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The Roar

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Joined April 2019

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Nothing much.

What comes next for Nick Kyrgios?

Sheek

I think you are right, broadly. My only quibble is that “the Feds” in question are the every day ABF people on the frontline who give a traveller’s documentation a quick once over. Clearly a few AO types had already got through with the magic words “medical exemption” on them. ND’s instagram post raised a red flag for someone and I’m prepared to bet it was a public servant and not a Minister.

Djokovic deserved to play the Australian Open

It’s possible that ND is putting the frighteners onto TA.

Djokovic in talks to sue government as reasons for deportation finally revealed

That 93% is for over 16s. It’s 75% for kids 11-16. Only 14% of kids under 11 have had a first dose.

'Extremely disappointed' Djokovic reacts to last-ditch bid failure, imminent deportation

Winston: if you read Hawke’s reasons carefully you’ll find that he (Hawke) did not concede what you say he did but made a series of assumptions.

'Extremely disappointed' Djokovic reacts to last-ditch bid failure, imminent deportation

There will be many people thinking that Hawke said that ND’s medical exemption was valid. That is not right – Hawke merely said that he was wasn’t going to dig into it because it wasn’t relevant for the purposes of his decision.

The conclusion should be, I think, that the Commonwealth policy has always been based on broad public health policy rather than whether a covid infection is a protection.

'Extremely disappointed' Djokovic reacts to last-ditch bid failure, imminent deportation

If you google “federal court djokovic” you’ll find a link to all the Federal Court documents, the latest being Kelly’s order last night. Moving it away from the Federal Circuit Court means that Kelly J has been given the heave ho.

DECISION: Immigration Minister Alex Hawke cancels Novak Djokovic's visa, Serb begins legal challenge

The Djoker legal team is after a quick hearing.

I’m willing to bet that the Commonwealth will insist on witnesses such as Craig Tiley. the TA Chief Medical Officer, the TA expert panel, the Vic expert panel, etc to attest to what they were told by the Commonwealth and the timing.

All that – if it happens – will slow things down.

DECISION: Immigration Minister Alex Hawke cancels Novak Djokovic's visa, Serb begins legal challenge

Djoker’s lawyers would need to convince the judge that the TA did follow ATAGI guidelines.

The problem with that is the Commonwealth gave TA unambiguous advice about what the guidelines meant on 18 an9 November.

TA never tried to sort it out. They were obliged to in my opinion.

Enter the Djoker: Anatomy of a shambles

Kelly J runs the risk – on the basis of his manner and comments – of being invited to recuse himself from the next hearing on the basis of apprehended bias.

Enter the Djoker: Anatomy of a shambles

Not a lawyer James but familiar with administrative law.

They’ll hope to convince a judge that the TA and Vic interpretation is right. Mind you strange things can come out of left field.

I think what Kelly was saying was about the appeals process. He did seem to think an exemption was an exemption though.

Enter the Djoker: Anatomy of a shambles

I agree that where the response should have been on a 0 to 100 scale is debatable, but I’m not sure that it follows that it has revealed a nasty side to the national psyche.

Enter the Djoker: Anatomy of a shambles

James

If ND gets a “no” and lodges an injunction it will be heard the the same court and likely the same judge. The grounds are relatively narrow (I’ve copied the stuff below from the Federal Court website). You’ll notice that they are mostly about procedural fairness, which is why Hawke it’s taking longer than people expect.

ND’s legal team will launch a blizzard of objections under every one of these headings, but their central focus will be to establish that the Minister interpreted/applied the law. This will likely focus on legal interpretation/application of the ATAGI advice. Longwinded, but I hope it helps.

What the Court cannot do in migration proceedings

In hearing a migration case, the Federal Court cannot decide if a visa should be granted or cancelled. Whether the Court would have made a different decision to the original decision-maker is not relevant to the Court’s determination.

