Immigration is inextricably involved with air transport, particularly in the context of the currently raging pandemic.
by Dr. Ruwantissa Abeyratne in Montreal
Justice is the application of the law…Justice Antonin Scalia
In air transport terminology, an inadmissible person is “a person who is or will be refused admission to a State by its authorities”.
Unbeknownst to many, immigration and its legalities are linked to air transport more than to any other mode of transport and is addressed by the International Civil Aviation Organization which deals with requirements pertaining to passports and visas. When the author was working in the section developing machine readable travel documents at ICAO, there was discussion in the Council of ICAO as to why immigration issues formed part of the civil aviation work program of the Organization, and the answer was that ICAO had to take up the subject as no other transport entity was handling it.
Immigration is inextricably involved with air transport, particularly in the context of the currently raging pandemic. Annex 9 to the Convention on International Civil Aviation sets out basic principles for global harmonization and these principles would be relevant in the context of vaccination records and certificates required by States for the admission of passengers during the pandemic as well as its aftermath. The Annex provides that in order to minimize disruptions to the orderly operations of international civil aviation, Contracting States must cooperate with one another to promptly resolve any differences arising in the course of implementing its provisions. This is a critical provision, as States are varied in their admission requirements.
The Case of Novak Djokovic
One of the most controversial issues of public and media focus in January this year has been the deportation of Novak Djokovic - the World number one tennis star - from Melbourne, Australia, who had come to defend his title in the Australian Open Tennis Tournament which commenced on January 9th 2022. Mr. Djokovic was deported on the weekend immediately preceding the opening of the tournament, bringing an end to his hope of winning the title and making his Grand Slam wins 21, thus surpassing the top figure of 20 held so far by tennis legends Roger Federer and Rafael Nadal. Therefore, Mr. Djokovic’s expulsion was no ordinary case but an extremely high-profile issue.
Mr. Djokovic, who was an anti-vaccination proponent, had a history of having been tested positive for COVID-19 when he arrived in Melbourne. However, he had arrived under the ambivalence of dithering communications allegedly received by him from various authorities: that it was the State of Victoria that would decide on his admissibility and that he was eligible for a medical exemption that would obviate any necessity for his carrying a vaccination certificate as a prerequisite for entry into Australia under existing laws and regulations of the country. Upon arrival, the Federal Government of Australia stepped in to enforce existing regulations and denied Mr. Djokovic entry into the country, detaining him in a hotel until he appealed. Upon appeal, the court hearing Mr. Djokovic’s case declared his eligibility to enter Australia, but that decision was overruled. It then went up to the Minister who, under authority vested in him under the Migration Act of 1958 cancelled Mr. Djokovic’s visa and ordered his deportation.
Australian Immigration Minister Alex Hawke, explaining the cancellation of the visa stated that he had exercised his powers under Section 133C(3) of the Migration Act to cancel the visa held by Mr. Djokovic on health and good order grounds, on the basis that it was in the public interest to do so, adding that Mr. Djokovic posed a "health risk" to the country and that the tennis star could have riled up anti-vaccine sentiment. The Minister had also added that allowing Mr. Djokovic to stay might lead to: an increase in anti-vaccination sentiment being generated in the Australian community, leading to others refusing to become vaccinated or refusing to receive a booster vaccine; a reinforcing of the views of a minority in the Australian community who remain unvaccinated against COVID-19; people deciding to not receive a booster vaccine; unvaccinated persons becoming very unwell and/or transmitting it to others; and increased pressure placed on the Australian health system .
Mr. Djokovic’s lawyers appealed for judicial review of the Minister’s decision which was administered by three members of the Australian Supreme (Federal) Court. The lawyers argued that the Minister had erred by canceling Mr. Djokovic’s visa on the grounds that he could encourage anti-vaccination sentiment in Australia, adding that the Minister had not considered whether deporting Mr. Djokovic could also stoke such sentiment. It is noted in this context that one of the Recommendations of the Director General of WHO – particularly in the area of harmonization of policy and practice from a global perspective - is that States refrain from requiring proof of vaccination against COVID-19 for international travel as the only pathway or condition permitting international travel. This having been said, it is incontrovertible that, whether during a pandemic or under normal circumstances, the issue of inadmissibility is grounded on public safety, either from a health perspective or from a public security angle.
