Despite claiming to have a strong stance on border control, the recent Djokovic debacle has proven Scott Morrison to be all talk, writes Dr Abul Rizvi.
The fact is neither the Court’s decision nor the Djokovic case, in general, do anything of the sort.
The Federal Court merely affirmed that Immigration Minister Alex Hawke followed the right legal processes in coming to his visa cancellation decision.
The Chief Justice made it very clear the Court’s judgment was in no way a reflection on the “merits or wisdom” of the Minister’s decision to cancel Djokovic’s visa.
The Court did not examine the strength of the evidence on which the Minister based his cancellation decision or the veracity of the Minister’s argument that Djokovic’s views on vaccination would stoke “anti-vaccination sentiment” in Australia or create civil disorder.
If the Court had been able to undertake a merit’s review rather than the much narrower judicial review it was required to undertake, it is highly likely the Court would have come to a very different conclusion.
The substance of the Minister’s case was extraordinarily weak, as Djokovic’s lawyers pointed out.
But that is not what the Court was required to look at.
The Djokovic case actually highlights how poor the Morrison Government is on border management.
If the Government really had the concerns it now says it has about Djokovic’s presence in Australia and his anti-vaccination views, it would have instructed the Department of Home Affairs (DHA) and Australian Border Force (ABF) to place Djokovic on the Movement Alert List (MAL) before Djokovic applied for a visa.
This is a standard mechanism used for decades to alert senior officials in Canberra of any potentially controversial visa applicant.
The alert triggers a senior level consideration process to ensure the application is sensitively handled.
This appears not to have happened in the Djokovic case.
The application went through to visa grant without any questions being put to Djokovic about his vaccination status, any medical exemptions he held or his current views on vaccination.
On 18 November 2021, Djokovic was granted a visa with no attached conditions regarding vaccination status — this was around six weeks before the Victorian Government gave Djokovic a medical exemption.
Even if DHA/ABF forgot to put Djokovic on MAL prior to visa grant, they could have done so after they were alerted to Health Minister Greg Hunt’s letter of 29 November 2021 to Tennis Australia warning that having COVID-19 six months prior to travel would not be accepted as a reason not to be vaccinated — even though it is accepted as a reason for domestic purposes.
But again, DHA/ABF failed to put Djokovic on MAL.
Indeed, it appears DHA/ABF did not even issue instructions to airport officers that they must look behind medical exemptions granted by state governments in response to Hunt’s letter.
That is perhaps understandable given that as late as 5 January 2021, the Prime Minister made it very clear that the Commonwealth accepted medical exemptions granted by state governments at face value.
Contradicting Morrison’s earlier statement, Andrews said ABF would look behind medical exemptions granted by state governments.
Morrison chimed in with his “rules are rules” comment even though his Government had just changed the rules.
Even at that late stage, it was possible to put Djokovic on MAL as an alert for ABF staff at Dubai airport to prevent Djokovic from boarding a plane to Australia.
Once again, it appears ABF did not.
It was not until Djokovic arrived at Melbourne airport around midnight on 6 January that ABF finally acted.
Under extreme ministerial and prime ministerial pressure, the junior ABF officer proceeded to cancel Djokovic’s visa based on the view that his medical exemption was not satisfactory and that Djokovic posed a risk of catching and transmitting COVID-19 in Australia.
That cancellation was overturned on appeal by Justice Anthony Kelly.
On 14 January, Minister Hawke used his personal power under s133C of the Migration Act to cancel Djokovic’s visa using an argument the Government had not previously aired — that Djokovic’s presence in Australia would stoke anti-vaccination sentiment and may cause civil disorder.
Presumably, this new policy is not just about Djokovic but all prominent non-citizens who have anti-vaccination views — apparently Morrison considers prominent Australian citizens, including his own backbenchers who hold anti-vaccination views, do not stoke anti-vaccination sentiment.
Given there are hundreds of prominent non-citizens around the world who hold anti-vaccination views (some vaccinated some not), is DHA/ABF going to now place all these people on MAL?
That would be impractical but it is the logical conclusion of the new government position.
Morrison likes to talk about strong borders because it is apparently a vote winner.
Gratuitous cruelty and denigration of refugees who arrived by boat almost ten years ago are not the same as efficient or effective border protection.
Distracting the Australian public with the myth the Morrison Government is strong on borders is pure politics.
The objective evidence shows the Morrison Government is in fact very poor at managing borders and visa systems.
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