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| Novak Djokovic |
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NOTICE OF FILING
This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on
16/01/2022 9:51:00 AM AEDT and has been accepted for filing under the Court’s Rules. Details of
filing follow and important additional information about these are set out below.
Details of Filing
Document Lodged: Reply – Form 34 – Rule 16.33
File Number: VID18/2022
File Title: NOVAK DJOKOVIC v MINISTER FOR IMMIGRATION, CITIZENSHIP,
MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Registry: VICTORIA
REGISTRY – FEDERAL COURT OF AUSTRALIA
Dated: 16/01/2022 9:52:52 AM AEDT Registrar
Important Information
As required by the Court’s Rules, this Notice has been inserted as the first page of the document which
has been accepted for electronic filing. It is now taken to be part of that document for the purposes of
the proceeding in the Court and contains important information for all parties to that proceeding. It
must be included in the document served on each of those parties.
The date and time of lodgment also shown above are the date and time that the document was received
by the Court. Under the Court’s Rules, the date of filing of the document is the day it was lodged (if
that is a business day for the Registry.
NOVAK DJOKOVIC
Applicant
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND
MULTICULTURAL AFFAIRS
Respondents
APPLICANT’S OUTLINE OF REPLY SUBMISSIONS
1. Mr Djokovic replies as follows to the Minister’s submissions dated 15 January 2022
(“RS [X]”), using corresponding headings (but not sub-headings), and using the same
abbreviations as in Mr Djokovic’s principal submissions.
B. BACKGROUND
2. RS [8] is not quite right. The Minister was not sure if there was a difference between
“very low” risk and “negligible” risk (D [13]), but did not assume that it was negligible;
he “accept[ed] that Mr DJOKOVIC pose[d] a negligible individual risk of transmitting
COVID-19 to other persons” (D [17]). The same answer is given to RS [22].
3. The second sentence of RS [11] is correct in that the Minister did purport to note the
existence of media reports regarding groups opposed to vaccination supporting
Mr Djokovic’s presence, but neither at RS [11] nor anywhere else in the Minister’s
submissions does he deal with the submission at AS [19]: the material cited at D [22(ii)]
provided absolutely no support for that description. The media reports in
Attachments K and L simply are not to the effect that the Minister describes. They do
not refer to Mr Djokovic at all.
4. In regard to RS [21], the relevance of AS [8]–[14] is that they set the context in which
the likely context of displeasure at Mr Djokovic’s potential removal is to be assessed.
It would be one thing to remove a person who posed an individual health risk, had
entered Australia without a medical exemption and inconsistently with ATAGI
guidelines, etc. It is another to remove a person who poses negligible individual health
risk, enters with an exemption and consistently with ATAGI guidelines, etc. This bears
on inherent probability (the existence of which probability is in any event supported by
evidence in the record),1
of removal causing a negative reaction.
5. The first two sentences of RS [24] are right: the correct reading of D [55] is that the
Minister regarded the issue of the Australian Travel Declaration as being at best neutral.
C. GROUND ONE
6. The Minster spends a lot of time (RS [29]–[45]) outlining why, at least in many cases,
an inference cannot be drawn that a matter was not considered based on its absence in
a statement of freely-given reasons. But what is relevant, which the Minister allows at
RS [37], is that sometimes such inferences can be drawn.
7. The starting point is that, importantly, the Minister concedes that nowhere in the
Minister’s reasons does he address, “in express terms,” the consequences for health and
good order were Mr Djokovic to be removed (RS [51]). (Mr Djokovic submits this is
better termed the “Counterfactual,” rather than the Counterargument).
8. The first question, then, is whether, in that light, the inference can be drawn that the
Counterfactual was not considered. That inference can plainly be drawn.
9. Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at
165 [72] is directly on point, and Plaintiff M64/2015 v Minister for Immigration and
Border Protection (2015) 258 CLR 173 is distinguishable for the same reasons as
identified there. That is, the Minister’s reasons in the present case are: (1) described as
a “statement of reasons”; the reasons give a fulsome and apparently exhaustive account
of matters that the Minister considered relevant.
10. The exhaustiveness of the reasons is apparent from its structure and content. At D [71],
the Minister says that his decision was made, “[a]fter considering all the matters
discussed above”—i.e., not other matters. The reasons are carefully drafted and separated into headings relevant to subject matter. References are made to material in
the Departmental brief. Where the Minister has expressly considered a thing not to be
relevant, he has said so (see, e.g., D [13]–[14]). Where he has chosen not to make an
inquiry, he records that (D [7]; D [19]). He had “ample time to cogitate on matters”
(RS [47]), so the absence of the Counterfactual cannot be explained by a rushed job in
drafting reasons.
11. In this context, the total absence of the Counterfactual from the reasons is only
explicable on the basis that the Minister did not consider it. The inference to that effect
would comfortably be drawn.
C.1.2 “The factual finding sought should not be made”
12. The above matters answer RS [46]–[49]. From RS [50]–[60], the Minister seeks to
find a textual or contextual basis for a finding that the Minister did consider the
Counterfactual. These submissions would not be accepted.
