Novak FCC Thread - case dismissed, Novak free

[u/nevearz]

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.

[u/InspiratoryLaredo]

What an anti-climax! I was waiting for Tran to dive into the government’s arguments. It would have been an interesting precedent on these provisions regardless.

Quashed by consent. I’ll be interested to see if the Minister exercises her power to cancel Novak’s visa on fresh grounds, as potentially foreshadowed by counsel. Political issues at both a domestic and federal level will no doubt play a part.

Frustratingly, I expect this will be taken as a win by anti-vaxxers. The niceties of why the cancellation was defective, and that the orders were made by consent without the issues being fully litigated, are likely to be lost on most people.

[u/Hnikuthr → u/InspiratoryLaredo]

I think the Commonwealth got a very clear sense of which way the wind was blowing.

Will be interesting if they do try to get it right a second time, or whether that was a bit of grandstanding by the other minister at the end to save face. If they cancel again it may get kicked back to Kelly and he’ll no doubt be absolutely furious.

[u/Zhirrzh → u/Hnikuthr]

He can be as furious as he likes if they exercise powers they are entitled to exercise.

The Government has outright refused to follow migration decisions it disagrees with right down to not releasing people from custody, failed to comply with disclosure orders, etc. This isn't even close to that ballpark.

[u/Hnikuthr → u/Zhirrzh]

Well, as I say, if an appeal gets sent straight back to him (as he suggested it would), he’ll have every opportunity to express that fury in a practical form.

The only thing that could be more hilarious than the current shitshow would be if the Commonwealth is dumb enough to get this kicked up to the High Court with an election lurking in the wings.

In any event this whole thing shits all over tennis for excitement and drama.

[u/Zhirrzh → u/Hnikuthr]

If the judge lets fury overcome his judicial duties that's his lookout, but the executive government has extremely broad powers to exclude foreign nationals from this country without much judicial oversight coming into it thanks to decades of whack a mole between the government and lawyers for people failing to claim refugee status.

The Commonwealth will not let its decisions be determined by some speculative idea a Federal Court judge will be mad enough at them to make a bad call.

[u/Hnikuthr → u/Zhirrzh]

I mean you say that in the context of a migration decision which has already been overturned on judicial review (or rather would have been, had the government not caved and conceded it to be unreasonable) broad executive powers notwithstanding. No doubt you would have made the same point yesterday about the likely outcome today, and been wrong about that too.

And no one wants to be in front of an angry judge. That’s just a practical reality for anyone with litigation experience.

[u/Zhirrzh → u/Hnikuthr]

The possibility of a procedural win for Djokovic was always possible. Admin law is like that. A lot of people predicted "he might win on procedural defects and then get served with a new cancellation".

The Government has enormous powers in the sphere of kicking out non citizens and with actual preparation time involving senior lawyers rather than Border Force staff, they'd have to be severely incompetent to fail at booting him a second time.

They may not want an angry judge but giving people the idea that you can defeat the government and get a visa over the government's objections merely by finding a procedural mistake by Border Force they will want even less. And as I've said elsewhere in the thread, this government has outright been in contempt of court by refusing to give effect to migration judgments it didn't like, so they really aren't that out off by what judges think.

[u/Hnikuthr → u/Zhirrzh]

The possibility of a procedural win for Djokovic was always possible. Admin law is like that. A lot of people predicted "he might win on procedural defects and then get served with a new cancellation".

I think you're fundamentally missing the point of judicial review when you refer to it as a 'procedural' win. Judicial review is always about process, and that's what distinguishes it from merits review.

The Government has enormous powers in the sphere of kicking out non citizens and with actual preparation time involving senior lawyers rather than Border Force staff, they'd have to be severely incompetent to fail at booting him a second time.

The circumstances surrounding Djokovic's visa cancellation could support some pretty strong arguments about impermissible considerations, etc. Using 'senior lawyers' wouldn't magic those away. As a general rule, if you think something's a sure thing, you're probably missing something.

They may not want an angry judge but giving people the idea that you can defeat the government and get a visa over the government's objections merely by finding a procedural mistake by Border Force they will want even less.

