Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 16 January 2022
• Neutral Citation: [2022] FCAFC 3
• Court: Full Federal Court (Australia)
• Date: 16 January 2022

Federal Court of Australia

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

File number:	VID 18 of 2022
Judgment of:	ALLSOP CJ, BESANKO AND O’CALLAGHAN JJ
Date of judgment:	16 January 2022
Date of publication of reasons:	20 January 2022
Catchwords:	MIGRATION – application for review of decision of the Minister to cancel visa under personal power under s 133C(3) of the Migration Act 1958 (Cth) – where Minister satisfied that a ground for cancelling the visa under s 116 of the Migration Act existed – where Minister satisfied that the presence of the applicant in Australia may be a risk to the health, safety or good order of the Australian community under s 116(1)(e)(i) of the Migration Act – where Minister satisfied under s 133C(3)(b) of the Migration Act that it would be in the public interest to cancel the visa – application dismissed
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 153, 153(1) Federal Court of Australia Act 1976 (Cth) ss 20(1A), 32AD, 32AD(3) Migration Act 1958 (Cth) ss 116, 116(1)(e)(i), 133C, 133C(3), 133C(3)(a), 133C(3)(b), 133C(4), 476, 476A Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases cited:	Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 Avon Downs Pty Ltd v Federal Commissioner of Taxation[1949] HCA 26; 78 CLR 353 Boucaut Bay Company Ltd (in Liq) v Commonwealth [1927] HCA 59; 40 CLR 98 Buck v Bavone[1976] HCA 24; 135 CLR 110 Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 7 Federal Commissioner of Taxation v Brian Hatch Timber Co. (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 Lewis v Australian Capital Territory[2020] HCA 26; 381 ALR 375 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40;162 CLR 24 Minister for Home Affairs v DUA16[2020] HCA 46; 385 ALR 212 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 Minister for Immigration and Border Protection v Singh[2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZVFW[2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li[2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu[1999] HCA 21; 197 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2004] HCA 32; 207 ALR 12 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19[2021] FCAFC 133 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane[2021] HCA 41; 395 ALR 403 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17;390 ALR 590 Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624 R v Connell; Ex Parte Hetton Bellbird Collieries Ltd (No 2)[1944] HCA 42; 69 CLR 407 Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002[2003] HCA 30; 198 ALR 59 Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3;255 CLR 231 Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; 89 FCR 80 Wei v Minister for Immigration and Border Protection[2015] HCA 51; 257 CLR 22 ; Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2021)
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	106
Date of hearing:	16 January 2022
Counsel for the Applicant:	Mr P Holdenson QC and Mr N Wood SC with Mr N Dragojlovic and Mr J Hartley
Solicitor for the Applicant:	Hall & Wilcox
Counsel for the Respondent:	Mr S Lloyd SC with Mr C Tran, Ms N Wootton and Ms J Nikolic
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 18 of 2022
BETWEEN:	NOVAK DJOKOVIC Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	ALLSOP CJ, BESANKO AND O’CALLAGHAN JJ
DATE OF ORDER:	16 JANUARY 2022

THE COURT ORDERS THAT:

1. The amended application be dismissed with costs, such costs to be agreed or failing agreement assessed.

2. Reasons to be published at a later date.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction and background

1. The applicant, Mr Djokovic, is a citizen of Serbia. He is currently the world’s number 1 ranked men’s tennis player. Mr Djokovic was issued a Class GG subclass 408 Temporary Activity visa on 18 November 2021 for the purpose of competing in the Australian Open Tennis Championship.

2. He arrived in Australia on 5 January 2022. Upon his arrival, he was taken to immigration clearance and questioned by officers of the Department of Home Affairs until the early hours of 6 January 2022.

3. On the same day, his visa was purportedly cancelled by a delegate of the Minister for Home Affairs under s 116(1)(e)(i) of the Migration Act 1958 (Cth) (the Act). That provision is at the centre of the proceeding and is in the following terms:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community …

Subsections (2) and (3) are not relevant.

4. Mr Djokovic immediately commenced a proceeding in the Federal Circuit and Family Court of Australia (Division 2) seeking to quash the decision to cancel his visa on the ground that the process adopted by the delegate of the Minister for Home Affairs in cancelling the visa was legally unreasonable.

5. A Judge of the FCFC granted Mr Djokovic interim relief late on 6 January 2022. The matter was set down for final hearing to commence on Monday 10 January 2022. At the hearing on that day, counsel for the Minister for Home Affairs conceded that the process adopted by her delegate was, as Mr Djokovic alleged, legally unreasonable...