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Australia, Federal Court of Australia, 16 January 2022, VID 18 of 2022‎

Case overview

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Country
Australia
Case ID
VID 18 of 2022‎
Decision date
16 January 2022
Deciding body (English)
Federal Court of Australia
Type of body
Court
Type of Court (material scope)
Federal Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
1st Instance
Area
Immigration and asylum
Further areas addressed
Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Claim inadmissible or rejected
Link to the full text of the decision
Decision_EN available on www.austlii.edu.au

Case analisys

General Summary

The Applicant was granted a temporary visa on 18 November 2021 ‎for the purpose of competing in the Australian Open Tennis ‎Championship. When he arrived in Australia on 5 January 2022, he ‎was questioned by officers from the Department of Home Affairs ‎overnight and his visa was cancelled under section 116(1)(e)(i) of ‎the Migration Act 1958 (Cth) (“the Act”) on 6 January 2022. The ‎provision conferred power on the Minister to cancel a visa on health ‎and good order grounds. ‎

The Applicant commenced proceedings in the Federal Court seeking ‎a determination that the decision to cancel his visa was ‎unreasonable. The Applicant was granted interim relief and the final ‎hearing was heard on 10 January 2022. At the hearing, counsel for ‎the Minister of Home Affairs conceded that the process that led to ‎the cancellation of the Applicant’s visa was legally unreasonable due ‎to a denial of procedural fairness. The Court made an order quashing ‎the cancellation decision.‎

On 14 January 2022, the Respondent cancelled the Applicant’s ‎temporary visa pursuant to section 133C(3) of the Act, as the ‎Minister was satisfied that there were grounds for cancellation and ‎was satisfied that it would be in the public interest to do so. The ‎Applicant sought interim relief, which was granted. At the hearing ‎on 16 January 2022, the Court determined that the powers conferred ‎under the Act required that the Minister be satisfied that the ‎Applicant’s presence is or may be a risk pursuant to section 116(1), ‎not that he was in fact a risk. Further, the Applicant had not ‎established that the Minister’s exercise of power under the Act was ‎illogical, irrational, unreasonable or unlawful. The application to ‎overturn the decision to cancel the Applicant’s visa was dismissed ‎and he was deported.‎

Facts of the case

The Applicant arrived in Australia on 5 January 2022. He had made ‎an application for and had been granted a temporary activity visa ‎before arriving. The Applicant was unvaccinated for COVID-19 and ‎had sought a medical exemption from Tennis Australia to compete in ‎the Australian Open.‎

On 6 January 2022, a delegate of the Minister for Home Affairs ‎cancelled the Applicant’s visa on the basis that the Applicant may be ‎a risk to the health, safety and good order of the Australian ‎Community pursuant to section 116(1)(e)(i) of the Act. The ‎Applicant was successful in seeking interim relief and on 10 January ‎the Court overturned the decision to cancel the Applicant’s visa, on ‎the basis that he had been denied procedural fairness.‎

On 14 January 2022, the Respondent cancelled the Applicant’s ‎temporary visa under section 133C(3) of Act which provides that the ‎Minister has the power to cancel a visa if reasons under section 116 ‎of the Act exist and that the Minister is satisfied that it would be in ‎the public interest to cancel the visa. ‎

The Court was satisfied that the Respondent had met the legislative ‎requirements and the application to overturn the decision to cancel ‎the Applicant’s visa was dismissed and he was deported. ‎

Type of measure challenged
Federal government measure
Measures, actions, remedies claimed
The Applicant sought a reversal of the decision to cancel his ‎temporary visa and deport him.‎
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Urgency
Conclusions of the deciding body

The Respondent’s decision to cancel the Applicant’s visa was ‎affirmed.‎

Reasoning of the deciding body

The Court examined the powers set out under sections 116(1)(e)(i) ‎and 133C(3) of the Act and the discretion conferred under those ‎sections where there was a risk to health, safety or good order of the ‎Australian community or a segment of it. The Respondent was not ‎required to prove that it was a fact that the Applicant posed a risk, ‎but rather that the Minister was satisfied that the Applicant’s ‎presence in Australia may, would or might pose such a risk. In ‎reviewing the Respondent’s decision, the Court had to consider ‎whether the Respondent could have reasonably reached the decision ‎on proper material or lawful grounds. ‎

The Respondent argued that the Applicant was present in Australia at ‎a time of rising COVID-19 cases and when an active minority in the ‎community was publicly opposing compulsory COVID-19 ‎vaccination. Despite not being vaccinated and having recently ‎contracted COVID-19, the parties agreed that the Applicant posed a ‎‎“negligible” risk of infection to the community. It was also accepted ‎that having been provided with a medical exemption from Tennis ‎Australia, the Applicant believed that he would be entitled to come ‎to and stay in Australia. ‎

The Court found that it was open to the Respondent to conclude that ‎the Applicant’s stance against vaccination was well known. Further, ‎it was open for the Respondent to infer that the Applicant had chosen ‎not to be vaccinated as vaccinations had been readily available for ‎over a year by the time he travelled to Australia.‎

The Court rejected the Applicant’s argument that it was not open to ‎the Respondent to come to the conclusion that he would foster anti-‎vaccination sentiment in Australia. At the time of the case, anti-‎vaccination groups had been portraying the Applicant as an icon of ‎freedom of choice with respect to vaccinations. ‎

The Court rejected the Applicant’s contention that the Respondent ‎had exercised its power under the Act illogically, irrationally and ‎unreasonably. The Parliament had made it clear in the Act that the ‎Minister may cancel a visa if they were satisfied that the presence of ‎a visa holder in Australia may be a risk to health or good order. The ‎complaints made in the proceedings did not lead to a conclusion that ‎the discretion was unlawfully exercised. ‎

Implementation of the ruling

The Applicant was deported.‎

Balancing Fundamental Rights and Fundamental Freedoms

Fundamental Right(s) involved
  • Freedom of movement of people, goods and capital
  • Bodily autonomy/freedom of choice
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
  • Freedom of movement, Art. 13, Universal Declaration of Human ‎Rights
  • Bodily autonomy/freedom of choice
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
  • Health v. freedom of movement of persons
  • Health v. Bodily autonomy/freedom of choice
General principle applied
Reasonableness
Balancing techniques and principles (proportionality, reasonableness, others)

The Court made clear that it was neither going to consider the merits ‎of the Respondent’s decision nor seeking to remake the decision. ‎While the Respondent’s power was exercised on the basis that the ‎Minister was satisfied that the presence of the Applicant in Australia ‎posed a risk to health, safety or good order and that it was in the ‎public interest for the visa to be cancelled, the Court considered ‎whether it was illogical, irrational or legally unreasonable to do so. ‎The Court concluded that there were sufficient grounds for the ‎Respondent to cancel the Applicant’s visa. Further, the Parliament ‎had intended for the discretion to be exercised in accordance with ‎legal reasonableness. It could not be concluded that the exercise of ‎discretion by the Respondent was made unlawfully.‎

Authors of the case note
  • Solicitor Nicole Kroesche, Research Assistant‎, Australian Centre for Health Law Research,‎ Queensland University of Technology‎
  • Lecturer Muhammad Zaheer Abbas, Chief Investigator, Australian Centre for Health Law Research,‎ Queensland University of Technology‎
Case identified by
Lecturer Muhammad Zaheer Abbas, Chief Investigator, Australian Centre for Health Law Research,‎ Queensland University of Technology‎
Published by Chiara Naddeo on 11 May 2022

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