Voracova (Migration)

[2022] AATA 1279

Voracova (Migration) [2022] AATA 1279 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Renata Voracova

REPRESENTATIVE:  Mr Graydon Dowd
Hall & Wilcox

CASE NUMBER:  2200320

HOME AFFAIRS REFERENCE(S):          OPF2022402

MEMBER:Deputy President J.L Redfern PSM

DATE OF ORAL DECISION:  8 February 2022

DATE OF WRITTEN STATEMENT:         1 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel Ms Voracova’s Subclass 408 (Temporary Activity) visa.

Statement made on 1 April 2022 at 4:58pm

CATCHWORDS:

MIGRATION – Temporary Activity (Subclass 408) visa – cancellation under s 116(1)(e) of the Migration Act 1958 – whether the applicant is or may be, or would or might be a risk to the health and or to the safety of the Australian community or a segment of the Australian community – whether the power to cancel the visa should be exercised – consideration of discretionary factors – medical exemption from Covid-19 vaccination – decision under review set aside and substituted

LEGISLATION:

Migration Act 1958 (Cth) ss 116(1)(e), 133C, 198, 349 and 499
Migration Regulations 1994 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act2014 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Biosecurity Act 2015 (Cth) s 44

CASES:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Drake v Minister for Immigration and EthnicAffairs (1979) 24 ALR 577
Re Drake v Minister for Immigration and Ethnic Affairs (Re Drake No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Tarrant v Australian Securities and Investments Commission [2013] AATA 926

SECONDARY MATERIALS:

Department of Home Affairs, PAM3 General visa cancellation powers (s109, s116, s128, s134B and s140)
Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Determination 2021

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 6 January 2022 made by a delegate of the Minister for Home Affairs to cancel Ms Voracova’s Subclass 408 (Temporary Activity) visa under s 116 of the Migration Act 1958 (Cth) (the Act). The applicant, Ms Renata Voracova, is a professional tennis player. The visa, which was granted on 17 November 2021, allowed Ms Voracova to enter, stay and compete in a sporting activity in Australia, relevantly, the Australian Open Tennis Championship.

2. Ms Voracova entered Australia on 30 December 2021. Seven days later her visa was cancelled under s 116(1)(e)(i) of the Act because the delegate concluded that her presence in Australia was or may be a risk to the health of the Australian community or a segment of the Australian community. The basis for this decision was that Ms Voracova was not fully vaccinated against Covid-19 and it was therefore concluded she may present an increased risk of contracting the virus and spreading it to other people in the community. The delegate considered a number of discretionary factors but concluded that those factors weighed in favour of cancellation.

3. The issues in the present case are whether the ground for cancellation is made out and, if so, whether Ms Voracova’s visa should be cancelled.

4. Extensive evidence and submissions were provided prior to the hearing, which was held on 8 February 2022 through the Microsoft Teams platform. The hearing was conducted with the assistance of an interpreter in the Czech and English languages. Ms Voracova was legally represented, and I was considerably assisted by the written and oral submissions of Mr Wood of Counsel.

5. Based on the written evidence provided before the hearing and the oral evidence given by Ms Voracova, I gave my decision on the review at the conclusion of the hearing because there was some urgency to the matter. I concluded that the decision to cancel Ms Voracova’s visa should be set aside and substituted with a decision that her visa is not cancelled. My written reasons for this decision follow.

   RELEVANT LAW AND LEGAL PRINCIPLES

6. Section 116(1)(e)(i) of the Act provides for the cancellation of visas, including temporary visas, in certain circumstances. The cancellation power is not mandatory and involves a two-stage process. The decision-maker must be satisfied that the ground for cancellation exists and, if so, then consider whether the visa should be cancelled.

7. Section 116(1)(e)(i) provides that the Minister may cancel a visa if satisfied that “the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community”. There are three possible bases that will invoke this ground but, in this case, it is clear that the delegate based his decision on concerns about the risk to the health of the Australian community or a segment of the Australian community because Ms Voracova was unvaccinated.

8. A question arises as to when this should be assessed, namely, at the time of the review decision or at the time of cancellation.

9. According to the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31, when considering such a question it is important to identify the precise nature of the decision and whether the relevant legislative provision governing the exercise of the power contains a temporal element. The High Court considered the nature of the review having regard to the review power as set out in s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and concluded that it was appropriate for the Tribunal to take into account circumstances prevailing at the time of the Tribunal's decision.

10. The relevant provision governing the review of migration decisions by the Tribunal in this case is s 349(2) of the Act, which is similar to s 43(1) of the AAT Act. As such, the observations made by the High Court apply equally to the review powers under the Migration Act. Section 116(1)(e)(i) of the Act provides that the ground to cancel is established if the decision maker is satisfied the visa holder’s presence “may be, or would or might be” a risk. These words contemplate that circumstances could be altered by intervening events and therefore invites consideration of the factual matters at the time of the Tribunal's decision. The provision does not contain a temporal element that confines the Tribunal's consideration to the circumstances as they existed at the time of the delegate's decision.

11. Accordingly, in my view the question of whether the ground for cancellation exists under s 116(1)(e)(i) is to be assessed at the time of the Tribunal's decision, having regard to all information available to the Tribunal at that time.

12. If satisfied that the ground for cancellation under s 116 is made out, the decision maker has discretion to cancel the visa. The decision maker must therefore proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The Act and the Migration Regulations 1994 (the Regulations) do not specify any mandatory considerations to be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s 499 of the factors to be considered. It is well established that the Tribunal should have regard to lawful government policy or guidelines unless there are cogent reasons to the contrary.[1]

    [1] Re Drake v Minister for Immigration and Ethnic Affairs (Re Drake No 2) (1979) 2 ALD 634 discussed in Tarrant v Australian Securities and Investments Commission [2013] AATA 926 at [19] to [21].

13. The Department has issued guidelines about the matters that should be considered in deciding whether to cancel a visa: refer to the Department’s Procedures Advice Manual - PAM3 'General visa cancellation powers' (PAM3).[2]

    [2] Department of Home Affairs, PAM3 General visa cancellation powers (s109, s116, s128, s134B and s140).

14. Relevant to the facts of this case, those guidelines include matters such as the purpose of the visa holder's travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused (financial, psychological, emotional or other hardship); the circumstances in which ground of cancellation arose; the past and present conduct of the visa holder towards the Department and whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention.

15. For the reasons outlined above, I am of the view that the exercise of discretion under s 116(1)(e)(i) must also be assessed at the time of the Tribunal’s decision.

16. In summary, even though Ms Voracova’s visa was cancelled on 6 January 2022, questions of whether the ground for cancellation is established and how the discretion should be exercised must be determined at the time the decision is made by the Tribunal, having regard to all evidence available at that time. As already noted, this is a two-stage process, but Tribunal Members generally consider these issues during the course of a single hearing. While reviewing the findings of the delegate it is useful to identify the issues in dispute, the Tribunal is not bound by those findings and must undertake its own independent inquiry.[3] It is the role of the Tribunal to consider the decision under review afresh, based on the material before it.

