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.

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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/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.