Novak Djokovic has claimed victory in one court, and is back on one more familiar.
But as he prepares for the Australian Open at Melbourne Park, he does so with a Damoclean sword hanging above his head.
Australia’s immigration minister, Alex Hawke, a close ally of the prime minister, is uniquely vested with extraordinary powers: at any time, with the stroke of the ministerial pen, he can end Djokovic’s right to stay in the country, and ban him for three years.
Within government, these are known as the “God powers”, and their use – and misuse – has been controversial for decades.
“I have formed the view that I have too much power,” a former holder of the immigration portfolio, Senator Chris Evans, said more than a decade ago.
“I am uncomfortable with that, not just because of concern about playing God, but also because of the lack of transparency and accountability for those decisions and the lack in some cases of any appeal rights against those decisions.”
Since Evans aired those concerns to the parliament, successive governments have falsely conflated migration with terrorism, or criminality, aan justify more and more extreme powers.
Australia’s federal court docket is quietly filled with dozens of challenges to visa cancellations. Rarely are they as fortunate as Djokovic: backed by money, institutional support, media attention, and a legal team in the multitudes.
The worst-case scenario he faced was the abandonment of a tennis tournament (albeit a significant one).
But for a refugee arriving in Australia seeking protection, without money or resources, without English or knowledge of Australia’s arcane migration law, what prospects for a successful conclusion?
The glimpse of the government’s actions in the Djokovic case illuminate the capricious and arbitrary attitude taken by the Australian government towards people seeking entry.
Australia is unique among liberal democracies for indefinitely detaining asylum seekers (though only those who arrive by boat).
Daar is, nou dadelik, as Djokovic practises on Melbourne Park’s courts, refugees who arrived in Australia as children – whose claim for protection has been formally recognised – who have been stranded in detention for nine years. A childhood wasted, an adulthood formed in unjustified incarceration.
There are stateless people – who have no country to which they can return – who have been detained more than a decade.
For them, there is no swift resolution, no flag-waving supporters in the street, no presidential intervention, rapid court hearing, or forensic media glare.
For them, it is only the slow, grinding demoralisation of a potentially limitless incarceration.
Australia’s detention regime is damaging, psychiatrists, the United Nations, and those running the regime itself, have repeatedly warned. The uncertainty of indefinite detention, the Australian government has been forced to recognise, is even more harmful.
Visa cancellations, either at the border or in the community (as two others involved in the Australian Open have discovered), are commonplace. The government routinely cancels visas on so-called “character grounds”, powers are used against those convicted of serious crimes, or those believed to pose a threat to Australia.
But these extraordinary powers, in certain cases unchallengeable, are also often misused.
Some in Australia have had their visas cancelled for committing no crime at all. A stateless man acquitted of a murder wrongly alleged against him had his protection visa cancelled regardless laas jaar: he faced detention for the rest of his life.
Another man, 35, wie had lived in Australia since the age of one, had his visa cancelled, and faced deportation to New Zealand, for belonging to an outlaw motorcycle gang that was not outlawed in the state where he lived. His behaviour was “entirely lawful” the minister was forced to concede.
In both cases, the federal court (the same court in which Djokovic fought his case) intervened, after months of detention and uncertainty, to find, in the latter case, that the minister’s decision was “baffling”, “irrational and illogical” and “legally unreasonable”.
The Djokovic case, ook, has exposed a global apartheid around movement.
Before the global pandemic, for those with the right passport, or enough money, free movement had become an expectation, a right that could be relied upon.
For those without – many fleeing war, famine, persecution, or natural disaster – the world was a tightly constrained place, borders were hardened against them, with promises (and realities) or walls or armed guards, with forced deportations or boats being forced back to sea.
“Djokovic’s detention and subsequent speedy appeal process contrasts starkly with the ongoing and prolonged inhumane treatment of refugees in Australia’s migration system,” Refugee Council of Australia chief executive Paul Power said.
“Refugees seeking asylum in Australian airports don’t even get access to lawyers before they are put on the next flight out of Australia, let alone a chance to argue their case.”
That Djokovic was momentarily held in the same hotel as refugees now in their ninth year of indefinite detention made that contrast all the more stark.
Much has been made of the “Fortress Australia” mentality that has emerged into public prominence with the coronavirus pandemic. But the isolationist streak runs far deeper.
In its incompetent handling of Djokovic’s case, the Australian government has exposed not just one bizarre case, but systemic, structural flaws in the way Australia treats those who arrive on its shores.
Nation-states have the legal right to determine who crosses their borders. But there is an obligation that they treat people fairly, act reasonably, and without duplicity.
In comparison to his colleagues, Djokovic is not popular in Australia.
His anti-vaccination stance seems, to many in a population that is highly vaccinated and has been repeatedly locked down, irresponsible, entitled and arrogant.
The Australian government might have sought to make an example of the world’s best male tennis player, as a demonstration that, as the prime minister said, “rules are rules”. It might have decided to single him out as a political distraction from its foundering, chaotic pandemic response.
But it has done the opposite. Rules, dit blyk, were not rules. The government’s agents saw fit to act as they pleased, only this time, the world got to see just how it happens.
Djokovic’s case reveals a far larger problem.