The lack of finding the thing I’d like to read often compels me to write. In this case, finding decent discourse surrounding the Djokovic affair has been a struggle due to both the spin of politics and the needs of media to simplify the affair. The story itself? A complete train wreck. Often it takes multiple actors to cause something well-engineered to go off the rails. As a lawyer (not in Australia, though) and former multiple visa applicant who likes the odd disaster story, I felt compelled to write what I wanted to read. Please note in the analysis I’m often reading between the lines. While I think this is correct, since I’ve read most of the legal documentation and a lot of articles, there’s a lot of unknowns, and I’ve tried to identify areas of uncertainty where I can.
I’ve also listed everything out at the bottom for simplicity’s sake.
The thing I’m most surprised by in the story is that Djokovic isn’t completely to blame here. Of course, had he been vaccinated, the story would never have occurred, and we’d all be focusing on a tennis tournament. He does not get excused of blame. However, he also appears to be a victim in the story, as he bears the brunt of failures, mostly the inability to receive the proper documentation which would have let him in the country.
The visa and exemption
As of 15 December 2021, it is fairly easy to enter Australia. If you’re vaccinated, you need a valid visa, and possibly an individual exemption, though most visas now come with an automatic exemption for the vaccinated.
If you are unvaccinated, however, you must have both a visa and a federal individual exemption. Furthermore, you may be subject to quarantine, handled by the states, but you can apply for a quarantine exemption too. That’s two separate exemptions. You apply for the first one on the federal immigration website and the second one at coronavirus.vic.gov.au. This is an important detail. The medical exemption only exists for the quarantine exemption.
Tennis players enter Australia on a short term work visa (a 408-class). It appears Tennis Australia co-ordinates the visas with the federal government, and, due to the quarantine requirements, the state government. Having applied for a (non-Australian) visa myself during the age of COVID-19, I do not believe the visa application discussed any vaccination or health requirements. It’s very possible the application asked no questions about vaccination status, instead leaving that all to the exemptions – I’d be surprised if the visa and the exemption rules weren’t separated out. Therefore, the “why was he issued a visa at all?” questions asked by supporters and politicians alike is simple: Djokovic was eligible for one. In times of COVID-19, though, a visa grant alone isn’t enough for someone to legally enter Australia.
In order to enter Australia as an unvaccinated person, you need an individual exemption. Based on Novak’s interview with the Border Force, it doesn’t appear anyone (Djokovic or Tennis Australia) applied for the federal exemption for Novak to enter the country. Several categories exist where you’re exempt without needing to apply for an individual exemption, but these are for citizens, New Zealanders/Singaporeans/Koreans/Japanese, airline crew, diplomats, 188-class visa holders(!), and fully vaccinated people with a valid visa. None of them apply to Djokovic, so he would need to apply. (The one possible exemption is for 408 visas in the “Post COVID-19 Economic Recovery Event” stream and supported by a task force, but while I can’t disprove it applying here, I don’t think that rule applies.)
The individual exemptions the unvaccinated can apply for are more limited in scope. The relevant one here appears to be “a foreign national whose entry into Australia would be in the national interest, supported by the Australian Government or a state or territory government authority.” Tennis players aren’t entering the country as students, on a COVID-19 response team, as a prospective marriage visa, or for compassionate reasons, so the remaining ones don’t really apply. Still, applying the relevant text, the Victorian government could have granted Djokovic the federal individual exemption.
Instead, Victoria granted Djokovic a “medical exemption” for quarantine. In order to get Djokovic’s medical exemption, Tennis Australia clearly co-ordinated with the state government, who claimed that catching COVID-19 in the last six months qualified (Djokovic’s lawyers produced letters to this effect saying that quarantine wouldn’t be necessary once he got into the country.) Those letters are potentially confusing as the Victorian government used the phrase “quarantine-free entry,” which potentially implies not just that you don’t have to quarantine, but that you can also enter the country without issue. And since Victoria could have granted him an individual exemption, it’s possible someone, whether it be Djokovic or Tennis Australia, thought this was enough. This also may have been why Prime Minister Scott Morrison said it was up to Victoria, i.e. the federal government wouldn’t be the ones granting the exemption.
However, if you want the exemption, you have to clearly apply online, and it’s not clear (and nevertheless unlikely) whether an exemption to quarantine would also trigger a sponsorship of an individual exemption to enter the country.
It’s also clear from the Border Force interview Djokovic didn’t have any idea he had the incorrect documentation to enter Australia, which I believe is more on Tennis Australia (or his agent) than Djokovic. While this normally should be on the person trying to enter the country, it’s clear from the provided documentation Tennis Australia was trying to handle at least some of the visa issues on his behalf, as they likely do on an annual basis. Djokovic also confirmed an agent handled at least some of his immigration applications. For this reason I think he’s at least somewhat of a victim. Yes, he’s not as much a victim as he is the story’s agitator, but consider the alternative: if he or Tennis Australia would have applied for the federal individual exemption, the story would have been the government either granting or denying his application before his journey (and it likely would have been denied unless the Victorian government sponsored him, based on the available criteria.) This clearly would have still hit the news cycle, but not in the way it did.
It’s also possible Djokovic lied on the form, but I haven’t seen any official indication of this, and it doesn’t matter anyway.
