Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
File number:
VID 18 of 2022
Judgment of:
ALLSOP CJ, BESANKO AND O’CALLAGHAN JJ
Date of judgment:
16 January 2022
Date of publication of reasons:
20 January 2022
Catchwords:
MIGRATION – application for review of decision of the Minister to cancel visa under personal power under s 133C(3) of the Migration Act 1958 (Cth) – where Minister satisfied that a ground for cancelling the visa under s 116 of the Migration Act existed – where Minister satisfied that the presence of the applicant in Australia may be a risk to the health, safety or good order of the Australian community under s 116(1)(e)(i) of the Migration Act – where Minister satisfied under s 133C(3)(b) of the Migration Act that it would be in the public interest to cancel the visa – application dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Case
[2022] FCAFC 3
Decision Date
CaseChat Overview and Summary
The applicant, Novak Djokovic, sought judicial review of the decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his visa under section 133C(3) of the Migration Act 1958 (Cth). The Minister was satisfied that Djokovic’s presence in Australia posed a risk to the health, safety, or good order of the Australian community, and that it would be in the public interest to cancel his visa. The central issue was whether the Minister's satisfaction regarding the risk posed by Djokovic's presence was legally reasonable and supported by evidence. The court also considered whether the Minister's decision was logically coherent, irrational, or legally unreasonable.
The Federal Court found that the Minister's decision was legally sound and dismissed the application. The court held that the Minister's satisfaction concerning the risk posed by Djokovic’s presence was based on reasonable grounds, considering the public interest in resolving the matter swiftly and the context of the ongoing COVID-19 pandemic. The court further ruled that the Minister's decision was not illogical, irrational, or legally unreasonable, as it was supported by the evidence provided and aligned with the statutory requirements. The court emphasised that the Minister's satisfaction as to the risk was a jurisdictional fact that must be legally reasonable, which it found to be the case here.
The final orders of the court were to dismiss the amended application with costs to be agreed upon or assessed if the parties could not agree. The reasons for the judgment were to be published at a later date, in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The amended application be dismissed with costs, such costs to be agreed or failing agreement assessed.
2. Reasons to be published at a later date.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone, said the following at at 654 [137]:…. where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.Findings of fact without relevant evidence or material Related to the above body of principle is a ground of review, invoked in this proceeding in relation to two of the three grounds of review mounted, that a finding of fact, here connected to the formation of a state of satisfaction, was made in the absence of any evidence or supporting material. The High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) recently put the matter as follows in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17]:If the Minister exercises the power conferred by s 501CA(4) [a provision in the Act concerning the Minister’s power to revoke the cancellation of a visa] and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence”.See also Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2021) at 235–239 [5.8].Illogicality, irrationality and legal unreasonableness As a statutory jurisdictional condition or jurisdictional fact (cf Aronson et al op cit at 258–260 [5.500]), the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 350–351 [26]–[29], 362 [63] and 370 [88]. At one level such is to take the matter, for the lawfulness of a jurisdictional state of satisfaction, no further than the cases to which we have referred above. The state of satisfaction is a jurisdictional precondition or jurisdictional fact and should be distinguished from the exercise of discretion for which the state of satisfaction is a precondition: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 624–625 [39]–[40]. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3–4 [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at 445–446 [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an “outcome focused” conclusion without any specific jurisdictional error being identified.
Decision
Reasons for decision
The above sufficiently explains the operative sections and tasks of the Minister by reference to legal principle. THE DECISION OF THE MINISTER The Minister’s reasons, entitled “Statement of Reasons”, comprised ten pages and 71 paragraphs. The reasons began by reciting the history of the matter in paragraph 4 (or D[4]). In D[6] the Minister explained why he proceeded under s 133C(3) where natural justice was not required. He said: Subsequently, Mr DJOKOVIC’s legal representatives have provided lengthy submissions and supporting documentation concerning the possible cancellation of his visa under section 133C(3) of the Act (Attachment A). In those submissions, Mr DJOKOVIC takes issue with the possible use of the section 133C(3) power, rather than proceeding under a process in which Mr DJOKOVIC would have a right to be heard before a decision is made. I chose to proceed under section 133C(3), having regard to the need to consider possible cancellation of the visa quickly, in light of the particular circumstances of the case and the public interest in resolving the matter expeditiously. That public interest includes: (a) the upcoming start of the Australian Open; (b) the prospect of litigation challenging my decision and the desirability, if possible, of affording the Court time to hear arguments and make its decision; and (c) a situation where Mr DJOKOVIC is in the community while he may be a risk to health and good order. Further, Mr DJOKOVIC had had opportunities to put forward his position in documents to the Court and in further submissions provided by his legal representatives to me. No complaint was made about the course set out in D[6]. At D[7] the Minister recognised that Mr Djokovic may not have been able to comment on everything. He said: In case there might have been anything else Mr DJOKOVIC wanted to say but has not said, I have done my best to consider matters alive to the fact that Mr DJOKOVIC’s view may not have been sought on everything. By way of background, the Minister noted a number of things at D[10], as follows: By way of background, I note that:•Mr DJOKOVIC arrived in Australia on 5 January 2022 to compete in the 2022 Australian Open tennis tournament. He is present in Australia during a time in which the Australian community is experiencing a significant, and rising, number of COVID-19 cases and an active, vocal minority of people in the community opposing vaccination (or compulsory vaccination) against COVID-19.•During an interview with an officer from the Department on 6 January 2022, Mr Djokovic stated he had not been vaccinated against COVID-19 (Attachment B).•That Mr DJOKOVIC has not been vaccinated against COVID-19 is information that was also included in Mr DJOKOVIC’s Australia Travel Declaration (Attachment C).•Mr DJOKOVIC also provided copies of his COVID-19 test results, being a positive polymerase chain reaction (PCR) test (the result dated 16 December 2021), a negative PCR test (the result dated 22 December 2021) and a positive SARS-COV-2 RBD IgG test, which seems to confirm that Mr DJOKOVIC was identified as having a recent or prior infection (the result dated 23 December 2021) (Attachments D and E).•Mr DJOKOVIC also provided a ‘testimonial’ from Associate Professor Verica Jovanovic dated 12 January 2022, which states that Mr DJOKOVIC’s positive test result sampled on 16 December 2021 and subsequent negative test result sampled on 22 December 2021 are ‘legitimate’. Associate Professor Jovanovic also stated that ‘[o]ur test system is reliable, accurate and the test results of Mr Novak Djokovic are legitimate’ (Attachment F).The satisfaction as to risk to the health of the community
Ratio Decidendi
Legal Principle Established
Related to the above body of principle is a ground of review, invoked in this proceeding in relation to two of the three grounds of review mounted, that a finding of fact, here connected to the formation of a state of satisfaction, was made in the absence of any evidence or supporting material. The High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) recently put the matter as follows in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17]:If the Minister exercises the power conferred by s 501CA(4) [a provision in the Act concerning the Minister’s power to revoke the cancellation of a visa] and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence”.See also Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2021) at 235–239 [5.8].Illogicality, irrationality and legal unreasonableness As a statutory jurisdictional condition or jurisdictional fact (cf Aronson et al op cit at 258–260 [5.500]), the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 350–351 [26]–[29], 362 [63] and 370 [88]. At one level such is to take the matter, for the lawfulness of a jurisdictional state of satisfaction, no further than the cases to which we have referred above. The state of satisfaction is a jurisdictional precondition or jurisdictional fact and should be distinguished from the exercise of discretion for which the state of satisfaction is a precondition: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 624–625 [39]–[40]. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3–4 [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at 445–446 [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an “outcome focused” conclusion without any specific jurisdictional error being identified.