With Roger Federer also absent from the Australian Open, it is the first time since 1999 that neither Federer nor Djokovic played in the main draw of the first grand slam of the year. Instead, Novak Djokovic was replaced by a 'lucky loser' – Salvatore Caruso – who lost in the final round of Men's Singles qualifying. This meant what would've been Djokovic's section of the draw was much weaker.

Had Djokovic won the Australian Open, it would have placed him as the most successful male tennis player of all time, above Rodger Federer and Rafael Nadal. But, alas, Djokovic's deportation last month has denied him the opportunity to claim that title.

We have set out below a detailed account of the relevant events (and the law) that led to the star's ultimate deportation.

Before arriving in Australia

On 16 December 2021, Djokovic tested positive to COVID-19 in Serbia. Despite Serbian law requiring him to isolate for 14 days following a positive COVID-19 test, Djokovic has admitted to appearing at public events during this isolation period.

On 22 December 2021, Djokovic tested negative to COVID-19. Serbian COVID regulations stipulate a full 14-day self-isolation period, unless the person who has tested positive receives a negative PCR test result during that period.

Before arriving in Australia on 5 January 2022, Djokovic was granted a Temporary Activity (subclass 408) visa. As part of preparing his paperwork for arrival in Australia, Djokovic made a travel declaration and included a copy of his medical exemption for vaccination against the COVID-19 virus. In his travel declaration, Djokovic declared that he had not travelled in the 14 days prior to entering Australia (despite travelling between Serbia and Spain in December).

Based on obtaining his visa and preparing the necessary paperwork, Djokovic confirmed that he had complied with all Australian requirements to entitle him to quarantine-free entry into and travel in Australia for the duration of the permission granted by the visa.

Arriving in Australia – game to the Minister for Home Affairs

On 5 January 2022, Djokovic landed in Australia and was questioned by Australia's Border Force and detained at Melbourne's Tullamarine airport.

At 4.11am on 6 January 2022, an Australian Border Force officer gave Djokovic a "Notice of intention to consider cancellation under section 116 of the Migration Act 1958 (Cth)."

Due to the time of the morning, Djokovic requested that he be given until 8.30am before any further action was taken so that he could talk to his lawyers and Tennis Australia. Australian Border Force verbally agreed to his request.

Despite this verbal agreement, at or about 7:42 am on 6 January 2022, a delegate of the Minister for Home Affairs cancelled Djokovic's Visa, according to section 116(1)(e)(i) of the Migration Act (First Decision). This section provides: the Minister may cancel a visa if he or she is satisfied that "the presence of its holder may be or might be, a risk to the health, safety or good order of the Australian community."

Djokovic was immediately placed into detention.

Set 1 to Djokovic

Through his legal counsel, Djokovic made an urgent application for judicial review of the First Decision to the Federal Circuit Court and Family Court of Australia (proceeding No MLG35/2022).

On Monday, 10 January 2022, the parties (Djokovic and the Minister of Home Affairs) appeared before Justice Kelly by video link.

Justice Kelly quashed the First Decision for Djokovic's visa to be cancelled and ordered his release from detention – a win for Djokovic.

Justice Kelly made the decision in favour of Djokovic on the basis that the First Decision (to cancel the visa) was invalid because the process that her delegate adopted was legally unreasonable. This was essentially because the Australian Border Force agreed to give Djokovic until 8.30am before deciding to cancel his visa. However, the decision was issued at 7.42am.

Despite Djokovic's success in having the First Decision quashed, he was hardly at ease as during the hearing before Justice Kelly, counsel for the Minister of Home Affairs flagged that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (The Hon Alex Hawke) was still considering whether he would exercise his power under section 133C(3) of the Migration Act to cancel Djokovic's visa.

Section 133C(3) provides that:

"(3) The Minister may cancel a visa held by a person if:

(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and

(b) the Minister is satisfied that it would be in the public interest to cancel the visa."

In the days that followed the hearing before Justice Kelly, the ball was in Mr Hawke's court. Anticipation grew as Mr Hawke remained silent on whether he would exercise his discretion to cancel Djokovic's visa. Tension was mounting with the Australian Open fast approaching, and the players draw occurring on 13 January.

When the draw occurred, Djokovic lawfully remained in the country and was drawn to play round 1 against Miomir Kecmanovic on Monday, 17 January.

Djokovic got served

At about 5:45 pm, on Friday, 14 January 2022, Mr Hawke made a decision, according to section 133C(3) of the Migration Act, to cancel the Djokovic's visa on the stated ground that the power conferred by section 116(1) of the Migration Act was engaged "on health and good order grounds, on the basis that it was in the public interest to do so" (Second Decision).

The reasons the Minister provided for the visa cancellation noted:

  • he had received advice from the Commonwealth Department of Health that, on the assumptions that Mr Djokovic had tested positive for COVID-19 on 16 December 2021, negative on 22 December 2021, and was asymptomatic on 27 December 2021, he was a "low" risk of transmitting COVID to others
  • the risk of transmitting COVID-19 at the Australian Open was low
  • Mr Djokovic had a medical reason for not being vaccinated
  • Mr Djokovic entered Australia consistent with documentary requirements
  • Mr Djokovic made no attempt to contravene any Australian law
  • Mr Djokovic was of good standing and was known for his philanthropic efforts.

However, despite the above findings, the Minister nevertheless found that Mr Djokovic's presence in Australia:

  • may be a risk to the health of the Australian community
  • may be a risk to the good order of the Australian community.