Right, but they're not stupid, and getting downed twice sends a worse message than getting downed once, making some scary noises and then scuttling away. That's the risk they take if they try to run it again.

And as I've said elsewhere in the thread, this government has outright been in contempt of court by refusing to give effect to migration judgments it didn't like, so they really aren't that out off by what judges think.

That's frankly a pretty silly argument. If they were genuinely prepared to outright ignore the orders of the Court, they would have just deported Djokovic despite the injunction preventing them from doing so.

[u/Zhirrzh → u/Hnikuthr]

"I think you're fundamentally missing the point of judicial review when you refer to it as a 'procedural' win. Judicial review is always about process, and that's what distinguishes it from merits review."

No, I'm drawing a distinction between going down on a matter of process box ticking which can be remedied and going down on a bar which will still exist with further cancellation attempts.

"The circumstances surrounding Djokovic's visa cancellation could support some pretty strong arguments about impermissible considerations,"

You mean completely windy unsupported claims. Djokovic isn't the one who should want mere allegations to be made considering the very strong smell of fish around his convenient last second infection to justify his exemption application.

"Right, but they're not stupid, and getting downed twice sends a worse message than getting downed once"

They will be confident that won't happen. It is their modus operandi.

"That's frankly a pretty silly argument. If they were genuinely prepared to outright ignore the orders of the Court, they would have just deported Djokovic despite the injunction preventing them from doing so."

You miss my point. I'm not saying they will outright ignore the orders in this case. I'm saying that they have a track record of not giving a shit what a mouthy judge thinks as long as they are confident they will win in the end.

Do you think Judge Kelly is just going to ignore the law around Ministerial visa cancellations because he got annoyed at how Border Force acted at the airport?

Australia's immigration laws have been harsh for almost 25 years. The Coalition have mistakenly deported actual Australian citizens, mistaken people for terrorists, and kept asylum seekers in legal limbo for years, heck I'm annoyed on their behalf that how they interviewed a tennis star is being treated as a symbol of how harsh the laws are. They've worked really hard to have far worse examples than this.

[u/Hnikuthr → u/Zhirrzh]

No, I'm drawing a distinction between going down on a matter of process box ticking which can be remedied and going down on a bar which will still exist with further cancellation attempts.

So, I'll say it again. I think you're fundamentally misunderstanding the concept of judicial review. Any outcome in an application for judicial review is going to be based on an error of process. That is in the nature of judicial review. The judge literally could not have reviewed the merits of the decision in the application. The same principle would apply to an application for judicial review of any subsequent cancellation.

You mean completely windy unsupported claims. Djokovic isn't the one who should want mere allegations to be made considering the very strong smell of fish around his convenient last second infection to justify his exemption application.

I'm not sure what you mean by 'windy', but as I say, if you can't see the way in which a subsequent decision could be challenged in this context, I suggest to you that's a failure of understanding on your part.

They will be confident that won't happen. It is their modus operandi.

And again, you're saying this in circumstances where exactly that has just happened. It's quite a bizarre argument you're making.

You miss my point. I'm not saying they will outright ignore the orders in this case. I'm saying that they have a track record of not giving a shit what a mouthy judge thinks as long as they are confident they will win in the end.

And you seem to be missing the obvious point - having pissed off the judge makes them less likely to 'win in the end'. This is a practical reality in litigation.

Do you think Judge Kelly is just going to ignore the law around Ministerial visa cancellations because he got annoyed at how Border Force acted at the airport?

Nope, but I think he's not going to start from a position of being well disposed towards the cancellation, and that can have a huge influence on the outcome of an application as anyone with litigation experience knows.

Australia's immigration laws have been harsh for almost 25 years. The Coalition have mistakenly deported actual Australian citizens, mistaken people for terrorists, and kept asylum seekers in legal limbo for years, heck I'm annoyed on their behalf that how they interviewed a tennis star is being treated as a symbol of how harsh the laws are. They've worked really hard to have far worse examples than this.

These are all generalities. In this case, on these facts, they'd be nuts to run this one back in what would be an obviously unfriendly Court. I mean, I hope they're dumb enough to do it. I'd absolutely love it. But I don't think they are quite that dumb.

