we can reasonably speculate that the primary basis for Djokovic’s visa cancellation is Section 116(e):
That is to say,Djokovic is unvaccinated, and with his exemption deemed invalid by the ABF, his presence was seen as a risk to Australia’s health and safety — hence the cancellation.
In early 2020, when the pandemic had only just broken out, there were a small number of temporary visa holderswho rashly attempted to clear customs without having obtained entry permission, and they too had their visas cancelled by the Department on the same grounds.
In addition to Section (e) mentioned above,Section 116 also sets out a number of other circumstances in which a person’s visa may be cancelled. The most common include:
1.The factual circumstances under which the visa was granted no longer exist.For example: if a student visa holder withdraws from their course before it ends and then departs Australia, the Department may cancel the student visa under this provision.
2.The visa holder has breached the conditions of their visa.For example: if a visitor visa holder works unlawfully in Australia, the Department may cancel the visitor visa.
3. In the case of a student visa holder,if the Department finds that the applicant’s genuine purpose in coming to Australia was not to study,the student visa may also be cancelled.
When a visa is cancelled under Section 116,a 3-year bar applies(discussed further below), though it may be waived if there are exceptional circumstances.
Failure to meet the character requirement — Section 501 — The Department may cancel a visa under this provision if it suspects the visa holder of any of the following:
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May engage in criminal conduct in Australia
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May defame or vilify certain residents of Australia
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May pose a threat to the Australian community
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May incite disorder in Australia
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Is of bad character
In practice, however, the most common visa cancellations we encounter are based on Section 109 —
providing false information when applying for a visa — If the Department granted a visa on the basis of incorrect information or fraudulent documents, it may cancel the visa.It is irrelevant whether the applicant knew the information was incorrect.
Always take NOICC seriously
When the Department believes there are grounds to cancel a visa,if the person is in Australia, the Department will issue a Notice of Intention to Consider Cancellation (NOICC). The NOICC is a notice informing you that the Department has received adverse information about you,and that it is accordingly considering whether to cancel your visa.
If the person is outside Australia, or has not yet entered Australia (at airport clearance — as in Djokovic’s case),the Department may cancel your visa directly under Section 128, without issuing a NOICC.
If you receive this notice, you must treat it seriously and regard it as your last opportunity to persuade the visa officer, providing a detailed explanation of why your visa should not be cancelled. Never ignore the notice or respond hastily.
Key consequences after a visa is cancelled
While in Australia
If your visa is cancelled while you are in Australia,you will no longer be able to remain in Australia lawfully and will be required to depart within a set timeframe.
The rights granted to you by your visa or bridging visa —including your right to work — will also be cancelled.
You may also be subject to the restrictions under Section 48 of the Migration Act,which may prevent you from applying for certain types of visas onshore.
While outside Australia
If your visa is cancelled while you are outside Australia,you may be subject to restrictions under Public Interest Criterion (PIC) 4013, resulting in a 3-year bar on obtaining a new visa, unless you can provide compelling reasons why a new visa should be granted within that period. This is because the vast majority of temporary visas require compliance with PIC 4013 — for example, the student visa (Subclass 500) and visitor visa (Subclass 600) shown in the illustration below.
However,permanent visas and business and investor migration visas are not required to comply with PIC 4013, meaning the three-year bar does not apply — for example, Subclass 189, Subclass 190, partner visas, and Subclass 188 visas.
We hope this information is useful to you — but we sincerely hope you will never need to use it.
Follow-up
To return to Djokovic: he is already preparing to appeal. However, because his visa was cancelled at the point of clearing customs — meaning he had not technically entered Australia — he cannot appeal directly to the Administrative Appeals Tribunal (AAT).Instead, the avenue available to him is judicial review.Broadly speaking, this involves examining whether the Department’s and Border Force’s actions were lawful, and whether there were administrative errors or whether the measures exceeded the scope of the Migration Act. We won’t go into further detail here — stay tuned for updates.
Advice on entering Australia in the near term
Last but not least,having your visa granted does not mean you are automatically entitled to enter Australia— there are still exemption requirements, quarantine conditions, and other factors to consider.
Most temporary visas now permit entry, but not all — the most common bridging visas and visitor visas currently do not. For visas such as student visas, it is best to have your Confirmation of Enrolment (COE) and other supporting documents ready.We are still in a period of pandemic-related restrictions. Please do not assume that holding a visa and purchasing a plane ticket is all you need to enter Australia — exercise caution.
On that note, many people have asked whether they can apply for an exemption — even accepting hotel quarantine — if they have not received an approved vaccine or if their temporary visa does not meet the requirements for exemption-free entry.Due to the large volume of exemption-free arrivals, the number of spots available for exemption-based entry combined with hotel quarantine in each state is extremely limited. Many parents of PR holders and citizens who already have a visa, an exemption, and a flight ticket have been unable to board simply because there are no hotel quarantine places available.
As such, temporary visa applicants and holders who cannot enter on an exemption-free basis are advised to wait patiently from overseas.
The Department of Home Affairs link for Australia’s entry and exit requirements is available for your reference:
https://covid19.homeaffairs.gov.au/
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