Djokovic case reveals ‘dysfunctional and dangerous’ Australian visa rules, say experts | Novak Djokovic


Australia’s visa cancellation regime has been exposed as ‘dysfunctional and dangerous’ by the Novak Djokovic case, legal experts say, saying his deportation sets a ‘terrible precedent’ which could lead to ‘political and populist’ deportations “.

The Djokovic case has drawn public attention to the so-called “powers of godheld by Australian immigration ministers, granting them extraordinarily broad powers to summarily cancel visas.

Immigration law experts say the Djokovic case – his visa was canceled because the government thought he was a ‘talisman of anti-vaccination sentiment’ – demonstrates the laws could be used to exclude someone who has previously expressed political views with which the government disagreed.

“The deportation of someone because of an alleged risk to how others might perceive them and then act sets a terrible precedent,” said Michael Stanton, chairman of Liberty Victoria.

“It can and will be used in the future to justify the suppression of legitimate political expression because others might engage in unrest.”

“One of the dangers of largely unlimited discretionary powers, or ‘divine powers’, is that decision-making simply becomes political and populist…eroding executive integrity and the rule of law.”

Liberty Victoria said thousands of visa cancellations have been summarily carried out since the Migration Act was changed in 2014, but are often legally flawed and carry serious consequences for those involved, including separation from family, indefinite detention and even forced return to evil.

The organization said Djokovic was an exceptional case: the tennis world number one had significant institutional support, the resources to mount a strong legal defense and massive media attention on his case.

“Due to the complexity of the scheme, the delays, the lack of support and advice and the lack of access to review, we cannot know how many people have been subject to unlawful decisions that they do not could not dispute. Even when people are able to challenge a decision, there is a stark inequality of arms given the vast resources of the Commonwealth.

Greg Barns SC, spokesman for the Australian Lawyers Alliance, said the government had set itself a “very low bar” for excluding someone from Australia, “disturbing in a society supposedly attached freedom of expression and freedom of thought”.

“The attitude of the Federal Government could see other high profile visitors to Australia being refused entry in a bid to suppress other views. If, for example, a high-level visitor to Australia expressed negative opinions about the Australian-American alliance, would the government ban that person because that opinion might encourage people to protest at Pine Gap?

“This government’s obsession with tough border policies combined with its arbitrary approach to visa waivers and detention has created a debacle this week but, more importantly, risks setting a very dangerous precedent.”

Immigration Minister Alex Hawke canceled Djokovic’s visa, arguing that his past views expressing skepticism about Covid-19 vaccines could incite “civil unrest”, encouraging others to avoid vaccination or to publicly protest.

In dismissing Djokovic’s appeal against the reversal, the full Federal Court justices expressly stated that his decision did not reflect “the merits or wisdom of the decision”, but only if it was so irrational that it was illegal.

“Our concern is the federal government’s view that it didn’t have to prove that Mr. Djokovic would foster anti-government views on vaccination, just that he might foster those sentiments,” Barns said.

“This is a very low bar for excluding someone from Australia, especially in circumstances where the power to review or appeal the decision is so limited.”

Djokovic, the defending Australian Open champion, cannot participate in this year’s event: he started Monday morning without him. But he may never play in the tournament again – which he has won a record nine times.

Because his visa was finally personally canceled by the minister under article 133C(3) Australian Migration Act, it was automatically prohibited from applying to return to the country for three years.

There are grounds for this ban to be overturned but they are narrowly defined as extraordinary circumstances.”that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen”.

Home Secretary Karen Andrews has confirmed that Djokovic now faces a three-year ban.

“It can be waived in compelling circumstances, but it’s not a matter for today or tomorrow, it’s a matter for some time in the future,” Andrews said. told Sky News.

“Anyone who has been barred from entering Australia or whose visa has been cancelled; it will not be an easy or straightforward process to enter Australia.

The Visa Cancellation Task Force, the Asylum Seekers Resource Center and the Refugee Advice and Assistance Center have repeatedly pleaded for an urgent investigation in Australia’s “dysfunctional and dangerous visa cancellation regime”.

Ministerial powers to cancel visas were significantly extended in 2014 – when Prime Minister Scott Morrison was immigration minister.

“Since then there has been a huge increase in visa cancellations, including in ‘immigration clearances’ at the airport. The system is now cumbersome, opaque and alarmingly prone to error and injustice. .

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Cancellations of visas made under “immigration clearances” at the airport – like Djokovic’s – cannot be examined on the merits, they can only be challenged in court on narrow legal and procedural grounds.

“At the airport, people have just 10 minutes to respond if their visa is being considered for cancellation, often after a long flight or at irregular hours. They do not have access to legal advice or other forms of assistance. As a result, visa cancellations made under the veil of secrecy remain unchallenged and visa holders are summarily expelled from the country and barred from re-entry.

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