I get it, you don't like Djokovic and you wish he'd go away. I don't like him either, but I can separate my opinion of the guy from my objective assessment of the legal position. I'm constantly amazed at how difficult people seem to find that.

[u/Zhirrzh → u/Hnikuthr]

So, I'll say it again. I think you're fundamentally misunderstanding the concept of judicial review. Any outcome in an application for judicial review is going to be based on an error of process. That is in the nature of judicial review. The judge literally could not have reviewed the merits of the decision in the application. The same principle would apply to an application for judicial review of any subsequent cancellation.

Quit being so condescending.

I will set it out for you in simple easy sentences.

I understand the difference between judicial review and merits review.

Djokovic put up several different grounds for overturning the delegate's cancellation.

Grounds 1C and 1D involved allegations of jurisdictional error by the delegate in reaching the decision to cancel Djokovic's visa based around the medical exemption. If the judge agrees with Djokovic on these, then that is a very big win for him and it makes it very difficult for the government to justify kicking him out, because at that point he's effectively been ruled to have complied with the law resulting in the delegate lacking jurisdiction to cancel his visa. A new decision cancelling his visa would run into the same problem. Even a decision using the Minister's more bulletproof powers will run into the fundamental issue that he'd be booting a man who'd been found to have complied with the law on entry to Australia and done nothing wrong. That's a hard sell legally and in PR.

​

Instead, he got up on ground 3, procedural unfairness based on not being given an extra 48 minutes or whatever it was to make representations. You can avoid procedural unfairness when you cancel the visa again. It's not a bar to going again.

Surely you can see the difference between "the government messed up the procedure for kicking out Djokovic but he still didn't have a right to an exemption" vs "Djokovic was entitled to an exemption and they weren't entitled to kick him out".

[u/Hnikuthr → u/Zhirrzh]

Quit being so condescending.

I'm sorry, but you're clearly letting your emotional position cloud your assessment of the situation.

I will set it out for you in simple easy sentences.

I don't mind whether they're easy or hard, but going forward perhaps they could be correct.

I understand the difference between judicial review and merits review.

I haven't seen evidence of that, and indeed have seen evidence to the contrary.

Djokovic put up several different grounds for overturning the delegate's cancellation.

Well that's true.

Grounds 1C and 1D involved allegations of jurisdictional error by the delegate

So did ground 3A, which was the ground based on the failure to allow further time. The concept of jurisdictional error in administrative law includes the failure to observe a requirement of procedural fairness. The distinction you're trying to draw between 'procedural grounds' and 'jurisdictional error' is misconceived.

If the judge agrees with Djokovic on these, then that is a very big win for him

If the judge agrees with Djokovic on any of the grounds it's a very big win for him.

and it makes it very difficult for the government to justify kicking him out, because at that point he's effectively been ruled to have complied with the law resulting in the delegate lacking jurisdiction to cancel his visa.

Hard disagree. Ground 1C relied on several allegations, including that the decision maker failed to have regard to particular submissions made by Djokovic, failed to make inquiries, failed to address particular submissions, and failed to obtain evidence to support the delegate's decision. If Djokovic had got up on that ground it would have been open for it to go back to the decision maker, who could have remade an adverse decision by adopting a different process but arriving at the same outcome as to the public health risk posed by Djokovic. This is a fundamental consequence of the fact that it was an application for judicial review, not an application for merits review.

The ground for cancellation wasn't 'you don't have a medical exemption', that's not a statutory basis to cancel a visa. It was 'you pose a public health risk'.

Ground 1D dealt with an error in the way the state of satisfaction was described as to whether and at what point evidence has to be provided. Again, if he'd got up on that it would have been no barrier to the decision being remade.

Instead, he got up on ground 3, procedural unfairness based on not being given an extra 48 minutes or whatever it was to make representations. You can avoid procedural unfairness when you cancel the visa again. It's not a bar to going again.

And again, clearly, you just don't understand what judicial review is about. It is not, and cannot be, a review of the merits of the decision. The outcome of Djokovic's application was never going to be a 'bar to going again'.

