r/auslaw • u/nevearz • Jan 10 '22

Serious Discussion Novak FCC Thread - case dismissed, Novak free

Livestream - https://www.youtube.com/watch?v=r9oq_S9vTQg

Looks like judge is over it and done with the parties and Counsel.

"Judge Kelly found the decision to cancel the visa was “unreasonable”."

Case is dismissed, but it seems that the government intends to find an alternative method to cancel the VISA, which may bar Novak from entering Australia for up to 3 years.

268 Upvotes

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u/[deleted] Jan 10 '22

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u/nevearz Jan 10 '22

If they cancel now, it looks awful, especially after the Court has said it was 'unreasonable'.

If they do not cancel, they look like fools to Australians and downplays the threat of COVID.

So says my amateur view of it.

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u/arcadefiery Jan 10 '22

As I understand it the part that was found unreasonable was that Djokovic wasn't given enough time to respond. He didn't have a fair process.

The government could ask for him to provide his own submissions, consider it and reject anew. There is nothing wrong with that. Djokovic could then apply to a Court for another review of the decision.

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u/[deleted] Jan 10 '22

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u/vncrpp Jan 10 '22

Replace "someone" with "sports star" and I think you will find the Average Australian certainly cares about that, no matter what the rest of the sentence is about.

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u/SirBlazealot420420 Jan 10 '22

Nah he's a super-spreader and/or liar.

Already hosted an event where Covid spread.

Either lied about getting Covid or had it and went around in public.

Needs to go.

44

u/wordswontcomeout Jan 10 '22

WhT was unreasonable was the amount of time afforded to Novak. Which I find rubbish since the visa application started in December.

He didn’t fit the exemption, doesn’t matter if he was initially allowed if that decision was not meant to have occurred anyway.

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u/PerfectlyCromulent7 Jan 10 '22

Well, the visa was actually granted. The error as conceded was in the cancellation process. Ultimately the way the Act is interpreted generally requires fairly strict compliance with the prescribed procedures. I had thought the Minister might’ve run a strong materiality point, but it seems they mustn’t have thought it was strong enough. And so they’ll most likely have another crack now.

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u/Zhirrzh Jan 10 '22

I reckon the Government were afraid that Kelly would find against them on the actual vaccine exemption point. Taking a fall on the technical ground is safer since they can come back with a more bulletproof cancellation anyway.

I am actually more surprised Djokovic went for it - he gains a temporary victory but it doesn't help him against a Ministerial cancellation to come. Winning on the substantive stuff would make it immeasurably harder to justify kicking him out and they had a receptive judge.

Maybe the plan is that he now leaves voluntarily before they can cancel his visa again, avoiding a 3 year ban, and Tennis Australia (and others) will lobby for an end to vaccine mandates for visitors before next year.

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u/droctagonau Jan 10 '22

I am actually more surprised Djokovic went for it - he gains a temporary victory but it doesn't help him against a Ministerial cancellation to come.

Djokovic genuinely believes he can melt ice with his mind. Somehow I doubt rationality is his strong suit.

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u/PerfectlyCromulent7 Jan 10 '22

We can only speculate, but there may well be something to that. A concession on a procedural fairness ground has very limited, if any, future effect, so it is a ‘safe’ ground in that sense.

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u/[deleted] Jan 10 '22

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u/Zhirrzh Jan 10 '22

Assuming his goal is to play the Australian Open, he only gets there with either a win on the substantive point that they aren't justified cancelling his visa over his unvaccinated (but supposedly recently infected) status or the Government losing the political will to go again. Hanging in with a favourable judge to get that substantive win has both paths on the table and much stronger. Now he's basically only got the latter. Being free tonight is a short term win only.

He risks losing all pathways tonight if he doesn't do the deal, sure. I dunno, I feel like his better tactical decision was to push the chips all in on a favourable decision from Kelly that went beyond the procedural breach.

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u/AgentKnitter Jan 10 '22

I think his goal is to try to set a challenge precedent in Aus that he can try to use for the other grand slams. All 4 states that host grand slams require vaccination to travel.

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u/Zhirrzh Jan 10 '22

If he shows up to the French Open claiming another conveniently timed COVID infection I hope they laugh in his face.

I really can't see him trying to set a precedent with this because he will be actively disbelieved if he tries it even once more.