In each case, the Minister's reasons were founded (in at least substantial or material part) on propositions that:

  • "in April 2020, well before Covid vaccines were available, [Mr] Djokovic said he was 'opposed to vaccination'"
  • Mr Djokovic had "previously stated he wouldn't want to be forced by someone to take a vaccine" to travel or compete in tournaments
  • this material "makes it clear that he has publicly expressed anti-vaccination sentiment", or in any event (inferentially), his sentiments would be perceived in that way
  • accordingly, "his presence in Australia may foster anti-vaccination sentiment".

These findings formed part of the basis for the finding that Mr Djokovic's presence in Australia "may be counterproductive to efforts at vaccination by others in Australia."

Mr Djokovic applied for urgent judicial review on the evening of Friday, 15 January, so that the matter could be determined and put to rest before the Australian Open on Monday, 17 January.

The matter went before Justice Kelly again who heard the parties' submissions late Friday evening.

Justice Kelly ordered:

  • Mr Djokovic be given leave to make an oral application for judicial review of the Second Decision
  • the matter be transferred to the Federal Court of Australia (according to section 153(1) of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth)).

The parties agreed:

  • Mr Djokovic would file his submissions supporting his application by midday on Saturday, 15 January 2022
  • the Minister would file his submissions by 10pm on Saturday, 15 January 2022
  • the final hearing would be on Sunday, 16 January 2022 (as the Australian Open was commencing on Monday 17 January 2022).

Hearing before Full Federal Court – 16 January 2022

At 9:30 am AEDT on Sunday 16 January 2022, the full bench of the Federal Court (constituted by Chief Justice Allsop, Justice Besanko and Justice O'Callaghan) heard Djokovic's appeal of the Second Decision.

Djokovic's counsel argued three grounds as to why the Minister's Second Decision was invalid.

The first ground was that the decision was illogical, irrational and unreasonable because the Minister had failed to weigh up which course of action – letting Djokovic stay, or giving him the boot – would be worse for Australia's efforts to vaccinate as many people as possible against COVID-19.

The second ground was that it was not open on the evidence to find that the presence of Mr Djokovic in Australia is or may be a risk to the health or good order of the Australian community. Djokovic's legal team argued that the Minister cited no evidence that supported his finding that Mr Djokovic's presence in Australia may "foster anti-vaccination sentiment", and it was not open to the Minister to make that finding.

The third ground was that it was not open to the Minister to make a finding concerning Mr Djokovic's "well-known stance on vaccination".

The Full Federal Court rejected all three grounds and unanimously upheld the Second Decision to deport Djokovic – 'game, set and match' to the Minister!

Chief Justice Allsop stressed the Court was ruling on the lawfulness and legality of the decision, not whether it was the right decision.

Written reasons published – 20 January 2022

The Federal Court's written reasons were published on 20 January 2020. In its reasons, the Court stressed that for an administrative decision to be overturned there needs to be some form of legal error (rather than merely the decision being a "bad" or "incorrect" decision).

At paragraph [17] of the reasons the Court states that:

"As will be explained in the reasons below, 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."

Under the Administrative Decisions (Judicial Review) Act 1977 (Cth), in order to be successful in appealing an administrative decision, an applicant (such as Djokovic) must show:

  • there has been a breach of the rules of natural justice in the making of the decision;
  • procedures that should have been observed in making the decision were not observed;
  • the person who made the decision did not have jurisdiction to make the decision;
  • the decision was not authorised by the Act under which it was made;
  • the decision involved an error of law, whether or not the error appears on the record of the decision;
  • the decision was induced or affected by fraud;
  • there is no evidence or other material to justify the making of the decision; or
  • the decision was otherwise contrary to law.

The Court held that provided the Minister was satisfied that Djokovic's presence in Australia is or may be a risk to the Australian community, then his decision was valid and that it is irrelevant whether Djokovic was in fact a risk to the community – it is the Minister's state of satisfaction which was the issue at hand:

"...it is not the fact of Mr Djokovic being a risk to the health, safety or good order of the Australian community; rather it is whether the Minister was satisfied that his presence is or may be or would or might be such a risk for the purposes of s 116(1)(e)(i), through s 133C(3)."

That state of satisfaction that there is a "relevant risk" must be reached on a legally reasonable basis. Djokovic's legal team argued there was not a legally reasonable basis for Mr Hawke to make his decision to cancel Djokovic's visa. In response to this the Court held that:

"The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made."

The Minister's evidence regarding how he arrived at his "state of satisfaction" was:

  • he had given consideration to the fact that there is evidence to suggest that Mr Djokovic has, in the past, shown an apparent disregard for the need to isolate following a positive COVID-19 test result on 18 December 2021 and knowingly attended an interview and photoshoot
  • due to Mr Djokovic's high profile status and position as a role model in the sporting and broader community, his ongoing presence in Australia may foster similar disregard for the precautionary requirements following a positive COVID-19 test in Australia
  • Mr Djokovic's presence in Australia may be counterproductive to vaccination efforts by others in Australia, which may be a risk to the health of the Australian community.

In upholding the Minister's decision, the Court said:

  • the Minister's state of satisfaction cannot be said to be irrational or illogical or not based on relevant material. Whether or not others would have formed the same state of satisfaction as to the public interest is not relevant
  • the arguments made by Djokovic's counsel did not conclude that the Minister's state of satisfaction was reached unlawfully.

While the Djokovic deportation 'racquet' has died down since the commencement of the Australian Open, this may not be the end of the story with media reports suggesting Djokovic may sue the Australian Government. Stay tuned for the re-match!

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.