    [3] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.

    PROCEDURAL BACKGROUND

17. Ms Voracova’s visa was cancelled on 6 January 2022 and she was immediately transferred into immigration detention. She lodged an application for review of the decision on 8 January 2022 but subsequently departed Australia as the holder of a bridging visa E.

18. On 31 January 2022, Ms Voracova’s representative requested that the matter be expedited and provided written submissions and a written statement by Ms Voracova in support of the application. In her statement, Ms Voracova advised that she intended to compete in the St Petersburg Ladies Trophy in Russia which commenced on 7 February 2022 and that she believed she was likely to face difficulties in obtaining a visa to travel to Russia. She also raised concerns about the prospects of finding a doubles partner due to the uncertainty regarding her ability to obtain a visa.

19. On 1 February 2022, the Tribunal advised the Department that the matter had been constituted and requested a copy of the Department file, the material referred to by the delegate in his decision and Ms Voracova’s electronic travel declaration. It was also noted that the Tribunal would be considering whether it was necessary to finalise this matter by 4 February 2022. The Department was provided with a copy of the written submissions and written statement by Ms Voracova and the Secretary was invited under s 358(2) of the Act to provide any written arguments in relation to the issues in this matter. The matter was also listed for a telephone directions hearing on 1 February 2022. The Tribunal received a copy of the Department file on 3 February 2022.

20. Following the directions hearing, Ms Voracova’s lawyer provided a statement from Dr Milena Dostalkova, Ms Voracova’s general practitioner in the Czech Republic, and a supplementary statement for Ms Voracova dated 4 February 2022 setting out details of the difficulties she had encountered in obtaining a visa to enter Russia to compete in the St Petersburg Ladies Tournament. It was requested that Ms Voracova’s application be considered urgently, namely by 8 February 2022, so that she could arrange to obtain a visa and find a suitable doubles partner to compete in another tournament in Mexico commencing on 21 February 2022.

21. On 4 February 2022, the Department advised that the Secretary would not be providing any submissions but provided a copy of the Department file.

22. Ms Voracova was invited to attend a hearing on 8 February 2022. She attended the hearing and gave evidence. Two members of the Women’s Tennis Association (WTA) observed the hearing but did not give evidence or otherwise participate. I did not require Dr Milena Dostalkova to give oral evidence.

    OUTLINE OF EVIDENCE AND MATERIAL BEFORE THE TRIBUNAL

23. Prior to the hearing Ms Voracova provided two statements in support of her application, one dated 31 January 2022 setting out the circumstances leading to the cancellation and events following the cancellation and her detention and the second dated 4 February 2022 which included details of the steps taken by her to obtain a Russian visa and the difficulties she had encountered because her visa had been cancelled. Attached to Ms Voracova’s first statement were copies of correspondence relating to Ms Voracova’s visa and her entry into Australia. The contents of those documents are set out in more detail below.

24. Ms Voracova is a 38-year-old citizen of the Czech Republic. In 2021, she was invited by Tennis Australia to travel to Australia to compete in the Australian Open to be held in Melbourne during January 2022. According to Ms Voracova she had previously travelled to Australia on many occasions and had participated in the Australian Open 13 times since 2003. Prior to the cancellation of her visa, she had never had any previous Australian visas held by her cancelled. At the time Ms Voracova entered Australia to participate in the Australian Open she was ranked no. 82 in women’s doubles with the WTA. This is a matter of public record on the WTA website. She is now ranked no. 95. It is also a matter of public record that Ms Voracova has won 11 doubles titles on the WTA tour and her highest rankings were no. 74 in singles in 2010 and no. 29 in doubles in 2017.

25. Ms Voracova was granted a Temporary Activity visa on 17 November 2021. The visa allowed her to stay in Australia for up to 3 months from the date of first arrival and specified that she must not arrive after 17 May 2022. The visa was subject to a work limitation condition (8107) and an activity limitation condition (8303) which provided that the visa holder “must not become involved in activities disruptive to, or violence threatening harm to the Australian community or a group within the community”. There were no conditions or requirements recorded in this notification letter relating to health requirements other than a reference to polio vaccinations.

26. Ms Voracova said that she had participated in a tennis tournament in Dubai in late November 2021 and intended to get vaccinated on her return to the Czech Republic after this tournament. However, she developed Covid-19 symptoms few days before 6 December 2021 so decided to obtain a PCR test. On 6 December 2021, she tested positive and was diagnosed with Covid-19. As evidence of this contention, Ms Voracova provided a copy of a certificate dated 6 December 2021 recording a positive Covid-19 PCR test and a copy of a further medical certificate in Czech and English headed medical certificate on SARS – CoV – 2 RT-PCR testing results to be submitted when crossing the Czech Republic borders.

27. According to Ms Voracova, she remained in quarantine until 20 December 2021 and arranged to see her doctor, Dr Milena Dostalkova, on 23 December 2021 to seek advice about being vaccinated prior to travelling to Australia. Her doctor arranged blood tests and organised for Ms Voracova to see a cardiologist. In a short medical report dated 23 December 2021, Dr Dostalkova stated as follows:

    Based on recovery from disease COVID 19 in period time 6 – 20.12.2021 and after collection of blood tests from 23.12.20 21 with increased thrombus values (DD) I do not recommend to get vaccinated in more than 180 days after the date of first positive result.

28. Ms Voracova stated that Dr Dostalkova advised her against getting the Covid-19 vaccination while she was recovering as she had a high propensity for thrombosis on air flights.

29. Prior to the hearing, Ms Voracova provided a statement from Dr Dostalkova dated 3 February 2022 to the effect that the doctor had conducted blood tests for Ms Voracova on 23 December 2021 which indicated that Ms Voracova had high thrombus values and was therefore at an increased risk of thrombosis. Dr Dostalkova further noted that blood clotting is a reported side effect of Covid-19 vaccines in some patients, and she recommended Ms Voracova not get vaccinated at that time because vaccination could further increase her risk of thrombosis, particularly if she intended to take a long flight to Australia shortly after receiving the vaccine. Dr Dostalkova also noted that vaccination against Covid-19 was not recommended for people who have been recently infected. The blood test results were attached to Dr Dostalkova’s statement showed high thrombus values. Based on this advice, Ms Voracova said that she decided not to get vaccinated against Covid-19 at that time.

30. On 23 December 2021, Ms Voracova received a letter from Tennis Australia confirming that she had a valid medical exemption from Covid-19 vaccination. The letter noted that Ms Voracova had been provided with a medical exemption from the Covid-19 vaccination on the grounds that she had recently recovered from Covid-19. It was noted that the temporary exemption was valid until 6 June 2022 and that the certificate for exemption had been provided by an Independent Expert Medical Review Panel commissioned by Tennis Australia, with decisions endorsed by an Independent Medical Exemptions Review Panel of the Victorian State government.

