Five key learnings for administrative decision-making from the Novak Djokovic case

The 11-day rollercoaster ride that was the divisive case of Djokovic vs. Australia, ultimately ending in victory to the latter, involved a heady cocktail of the COVID-19 disease and vaccinations, sport, international relations, and the law.

Never before has a relatively common Australian visa decision captured such widespread mainstream attention, to the point that over 60,000 members of the public were glued to a YouTube live stream of a Federal Circuit and Family Court of Australia directions hearing late on a Friday night, rather than watch the final Ashes test.

Thanks to COVID-19, there is improved public access to the inner-workings of the courts via online streaming, opening up a process that has until now largely gone under the radar of the public consciousness. Rather than waiting for updates from third parties, viewers could plug in to a real-time feed from the Court. 

With this fresh insight – supercharged by the Djokovic case – there has been much commentary expressing surprise – and some misunderstandings – about how the “process” of our justice system works. 

We are not immigration lawyers and do not comment on the merits of the Djokovic case. But there is a substantial cross-over with the administrative legal processes and the Courts that we do deal with daily, in our specialities of regulatory and financial services law (among others). 

In light of this, we highlight five key “takeaways” of the administrative decision-making process.

1. The important distinction between “merits review” and “judicial review”

The Court was not required to – and, in fact, could not – consider the merits of the Minister’s decision to cancel Mr Djokovic’s visa. Rather, it could only consider whether the Minister had made a “lawful” decision. 

Djokovic’s case was not an appeal of the Minister’s decision, but rather an application to seek “judicial review” of the decision to cancel his visa made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.  

The Minister had decided to cancel Djokovic’s visa on the grounds that his presence in Australia would or might be a risk to the health, safety or good order of the Australian community, pursuant to ss 116(1)(e)(i) and 133C of the Migration Act 1958 (Cth).

Judicial review under the Administrative Decision (Judicial Review) Act 1977 (Cth) is a re-evaluation by a Court of an administrative decision. The Court is only concerned with the lawfulness of the decision.

Grounds for judicial review often include principles of procedural fairness (also called “natural justice”), which includes the “fair hearing rule” and the “rule against bias”.

Other grounds include that the decision:

• did not follow proper procedures;
• involved a lack of jurisdiction or authority;
• was an improper exercise of power, e.g. it was illogical, irrational or unreasonable;
• followed some error of law; or 
• was not justified by any evidence.

A key argument for Djokovic was that the Minister was irrational because he had no evidence to conclude that Djokovic’s presence in Australia would foster anti-vaccination sentiment or that Djokovic even currently held a strong “anti-vax” view.   The Minister had only selectively quoted from a BBC article in April 2020 which quoted from Djokovic, months before safe and effective vaccines became widely available.  Djokovic also argued that the Minister had failed to consider whether the decision to detain and expel Djokovic would lead to further protests or unrest; as lead counsel characterised it, the Minister failed to consider the “binary alternative outcome”.

On the other hand, a “merits review” as the name suggests involves a subsequent decision maker, usually a tribunal such as the Administrative Appeals Tribunal (AAT), conducting an independent review of the merits of administrative decisions.  

A merits review is “de novo”, a Latin term meaning “anew”, as the reviewer takes a fresh look at the facts, evidence and law and stands in the shoes of the original decision maker to arrive at their own “correct or preferable” decision.

Decisions made by regulators such as ASIC when cancelling Australian financial services licences (AFSL), or banning individuals from being company directors or financial advisors, are subject to merits review in the AAT.

2. No requirement for procedural fairness 

A key disadvantage for Djokovic and his legal team was that the particular power under the Migration Act 1958 (Cth) exercised by the Minister was expressly not subject to the requirements for procedural fairness, outlined above.

This meant that Djokovic could not argue that the decision should be overturned because he was not provided a reasonable opportunity to be heard, or that the decision maker was biased against him.

Djokovic instead had to argue that the decision was unlawful on other grounds, including that the Minister fell into jurisdictional error, his findings were not open to him on the evidence, or his decision was unreasonable and/or irrational.

3. No requirement to provide reasons - yet reasons were provided

Linked to the lack of any obligation to provide natural justice, the Minister was also not obligated to provide any reasons to Djokovic for his decision.  This reflects the fact that the Minister’s power to cancel visas under the Act involves a very broad discretion.

However, perhaps given the high profile and keen interest shown in the case, as well as demonstration of prudent administrative decision making, the Minister did in fact provide detailed reasons to Djokovic.

The result was that the vast majority of arguments before the Court were based on a detailed reading of the Minister’s reasons and what they did or did not contain.

For example, Djokovic’s lawyers argued that the Minister wrongly failed to seek or refer to any evidence of Djokovic publicly commenting on his stance towards COVID-19 vaccines (or mandates for them) since April 2020.  In response, lawyers for the Minister argued that given there was no obligation to give reasons, it is difficult to infer that that the Minister did not consider something.

4. There were two cases brought by Djokovic – he “won” the first case, and “lost” the second

Djokovic brought two applications. He, in effect, “won” on the first application and “lost” comprehensively on the second.

