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Flaws in our Game Exposed

The Novak Djokovic visa saga at the 2022 Australian Open exposes the flaws in our immigration system writes Deakin Law School expert Dr Matthew Lister.

Regardless of the merits of his case, or the character of the actor, the events surrounding Novak Djokovic’s saga at the border can serve the purpose of shining light on some of the bad aspects of the process of coming to Australia.

Three examples make the point.

Migration legislation and regulations are often poorly written and unclear. This was evident in Djokovic’s case in relation to the vaccine mandate, and possible exemptions, for people entering Australia, but his situation is far from unusual. 

Poorly written and unclear regulations can make it genuinely difficult for people coming to Australia to comply with the rules, even when trying to do so in good faith.

Perhaps worse, poorly written and unclear regulations open the door to arbitrary, discriminatory, or politically motivated actions by officials at all levels – from front line Border Force officers to administrative agents to ministers. 

Next, in the migration realm officials at all levels are given significant discretion in deciding how to enforce rules and deciding who should enter Australia.

This discretion is often only checked in limited ways that will be difficult for many people to make use of, and sometimes essentially unchecked.  

The most extreme example here is the power of the Minister for Immigration to cancel almost any visa if this is said to be done for the safety of Australia.

This opens the door for impertinent political considerations.

In Djokovic’s own case the Minister is no doubt currently weighing the political impact of allowing Djokovic to remain as opposed to sending him packing.

But, it is not clear why any case – whether involving a famous tennis player, a tourist, or a person seeking asylum – should turn on these narrowly political considerations, as opposed to clear legal criteria.  

Even in the case of lower-level officials, there are often few effective checks on their discretion.

Djokovic was able to successful challenge the cancellation of his visa by Border Force officers in the Federal Court, but only because he was able to quickly gain access to a team of skilled lawyers who were willing and ready to represent him on short notice.

People lacking such resources will not only have much less chance of success, but will often not even know that it is possible to raise a challenge. 

Border Force officers are also able to engage in bad behaviour designed explicitly to discourage migrants from challenging action taken against them.

For example, allegedly, even though Djokovic was originally told that he could wait until the morning (while in detention) to decide whether to challenge the cancellation of his visa and to seek legal help, the Border Force officer who had cancelled his visa woke him up several hours earlier and pressured Djokovic to continue his interview without having the advantage of legal help.

The justification for this was, allegedly, that the matter could be finished before officers went off-shift. This is unfair behaviour. If this sort of behaviour is done in even high-profile cases, we can expect that more, and worse, is done in ones that will attract no publicity.  

Lastly, migrants are often subjected to poor and unsafe conditions, despite typically posing little or no safety risk to the public. Djokovic’s mother made the press for complaining that her son was being held in a “small immigrant hotel with bugs” that was “dirty” and with “terrible food”, and suggested that Djokovic should be able to move to better accommodations.

We should ask ourselves if it is accepted to detain any migrants – especially ones who pose no safety threat to the community – in a small, dirty, bug-infested space with bad food.

While it would be unreasonable to expect detained migrants to be put up in the Hotel Windsor, keeping them in harsh conditions could only be justified if they had been convicted of violating a criminal law.  

It is also important to remember that most migrants in these situations suffer from extreme isolation from friends and family, and do not have access to the sort of legal aid available to Djokovic, since there is no obligation on the government to provide legal assistance.  

If, as the Federal Court held, the government was wrong to cancel Djokovic’s visa on the grounds it did, then he was lucky to have competent legal help.  This is not available to most migrants in his situation.  

It may not be easy to fully eliminate the problems noted here.  Some of them involve difficult issues of law and policy.  But, we are unlikely to have a fair system until we accept that there are problems and that we must improve.  If Djokovic’s saga can help with that, it will have been a victory for us all, despite what we may think of the man himself.  

This opinion piece was published in the Herald-Sun on 15 Jan 2022.

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