Asia-Pacific Litigation Update – June 2022

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2022 Australian Open COVID Vaccine Legal Battle

Introduction

In the lead up to the 2022 Australian Open in January, the world was captivated by acclaimed tennis star Novak Djokovic’s epic legal saga with the Australian Federal Government over his right to enter the country to compete in the Open, which centered around the fact he was unvaccinated for COVID-19.  After a series of urgent court hearings broadcast over the Internet and watched by tens of thousands of people globally, the end result was that the number 1 seed’s entry visa was cancelled and he was deported from Australia, deprived of the opportunity to defend his victory at the 2021 Australian Open and to add to his tally of 20 Grand Slam singles titles. 

            But much like the path to victory at a Grand Slam tennis tournament, the journey to reach that final outcome was one full of twists and turns (and plenty of arguments with the chair umpire).  Against the backdrop of the COVID-19 pandemic and debates regarding the legal and social consequences of individuals electing not to get vaccinated, this article considers the very live global issue of State sovereignty to determine who will be granted border entry and any relevant preconditions which must be satisfied, albeit with a focus on the Australian administrative law regime and the common law principle of procedural fairness.

Brief Overview of Administrative Law in Australia

United States Supreme Court Justice Stephen Breyer defines administrative law as “the legal control of government,” which consists of four main limbs, namely, legal principles that “define the authorities and structure of administrative agencies, specify the procedures agencies must follow, determine the validity of administrative decisions, and define the role of review courts and other organs of government in relation to administrative agencies.” Stephen G. Breyer et al., Administrative Law and Regulatory Policy (8th ed., 2017).  The position is much the same in Australia (and most other common law jurisdictions globally). 

            Focusing on the third and fourth limbs, in Australia, an individual seeking review of a federal administrative decision (i.e., to challenge its legal validity) may generally avail themselves of any one of: the prerogative writs expressly and/or impliedly embedded with the Constitution of the Commonwealth of Australia (namely, certiorari, prohibition, and mandamus); judicial review (by exercise of judicial power conferred upon courts by legislation, such as the Administrative Decisions (Judicial Review) Act 1977 (Cth)); or, in some cases, merits review (invariably via the Administrative Appeals Tribunal, a statutory body created by the Administrative Appeals Tribunal Act 1975 (Cth)).  Mr. Djokovic’s legal challenges to his visa cancellation focused on the judicial review avenue, meaning that the merits of the two separate decisions purporting to cancel his visa (discussed below) were not in question, with the focus instead being on whether those decisions had been made according to law.

‘Players Ready?  Play!’

According to documents filed in Mr. Djokovic’s multiple court proceedings, Mr. Djokovic arrived by plane in Melbourne at around 11:30 p.m. on Wednesday, 5 January 2022 and was interviewed by multiple officers of the Australian Border Force (in their capacity as delegates of the Minister for Home Affairs) for several hours before a decision was made to cancel his visa at around 7:29 a.m. on Thursday, 6 January 2022, on the grounds that his “presence” in Australia may be “a risk to the safety, health or good order of the Australian community.”  He was subsequently transferred to a secure hotel in Melbourne, where he was placed in a form of ‘immigration detention’ pending his removal from the country.  Mr. Djokovic (via his legal counsel) subsequently prepared and filed an application in the Federal Circuit and Family Court of Australia for judicial review of the visa cancellation decision (Novak Djokovic v Minister for Home Affairs – Proceeding No MLG35/2022).  At the initial directions hearing held at 2:15 p.m. on 6 January 2022, an order was issued restraining the Minister for Home Affairs from removing Mr. Djokovic from Australia, pending the determination of his application (which was set down for an urgent final hearing at 10.00 a.m. on Monday, 10 January 2022).  