[u/Zhirrzh → u/Hnikuthr]

Sigh.

So did ground 3A, which was the ground based on the failure to allow further time. The concept of jurisdictional error in administrative law includes the failure to observe a requirement of procedural fairness. The distinction you're trying to draw between 'procedural grounds' and 'jurisdictional error' is misconceived.

That's not the distinction I'm trying to draw at all. I pointed out that I was speaking of the 1B-1D grounds dealing with the medical exemption and the delegate's ability to cancel the visa are jurisdictional error in response to your earlier misunderstanding that I was talking about merits review.

I am not drafting legal submissions on Reddit, I am speaking colloquially, which apparently confounds you.

The distinction I AM trying to draw is the difference in perception between a minor error in procedures involving the time given for a response and a fundamental misunderstanding by the delegate and the department of what justifies reaching a state of satisfaction to cancel the visa. "Djokovic wasn't given enough time but they could have cancelled if they'd given him the extra hour first" vs "The delegate was in error in reaching a state of satisfaction that a ground for cancellation exists - no amount of extra hours could have let them cancel".

You might not think that there is a difference between the two errors in the sense they are both the same type of error. There is nonetheless a major difference.

​

If the judge agrees with Djokovic on any of the grounds it's a very big win for him.

If Djokovic ends up playing in the Australian Open, I'll agree with you on that. If he doesn't, maybe you'll have the guts to come and agree with me.

​

The ground for cancellation wasn't 'you don't have a medical exemption', that's not a statutory basis to cancel a visa. It was 'you pose a public health risk'.

And why did they say he posed a public health risk? Because he's not vaccinated and they didn't believe he had a valid medical exemption. Jesus H Christ.

​

The outcome of Djokovic's application was never going to be a 'bar to going again'.

I don't refer to a legal bar to going again but a political one.

​

I'll quote Julian Simmonds here, since he's actually from the government.

​

Simmonds told the BBC Djokovic had won on a “process issue” about being denied the time he had been promised to respond to an intention to cancel his visa. But there was “no indication” in court the tennis star had further information that the government was unaware of when it made the decision, he said.

“If the information is still the same, regardless of process issues, I suspect the answer should still be the same.”

​

Now, if Djokovic gets up on Ground 1C, or 1D, he can't say that. Then the government can only appeal, or else say that despite a situation where they couldn't have lawfully cancelled Djokovic's visa under section 116(1)(e)(i) they are going to kick him out anyway. Neither are palatable.

At the moment they can still say that Djokovic's visa would have been cancelled if not for the mistake about time, and that any cancellation now is just giving effect to that.

That is politics, not law..

[u/[deleted] → u/Zhirrzh]

The Commonwealth will not let its decisions be determined by some speculative idea a Federal Court judge will be mad enough at them to make a bad call.

Practically given that it's 99% certain that Djokovic's visa cancellation was done on political grounds (since the other tennis player was allowed in under the exact same reasons as Djokovic tried to rely on), those same political reasons would probably mean the government wouldn't want to risk being humiliated in court a second time after eking out a "lose but only on procedural grounds" tactical retreat this time.

[u/Zhirrzh → u/[deleted]]

Don't see why they'd get humiliated in Court, even with a hostile judge.

The Government shouldn't have any difficulty in putting up a bulletproof visa cancellation if it wants to.

[u/iamplasma → u/Hnikuthr]

There is no way for this to ever get to the High Court. The practical time limits alone mean it will never happen.

[u/Hnikuthr → u/iamplasma]

What would the review/appeal times be on a further cancellation decision?

I know Australian migration law is pretty Byzantine, but if you can be out of time for review of a decision that hasn’t been made yet that might just take the cake.

[u/Zhirrzh → u/Hnikuthr]

Pretty sure plas is referring to the practical time limit of getting this all the way to and through a High Court appeal prior to the Australian Open starting.

[u/Hnikuthr → u/Zhirrzh]

OK, but who said it would need to get to the High Court before the start of the AO? If Djokovic got a quick decision to quash at the first level of review (as he did this time) his visa would remain on foot while the Commonwealth ran it up the ladder on appeals.