What the Court can do in migration proceedings

The Federal Court generally has the same jurisdiction as the High Court of Australia under paragraph 75(v) of the Commonwealth Constitution external link. This means that the Court can consider whether a legal mistake has been made by the decision-maker and adjudge “questions of law” (under ss 43(3) or 45(2) of the AAT Act) or whether there has been a “jurisdictional error”. Examples of jurisdictional errors include the decision-maker:

– not adopting a fair process in making the decision;
– identifying a wrong issue;
– ignoring materials they were required to look at;
– relying on materials they should not have looked at;
– incorrectly interpreting or applying the law;
– reaching a decision that is unreasonable in the legal sense;
– making a decision for which there was no evidence, or that was not reasonably open on the materials.

Enter the Djoker: Anatomy of a shambles

Sheek: It is not without irony that the Djoker’s legal guys will have to swing from procedural flaws being a fundamental denial of a chap’s human rights to just a human error by the chap’s “support team”.

Enter the Djoker: Anatomy of a shambles

It will be interesting to see how that plays out.

Enter the Djoker: Anatomy of a shambles

James: one reading is that TA went exemption shopping.

Enter the Djoker: Anatomy of a shambles

Sheek/Joe

That does strike me as spin. On the other hand Kelly is obviously aware of what is at stake/the time constraints and has pulled out all stops to hold a quick hearing – commendable because the courts usually appear to dawdle along…

Enter the Djoker: Anatomy of a shambles

Marcel

The Commonwealth conceded because it agreed that it was unreasonable for the ABF decision maker to withdraw the agreement to extra time after it had been promised. So it agreed there had been a procedural flaw. You can also click on the Consent Order in the article for the precise words.

Enter the Djoker: Anatomy of a shambles

When the court resumed at around 5 that afternoon Kelly J made the Consent Order, declared himself functus officio (done and dusted). He then made it clear to both parties that he expected to be kept in the loop about any future developments in advance. In effect he said there’s no way that any other judge could get up to speed if there was another adverse decision and a further injunction or stay.

Enter the Djoker: Anatomy of a shambles

Sheek

Or a product of people sticking to their values! If I can put it that way.

Enter the Djoker: Anatomy of a shambles

I don’t know of that letter. It might be the one on 18 November from the head of the National Covid-19 Taskforce, Lisa Schofield. It’s part of the Commonwealth Health Dept.

I feel sorry for the ABF staff too. The crux of it is that they agreed to extra time so that he could contact X,Y, Z and then reneged for reasons that were not explained very clearly.

Enter the Djoker: Anatomy of a shambles

Our rough translations tally up.

The reason it’s taking time is that the Feds will be considering the position carefully (and being seen to do so). They’ll need to consult Djoker and possibly the Federal Court.

The rule of thumb is that quick “no” decisions nearly always draw the crabs (a sign of a closed mind, bias, etc). Quick “yes” decisions almost never do. Strange, but true.

Enter the Djoker: Anatomy of a shambles

The transcript suggests that that’s what happened – the Border Force guys couldn’t see any use in ND talking to TA, his lawyers, etc.

One learning is that procedural fairness is an important part of administrative decision making. Once you’ve given someone an undertaking (in this case agreeing to provide more time) you must honour it.

Enter the Djoker: Anatomy of a shambles

According to ND his Border Force interview transcript his “agent” did the paperwork and he was under strict instructions to go through Tennis Australia. It’s not clear who his agent is, but he was in contact at various points in the interview.

You are supposed to formally appoint an “authorised recipient”, which includes a sponsor or nominator of a visa applicant. Tennis Australia would therefore be able to be appointed.

The bottom line is that the applicant is ultimately responsible for the accuracy of the paperwork.

[Tiley might be in strife for other reasons.]

Enter the Djoker: Anatomy of a shambles

That is an important point. He would not have been able to come under either the TA or ATAGI medical exemption rules. It’s worth noting that TA’s own cut off for players to apply for exemption was 10 December, so TA made an exception for him.

I agree that the various factions are unlikely to be swayed. But the better approach is to discuss the caper from the perspective of how the rules might be changed rather than what they are.

Enter the Djoker: Anatomy of a shambles

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