            Critically, according to the court documents filed by Mr. Djokovic (including an agreed transcript of the interviews conducted with Mr. Djokovic by officers of the Australian Border Force), at 5:20 a.m. on 6 January 2022, Mr. Djokovic was told that he could have until 8:30 a.m. to provide comments in response to a notice of intention to consider cancellation of his visa under a 116 of the Migration Act 1958 (Cth) (“Migration Act”).  Instead, Mr. Djokovic’s comments were sought at about 6:14 a.m. and the decision to cancel his visa was made at 7:42 a.m. In the circumstances, at the hearing of  Mr. Djokovic’s judicial review application, legal counsel for the Minister for Home Affairs conceded that the process adopted by the Australian Border Force was—as Mr Djokovic had alleged in his application documents—legally unreasonable by reason of him being denied procedural fairness.  As a result, the Court quashed the purported cancellation decision, releasing
Mr. Djokovic from immigration detention, and requiring the Minister to pay Mr. Djokovic’s legal costs.  First set to Mr. Djokovic.

‘Code Violation: Warning Mr. Djokovic’

At the time of pronouncing its orders, the Court was informed that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs may consider whether to exercise a personal power of cancellation pursuant to section 133C(3) of the Migration Act.  In response, on 12 January 2022, Mr. Djokovic published a statement via his Instagram account seeking to “address the continuing misinformation about [his] activities and attendance in events in December.”  There,
Mr. Djokovic: (i) admitted to having attended an interview with a journalist in Belgrade on 18 December 2021, despite having the day prior received a positive result from a PCR test he had taken on 16 December 2021 (which he conceded was “an error of judgment”); and (ii) conceded that a mistake had been made on his travel declaration.  Second set to the Commonwealth of Australia.

‘New Balls, Please!’

On Friday, 14 January 2022, in a separate and new administrative decision—i.e., one now made independently of the decision made by the Australian Border Force—the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs exercised his personal power conferred by the Migration Act to cancel Mr. Djokovic’s visa on the ground that he was “satisfied” that his “presence” in Australia “may be a risk to the health and good order of the Australian community” and that it would be “in the public interest” to do so.  Perhaps somewhat ironically for Mr. Djokovic, in arriving at that decision, the Minister placed a degree of weight upon the statement made by
Mr. Djokovic via his Instagram account.

            On the same day that the Minister’s decision was delivered, Mr. Djokovic again turned to the Federal Circuit and Family Court of Australia (Novak Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – Proceeding No MLG116/2022), seeking judicial review of the Minister’s decision.  Mr. Djokovic would face a tougher battle on this occasion, noting that, by operation of the Migration Act, he was not entitled to procedural fairness with respect to the Minister’s arrival at that decision and had no right of merits review to the Administrative Appeals Tribunal.  Following an initial directions hearing before Judge Kelly held at 8:45 p.m., the Minister undertook not to remove Mr. Djokovic from Australia pending the hearing and determination of his application for judicial review and his Honour made an order transferring the proceeding to the Federal Court of Australia (Novak Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – Proceeding No VID18/2022).  The proceeding was subsequently fixed for an urgent final hearing at 9:30 a.m. on Sunday, 16 January 2022, with Chief Justice Allsop directing that the original jurisdiction of the Federal Court be exercised by a Full Court panel of three judges.

            Being a judicial review application, the focus of Mr. Djokovic’s legal arguments was limited to impugning the lawfulness of the Minister’s decision and the process / evidence relied upon in reaching his state of “satisfaction.”  The arguments before the Full Court centered upon three primary grounds, namely that:

  1. The Minister adopted an illogical, irrational and/or unreasonable approach to one or more of: (1) Mr. Djokovic’s presence constituting a risk to the health and good order of the Australian community; (2) the question of public interest; and/or (3) the exercise of his discretion;
  2. It was not open on the evidence relied upon by the Minister to find that the presence of
    Djokovic in Australia was (or may be) a risk to the health or good order of the Australian community; and
  3. It was not open on the evidence relied upon by the Minister to make any finding concerning Mr. Djokovic’s “well-known stance on vaccination.”