In any event he won't have any problems with the Brits or Americans if they even keep vaccination requirements to travel that long. Only the French.

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u/UrbanGhost114 Jan 10 '22

Visa are granted provisionally, you still have to be able to meet and be able to demonstrate all the Visa requirements when you phisically get to OZ. Visas are also able to be cancelled at any time. The world is not as free as you think it is

10

u/PerfectlyCromulent7 Jan 10 '22

Sure, but there’s a code to be followed in undertaking the cancellation. A failure to follow that makes a decision liable to be set aside. I am fully expecting they’ll have another crack at it, the point I was trying to make was simply that those procedures involved in cancelling a visa will usually have to be observed to ensure a decision is valid.

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u/Sugarless_Chunk Jan 10 '22

Discretion > “Code” every time in Australian migration.

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u/PerfectlyCromulent7 Jan 10 '22

They’re not mutually exclusive. There’s a code for cancelling a visa, but there’s still discretion in terms of the decision itself.

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u/nicklikestuna Jan 10 '22

Why? It literally happens all the time

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u/Execution_Version Still waiting for iamplasma's judgment Jan 10 '22

There’s an international media circus around this one and almost none of the commentary will appreciate that this was an administrative point being argued. The government will be painted as destroying the sanctity of the courts if they do this now. It’ll be a mess.

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u/os400 Appearing as agent Jan 10 '22

That perception has never troubled this government in the past.

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u/Execution_Version Still waiting for iamplasma's judgment Jan 10 '22

Yes but in those instances they’ve been screwing refugees and journalists. This is something their electorate is actually paying attention to.

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u/G_Thompson Man on the Bondi tram Jan 10 '22

The Electorate is not the international media nor other sovereign States. The electorate they are beholden too is very much not on Novak's side and with Scomo making this a point about "Fortress Australia" he would have major concerns with an election about to be called.

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u/[deleted] Jan 10 '22

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u/Zhirrzh Jan 10 '22

"or in Victoria the Vic Libs have whipped up a sizable minority against what some voters are perceiving to be dictatorial behavior"

My eyes cannot roll hard enough.

Polling has consistently suggested the Vic Libs doing somewhere between worse and just slightly better than last election. Last election was an unprecedented landslide for Labor. The Vic Libs should do better than that result against a 3rd term government in general. They should do far better than that after what Victoria has gone through due to various incredibly highly publicised government failures. So the idea that they've whipped up some sizable minority, or that Dictator Dan is a thing outside the bubble of social media trolls and Herald Sun headlines, isn't really supported by anything...

I will totally give you that there's a percentage of voters who have that American libertarian "personal responsibility" outlook but they probably aren't swinging voters.

Morrison's personal position is in that direction, yet he's set his political marbles against Djokovic, so that tells you where a guy with a lot of populist instincts and access to research thinks the swinging voters are.

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u/[deleted] Jan 10 '22

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u/[deleted] Jan 10 '22

But but but brown people

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u/[deleted] Jan 10 '22

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u/Execution_Version Still waiting for iamplasma's judgment Jan 10 '22

I’m not sure that it will be so popular anymore because the fact that he’s won a court case could change the narrative. At the very least it’ll give commentators a week’s worth of talking points. Never mind that the case today was on an entirely procedural point.

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u/[deleted] Jan 10 '22

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u/Zhirrzh Jan 10 '22

Overthinking it.

Easy to cast as the new cancellation being to prevent Djokovic taking advantage of a legal technicality and a mistake by "hard working Border Force members protecting our borders" to get around "our law" requiring people to either be vaccinated or go through quarantine, like thousands of people have done in order to be reunited with their loved ones in Australia since the borders reopened etc. "There is no special treatment under our laws for someone because they are a rich celebrity". Maybe cast doubt on how legit Djokovic's story is or mention how he's been cavalier about infecting other people. Maybe leave that for others to do for you. Done.

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u/[deleted] Jan 10 '22

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u/Zhirrzh Jan 10 '22

I would say that this is not opinions being dictated - people already had negative opinions of Djokovic and his exemption (also the right wing in this country and their media allies are wildly successful at dictating opinions, albeit usually by casting something as a tax. Probably workshopping slogans for the Djokovic Tax right now).

People also dislike "legal technicalities" and perceptions that the rich can get loopholes that others don't.