31. Ms Voracova completed an Australian travel declaration, which included a Health Survey questionnaire. In answer to the question of whether Ms Voracova had tested positive for Covid-19, she responded ‘yes’ and included the month and year of her diagnosis. In response to the question of whether Ms Voracova had ever received a Covid-19 vaccine, she responded ‘no’ and declared that she was not fully vaccinated with an Australian approved Covid-19 vaccine. She declared that she could not be vaccinated for medical reasons and that she had medical proof to support this.

32. On or about 26 December 2021, Ms Voracova received notice from the Department stating that her Australian travel declaration had been assessed. It was further noted as follows:

    Your responses indicate that you meet the requirements for a quarantine free arrival into Australia where permitted by the jurisdiction of your arrival.

    However, states and territories may require you to self-isolated at home and undertake additional Covid 19 testing. Currently you are required to undertake a Covid 19 PCR test within 24 hours of arrival and again on day six after your arrival. These requirements may vary so you need to check the requirements on Australia.gov.au/quarantine closer to your reader arrival.

33. On or about 27 December 2021, Ms Voracova received a letter from the Victorian Department of Health stating as follows:

    I understand you are planning to arrive in Victoria from Austria and are seeking an exemption from mandatory detention.

    A pandemic declaration has been made under section 165AB(1) of the Public Health and Wellbeing Act 2008 (Vic) because of the serious risk to public health posed by Covid-19. In particular there is a serious risk to public health as a result of people travelling to Victoria from overseas.

    International travellers are permitted to enter Victoria without the need to quarantine if they are fully vaccinated with a vaccine that is approved or recognised by the therapeutic goods Administration (TGA) or have a medical exemption from the requirement to be vaccinated.

    After reviewing the medical information you have provided, I am satisfied that you meet the criteria from medical exemption from the requirement for vaccination, and may therefore travel to Victoria without the need to quarantine upon arrival.

1. Ms Voracova arranged to be tested for Covid-19 and returned a negative PCR result on 28 December 2021. She made arrangements to travel to Australia and arrived in Australia on 30 December 2021 at about 11.20pm. She arranged for a PCR test to be undertaken the next day and returned a negative result. She stayed in her hotel in self-quarantine until she received a negative PCR result and was able to leave quarantine on 1 January 2022.

2. According to Ms Voracova, on 6 January 2022 at approximately 8pm there was a knock on her hotel room door where Ms Voracova was with her coach. She opened the door and there were approximately 10 Australian Border Force officers waiting in the corridor. She was advised that “something needs to be explained about her exemption” and that she needed to attend an interview. Ms Voracova asked whether the interview could be conducted in the hotel but she was advised that it needed to be conducted at the police station. Ms Voracova said that she asked whether she needed to bring any documents with her and she was told to bring her passport but no other documents. She believed that she would be back in about an hour because this was the time estimate she was given. She took her passport and other travel documents and her phone. Ms Voracova and her coach were then driven to the police station and a formal interview commenced at approximately 9:15pm.

3. At approximately 9.55pm Ms Voracova was issued with a Notice of Intention to Consider Cancellation (NOICC), advising her that ABF intended to cancel her visa under s 116(1)(e) of the Act as she may be a risk to the health, and safety or good order of the Australian community. Relevantly, the NOICC provided as follows:

   You are the holder of a subclass 408 (Temporary Activity) visa issued to allow you entry to Australia to participate in the Australian Open Tennis Tournament and the Australian Summer of Tennis.

   During an interview on 06/01/2022 with an Australian Border Force (ABF) officer you have stated you are not vaccinated against COVID-19. You have confirmed that the Medical exemption from COVID vaccination letter dated 23/12/2021 presented to you today is a copy of the medical exemption issued by Tennis Australia. This medical exemption was issued on the grounds that you have recovered from COVID-19.

   Travellers who are medically unable to be vaccinated against COVID-19 need to provide evidence of a medical contraindication to COVID-19 vaccinations. This must indicate an inability to be vaccinated with a COVID-19 vaccine because of a medical condition. The Australian Technical Advisory Group (ATAGI) advise that past infection with COVID-19 is not a contraindication to vaccination.

   Unvaccinated persons create a greater health risk of contracting COVID-19 and spreading COVID-19 to others, either of which will further burden the Australian health system. Ensuring unvaccinated temporary entrants do not enter or remain in the community is a key mechanism through which the Australian government has slowed the spread of COVID-19 within the Australian community.

   Under Section 116(1)(e)(i) of the Migration Act 1958, the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

   Based on the above information, I consider that there appear to be grounds to consider cancelling your subclass 408 visa on the basis that your presence in Australia is or may be a risk to the health of the Australian community or a segment of the Australian community. This is because you are not fully vaccinated against COVID-19 and therefore may present increased risk of contracting COVID-19 and spreading it to other people in the community.

4. The reference in the decision to ATAGI is a reference to the Australian Technical Advisory Group on Immunisation which was established by the Commonwealth government in February 1998. ATAGI’s role is to provide advice to the Minister for Health regarding the medical administration of vaccines available in Australia and other immunisation issues. ATAGI is comprised of a group of technical experts and general practitioners. The advice provided by ATAGI is set out in further detail later in my reasons.

5. Ms Voracova responded to the NOICC in the interview and her responses are recorded in the decision record. The decision record is in Form 1099, headed “Part B”. In response to the question of why the visa holder considered that the grounds for cancellation did not exist, it is recorded as follows:

   The visa holder stated that she followed all directions from Tennis Australia regarding her visa and COVID vaccination. She stated that she is not anti vaccination and that her family and coach are vaccinated. She had been travelling in Dubai and elsewhere prior to the 03/12/2021 when she arrived in Czech Republic, so had not had the opportunity to be vaccinated despite being willing. On 06/12 2021 she was diagnosed with COVID 19. Her doctor advised her not to be vaccinated whilst she was recovering as blood tests had shown that she had a high propensity for thrombosis on air flights and the possibility of an adverse reaction to the vaccination could double the risk of thrombosis. The visa holder emphasised her historical willingness to follow all the rule relevant to her tennis career.

6. The delegate found that the grounds for cancellation existed and gave the following reasons:

   The visa holder is the holder of a subclass 408 (Temporary Activity) visa issued to allow her entry to Australia to participate in the Australian Open Tennis Tournament and the Australian Summer of Tennis.

   During an interview on 06/01/2022 with an Australian Border Force (ABF) officer she stated she is not vaccinated against COVID-19. She confirmed that the Medical exemption from COVID vaccination letter dated 23/12/2021 presented to her was a copy of the medical exemption issued by Tennis Australia. This medical exemption was issued on the grounds that she have recovered from COVID-19.

   The visa holder disputed that grounds exist, stating that she had followed all the directions from Tennis Australia regarding her visa and COVID vaccinations and that she is not anti vaccination. She was not vaccinated for medical reasons on the advice of her doctor which led her to apply for Medical exemption from COVID vaccination which was subsequently granted.