The Border Force and Appeal
The first error was that Djokovic should not have been able to board the flight to Australia. I can’t speak as to why he was able to do so, or why others with the exact same issue were also able to do so – the government web site says you would be denied boarding. This may be a reflection of the burden of the airlines. I believe the rule goes as follows: if I travel from country A to country B by aeroplane but can’t get into country B, the airline who transported me has the burden of transporting me back to country A, but I can’t find the source of the rule. I don’t know if there’s a computerised system which didn’t work or if the airline saw the Victorian “quarantine-free” document combined with a valid visa and let them board.
The border force made one mistake, which was the entire basis for the first legal hearing. The first border force officer knew Novak didn’t have the individual exemption and offered him time to sort it out (until 8.30am), as the interview took place in the middle of the night. Then there was a shift change, the new officers apparently didn’t get the memo about the 8.30am agreement, and cancelled his visa. My biggest issue with this was the reporting, especially that Djokovic “won” and the government “lost.” The judge didn’t even make a ruling on the issue but rather accepted the agreement of the parties, where the government reserved the right to deport him, making the first legal hearing one of the most mischaracterised parts of the entire saga.
Finally, it’s hard to see the timing of the visa cancellation as anything other than political. Cancelling on a Friday with the first match due to be played on Monday several days after Djokovic was in Australia was clearly designed both to win a media cycle and to “win” the outcome of the case by denying Djokovic the opportunity to participate in the event his visa was initially granted for. The reasons for cancelling hadn’t changed – Djokovic didn’t qualify for a health and safety exemption and could always have been removed – and I thought one of two things was possible: either the government had caved (which would have been the exact same result of just granting an individual exemption) or they were trying to prepare a foolproof way to win the next case (which happened, but I thought they’d combine the ministerial exemption with some sort of additional proof just to be on the safe side as opposed to dragging everything out.)
Additionally, I don’t think the government will exclude Djokovic for three years, as has been reported. I’m not sure about the special circumstances which go into that decision-making process, but there are exceptions to that rule, and a highly ranked tennis player would probably trigger them.
This affair also highlights how one immigration law has to cater to two completely separate groups of individuals. With refugees in Djokovic’s hotel, the populace has clear images of how different coming to Australia is for different groups of people. I also mentioned the “188 visa” earlier, which is a business visa: if you are coming to start a business in Australia and have at least AUD$1.25 million, you don’t have to be vaccinated, nor do you have to seek an exemption. I think this an even clearer, if less obvious, showing of one set of immigration rules for the wealthy, one set of immigration rules for the non-wealthy than even the Djokovic/refugee juxtaposition. With human rights complaints not just in Australia but also in the U.S. dictating potential immigration policy on the left, it’s important to design immigration policy which allows the country to protect its borders while simultaneously respecting applicants. I can personally vouch visas are stressful. When non-tourist visas aren’t aimed at allowing business to continue, they generally reflect a desire for a better life elsewhere.
In Short: A Summary
1) Djokovic had multiple streams to enter Australia legally (including getting vaccinated);
2) Djokovic did not have the proper documentation/exemption for his chosen stream (no federal individual exemption, which is NOT the medical exemption he got from the Victoria state government);
3) Djokovic thought he had the proper documentation/exemption for his chosen stream (“but I’ve had COVID in the last six months!” only worked for avoiding state quarantine, and he probably didn’t lodge his application himself but rather had help from Tennis Australia);
5) Djokovic’s visa was likely issued without regard to his vaccination status (“why was his visa even issued at all” political responses/”they issued him the visa!” responses);
6) The COVID six month quarantine rule/the fact a state medical board signed off isn’t relevant, apart from the fact Tennis Australia and/or Djokovic thought it may have been the only exemption Djokovic needed. This had nothing to do with the individual exemption Djokovic needed;
7) The government is not overturning any judicial decision, as the judge had no decision to make, and was limited to overturning the original cancellation: the government admitted his visa was cancelled early, “settled” on getting him out of detention, and said they reserved the right to cancel the visa again. (“Djokovic WINS appeal!” better written as “Australian gov’t settles with Djokovic”). There’s a lot of false news going around that the judge did more than what actually happened as a result.
8) Djokovic could be excluded from Australia for three years, but I’d assume an exception will apply.
Of course, I’m writing this before the story’s over, and Djokovic could possibly win the appeal and be allowed to play. I think that’s unlikely at this point. After the first appeal falling through on purely procedural issues, I don’t think the Australian government would make the same mistake twice, and that’s really Djokovic’s only hope. If he plays in the Australian Open I’d consider it a huge upset.
Even if you disagree with the health requirements, they existed and were in place when he attempted to come to Australia, and as such there are valid reasons for him to be deported: it’s because he’s unvaccinated, but it’s not just because he’s unvaccinated. He or his handlers simply didn’t do enough to get an exemption to enter Australia, and the exemption would have required a political decision regardless. The spotlight should also fall on Tennis Australia in this debacle, who clearly helped Djokovic (and others) with the documentation, and I hope it does in the days that follow. I’m also interested to know why he was allowed to board the flight at all, and how others with similar documentation were initially let into the country before having their visas cancelled.
There’s no winners in this saga, but there’s also a lot of misconceptions. At the end of the day, Djokovic did not qualify to come to Australia under the current immigration rules: no more, no less. I hope this has provided at least some clearer insight as to what you’d need to do to come to Australia and where all the story’s failure points existed. Also consider all of the alternatives to all of the points of failure: Djokovic applies for the federal exemption and gets denied, Djokovic gets denied boarding, the Border Force give him the agreed time to call his lawyers and Tennis Australia – none of these end with Djokovic gaining access to Australia. The only way to guarantee entry would have been to take a very simple health measure.