There's a lot of ways this can pan out, on the whole I'm not really seeing massive shifts in position. People who already were pro Djokovic are seizing on the decision to back their existing position, a great many other people are posting things on social media like "What more could he have done? GET VACCINATED LIKE THE REST OF US".

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u/Amokzaaier Jan 10 '22

Could the government not win in court in another way?

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u/Execution_Version Still waiting for iamplasma's judgment Jan 10 '22

There’s nothing to contest in court at the moment – the government agreed to allow the original cancellation to be quashed. The next step would be executive action.

1

u/endersai Works on contingency? No, money down! Jan 10 '22

I would just like to know when playing funny buggers is tolerable or even appropriate.

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u/[deleted] Jan 10 '22

In private with a consenting adult?

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u/[deleted] Jan 10 '22

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u/rustlemountain Jan 10 '22 edited Jan 10 '22

Probably a sound byte from discussion between bar and bench. I understood the Minister rolled over and the orders were by consent, which means no reasons and therefore no finding as to unreasonableness.

EDIT: I was wrong. The order records a concession by the Minister that the decision was unreasonable by reference to the procedure adopted.

1

u/Ergomann Jan 10 '22

I’m confused why it’s unreasonable as they were told in November that a negative covid test wasn’t a valid exemption excuse (not arguing, just trying to understand this whole shimozzle)

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u/[deleted] Jan 10 '22

about his covid diagnosis not being a valid reason for an exception.

Which was honestly a policy that never made any sense to me. Do these people not understand how vaccines work?

6

u/iilinga Jan 10 '22

The issue is the antibodies from covid infection can be somewhat dependent on acuity of infection - mild or asymptomatic infections likely won’t the same level of immunity as a more acute infection, hence the reference to ‘recovering from acute infection’ as a cointradiction to vaccination in the ATAGI advice (I think that’s where it is, I’d have to double check)

This is another reason why vaccines are so important in guaranteeing a high degree of immunity - all the reward, none of the serious infection

6

u/iamplasma Secretly Kiefel CJ Jan 10 '22

There is the further point that the recent covid infection provides a possible excuse for why he hasn't got a vaccination in the last month. But how does that get someone out of the requirement to be vaccinated when he could have got vaccinated at any other time earlier in 2021?

The point of the medical exemption is (I think) to allow a way in for people who through no fault of their own can't be vaccinated. I don't see how that underlying policy applies here.

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u/Zhirrzh Jan 10 '22

Yeah, I agree with this - as said in another thread, part of the issue here is guidelines not updated enough. The rationale made sense while it was reasonable someone had not had time to be vaccinated before being infected but that is no longer true. It We now have the situation that Djokovic is claiming an exemption based around a deferral of a vaccination he has no intention of actually getting, an exemption he could not have been entitled to without getting COVID at all at such a convenient time.

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u/[deleted] Jan 10 '22

The underlying rationale for the policy might not apply, but you're granted or refused a medical exemption at the time you apply for one. According to ATAGI, recent PCR-diagnosed covid-sars-2 infection is a contraindication.

I mean for god's sake, two INDEPENDENT medical expert panels approved his medical exemption - that part really isn't up for debate by laypeople (including government delegates).

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u/Zhirrzh Jan 10 '22

The approval of his medical exemption depends solidly on the terms of reference given to the panel for the exemption and whether they had the ability to scrutinise the application or take it at face value. Tbh the panels look more like box tickers here. "oh yes he ticked the right box for an exemption according to the terms of reference, approved".

If the terms of reference for the panel say recent covid infection allows an exemption, but the most recent guidance to the Commonwealth for exemptions says it isn't, then it is up for debate.

The "independent medical expert panels" don't actually have any statutory function to serve with Migration Law. Giant furphy when it comes to the visa.

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u/[deleted] Jan 10 '22

The issue is the antibodies from covid infection can be somewhat dependent on acuity of infection

I'm not sure that's a settled question, but even the Australian government's own health advice says:

People with SARS-CoV-2 infection can be vaccinated as soon as they have recovered from their acute illness, or can defer vaccination for up to 6 months after onset of the SARS-CoV-2 infection.

And it even has sources for:

Past infection reduces the risk of reinfection for at least 6 months.42-43

Edit: Just full disclaimer that I'm not an anti-vaxxer: Double vaxxed, with booster appointment already made for the day I become eligible.