   Whilst I acknowledge the visa holder's explanation for not being vaccinated, I note that travellers who are medically unable to be vaccinated against COVID-19 need to provide evidence of a medical contraindication to COVID-19 vaccinations. This must indicate an inability to be vaccinated with a COVID-19 vaccine because of a medical condition. The Australian Technical Advisory Group (ATAGI) advise that past infection with COVID-19 is not a contraindication to vaccination.

   Unvaccinated persons create a greater health risk of contracting COVID-19 and spreading COVID-19 to others, either of which will further burden the Australian health system. Ensuring unvaccinated temporary entrants do not enter or remain in the community is a key mechanism through which the Australian government has slowed the spread of COVID-19 within the Australian community.

   Under Section 116(1)(e)(i) of the Migration Act 1958, the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

   Based on the above information, I consider that there appear to be grounds to consider cancelling the visa holder's subclass 408 visa on the basis that her presence in Australia is or may be a risk to the health of the Australian community or a segment of the Australian community. This is because she is not fully vaccinated against COVID-19 and therefore may present increased risk of contracting COVID-19 and spreading it to other people in the community.

7. Having found that the ground was established, the delegate then went on to consider the exercise of discretion.

8. The delegate accepted that the purpose for the travel and stay in Australia was for Ms Voracova, as a professional tennis player, to compete in the Australian Open. It was accepted that the cancellation of her visa would prevent Ms Voracova from participating in what was possibly the last tournament of her career. The delegate also accepted that Ms Voracova had followed Tennis Australia’s rules for entry but noted that her entry and stay was conditional upon compliance with Australia’s vaccination requirements, with which she had not complied. This was found to weigh in favour of cancellation. It was noted that there was no evidence Ms Voracova had not complied with her visa conditions and this weighed ‘a little’ against cancellation. The delegate accepted Ms Voracova would suffer emotional and financial hardship if her visa was to be cancelled, particularly given that this may be the last tournament of her career. It was also accepted that Ms Voracova would find cancellation psychologically and mentally exhausting and that she had purchased the airfares for both herself and for her coach to travel to Australia. The delegate accepted that this factor weighed ‘a little’ against cancellation.

9. It was noted that Ms Voracova had followed the rules for being granted a medical exemption, had conducted her affairs in good faith and could not have been aware of ATAGI advice. The delegate gave this factor some weight against cancellation. It was further noted that there was no indication Ms Voracova had been uncooperative in her dealings with the Department during the process this gave a little weight against cancellation. The delegate noted that the legal consequences of a decision to cancel her visa would result in her being subjected to a bar under s 48 of the Act in applying for certain visas and that she would be adversely impacted by the risk factor under Public Interest Criteria 4013 in Schedule 4 to the Regulations, which would affect her eligibility for visas in the future. It was also noted that she may be liable for detention and removal from Australia. The delegate noted that while these issues may cause Ms Voracova some inconvenience this inconvenience was not considered to be excessive in light of the risk to the community as a result of her vaccination status. This was said to weigh in favour of cancellation.

10. The delegate concluded as follows:

    After weighing up all of the information available to me, I am satisfied that the grounds for cancelling the visa outweigh the reasons for not cancelling. I have therefore decided to cancel the visa.

11. At approximately 11:25pm, the delegate found that the grounds existed for cancellation under s 116(e)(i) of the Act and that her visa should be cancelled. Ms Voracova was provided with the decision record at about this time. According to Ms Voracova, she explained to the delegate that one of the reasons why she was not vaccinated was because of the concerns raised by her doctor about her propensity for thrombosis and her increased risk of suffering a negative impact to the vaccination, particularly given the long flight to Australia. She stated that her advisor attempted to argue that this should be a significant issue that should be afforded considerable weight. Notably, this does not appear to be a matter that was considered in any detail and Ms Voracova was not asked to produce any evidence to support this contention.

12. Following the cancellation of her visa, Ms Voracova was detained in Park Hotel in Carlton. Ms Voracova stated that there was considerable delay and that she was not moved to the Park Hotel until approximately 1:30am on 7 January 2022, where she remained in detention until she departed on 8 January 2022. According to Ms Voracova, after negotiations between her lawyers and the ABF, she was granted a bridging visa E which allowed her to depart Australia as a lawful non-citizen. She was also given a ‘letter of comfort’ dated 8 January 2022 in the following terms:

    Should you apply for another visa to return to Australia within the next three years, your voluntary engagement with the ABF with regard to your departure will be considered favourably by the visa decision-maker should they be required to assess a waiver of public interest criterion 4013.

    ABF Melbourne Airport have been advised you will be departing on a valid visa on 08JAN2022 and there is no requirement for further intervention by ABF.

13. Ms Voracova said that if she had known that there would be controversy about her being able to rely on the medical exemption when she came to Australia she would not have come. She said that even though she had left Australia it remained important to her that the decision to cancel her visa should be quashed because she participates in a number of professional events across the world and believes that the cancellation of her visa was likely to affect her ability to travel and compete in other countries. In particular, she was concerned about the prospect of pairing with suitable doubles partners.

14. Ms Voracova also advised that she had no intention of travelling to Australia before 31 March 2022, being the date when her visa is due to expire.

15. In her second statement, Ms Voracova stated that she had telephoned the Russian consulate in the Czech Republic to enquire about the process for applying for a Russian visa. According to Ms Voracova, consular staff advised her that it was unlikely she would be able to obtain a Russian visa in circumstances where her Australian visa had been cancelled, particularly given the tense Czech – Russian diplomatic situation. Ms Voracova decided not to apply for a Russian visa at that stage, but she remained concerned about her ability to obtain a visa in other countries outside the European Union given her visa to enter and remain in Australia to compete in the Australian Open had been cancelled. This was not only said to be a stigma but a practical difficulty in obtaining other visas. Ms Voracova also stated that she would want to return to Australia next year, if not as a Tennis player as a coach. She believes this would impact her future income and provided evidence about her earnings in the previous year, which exceeded [amount].

    CONSIDERATION

16. The threshold issue in this case was whether I was satisfied the ground for cancellation is made out. Relevant to the circumstances in this case, given Ms Voracova was not present in Australia at the time of my decision, the issue was whether I was satisfied her presence would be or might be a risk to the health of the Australian community or a segment of the Australian community. If satisfied about this matter, I must then proceed to consider whether Ms Voracova’s visa should be cancelled having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

17. Ms Voracova contended I should not be satisfied the ground for cancellation is established for two reasons. First, this question must be assessed at the time of my decision and at this time, Ms Voracova is outside Australia and has no intention of returning before 31 March 2022. As such, any risk is remote. Secondly, Ms Voracova was previously recently infected with Covid-19 and consistent with the Minister’s reasoning in the Novak Djokovic case, I should find that any risk is “negligible” and therefore does not reach the necessary level of satisfaction to establish the ground for cancellation.

