Novak Djokovic has won a battle with the Australian government after a court quashed the decision to cancel his visa – but he may still yet lose the war.
No sooner had federal circuit judge Anthony Kelly revealed the home affairs minister had agreed to settle the case, than the Australian government’s counsel warned the immigration minister could still decide to use a personal power to cancel Djokovic’s visa anew.
That means that Alex Hawke, one of the closest political allies of prime minister Scott Morrison, now has a momentous political decision to make: let Djokovic stay and play for a record 21st grand slam singles title; or deport him, which comes with a hefty three-year ban from re-entering Australia.
The harsh border policies that have allowed Australian governments to detain asylum seekers indefinitely are now being directed at one unvaccinated man, who happens to be the world’s No 1 ranked male tennis player.
Djokovic obtained an exemption on the basis he had recently contracted Covid-19, which the judge noted had satisfied a qualified physician and an independent panel set up by the Victorian government.
But a delegate of the home affairs minister cancelled his visa on the basis the tennis star might pose a risk to public health. The government argues recently having Covid by itself does not justify an exemption, because Djokovic has recovered.
In a hearing on Monday the federal circuit court heard procedural complaints about that decision. After a lengthy afternoon adjournment the government agreed to roll over but warned the nuclear option is still on the table.
To exercise the personal power, Hawke will have to be satisfied: there is a ground to cancel the visa, in this case the alleged threat to public health; that Djokovic hasn’t dissuaded him of this; and that it is “in the public interest to cancel the visa”.
Immigration law professor Mary Crock told Guardian Australia the Migration Act gives the minister “god-like powers” to cancel visas and if “they really decide to … the power is there”.
Crock said only one ground needs to be made out to cancel a visa, natural justice rules do not apply to the decision, and the idea of “public interest” is a broad one that could fit the current scenario.
“Everything that has gone before can be disregarded – it is set up precisely for this situation, to come in and cancel a visa anyway.
“The politics behind this is enormous … If the visa is cancelled under this provision – you’re excluded for three years,” she said. “Australia would be at risk of losing the Australian Open.”
Crock said such a cancellation is “not common” and would “definitely end up in court again” – this time to answer the substantive question of whether an unvaccinated person poses a risk.
Amid a surging wave of Omicron cases, the idea one unvaccinated person could pose a threat seems ludicrous – but the Migration Act is built to allow the government to deport first and ponder proportionality later.
The architecture Australian governments designed to deter unlawful arrivals and reverse lawful ones at the drop of a hat may now be directed at the man vying to become recognised as the greatest ever male tennis player.
The Morrison government has already tried once to crack this walnut with the proverbial sledgehammer, the only question now is whether they’re desperate enough to prove “rules are rules” by having another swing.