Lessons from Djokovic
A good lawyer and good migration agent can smell when a client might be a target of Immigration. Clearly Djokovic being a person not double vaccinated from COVID-19 was a person at risk.
Things have to be prepared for a person entering Australia who may face compliance scrutiny at the airport.
Here are tips on how to deal with this situation. Always ensure the client arrives in Australia at a main airport on a weekday in the morning preferably between 9am and midday and only Monday to Thursday. Ensure the client has a mobile phone fully charged with battery power and fully charged with money on a SIM card which can be used in Australia immediately on arrival. The client should carry a completed 956 form in favour of the adviser who is based in the city where the client will land. The client should also avoid consuming any alcohol at least 5 hours before arrival, have something to eat close to the arrival time and if possible have gotten ample sleep. Even the flight route may have to be planned with a stopover in somewhere like Singapore to sleep at an airside hotel for a few hours.
The client should have a letter from his or her lawyer or migration agent stating that the client only wishes to be interviewed in the presence of the lawyer or migration agent.
All documents the client is to complete should be scrutinised by a lawyer or migration agent to ensure there is nothing misleading in the material.
Let’s go through why some of the above is necessary.
Time and day of arrival
Djokovic arrived close to midnight on Wednesday night. It looks like his lawyers were not aware of this. He was interviewed alone. Under no circumstances ever allow a client to be interviewed alone. Even for the basic re-grant of a bridging visa E, I have always insisted that either myself or a solicitor or migration agent participate in that interview which nowadays can easily be done by telephone. Border Force officers and Immigration officers are often not trained in how to ask questions and often questions are posed which are unfair or a double barrelled. An experienced lawyer can stop questioning which is unfair.
It looks like in the Djokovic case more senior officers were not on duty who may have avoided some of the problems, hence it is always best for the client to arrive between 9am and midday so everyone can be on deck to help.
A telling point in the Djokovic case was the Border Force officer telling Djokovic that the end of his shift was approaching and the officer needed to make a decision before his shift ended (i.e. at about 6am). During ordinary office hours, documents can be found, experts can be called in and research can be done easily. Office staff and paralegals are readily available to help out get documents and evidence.
Why Monday to Thursday for the day or arrival?
Never have the client arriving on the weekend or Friday. If any urgent application has to be brought in court, one does not want to be scrambling to go to court on the weekend, especially without staff. A weekend case may generate unnecessary heat. Friday is not a good time to arrive because if any court action has to be taken one may run out of time.
Lawyer or migration agent appointed
The client should have the mobile number of the lawyer or migration agent with instructions on how to make a local call (it is surprising how often a client does not know how to do this). The client’s representative needs to know exactly when the client is arriving and similarly have his or her mobile fully charged. The 956 form needs to be in place with the client as well as the letter saying no interview unless the representative is present, even, if necessary on the telephone.
Do an audit of what the client is bringing.
There is a program which law enforcement agencies have through out the world called ‘Cellebrite Download’ which allows such agencies to download the entire contents of a mobile phone. Innocuous documents or images may be wrongly interpreted. The client should therefore go through his or her mobile phone and delete anything which could be misinterpreted. In partner cases, images of the ex-partner may be considered evidence that the old relationship is still in place. Same should be done with emails and any file contents. I know of some clients who do not cross borders in some countries with a laptop, better to buy a cheap laptop on arrival and upload necessary files from the cloud. The presence of letters or emails indicating activity which may not be permitted ought to be deleted from any electronic device.
Luggage needs to be looked at. There have been cases in which a person brought some barbering tools in his luggage and this was used to base an allegation that the client was going to work in Australia without permission.
For an example of the Cellerbrite Download see Edwards v The Queen [2021] HCA 28 https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2021/28.html
The Full Federal Court decision in Djokovic v the Minister for Immigration.
The whole visa cancellation regime has been ramped in recent years, the Djokovic case is just one example.
Visa cancellations done before immigration clearance means the decision is not made in the migration zone. Therefore there is no merit review to the Administrative Appeals Tribunal and very limited ability to get a bridging visa.
The only thing to do is what Djokovic did and go to the Federal Circuit and Family Court.
Ultimately he was successful before the lower court but then the Minister exercised his personal power to cancel the visa.
The whole visa cancellation regime was ramped up in 2014 and s116(1)(e) of the Migration Act now says this:
“the Minister may cancel a visa if… 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; or
(ii) the health or safety of an individual or individuals;
The relevant Explanatory Memorandum to the amendment to s166 stated:
The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public. Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.
That is and has become a very low threshold.
In cancelling Mr Djokovic’s visa the Minister said:
“I consider that Mr DJOKOVIC’s presence in Australia may pose a health risk to the Australian community, in that his presence in Australia may foster anti-vaccination sentiment leading to (a) other unvaccinated persons refusing to become vaccinated, (b) other unvaccinated persons being reinforced in their existing view not to become vaccinated, and/or (c) a reduction in the uptake of booster vaccines.”
The Full Federal Court in reviewing the Minister’s decision stated:
“82… An iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him. This is not fanciful; it does not need evidence. It is the recognition of human behaviour from a modest familiarity with human experience. Even if Mr Djokovic did not win the Australian Open, the capacity of his presence in Australia playing tennis to encourage those who would emulate or wish to be like him is a rational foundation for the view that he might foster antivaccination sentiment.”
The Court accepted that the minister’s decision was reviewable:
“21.The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion”
In the end the Court found the minister’s decision met that threshold.
Here the link to the full text of the Court’s decision.
A more extensive version of this article will be available to Gold Members.