18. I reject the first contention that any risk is remote because there is little prospect of Ms Voracova returning to Australia. In my view, this is the wrong question because s 116(1)(e)(i) of the Act directs attention to what “is or may be, or would or might be” the risk of the visa holder’s presence, rather than the question of whether there is a risk of presence in Australia that “is or may be, or would or might be” a health risk. Relevant to the circumstances in this case, I read s 116(1)(e)(i) to apply in circumstances where a visa holder is outside Australia and if they were to arrive in Australia their presence would or might be a risk.

19. However, I accept this is not free from doubt. This is because if it is accepted that the time for assessing whether the ground is established is at the time of decision, there is an artificiality in making such an assessment where the visa holder seeking merits review is no longer in Australia and where, for instance, the visa has expired. In such a case, the question of whether the visa holder’s presence would be or might be a risk is entirely theoretical. In this case, the issue is not theoretical and was not so at the time of my decision because there is a possibility, although said to be unlikely according to the evidence of Ms Voracova, that she could return to Australia. If a decision is made not to cancel Ms Voracova’s visa, she would have a valid visa and could enter Australia at any time until 31 March 2022.

20. The second contention is more complicated, and it is useful to set out Ms Voracova’s submissions on this issue in some detail.

21. It is submitted that there is no rule requiring that a lawful non−citizen may not enter Australia unless they are vaccinated or unless they have an exemption from such a requirement. The Act does not require this, nor does the Biosecurity Act 2015 (Cth) (the Biosecurity Act) or the instrument made under s 44(2) of that Act being the Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Determination 2021 (Biosecurity Determination).[4] Section 44(1) of the Biosecurity Act provides that the section applies for the purposes of preventing a listed human disease from entering or establishing itself or spreading in the Australian territory or part of the Australian territory. Subsection (2) provides that the Health Minister may determine one or more requirements for individuals who are entering the Australian territory or at a landing place or port. The instrument has only one operative provision, namely s 5 of the Biosecurity Determination, which requires individuals to be able to produce, to a relevant official, evidence that before they board an aircraft to Australia, they have made a written statement that includes a declaration as to their vaccination status, including whether the individual has a medical contraindication of Covid-19 vaccines. It is submitted that Ms Voracova did this, there is no evidence to suggest otherwise, and as such, it is apparent she complied with s 5 of the Biosecurity Determination.

    [4] The Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Determination 2021, was repealed on 23 January 2022 by the Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Determination 2022.

22. Ms Voracova’s lawyers take issue with the circumstances leading to the cancellation of her visa and contended that the process followed was procedurally unfair. Her lawyers dispute the conclusions of the delegate in relation to the exercise of the discretion and submitted that Ms Voracova’s circumstances were plainly covered by ATAGI guidance, as properly understood, because she had a medical contraindication to the Covid-19 vaccination. The finding that Ms Voracova did not comply with vaccination requirements was an error because there were no such requirements. It was submitted that the Commonwealth could readily have imposed such requirements by law, but it did not do so. It is further submitted that while it might be considered desirable from a public health perspective for all non-citizens to be fully vaccinated before entering Australia, it does not follow, in the absence of legislative requirements to this effect, that a particular individual is or may be a risk to the health of the Australian community because they are not vaccinated. The answer to this question must turn on the particular circumstances of the individual. It is submitted that to lawfully cancel Ms Voracova’s visa under s 116(1)(e)(i) of the Act, the Minister (or his delegate), now the Tribunal, cannot rely on Ms Voracova having breached a rule because one does not exist. Instead, the Minister, now the Tribunal, must identify probative evidence that Ms Voracova’s presence in Australia would or might pose a risk to the health of the Australian community or a segment of the Australian community.

1. Ms Voracova’s lawyers refer the decision of the Full Court of the Federal Court of Australia in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (Djokovic), noting that there are similarities and differences both cases. Both are professional tennis players who travelled to Australia with a recent infection and recovery from Covid-19, both claim to have a medical contraindication for the Covid-19 vaccine, both held a letter from Tennis Australia confirming their medical exemption and both had their visas cancelled under s 116(1)(e)(i) on the basis that their presence in Australia was considered a risk to public health. Differences between the two cases are that Ms Voracova had already been in Australia for a week before her visa was cancelled, aside from her recent Covid-19 infection Ms Voracova had an additional basis for having a medical contraindication to the vaccine. Prior to travelling to Australia Ms Voracova had an additional letter from the Department of Health in Victoria confirming she met the criteria for exemption to the vaccination and Ms Voracova never made any public statements in opposition to vaccination. Notably, she gave evidence that she had planned to be vaccinated before coming to Australia until she received medical advice that she should not do so.

2. It was submitted that the decision record of the delegate discloses no evidentiary basis for his conclusion that Ms Voracova was a risk to the health of the Australian community and on this basis alone the Tribunal should set aside the cancellation decision. It is further submitted that there is no obligation on Ms Voracova to positively prove that she was not a risk and there is a broad body of scientific evidence that persons who have been recently infected with Covid-19 have immunity to reinfection that is higher than that, or at least equal to that of those who are vaccinated. In other words, individuals who have been previously infected with Covid-19 are at less risk of infection. Ms Voracova does not have to “positively prove” she is not a risk but as a practical matter she, and those who represent her, must put forward relevant cogent evidence and submissions to persuade me about this contention.

3. Ms Voracova’s lawyers referred to studies which indicated that protection acquired from prior Covid-19 infection is as high as 95%. It is submitted that this scientific evidence is consistent with and is corroborated by recent health advice given by the Department of Health on 11 January 2022 in the Djokovic case where it was accepted that Mr Djokovic was unlikely to be infectious with Covid-19 and as such was likely to constitute a low risk of transmitting Covid-19 to others. The Department of Health advice noted that the assessment applied to all other demographic groups and further noted, referring to the arrangements put in place to manage the Australian Open, that:

   Given these additional controls, it is assessed the risk of a transmission event related to the Australian Open is VERY LOW. Whilst it is noted that some segments of the population are more vulnerable to severe Covid 19 than others, given the likelihood of a transmission event at the Australian Open is VERY LOW it is VERY UNLIKELY that an infection with the propensity to cause severe illness could occur. Thus this risk is assessed as VERY LOW.

4. Having regard to the Department of Health advice, the Minister proceeded on the basis Mr Djokovic posed a negligible risk. Ms Voracova’s lawyers rely on the Department of Health advice and submit that the Tribunal ought to have regard to this advice and proceed, consistent with the principle of consistency in administrative decision-making, on the basis that Ms Voracova also posed a negligible risk of being of being infected or infecting others for the duration of her visa at the relevant time.

5. Ms Voracova’s lawyers contended that consistent with the reasoning of the Full Court in the Djokovic case at [39], the words “may” or “might” invite consideration of future possibilities which proceeds by drawing inferences from the known facts and based on “reasonable conjecture within the parameters set by historical facts”. It was submitted that, having regard to the available scientific evidence and the advice of the Department of Health in the Djokovic case, there is no basis for reasonable conjecture that Ms Voracova’s presence in Australia would or might be a risk to the health of the Australian community or segment of the Australian community or that she poses any appreciably greater rest than that of a doubly vaccinated person becoming infected and thereby infecting others.