The first application was heard in the Federal Circuit Court and Family Court of Australia (which are two entirely separate courts in the Federal jurisdiction that were recently merged).

In the first application, Djokovic argued (among other things) that he had not been afforded procedural fairness in the way in which his visa had been cancelled and his treatment in the dead-of-night at Melbourne Airport by Border Force officials. The respondents were Border Force and the Minister for Home Affairs – not the Minister for Immigration.

It was inaccurately reported that the Court “ruled” in Djokovic’s favour on that application. This wasn’t correct. Rather, when evidence came to light clearly indicating that the Border Force officials had made procedural errors in the way they first managed the cancellation of Djokovic’s visa at the airport, the Government saw the writing on the wall and agreed to orders that withdrew the cancellation of the visa, and for the Government to pay Djokovic’s legal costs of his application to that point.

Therefore, the Court did not need to make a decision. The judge in that case was presented with an agreed form of order between parties and made orders substantially in that form. The agreed orders were made late on Monday night (10 January 2022) accordingly.

Agreed orders are a common tactic by parties in litigation, which allows them to cut to the chase and obtain an outcome without requiring the Court to consider and make a decision. This speeds up the process, reduces the amount of Court time (and costs) associated with hearings, and leads to a predictable outcome for all involved.

It is worth noting that the judge always retains a discretion to make completely different orders to the agreed orders, if he or she considers this necessary. But in practice, the Court will make the orders largely as agreed by the parties unless there are compelling reasons not to do so.

Notwithstanding that Djokovic did not have a judge consider his first application, he nonetheless “won” that application by virtue of its outcome. 

The second case brought by Djokovic was a judicial review application of the Minister’s application to cancel his visa on entirely different grounds (as outlined above).

The second case was not an appeal of the Court’s decision on the preceding Monday, as had been reported.  It was not – as some alleged – an example of the Minister overturning the rule of law. 

It was a fresh application challenging a new cancellation by the Minister of Djokovic’s visa on different grounds - under his “personal” powers provided through the Migration Act 1958.

This second application was transferred from the Federal Circuit Court and Family Court of Australia to the Federal Court of Australia. 

After a directions hearing before a single judge in the Federal Court on Saturday (15 January 2022), the matter was listed to be heard on an urgent basis by the Full Court of the Federal Court of Australia. 

The “Full Court” in this context means a panel of three judges that is listed to hear the case, rather than the usual single judge hearing.  It is up to the Court to decide whether a single judge or Full Court hearing is required, and the Court will look at various aspects in deciding whether to do so, such as public interest and the need for finality.

Djokovic sought a Full Court hearing and was successful. The lawyers for the Government opposed the need for a Full Court hearing and lost – a small win to Djokovic.

One critical implication of a Full Court hearing is that it is the highest jurisdiction of the Federal Court. From that point, the only scope for an appeal is to the High Court of Australia.

Djokovic lost the second case – as was extensively reported all over the world – and he was ordered to pay the Government’s legal costs for that application. The Court considered the outcome and delivered a ruling (although not reasons, which are to be provided later). He was then deported from Australia. 

5. Anyone can seek an urgent hearing in the Federal Court, not just a rich and famous person like Djokovic

There was commentary that Djokovic unfairly received special treatment by obtaining urgent hearings to challenge the cancellations of his visa.

While Djokovic could no doubt afford to pay for a high-quality legal team to bring his applications on an urgent basis, in fact anyone can apply for an urgent application in the Federal Courts (or State Courts) where the circumstances require it. 

This more often happens in immigration, due to the urgent nature of the issues, but urgent applications do occur regularly in other areas of law – such as urgent applications for freezing orders to prevent dissipation of funds from accounts. 

Each Court has different procedural requirements for bringing an urgent application, but the central themes are largely the same.  So long as the applicant presents the Court with sufficient evidence (usually by affidavit) of the reason for the urgency and is clear about the relief sought – and can pay the usually sizeable application fees – any person can seek an urgent hearing.

Most (if not all) Courts also allow an applicant to seek a waiver or reduction of the Court fees for public interest, compassionate or economic reasons. 

Therefore, whilst Djokovic could afford to pay lawyers to bring his urgent applications, he didn’t receive any special treatment in having the applications heard urgently. Rather, it was a product of the circumstances – i.e. Djokovic’s impending deportation and commencement of the Australian Open.

Conclusion

The procedures undertaken in the Federal Court and Federal Circuit Court and Family Court for consideration of the Djokovic cases were notable for their publicity and public interest, but the process was otherwise normal for urgent administrative applications of this type.

Some members of the public may be concerned by the Minister for Immigration’s perceived “God-like” powers to cancel a visa on public interest grounds, but the role of the Court is not to debate legislation – it is to interpret laws and apply them as they stand.  This was reflected in the comments made by Chief Justice Allsop when delivering the Full Court’s decision on 16 January 2022, before he proceeded to confirm the Court’s refusal to grant the relief sought by Djokovic’s second application. 

Putting the merits of the decision to one side, the publicity of the case and the insight it provided to the community at large about the operation of our Federal Court system was a welcome development.  

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Michael Chapman, Director

Anthony Jensen, Senior Associate

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