13. As to RS [50], let it be assumed for the moment (contrary to the fact) that the material
cited in D [22(ii)] actually supported the conclusion the Minster there expressed, being
that there were groups opposed to vaccination were supportive of Mr Djokovic’s
presence in Australia. The point is that at D [22] the Minster is considering the likely
reaction of any such people to Mr Djokovic’s presence, not to his removal. Similarly,
the “opposing reactions” referred to at D [36] are expressly in regard to Mr Djokovic’s
presence in Australia, not its absence because of removal (see D [34], [35])
14. RS [51] is an important concession that there is no express reference to the
Counterfactual in the reasons. And RS [52] supports Mr Djokovic’s position rather
than detracts from it. At D [46], the Minster expressly confines his consideration of
“unrest” to things that have already happened. That is, he says that the fact that there
has been some unrest which the Minister associates with Mr Djokovic’s presence in
Australia is a factor against cancellation; this says absolutely nothing about the unrest
that might follow from his absence, despite this perhaps being an obvious place to
consider that very issue.
15. RS [53] likewise has a short answer. Mr Djokovic made submissions on public interest
against the cancellation of his Visa. His submissions did not address the Counterfactual
(not surprisingly, given that this “anti-vaccination sentiment” mode of reasoning is wholly different from that adopted by the delegate of the Minister for Home Affairs).
The fact that, at D [44]–[45], the Minister referred to submissions against removal made
by Mr Djokovic, and no other matters, plainly does not indicate that he did consider
other matters (such as the Counterfactual); it indicates that he did not so consider.
16. RS [55]–[58] cite material that is totally irrelevant to the Counterfactual. RS [55] is
expressly in relation to Mr Djokovic’s “presence in Australia,” not its absence.
RS [56]–[57] refers to support for Mr Djokovic’s presence in Australia, but this says
nothing about whether the Minister considered the consequences of the cancellation. The
second part of RS [58] is just an assertion. The Minister submits now that he was aware
that people may react negatively if a decision were to be made to cancel Mr Djokovic’s
reasons, but he does not say so in his reasons. Rather, at D [45] (third bullet point) that
point is conspicuously absent. He just says that there is support for Mr Djokovic to stay
and play tennis.
17. And, RS [59] supports Mr Djokovic’s submission. It is correct that there was material
in the Departmental brief suggesting that anti-vaccination groups were upset at
Mr Djokovic’s Visa cancellation and detention. Mr Djokovic’s point is that that
material is not referred to or considered in the Minister’s reasons.
C.2.2 “No jurisdictional error in this case”
18. The answer to RS [73] is that it would be a perverse, illogical, or irrational approach
(and one out of keeping with the proper exercise of a power the purpose of which is to
reduce risk to health) to the issue of health risk (or good order risk), or public interest,
or discretion, to cancel a visa to avoid a miniscule health risk (or good order risk) and
ignore that the cancellation creates a much larger health risk (or good order risk).
19. As to RS [75], Mr Djokovic obviously does not invite merits review. He does not
submit that the Court should make some finding about whether the risks attendant upon
cancellation outweigh those attendant upon non-cancellation. Rather, he submits that
it involved error for the Minister not to consider the Counterfactual.
20. Finally, as to RS [77]–[78], materiality is easily satisfied. If it be accepted that it was
illogical for the Minister not to consider the consequences of his decision, and those
consequences might (as the evidence suggested) be non-trivial, then it is obvious that
at least public interest and discretion might have been affected by the error
21. As to the evidence of non-trivial risk in the event of cancellation, Mr Djokovic repeats
AS [31]–[32]. And cases like Mackie v Minister for Home Affairs [2021] FCA 1326
are readily distinguishable. It is not at all obvious from this Minister’s reasons,
cf. Mackie, what might have been the effect on the balancing of public interest and
discretionary factors in the event that the Minister considered the Counterfactual.
22. He does not say, for example, that factors in favour of cancellation overwhelmingly
outweigh those against; he simply says “outweighed” (D [48]). It is the same with
discretion (D [69]). If a further factor were added against cancellation, that balance
might have shifted. The error was material
D. GROUND TWO
23. The submissions as to legal principle at RS [81]–[88] are basically uncontroversial, but
none of them deny that there must be some basis for conjecturing and hypothesising.
The Minister is not permitted to cancel a visa based on an evidence-free figment of his
imagination.
24. Then, RS [90]–[96] reveal some serious confusion of approach. These paragraphs are
all in support of a submission (in effect) that there was evidence for the Minister’s
finding that Mr Djokovic was opposed to being vaccinated. But that finding is not the
subject of Ground 2. Ground 2, as the Minister recognises (RS [4]) is about the finding
that Mr Djokovic’s presence in Australia may foster sentiment against vaccination
against COVID-19.
25. Thus, the punchline submission in RS [92]—an inference is open that Mr Djokovic
would be perceived as being opposed to being vaccinated—does not address the point.
The same is true of RS [94]. What is needed is evidence in support of the fostering of
anti-vaccination sentiment, and that point is not even addressed until RS [97].