The Supreme Court upheld the Minister’s decision and at the time of writing the reasons for the decision were not available.
Ministerial Discretion
The Australian Immigration Minister exercised his discretion s under Section 133 C. 3. of the Migration Act of 1958 which says: “The Minister may cancel a visa held by a person if: (a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and (b) the Minister is satisfied that it would be in the public interest to cancel the visa” . Here the key words are “public interest” and there are two facts which are obvious: it is confusing as to how Mr. Djokovic could have been a threat to public interest given the high rate of vaccinations in Australia; and the Minister’s discretion is extremely wide and may not be impugned on its terms. This does not, however, mean that such discretion cannot be questioned in the courts. Professor S.A. De Smith says: “[D]iscretionary powers are frequently coupled with duties…he (the minister) is under a legal duty to determine the application one way or the other. Again, to the extent that a discretionary power is not absolute, the repository of a discretion is under a legal duty to observe certain requirements that condition the way the discretion may be exercised” . This statement has support in the statements of Lord Reid who once said : “Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the act…these are to be determined by the construing of the act as a whole and the minister is not allowed to exercise his discretion in a way that would “thwart or run counter to the policy and objects of the act”; and those of Lord Pearce: “It was for the Minister to use his discretion to promote Parliament's intention.”
Section 133 C.3 also uses the word “may” as the key to the Minister’s discretion, implying that the discretion is permissive and not imperative, although in certain circumstances, as arguably in this high profile social impact case, the discretion could be taken as imposing a duty to act. It is also arguable that the word “may” in the context of the Mr. Djokovic case could also mean “it shall be lawful” in which case the discretion of the minister would be construed as a duty coupled with power. In Julius v. Bishop of Oxford Lord Cairns said: ‘But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person on whom the power is reposed, to exercise that power when called upon to do so”.
One could also glean from a 19th century Australian case concerning the right of a Chinese alien to enter the Colony of Victoria after arriving on a ship, and which was denied by the customs authorities, where the Judicial Committee of the Privy Council held that it had no jurisdiction to render an opinion or judgment without having sufficient knowledge of the national nuances applicable to the case.
For purposes of argumentation, and academic inquiry, one could discuss ministerial discretion influenced by preconceived notions, particularly in the context of the fact that the immigration minister in the Mr. Djokovic case had anticipated a surge of anti-vaccination sentiment in Australia, had Mr. Djokovic been allowed to remain and compete in the tournament. In this context it is relevant to note the argument of Mr. Djokovic’s lawyers - that deporting Mr. Djokovic could also have sparked protests that could be detrimental to public interest. In the celebrated Stevenage case where the plaintiff questioned the decision of the Minister of Town and Country Planning to designate lands under the New Towns Act of 1946 as an area to be developed as a new town, on the basis that the Minister thought, based on a report received, that it would be beneficial to the national interest, the court held that such a decision should be made consequent upon diligent consultations with key stakeholders and unbiased decisions reached after meticulous consideration.
The Court further held that “[T]he minister’s decision-making function was not of a judicial or quasi-judicial character: the purpose of the report was to provide him with information, and the only question was whether he had genuinely considered the report and the objections when they were submitted to him. There is no universal rule requiring that decision-makers must possess the independence and impartiality required of a court or tribunal: it is necessary to take account of the constitutional position of the decision-maker, and of the nature of the decision”.
The issue is now concluded, and Mr. Djokovic is back in his home State. To the question as to whether the Minister could have chosen not to exercise his authority under the Migration Act, It could be argued that if a person is entrusted with certain powers and duties by the Legislature, explicitly or impliedly for public purposes, that person cannot divest himself of such powers and duties. That would be a dereliction of office.
Of course, it could also be argued that the Minister could have chosen not to exercise his discretion and let Mr. Djokovic stay. This is the beauty of the law.
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