Australia's Immigration Law under the Spotlight at the Australian Open
09 Feb 2022
The recent controversy surrounding the exemption, cancellation, appeal, second cancellation and unsuccessful appeal of tennis star, Novak Djokovic to compete in the Australian Open, has again put worldwide attention on the legalities of the Australian immigration system, its Minister’s powers and exemptions. The case seems to beg the question, how can an international visitor, especially a globally recognised sportsperson, be granted a visa, only to be turned away at the border? Yet the Djokovic affair is just one of many complex cases that will be heard by Australian courts this year, testing the legal parameters of this consequential and at times opaque source of government power.
What is the legal basis of Australia's temporary visa system?
Australia's immigration system is built around the Migration Act 1958, and the federal government's Minister's power to 'regulate, in the national interest, the coming into, and presence in, Australia of non-citizens', an authority supported through the so-called 'aliens power' in s 51(xix) of the Constitution.
Under this system, a variety of visa options for international visitors has developed, each tailored to different purposes and with its own set of conditions. Djokovic, for example, entered Australia under a subclass 408 visa, which allows for participation in particular events, such as the Australian Open.
What powers does an Immigration Minister have to cancel a visa?
The designated Minister, in this case, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, has the power to deny or cancel visas based on character, or as in this example, where the Minister is 'satisfied that the refusal or cancellation is in the national interest'. Individuals and their legal teams seeking to overturn such a decision face the difficult prospect of arguing that the government was not properly satisfied on a decision as broad as national security.
In Djokovic's most recent appeal for example, his lawyers had to make the case that the Minister's decision was "illogical, irrational and unreasonable". They were unsuccessful. Despite the tumultuous circumstances and the seemingly last-minute choice of the Minister's team to argue that allowing Djokovic into the country could threaten the national interest by encouraging anti-vaccine sentiment and civil unrest.
Takeaways
The finding by the Court that possible increases in anti-vaccine sentiment due to the presence of Djokovic in the Australia Open was not an unreasonable factor in the Minister's decision underlines how broad considerations the national interest can be.
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