The Federal Court has revealed the reasons why it rejected tennis star Novak Djokovic’s challenge to the federal government’s decision to cancel his visa.
In a unanimous decision, Chief Justice James Allsop, Judge Anthony Besanko and Judge David O’Callaghan said Immigration Minister Alex Hawke’s decision to cancel Djokovic’s visa was not irrational or illogical.
The three judges found that it was not irrational for Mr Hawke to be concerned that the support of anti-vaccination groups for Djokovic might encourage protests and further societal transfer.
The judges said they did not consider the benefits or wisdom of the minister’s decision, only whether it was legal or not.
The world number one men’s tennis player was deported from Australia late on Sunday after he failed in an attempt to have his visa revoked.
The full court of the Federal Court unanimously decided to reject Djokovic’s application on Sunday before he was due to play in the Australian Open on Monday.
Djokovic could inspire ‘anti-vaccination mood’, the court says
The reasons posted online Thursday afternoon draw attention to the tennis star’s influence in the public space.
“This is not imaginative; it does not need evidence. It is the recognition of human behavior from a modest knowledge of human experience.
“Even if Mr Djokovic did not win the Australian Open, the ability of his presence in Australia to play tennis to encourage those who would imitate or want to be like him is a rational basis for the view that he could promote anti- vaccination mood. “
The court outlined the central argument of Djokovic’s legal team.
“The central allegation in Mr Djokovic’s argument was that the minister lacked evidence and did not quote anything that his presence could ‘promote anti-vaccination sentiment’,” the court said in its published justification.
“But it was open to infer that it was perceived by the public that Mr Djokovic was not in favor of vaccinations.
“It was known or at least perceived by the public that he had chosen not to be vaccinated.
The court also said that the minister was not obliged to give a justification in the case, but he did.
“They were obviously carefully crafted,” the court said.
“There was a clear connection between all parts of the minister’s justification.
“The themes of encouraging and imitating a sports hero and an icon run through the causes of satisfaction in terms of health and good order and the public interest.”
The court also said that another person in the post of minister may not have canceled the visa.
“The Minister did so. The complaints made during the case cannot conclude that the satisfaction of the relevant factors and the exercise of discretion have been reached and made illegally.”
However, the court said that there is still the question of the extent to which “one can or should characterize legal, albeit robust, rallies and protests in the free expression of political or social views … as a threat to good order”
The decision “justified”, but there are still questions about the right to protest, says expert
Maria O’Sullivan, deputy director of the Castan Center for Human Rights Law at Monash University, said the reasons were largely unsurprising, but nonetheless important.
“And one of the things the court said is that there is no need to have hard evidence of what effect an iconic tennis star like Mr Djokovic is going to have on Australian society, and especially anti-wax people. , you can just assume that from common sense and common knowledge, so we did not need to have hard evidence for that.
“So I think that finding is very justified.”
She said, however, that it raised a question about the minister’s powers and the future of any rallies and protests.
“Academics and civil society have in the past regularly criticized the minister’s powers,” Mrs O’Sullivan said.
“Secondly, what are we saying now about the right to protest in Australia? In fact, the full federal court said in their reasoning that it was an interesting question. They did not decide it.
“It’s definitely a future legal implication we have to deal with.”
Ms O’Sullivan said it could mean other high-profile speakers could have their visas canceled for similar reasons, for example if a high-profile environmentalist like Greta Thunberg came to visit Australia.
“I think it’s problematic because you kind of assume that legal protests, especially if you get a police permit, are a risk to social order, and that finding is problematic,” she said.
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