Was Novak Djokovic hard done by? It’s a question I advance with some trepidation. With Australia about to pass 96% of the adult population having had a least one dose of a COVID-19 vaccine, notwithstanding the weekend protests, the constituency for vaccine refusal is a modest one (I hasten to add that I write as someone who is fully vaccinated, with three doses). And after all, in the grand scheme of things, who is less in need of our sympathy than a fabulously wealthy tennis champion?
In the popular imagination, Djokovic was deported on the grounds that, having refused to be vaccinated, he posed a health risk to the Australian community (all visa entrants must show that they are free of contagious diseases). The Immigration Minister, Alex Hawke, decided that a still-vulnerable Australian community, shellshocked after almost two years of lockdowns, could not take the risk of admitting an unvaccinated visitor, however prominent, who may precipitate another COVID-19 outbreak. Having an unvaccinated person enter, for whatever reason, was too much of a risk to the health and safety of the Australian community.
But was that really the reason his visa was cancelled?
Reading the Minister’s decision, it is striking how little discussion there was about the risk that Djokovic posed in spreading COVID-19 throughout the community. In fact, at paragraph 17 of the written decision, the Minister said:
I … accept that Mr DJOKOVIC poses a negligible individual risk of transmitting COVID-19 to other persons…
Rather, the decision largely rested upon the fact that, in the words of the Minister:
I consider Mr DJOKOVIC’s presence in Australia may pose a health risk to the Australian community, in that his presence in Australia may foster anti-vaccinated sentiment leading to (a) other vaccinated persons refusing to be vaccinated, (b) other unvaccinated persons being reinforced in their existing view not to become vaccinated, and/or (c) a reduction in the uptake of booster vaccines.
The Federal Court held that this was a permissible exercise of the Minister’s discretion, in that Djokovic was a risk to the ‘good order’ of the Australian community.
Curiously, there have been many anti-mandatory vaccine and mask protests during and after the tennis tournament. Of course, Australian citizens enjoy the right to protest (although in Melbourne during lockdown a woman was arrested by the police for ‘inciting’ a protest).
In the past, the Minister’s power has occasionally been exercised to cancel or deny a visa to inflammatory political visitors. But Djokovic has specifically denied any intent to proselytise in service of the anti-vaccination cause, and, in the comments quoted in the judgement, he only said that while he ‘was opposed to vaccination’, he was also ‘curious about wellbeing and how we can empower our metabolism to be in the best shape to defend against imposters like COVID-19.’ It does not appear that he has attempted to discourage anybody else from taking the vaccine.
What I think is troubling about the decision (although I am probably in the minority) is that it was taken on the assumption that Djokovic was a risk to the community, ultimately not because of his health status, and not even because of an intention to persuade people of the supposed evils of vaccination. Rather, the Minister asserted that Djokovic’s mere presence in Australia might possibly foster anti-vaccine sentiment. Putting aside the fact that, in a globalised world, ‘sentiment’ can be fostered from anywhere, Djokovic’s visa was cancelled because he might hypothetically influence some unspecified group of people to refuse the vaccine.
But the evidence canvassed in the decision really reveals a man who has decided against taking the vaccine for his own eccentric reasons, and who doesn’t really care one way or the other whether anyone else follows suit.
Perhaps a defter approach would have been for Djokovic’s visa to have been granted on condition that, should he enter Australia, he would first have to quarantine for two weeks in a hotel (as Australian Open participants did in 2021). It would then have been his decision whether to comply with this condition.
As it stands, the decision clouds the issue of what constitutes a real (as opposed to hypothetical) risk to the ‘good order’ of the Australian community.
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Snedden Hall & Gallop have extensive experience advising visa holders about their rights and responsibilities in Australia, and are available to assist. To discuss your situation, contact our Migration Team on 02 6285 8000 or by email.