6. Ms Voracova had a medical contraindication to vaccination at the relevant time based on her particular medical condition. The delegate was wrong to find that Ms Voracova’s recent Covid-19 infection was not a medical contraindication for the vaccine. The delegate’s reasoning that past infection with Covid-19 is not a contraindication to vaccination, said to be based on the ATAGI’s advice, is flawed for two reasons. First, no document issued by ATAGI is given force by legislation and secondly, the delegate misunderstood the ATAGI advice which in fact supports the proposition that recent medical infection with Covid-19 constitutes a medical contraindication.

7. This was said to be reinforced by the Australian Travel Declaration form and the Department of Home Affairs Covid-19 website which states, under the heading “Proof that you are not vaccinated for medical reasons when coming to Australia”, as follows

   If you are coming to Australia and have a medical contraindication recorded in the Australian Immunisation Register (AIR) you can show an Australian COVID 19 digital certificate (website reference omitted) to airline staff. You can otherwise show your immunisations history statement.

   If you do not have your medical contraindication recorded in the AIR you would need to show airline staff a medical certificate that indicates you are unable to be vaccinated with a COVID 19 vaccination because of a medical condition.

8. It was also contended that ATAGI provides authoritative guidance as to what constitutes a valid medical exemption to vaccination. ATAGI also provides expanded guidance about “acute major medical conditions that warrant a temporary medical exemption for COVID 19 vaccines”. The ATAGI guidance, on which the delegate’s decision was said to be based, is an important document which must be understood in its entirety.

9. I accept this submission and it is therefore convenient to set out relevant extracts of the ATAGI advice to properly understand the submissions made by Ms Voracova’s lawyers.

10. ATAGI published its expanded guidance temporary medical exemptions on 26 November 2021. ATAGI noted that valid reasons for a temporary exemption included “an acute major medical condition” and a “PCR confirmed SARS-CoV-2 infection, where vaccination can be deferred until six months after the infection”.

11. ATAGI also published advice on the definition of fully vaccinated on 14 December 2021 and as part of this publication, stated as follows:

    ATAGI notes that natural immunity from past infection is recognised as fully-vaccinated in several European countries. ATAGI also notes the challenge of confirming past infection and uncertainty with regards to the duration of protection.

    While evidence suggests that past infection reduces the risk of reinfection for at least six months (and therefore may be regarded as a temporary exemption for vaccination for a maximum of six months), ATAGI recommends that two doses of a TGA-approved or TGA-recognised COVID-19 vaccine according to the recommended schedule is still required in order to be considered fully vaccinated. Past infection with SARS-CoV-2 is not a contraindication to vaccination.

    ATAGI will continue to review and consider the evidence base regarding natural immunity following recovery from COVID-19 noting these recommendations are based on immunological principals due to a lack of data.[5]

    [5]  Department of Health, ATAGI advice on the definition of fully vaccinated, 14 December 2021, p 3.

12. And further at page 4:

    COVID-19 vaccination in people who have had PCR-confirmed SARS-CoV-2 infection can be deferred for a maximum of six months after the acute illness, as a temporary exemption due to acute major medical illness.

13. It was submitted that, based on the ATAGI advice, Covid-19 infection within the past six months is unequivocally a medical contraindication to vaccination. Further, Ms Voracova had a particular medical condition giving rise to a heightened risk of thrombosis if she was vaccinated and this supports the conclusion that Ms Voracova had a medical contraindication to vaccination at the relevant time. Even though Ms Voracova expressly raised this at the interview, the delegate failed to properly consider the thrombosis contraindication.

14. Ms Voracova’s lawyers further submitted that, unlike the delegate, the Tribunal should not be satisfied of the particulars of the ground set out in the NOICC to the effect that the ground for cancellation under s116(1)(e)(i) of the Act was established because, “as an unvaccinated person without a medical contraindication”, Ms Voracova posed a greater risk of contracting Covid-19 and spreading it to others.[6]

    [6] Refer Applicant’s submissions dated 31 January 2022 at [6] and [9].

15. I am not bound by findings of the delegate but note that this was not what the delegate found. The delegate found:

    Unvaccinated persons create a greater health risk of contracting COVID-19 and spreading COVID-19 to others, either of which will further burden the Australian health system. Ensuring unvaccinated temporary entrants do not enter or remain in the community is a key mechanism through which the Australian government has slowed the spread of COVID-19 within the Australian community.

16. This is a general statement of principle. The delegate did not find that Ms Voracova posed a greater risk because she was unvaccinated and did not have a medical contraindication to the vaccine. The delegate appears to have drawn on the general principles to find Ms Voracova posed a risk because she was unvaccinated. He also noted the ATAGI advice that past infection with Covid-19 is not a contraindication to vaccination.

17. Linking these two matters causes confusion. If a person has a medical contraindication to a vaccine or treatment, this means there is the potential for this person to have a negative reaction to the vaccine or treatment to such an extent that the vaccine or treatment would do more harm than not having the vaccine or treatment. Having a medical contraindication to the Covid-19 vaccination may be the basis for a medical exemption but I do not understand the ATAGI advice to be saying that being unvaccinated and not having a medical contraindication to the vaccine poses a greater risk. Nor do I believe this is what the delegate found. ATAGI simply says that previous infection is not a contraindication.

18. The question of whether Ms Voracova had a medical contraindication to the Covid-19 vaccine justifying an exemption, either because she had recently contracted Covid-19 or because of a related medical condition, is relevant to the exercise of discretion but is not the determinative question for the purposes of assessing risk under s 116(1)(e)(i) of the Act.

19. I accept there is cogent evidence that previous infection with Covid-19 provides a level of protection against infection. This is contained in the ATAGI advice and in the advice of the Department of Health provided to the Minister in the Djokovic matter. Whether this level of protection is greater or less than for an unvaccinated person is not a matter on which I can form a conclusive view. Ms Voracova’s lawyers referred to scientific reports and studies but in the absence of having access to the evidence of a suitably qualified expert, I am unable to make any finding in this regard.

20. There is little dispute about the facts in this case. What was more contentious is the impact of Covid-19 and the public health measures put in place by Australian governments to deal with the risks of Covid-19 on the Australian community and, importantly the public health system. The impact on Australia’s borders and the circumstances in which individuals should be allowed to enter and remain in Australia have been the subject of much debate over the past two years. Given the documented benefits of vaccination, the Commonwealth government understandably sought to limit entry to those who are fully vaccinated, with scope for medical exemptions to provide some flexibility. This was sought to be achieved through the Biosecurity Determination but as noted by Ms Voracova’s lawyers, at the relevant time there was no rule or law that required this. What was required is for potential travellers to complete a travel declaration before entry to Australia.