As we know, shortly following the hearing, the Full Court dismissed Mr. Djokovic’s application.  In its reasons for judgment (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3), the Full Court—perhaps conscious that the reasons would have wider than usual readership—highlighted at the outset (at [19]) that:

an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.”

The thrust of Mr. Djokovic’s first (and, arguably, most creative) ground centered around the argument that the Minister did not consider whether cancelling Mr. Djokovic’s visa may separately—in and of itself—foster anti-vaccination sentiment in Australia.  The Full Court dismissed this ground (at [95]-[97]) on the basis that the statutory enquiry was directed to the impact of Mr. Djokovic’s “presence” in (as opposed to absence from) Australia and, as such, the Minister was not obligated to consider (although was not precluded from considering) such a counterfactual vis-à-vis any proposed decision to cancel his visa.

            As for Mr. Djokovic’s second ground, the central proposition was that the Minister lacked any evidence (and cited none) that Mr. Djokovic’s presence may “foster anti-vaccination sentiment”.  However, in dismissing this ground, the Full Court held (at [81]) that it was open to the Minister to infer that it was perceived by the public that Mr. Djokovic was not in favor of vaccinations and the evidence did display an affinity of anti-vaccination groups with his views.  In addition, the Full Court held (at [82]) that “an iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him.”

            Mr. Djokovic’s third ground was similarly dismissed by the Full Court, holding (at [71]-[74]) that it was open to the Minister to conclude that Mr. Djokovic had a stance that was well-known on vaccination (and that he was opposed to it) on the basis of public comments made by Mr. Djokovic, as well as on the basis of the available inference that, because Mr Djokovic had—as of January 2022—for over a year chosen not to be vaccinated (i.e. since vaccines became available), he was opposed to vaccination or did not wish to be vaccinated.

            In all the circumstances—given the breadth of the Minister’s power, the width of the discretionary factors he was able to take into account, and the many available factual inferences open to the Minister with respect to Mr. Djokovic’s stance on vaccination and the Australian public’s perceptions of Mr. Djokovic, coupled with the fact that Mr. Djokovic’s common law right to procedural fairness was expressly ousted by legislation—there were very limited avenues left open to Mr. Djokovic to seek to undo the Minister’s decision to cancel his visa.

            In a statement released shortly after the Full Court rendered judgment on his application,
Mr. Djokovic indicated that he was “extremely disappointed” with the decision but would “respect the Court's ruling and…cooperate with the relevant authorities" in facilitating his deportation.  Game, set, match—Commonwealth of Australia.

Conclusion

Mr. Djokovic’s legal challenge has drawn global attention to the difficulties applicants for judicial review face in overturning administrative decisions, particularly decisions made in circumstances where the applicant has no right to procedural fairness.  Even though the Executive arm of the Australian Federal Government effectively ‘failed’ the first time around, Mr. Djokovic’s case demonstrates that it is invariably open to the Executive to make the same decision time and time again (often based on the same legislative criteria), until it reaches a decision free from jurisdictional error. 

            Against the backdrop of the COVID-19 pandemic and the principle of State sovereignty permitting the imposition of a requirement of vaccination as a precondition for border entry, there will no doubt be further cases like Mr. Djokovic’s around the common law world.  As the Full Court recognized in passing, if an individual’s potential threat to ‘good order’ is a relevant consideration in reaching an administrative decision, “there is a question as to the extent to which one can or should characterise lawful, even if robust, rallies and protests in the free expression of political or social views (even if unpopular or held only by a few people) as a threat to good order.”  These are the kinds of considerations that are being evaluated by governments all over the world, as borders are slowly ‘opening up’ once again.  Whether strong stances like that taken by the Commonwealth of Australia are replicated in other jurisdictions, and whether doing so impinges on individual rights to freedom of association and freedom of speech—which rights, unlike other countries, are not expressly enshrined in Australia’s Constitution—remains to be seen.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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