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Is the overturning of Djokovic’s visa ban preferential treatment?
Novak Djokovic’s visa ban has been overturned by the Australian government, enabling him to play in the 2023 Australian Open. Here, several immigration lawyers weigh in on the decision.
Jess Feyder
The nine-time Australian Open (AO) champion was detained in January over his refusal to be vaccinated against COVID-19. The decision, made in accordance with terms under the Migration Act 1958 (Cth), outlined that he was a risk to the “health, safety and good order of the Australian community”.
His efforts were initially successful, until former immigration minister Alex Hawke exercised his discretion under section 133C(3) on the grounds of public interest and a three-year ban was imposed. At the time, Australia was said to have implemented some of the strictest pandemic regulations seen around the world.
“For the ban to be waived, the minister is to be satisfied that Australia’s trade or business opportunities would be adversely affected or whether it would miss out on the business, economic and cultural benefits if Mr Djokovic is still denied his visa,” illuminated Madison Marcus partner George Botros and intern Emma Nguyen.
In the past 10 years, the tournament alone brought $2.71 billion to the Australian economy. The 2020 AO reported an equivalent of 1650 full-time jobs created.
“It is open to the minister to take the view that the tournament is made up of a number of incredible players, and they collectively draw an extraordinary level of interest,” posited Mr Botros.
“There may be questions on the impact of Mr Djokovic’s presence in AO, and it is also open to make an argument that he does play a major part in his contribution to Australia’s culture and economy by participating in the tournament, driving the viewership and attendance with his personal skills and records.”
The visa ban was open to being lifted in the case of the person brining “a significant benefit that the non-citizen could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia)”, elucidated Daniel Estrin, partner at Estrin Saul Migration Specialists.
“One would think that having the #1 tennis player playing in the Australian Open would fit these criteria nicely, and clearly, it did in this case,” he argued.
However, this “raises a point of controversy”, Mr Botros explained, “that his visa is granted only because of his status as a high-ranking tennis player”.
There is also the issue of his presence potentially fostering anti-vaccination sentiment and leading to civil unrest, as was stated in the reasoning for his visa ban.
“The decision to overturn the three-year ban could be an indication that Australia’s best interests now rest upon economic recovery over limiting anti-vaccination sentiment and civil unrest, and Mr Djokovic’s participation is a valid and considerable contribution that would satisfy compelling circumstances,” Mr Botros mused.
“Whether this is a preferential treatment is still up for debate, but it seems that it falls on an assessment of whether the person’s contribution to Australia’s business, economic and cultural development could compel the minister to exercise their discretionary power.”
“The granting of the visa is diametrically opposed to the previous Liberal government minister’s views,” Mr Estrin observed. “Former minister Alex Hawke, in his cancellation decision, said he did not accept that cancellation would ‘prejudice Australia’s economic interests’ and jeopardise the viability of Australia’s economic interest.
“Now that unvaccinated travellers are able to enter Australia freely, the status ascribed to Mr Djokovic as the ‘talisman’ of the anti-vax movement appears to have faded significantly, and the furore has taken a back seat to the economic and sporting interests of our nation.”