21. The subclass 408 visa does not require potential visa holders to be vaccinated against Covid-19. However, after a visa is granted, the Department retains authority to consider the matter when the visa holder arrives in Australia. It is clear that Tennis Australia and the Victorian government wanted to facilitate proceeding with the Australian Open, which has been an important and prestigious event for Australia and Melbourne for many years. This appears to have created some uncertainty about the rules that should apply to professional tennis players entering Australia.

22. This controversy played out earlier this year when the visa of Mr Novak Djokovic was cancelled by a delegate of the Minister and then later again cancelled by the Minister.

23. While the recent decision of the Full Court in Djokovic was based on a challenge to the Minister’s decision to cancel Mr Djokovic’s visa on grounds of the risk to health and good order, the case is relevant and instructive in a number of respects.

24. In the Djokovic case, a delegate of the Minister from Australian Border Force cancelled the visa of Novak Djokovic who is, like Ms Voracova, a professional tennis player who was unvaccinated and entered Australia under a medical exemption in similar terms to the exemption given to Ms Voracova.

25. Mr Djokovic’s visa was cancelled on 6 January 2022 before he was immigration cleared and, as such, he did not have a right to appeal to this Tribunal. Mr Djokovic made an application for judicial review to the Federal Circuit and Family Court of Australia. The grounds of the cancellation of Mr Djokovic’s visa were under s 116(1)(e)(i) of the Act. The hearing commenced on 10 January 2022, but the proceedings were resolved by agreement with the parties agreeing to orders quashing the cancellation decision. The Minister subsequently cancelled Mr Djokovic’s visa, exercising his personal powers under s 133C(3) of the Act. The Minister made the decision on “health” and “good order” grounds on the basis that it was in the public interest to do so.

26. Mr Djokovic sought judicial review of this decision arguing that the decision was legally unreasonable. The proceedings were transferred to the Federal Court of Australia and the application was heard on Sunday, 16 January 2022, which was the eve of the first day of the Australian Open.

27. The Full Court dismissed the application and published its written reasons on 20 January 2022. As the Full Court made clear in its reasons, it was not conducting merits review of the decision of the Minister, this was not permissible, but rather determining whether the decision made by the Minister was legally unreasonable or whether it lacked an evidentiary basis.

28. In his reasons for decision, the Minister stated that he was prepared to accept that the risk of transmission of Covid-19 by Mr Djokovic to others was low and that the risk of a transmission event relating to the Australian Open was very low having regard to the additional control procedures applicable to the event. He further stated that he was prepared to proceed on the assumption that Mr Djokovic posed a negligible risk of infection to others. The Minister was prepared to assume that because of Mr Djokovic’s recent infection, he had a medical reason for not being vaccinated. He was also prepared to assume that Mr Djokovic had entered Australia consistently with the guidance from ATAGI. The Minister referred to the importance of immunisation and the fact that there was health advice that Covid-19 vaccines and, particularly boosters, were likely to increase protection against infection with the Omicron variant. The Minister considered that Mr Djokovic’s presence may pose a health risk because it may foster anti-vaccination sentiment leading to an increased number of people deciding not to receive a booster, with unvaccinated people becoming unwell and/or transmitting the virus to others placing increased pressure on Australia’s health system. While this is a summary of the Minister’s reasoning about Mr Djokovic’s attitude to vaccination is clear from the Minister’s decision that these findings were based on evidence of Mr Djokovic’s views contained in media reports and the fact that Mr Djokovic had shown “apparent disregard” for the need to isolate following a positive Covid-19 test in December 2021.

29. The Full Court rejected the submissions made by Mr Djokovic’s lawyers that it was not open to the Minister to find that Mr Djokovic had a well-known stance on vaccination and that he was opposed to it. It rejected the submission that there was no evidence Mr Djokovic’s presence may foster anti-vaccination sentiment or that it was illogical or irrational to find that he opposed the Covid-19 vaccination. It was submitted that the decision to cancel the visa in circumstances where the Minister had assumed or found that Mr Djokovic posed a negligible risk to others, had a reason for not being vaccinated, had entered Australia lawfully and consistent with the ATAGI guidance and other guidelines and where almost every discretionary factor weighed against cancellation was legally unreasonable. It was also submitted that the Minister had not considered the alternative outcome that cancellation, and the consequences of cancellation in these circumstances, may also lead to anti-vaccination sentiment. The Full Court rejected this submission, noting that the provision speaks of the presence of the visa holder in Australia, stating that Minister is not required to weigh in the balance the alternative choices contended for by Mr Djokovic.

30. In summary, the Full Court accepted that another person in the position of the Minister may not have cancelled Mr Djokovic’s visa, but the Minister did. According to the Full Court,

    The complaints made in the proceeding do not found a conclusion that the satisfaction of the relevant factors and the exercise of discretion were reached and made unlawfully.[7]

    [7] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [105].

31. The Full Court observed that s 116(1)(e)(i) of the Act as currently drafted (having been amended in 2014)[8] clearly lowered the requisite level or threshold of satisfaction to that of a “possibility”. The Full Court also observed as follows:[9]

    36 Prior to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) s 116(1)(e) read “The presence of the visa holder in Australia is, or would be, a risk to” the matters as presently set out in paras (i) and (ii). The introduction by the above Amendment Act of the words “or may be” and “or might be” clearly lowered the requisite level or threshold of satisfaction to that of a possibility. The word “may” and the word “might” do not contain different levels of possibility; they relate to different contexts: “may” if the visa holder is presently in the migration zone (relevantly Australia); “might” if he or she were to come into the migration zone in the future.

    38. The notion of “risk” involves possibility in the future: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133 at [81] and [82]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [63]. Thus, consideration of what may or might happen in the future by reference to the presence of the visa holder in Australia is what is called for. The satisfaction is that the presence of Mr Djokovic in Australia may be a risk to health, safety or good order.

    39 The task is the consideration of future possibilities which “proceeds by drawing inferences from known facts”: Lewis v Australian Capital Territory [2020] HCA 26; 381 ALR 375 at 384 [35] (Gageler J) and is based on “reasonable conjecture within the parameters set by the historical facts”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at 599 [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ). To these considerations should be added as legitimate bases for the assessment process: common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department: see generally Viane 395 ALR at 408–409 [17]–[21].

    [8] Migration Amendment (Character and General Visa Cancellation) Act2014 (Cth).

    [9] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3.

1. Based on the Department of Health advice referred to in Djokovic, to which I have had regard, I accept that there is cogent evidence to support Ms Voracova’s contention that at the time of cancellation of her visa (and more relevantly at the time of my decision a month later) there was a low risk of her contracting and transmitting Covid-19 because of her previous recent infection.

2. At the time of my decision, there was at least a theoretical possibility that if Ms Voracova’s visa was not cancelled, she could return to Australia on her subclass 408 visa before 31 March 2022 unvaccinated. As already noted, this analysis is somewhat artificial and theoretical but arises from the current circumstances, which are highly unusual. This is because Ms Voracova’s visa was cancelled when she was in Australia on grounds existing at the time and she left Australia and shortly after lodging an application for review. There is nothing that precluded Ms Voracova from pursuing her review even though she was not in Australia at the time of the hearing and my decision. Furthermore, there was utility in her pursuing the review because of the negative impact of the cancellation of a visa on individuals entering Australia in the future and possibly in obtaining visas to enter other countries.

