Novak Djokovic’s deportation and its greater implications: consular non-reviewability

Novak Djokovic, previously one of the top men’s tennis players, was deported one day from Australia by a unanimous three-judge panel before the Australian Open 2022. His celebrity status and the issue at contention – the cancellation of Djokovic’s visa – brought great publicity to his cases. At first glance, the dispute may seem to be purely a political question due to Djokovic’s anti-vaccination stance. However, this issue also embeds important legal concepts and sheds light on how countries (i.e., Australia and USA) have a varied scope of legal review to balance the consular officer’s decision and the right to appeal.

Novak Djokovic v Minister for Immigration

In Djokovic’s first case on January 10, 2022, Alex Hawke’s – Australia’s immigration minister – first announcement to cancel Djokovic’s Temporary Activity is being quashed on procedural fairness grounds. This is soon followed by Hawke’s second and final decision to cancel Djokovic’s visa because it is based on “health and good order grounds” and “public interest” with the support of s 133C (3) of Migration Act. In addition, relying on Div. 1 of Pt. 8, s474(1), the cancellation of visas is not challengeable unless the Minster’s decision is “tainted by jurisdictional error”. Hence, with Djokovic’s appeal against Hawke’s second decision, Federal Court focused on the lawfulness of the decision and explicitly excluded the “wisdom of minster’s decision”; this is satisfied through considering whether the minister “is a state of mind formed reasonably and on a correct understanding and application of this applicable law”. This condition was met as the Court justified that Djokovic could inspire “anti-vaccination sentiment” which could lead to potential riots that encourage the transmission of COVID-19. However, this low judicial review standard broadened the breadth of the minister’s power and applicability of “public interest”, namely justifying by public perceptions. This is likely to be problematic in the long term.

Public Perceptions

The main thrust of the government’s argument is the disorder that may be inspired by Djokovic’s previous public statements and current presence in Australia. This is prone to exploitation as government can easily justify the admissibility of a person in a country through its potential effect on others (either fostering certain perceptions or instigating actions). This slippery slope leads to an undesirable but likely outcome of government excluding individuals who have different ideologies (e.g., police power, etc.).

Freedom of Expression

The freedom of expression (or implied freedom of political communication – adopted as a “freedom from government restraint”) will not only be at risk for the aliens but also the citizens of the country.

The phenomenon does not only occur in Australia but also in other countries, such as the USA. The appealing process for aliens entering the US is even more strenuous as the court’s review of the case is not guaranteed. Similar to Australia, the US government also has the backing of the “plenary power doctrine” as well as consular non-reviewability with a few exceptions, for instance, the court reviewing the underlying legal issue of the case that does intrude the consular officer’s discretionary power. Unlike Australia where aliens bring up cases for their denial, the US provides another – arguably more difficult – approach: US citizens, who seek a personal connection with the alien, can claim that their constitutional rights were violated. Although this grants judicial review for the case, the court remains reluctant to weigh government’s justification against the citizen’s constitutional right. In Kleindienst v Mandel, students’ First Amendment rights were violated because they were prevented to meet and discuss with Mandel. The Mandel review developed a new measure: government needs to provide “a facially legitimate and bona fide reason” for denying a visa. Although the standard is as low as Australia’s, the test puts more bearing on the reason rather than the officer’s exercise of power. Hence, it made it plausible for the court to strike down the government’s bare assertions in denying an alien’s visa in Allende.

Guaranteeing consular officers’ power to adjudicate visa-related decisions is vital for national security. However, moving forward, it is also important for the officers’ action in check to prevent them from acting in an egregious manner.

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