‘Capricious and Cruel’: Djokovic’s Visa Woes Spotlight How Broken Australia’s Immigration System Is

Djokovic could still have his visa revoked at any point due to ministerial "God powers".

13 January 2022, 12:43am

Three-thousand-and-ninety-four days. That’s how long Mehdi had been in Australian immigration detention when his neighbour, Novak Djokovic, was released from the makeshift prison of Melbourne’s Park Hotel on Monday. 

The world men’s number one tennis player spent the weekend detained inside the hotel’s first floor after touching down in Australia and having his visa cancelled, last minute, at the border last week. His stay lasted just over 100 hours. 

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Djokovic appealed against his deportation, claiming he’d been granted a medical exemption to compete in the Australian Open – despite the tournament’s strict vaccination requirements – and the judge presiding over his case declared on Monday night that the cancellation of his visa be overturned and he be immediately released from detention.

After a single day in court, the 34-year-old Serbian multimillionaire was given what Mehdi and the dozens of other refugees and asylum seekers trapped at the infamous Park Hotel have been begging for for years: freedom. 

However, even he isn’t out of the woods yet.

After Federal Circuit Court judge Anthony Kelly’s decision was handed down, it was widely reported that Minister for Immigration Alex Hawke could still exercise so-called “God powers” to re-cancel Djokovic’s visa and send him home, effectively overruling a decision made in the Australian court of law. It is unclear whether Hawke will actually invoke such powers, but the very possibility of him intervening in the matter has exposed a troubling power dynamic within the machinery of Australia’s border control. 

“You're now seeing the evil nature of our immigration system at work,” George Newhouse, principal solicitor of human rights legal service the National Justice Project, told VICE. 

“Mr Djokovic, even though he won his case, is still at risk of deportation because the minister has other powers that he can exercise to cancel Mr. Djokovic's visa – and by law, if the visa is cancelled, he must be taken into immigration detention until he is deported.”

When it comes to deciding who is allowed to stay in Australia and who is sent home, the personal discretion of a single government minister trumps all else.

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“That is the heart of Australia's immigration regime,” said Newhouse, “and over the years you've seen more and more power being granted to the minister to control people's lives through their visa status.”

Mehdi is one of those people. The 24-year-old came to Australia exercising his human right to seek asylum at the age of 15, and was subsequently locked up by the government who was supposed to offer him protection. He has been in Australian immigration detention ever since, and has still not been granted a visa. Nor has he been given any indication of when he might be released.

“At the end of the day, my life is in the hands of the minister,” he told VICE. “He's going to give me the approval or not whenever he can, whenever he wants, because the law is giving him the authority to do such a thing. 

“There's no reason [why they haven’t released me],” he added. “If you ask the Australian Border Force they say ‘I don't know, it's not up to me’; if you ask Home Affairs they say 'I don't know, it's not up to me – it's up to the minister.’ And we cannot reach the minister to ask the question.”

The Minister for Immigration’s omnipotence has been cemented over the course of several decades, as successive Australian governments have granted them more and more powers that aren’t reviewable by the courts. These have culminated in powers to strip refugees and asylum seekers of their visas, thus rendering them “unlawful non-citizens” and leading to them being detained for an indefinite period of time. 

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The minister reserves the right to grant a visa, but is under no legal obligation to release refugees or asylum seekers from immigration detention at any point. They decide, for reasons they needn’t disclose, whether to free people like Mehdi or leave them suspended in legal limbo.

“Those are significant powers that are destroying people's lives – and they're being exercised for essentially a political purpose,” said Newhouse. “There's no reason why the Australian government couldn't provide visas or allow these individuals to be processed or live in community detention and get on with their lives.”

There’s no doubt that Djokovic’s case – the most widely publicised immigration case in Australia’s recent history – is a political one. There is not a single person in the country’s onshore or offshore immigration facilities whose detention and visa battle has attracted such hot-blooded attention. It’s worth noting, however, that his situation differs to that of Mehdi and other asylum seekers for more mundane reasons than just his public profile.

Djokovic didn’t arrive by boat, wasn’t fleeing persecution and had already been granted an Australian visa prior to his arrival – albeit one that was cancelled shortly thereafter. Under a specific section of the Migration Act, the revocation of a visa at the border is open to appeal.

Those who come by sea, on the other hand, are automatically denied a visa and aren’t given any opportunity to challenge that decision. For those people, the Minister for Immigration maintains absolute discretion as to whether a person is allowed to even apply for a visa to enter Australia, and the courts are forced to support that process. Even if it is in violation of international law.

“It's important to note that Australia has no bill of rights, so even though Australia is breaching international human rights norms, there are no laws in this country to protect individuals and enable them to enforce their rights,” Newhouse pointed out. “You can contrast that with the European Union, where there's a convention on human rights that all states sign up to, and they have the right to appeal the law or decisions in any country that breach those human rights. [But] we don't have that in Australia.”

In other words, just as Hawke can make the personal decision to override the Federal courts and deport Djokovic from Australia, he can also leave people like Mehdi languishing in indefinite detention with little to no recourse, or hope, of appeal. The God powers can giveth and they can taketh away.

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Despite the cries of “torture” and “oppression” made by those in his inner circle, Djokovic’s predicament pales in comparison to the asylum seekers and refugees who remain trapped at the Park Hotel. What the tennis champion’s situation highlights, however, is what Newhouse described as Australia’s “extremely capricious and cruel immigration regime”. Unlike Djokovic, many of these people are stateless; they have no home to return to, and no hope of appealing their situation in the courts.

If Hawke does revoke Djokovic’s visa for a second time it will be on the grounds of public health, and the Serbian will be banned from returning to Australia for another three years. Meanwhile, people like Mehdi have no reason nor timeline for their exclusion. Due to a consolidation of the Immigration Minister’s God powers, their lives hang in the balance and are determined by the stroke of a pen. These people have virtually no rights under Australia’s constitution and laws. And as it stands, there's very little that anyone can do about that.

“Since the Magna Carta, the power of our rulers has always been reviewable by the court,’ said Newhouse. “But in the case of refugees, more and more very serious powers – including the powers that ultimately hold someone in indefinite detention – are being granted to politicians. And Australians should be extremely concerned about that.”

Follow Gavin Butler on Twitter.

Read more from VICE Australia.

Tagged:

Australia, refugees, HUMAN RIGHTS, asylum seekers, Australian Open, Novak Djokovic

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