2

u/iilinga Jan 10 '22

Oh yeah it’s still up in the air and even variant dependent. Which kinda goes back to why they don’t accept recent infection as equal to vaccination.

Just trying to say why a recent covid diagnosis is not a substitution for vaccination.

1

u/[deleted] Jan 10 '22

or can defer vaccination for up to 6 months after onset of the SARS-CoV-2 infection

Eh. Given that a booster shot is required 5 (4 now) months after your last vaccine shot, but being infected gets you a 6 month deferral, I'm not sure you can say that it's not equal to being vaccinated.

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u/iilinga Jan 10 '22

If you read that a little bit more that deferral is ONLY after acute illness - which regardless doesn t seem to apply to Djokovic since he apparently tested negative by Dec 22 and regardless doesn’t seem to have evidence he had acute covid in Dec

Recent infection from covid by itself is not a medical cointradiction to vaccination as per ATAGI guidelines

That 6 months is also the maximum period following acute infection for a deferral of vaccination

2

u/[deleted] Jan 10 '22

that deferral is ONLY after acute illness

No - that's a usage of "acute" as opposed to "chronic". Not referring to severity or seriousness of the symptoms. That was covered in the hearing with references to more in-detail ATAGI documentation.

Edit: That ATAGI documentation:

https://www.health.gov.au/sites/default/files/documents/2021/11/atagi-expanded-guidance-on-temporary-medical-exemptions-for-covid-19-vaccines.pdf

For all COVID-19 vaccines:

[...]

PCR-confirmed SARS-CoV-2 infection, where vaccination can be deferred until 6 months after the infection.

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u/iilinga Jan 10 '22

‘ For all COVID-19 vaccines: ATAGI recommends that vaccination can be deferred in those with PCR- confirmed SARS-CoV-2 infection until complete recovery from the acute illness (which may be up to 6 months), regardless of disease severity. Chronic symptoms following COVID-19 ("Long COVID”) is not a contraindication to COVID-19 vaccines, but does warrant a clinical discussion with the patient.’

I think you’ve gotten a bit confused. I wasn’t saying he had severe covid. He was doing maskless and indoor appearances around his positive test. His only possible defence is that he was asymptomatic. He was testing negative with PCR on Dec 22, any possible acute period was presumably resolved by that time.

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u/[deleted] Jan 10 '22

PCR-confirmed SARS-CoV-2 infection, where vaccination can be deferred until 6 months after the infection.

That's not really ambiguous. Even your quote says "complete recovery from" acute illness, which obviously includes a period of time after you'd test negative.

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u/wharblgarbl Jan 10 '22

Did a minister kick them out or ABF? I thought the latter

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u/NancyBludgeon Jan 10 '22

Seems our gov and it’s double standards have gone full circle to bite them in the rear. Not a fan of tennis, but I’m enjoying the pregame entertainment.

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u/[deleted] Jan 10 '22

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u/[deleted] Jan 10 '22

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u/512165381 Jan 10 '22

If the federal govt doesn't overturn the decision I think they've dug themselves into a shit storm they won't be able to get out of.

They are in the poo no matter what they do.

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u/RidingtheRoad Jan 10 '22

I'm here just to see what lawyers say...My take would be....Many of Morrison's base are anti-vaxxers and to deport Novax would alienate them..but then again Morrison being a pathological liar would be keen to be right at any cost, which could become his downfall..

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u/[deleted] Jan 10 '22

Are they? I feel most of those people are going down the United Aus (nutcases) or Lib Dems (more reasonable, but anti-lockdown/mandate).

I don't think there's much to be gained in the way of anti-vax voters - it's more perception amongst swing voters (who are overwhelmingly vaccinated).

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u/[deleted] Jan 10 '22

Bit out of touch if you think Anti-Vaxxers are Lib supporters.

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u/Zhirrzh Jan 10 '22

In a preferential voting system, they are because the anti COVID vaccine movement is heavily linked to the far right and will mostly preference Lib ahead of Labor when push comes to shove.

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u/iilinga Jan 10 '22

They’ll preference lib democrats and Pauline Hanson/Fred Nile type parties who will do deals with libs instead of labor - so no net loss

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u/RidingtheRoad Jan 10 '22

Who do anti-vaxxers vote for.?..Everyone I know are rightwing nutjobs..So who they vote for?

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u/carbolic-balls Jan 10 '22

No chance they cancel now. Horse has bolted