26. RS [97], belatedly, commences a submission that there was evidence in support of the
“fostering anti-vaccination sentiment” finding, and does so by incorporating the
submissions in RS [11]–[12] and [16].
-(1) RS [12] is irrelevant: it simply outlines what would be the consequence of
people resisting vaccination, which does not address whether Mr Djokovic’s
presence in Australia would cause them to so resist.
-(2) RS [16] refers to RS [11], and describes reasoning at D [33]. D [33] is not
related to “fostering anti-vaccination sentiment” but rather relates to
encouraging people to act inconsistently with public health advice.
-(3) That leaves RS [11], which says that “the Minister noted that ‘there are some
media reports that some groups opposed to vaccination have supported Mr
DJOKOVIC’s presence in Australia, by reference to his unvaccinated status’
(Reasons at [22(ii)]).” This submission is fatally undermined by the fact that,
as submitted at AS [19] (to which there has been no response) the evidence cited
at D [22(ii)] does not support the proposition for which it is cited. The media
reports do not refer to Mr Djokovic at all.
27. Accordingly, RS [97] does not, in fact, establish that there was evidence in support of
a finding that Mr Djokovic’s presence in Australia might foster anti-vaccination
sentiment. There is no such evidence in the record. The only material that the Minster
referred to (in D [22(ii)]) is totally irrelevant.
28. RS [98] is answered by footnote 3 in the Applicant’s submissions.
E. GROUND THREE
29. RS [102] fails to consider that the Minister’s reasoning is based not only on what
Mr Djokovic’s views on vaccination are perceived to be, but further what they are.
RS [19]. Plainly Mr Djokovic’s actual views are important to the Minister, because he
relies on what he says to be a “well-known stance” (RS [39]—rather than what is
perceived to be his stance). Yet, the Minister acknowledges that he does not know what
those views are (RS [19]). This is illogical
30. As to RS [103], the Court can infer from Mr Djokovic’s statement (in the record) that
his publicly-expressed views have been taken out of context,2
that he does not accept
the depiction by the “international media” of his views on vaccination, and therefore
that he could have provided context and material to the Minister if asked. That
inference should be drawn despite the absence of affidavit evidence in this proceeding: which is readily to be explained by the shortness of available time (reasons to filing of
material in about 18 hours, final hearing less than a day later).
31. As to RS [105]–[110], Mr Djokovic’s ground is not a no-evidence ground; it is a ground
to the effect of alleging that it is a perverse, illogical, or unreasonable approach to
fact-finding to refer to and take into account only those parts of a quote that support a
conclusion to which one is proceeding, and ignore any context that detracts from that
conclusion.
ANNEXURE A
32. Annexure A is said to contain evidence showing consideration by the Minister of the
“counterargument,” or what Mr Djokovic would call the Counterfactual: which is to
say, the consequence of cancellation. But it does not. Every table item is irrelevant to
that issue. In the same order as in the tables in Annexure A:
REASONS FOR DECISION
Page Comment
13 Refers to consequences of Mr Djokovic’s presence in Australia, not to
consequences of cancellation.
15 Refers to perception of Mr Djokovic’s stance on vaccination, which is irrelevant to
the consequences of cancellation
16 Refers to consequences of Mr Djokovic’s presence in Australia, not to
consequences of cancellation.
18 Refers to consequences of Mr Djokovic’s presence in Australia, not to
consequences of cancellation.
19 Refers to consequences of Mr Djokovic’s presence in Australia, not to
consequences of cancellation.
19 Refers to the fact of unrest having occurred in the past, involves no consideration
of the future position.
SUBMISSION
26 Refers to consequences of Mr Djokovic’s presence in Australia, not to
consequences of cancellation.
ATTACHMENTS
34–35 Refers to support for Mr Djokovic remaining present in Australia and playing
tennis, not the consequences of his removal.
48 -174 Shows support for Mr Djokovic remaining present in Australia and playing tennis,
not the consequences of his removal
115–
116
This is the only evidence that is capable of bearing on the consequences of
Mr Djokovic’s removal. What is important about it, though, is precisely that the
Minister does not refer to the evidence in his reasons.
126 Refers to anti-vaccination sentiment in Australia prior and unrelated to
Mr Djokovic’s arrival, does not refer to Mr Djokovic at all
127–
130
Refers to anti-vaccination sentiment in Australia prior and unrelated to
Mr Djokovic’s arrival, does not refer to Mr Djokovic at all
33. In short, none of this evidence in relation the Counterfactual, with the exception of the
material appearing in Attachment H—to which the Minister nowhere referred.
Annexure A supports Mr Djokovic’s, rather than the Minister’s, submissions about
Ground 1.
ANNEXURE A
34. The material herein listed was doubtless in the record. The complaint in Ground 3 is
that the Minister’s approach to this material involved cherry-picking (including within
single sentences) parts that he considered to support his conclusion while ignoring
everything else.
O P HOLDENSON QC
N M WOOD SC
N DRAGOJLOVIC
J E HARTLEY
Counsel for the Applicant
HALL & WILCOX
Solicitors for the Applicant
Attribution and Source: Federal Court of Australia