3. The question of whether Ms Voracova’s presence in Australia, would be or might be a risk to the Australian community or a segment of the Australian community is finely balanced.

4. According to the Full Court in Djokovic, this question should be assessed by drawing inferences from known facts.

5. At the time of my decision, I was satisfied about the following ‘known facts’:

   (1)Ms Voracova was unvaccinated although she had been infected with Covid-19, from which she had recovered in December 2021;

   (2)There was evidence (supported by the ATAGI guidance and the Department of Health advice relied on by the Minister in Djokovic) to the effect that if a person in Mr Djokovic’s circumstances (which Ms Voracova was) entered Australia there was a low if not very low risk that the person would contract and transmit Covid-19, even though unvaccinated; and

   (3)Ms Voracova decided to defer vaccination based on the medical advice she received before travelling to Australia.

6. Given this level of risk, the question then arises as to whether Ms Voracova’s presence would or might be a risk to the health of the Australian community or a segment of the Australian community. As observed by the Full Court Djokovic, the question is whether there is a possibility of such a risk. The risk is not the risk of contracting Covid-19 but rather the risk to the health of the Australian community, or a segment of the Australian community. This connotes a risk that has a broad impact, not an isolated incident or incidents. Section 116(1)(e)(ii), which was not the basis for the cancellation, refers to a risk to the health or safety of an individual or individuals. This of provision appears to contemplate an identified individual or individuals, not the possibility that an unidentified or theoretical individual or individuals may be exposed to risk. I therefore proceeded by considering whether the ground under s 116(1)(e)(i), rather than sub-section (ii) was established, firstly, because this was the ground for cancellation and, secondly, because this provision does not appear to be relevant in any event.

7. I accept that leading up to the Australian Open, there was considerable concern about the Omicron variant taking control in Australia. Prior to and after Christmas 2021, there were an increasing number of Covid-19 cases being reported and it was not known at that time what the impact the new Covid-19 variant would have in the community more generally and on our health system. This is a matter of public record widely reported in the media at the time.

8. However, by the time of my decision, the position in relation to Covid-19 had become clearer and there was a move, notwithstanding the significant spreading of Omicron in the community at this time, to ease many restrictions, particularly in New South Wales, Victoria and later Queensland. This is reflected in the changes made by the Victorian government around this time, when it was noted that as Covid-19 vaccination rates increased and Victoria reopened, more people in the community would get Covid-19 and for most, this would be a mild illness that could be safely managed at home.[10]

   [10] Health advice and restrictions - English | Coronavirus Victoria

9. Having regard to the changed circumstances since Ms Voracova’s visa was cancelled, I was not satisfied at the time of my decision that her presence would or might be a risk to the health of the Australian community or a segment of the Australian community. At the relevant time, Ms Voracova would have been assessed as a low or very low risk of contracting and transmitting Covid-19. While there was such a possibility, given the circumstances prevailing at the time, it is difficult to see that her presence and any resulting risk would or might be a risk to the health of the Australian community or a segment of the Australian community. Accordingly, at the time of my oral decision, I was not satisfied that Ms Voracova’s presence would or might be such as to impact the health of the Australian community or a segment of the Australian community.

10. I was therefore not satisfied that the ground for cancellation was made out. I also note, for completeness, that Ms Voracova’s case can be distinguished from Djokovic because her visa was not cancelled on the grounds of “good order”, nor do the circumstances of her case lend themselves to such a conclusion. As a ready noted, Ms Voracova is not opposed to vaccination and, unlike the Djokovic case where the Minister apparently found there was evidence Mr Djokovic had shown a disregard for the self-isolation protocols, there is no such evidence before me to this effect in this case.

11. At the hearing, it was submitted by Ms Voracova’s lawyers that even if I was satisfied there would or might be a risk, there are a number of factors bearing on the exercise of discretion that point powerfully against cancellation. Ms Voracova had already left Australia, her visa expired on 31 March 2022 and she had no reason or intention to return to Australia before this time. Any protection to the Australian community is theoretical because the prospect Ms Voracova will be present in Australia before her visa expires on 31 March 2022 is remote. This theoretical concern is outweighed by the very real and significant prejudice the cancellation decision poses on Ms Voracova’s future including her ability to travel to Australia and other countries and to earn a living. Ms Voracova did not breach any rules, she had followed all necessary advice given to her and had acted in good faith. There can be no deterrence in a case like this and these factors overwhelmingly weigh against cancellation.

12. During the hearing, I formed the view that there was considerable force to these submissions. In other words, if I had been satisfied about the ground, I would not have exercised the discretion to cancel Ms Voracova’s visa.

13. Additional matters that led me to this conclusion were the fact that there was no evidence Ms Voracova failed to comply with her visa conditions; she had followed all relevant rules and there was evidence she had relied on representations made to her by Tennis Australia and the Department of Health in Victoria about her medical exemption. I accept the submission that there was no law preventing Ms Voracova from entering Australia at the relevant time even though she was unvaccinated. She truthfully answered the travel declaration and she had cogent medical evidence to support her exemption, being the evidence provided by her general practitioner about her vulnerability to thrombosis. Notably, Ms Voracova did not need to rely on the fact that she had previously contracted Covid-19 as a medical contraindication to vaccination because she had a medical basis to delay vaccination. This would weigh against cancellation.

100. I also accepted that there would be hardship to Ms Voracova in having her visa cancelled because of the potential impact on future travel to Australia and possibly, although less likely, other countries. Ms Voracova was not deported from Australia under s 198 of the Act as an unlawful non-citizen because she was granted a bridging visa E. Notwithstanding this, I accepted that the cancellation of Ms Voracova’s visa and her subsequent detention may have an impact in the future on her ability to obtain visas in other countries, and thereby, a potential to impact her ability to generate income. A significant issue of concern for Ms Voracova was that under clauses 4013(1) and (3) of Schedule 4 to the Regulations, she cannot obtain another visa to enter Australia before 6 January 2025 unless the Minister is satisfied that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justify the grant of the visa. If Ms Voracova wishes to return to Australia to participate in the Australian Open next year or to pursue coaching opportunities or simply to visit, the uncertainty of whether she would be adjudged as meeting the waiver is likely to remain a critical concern for her. The letter of comfort dated 8 January 2022, does little other than outline that these would be matters that would be properly considered and does not provide a guarantee that a favourable decision would be made. This is a significant factor that would weigh against cancellation in the circumstances of this case.

101.   In brief, these matters, all of which are referred to in Department policy (PAM3) as relevant considerations, would have weighed against cancellation in the circumstances of the case.

DECISION

102.   For the reasons above, I set aside the decision under review and substitute a decision not to cancel Ms Voracova’s Subclass 408 (Temporary Activity) visa.

J.L Redfern PSM
Deputy President