News & Current Affairs

By Georgia Woodward

14.01.22

“Locked up in a room…Torture”: The Novak Djokovic saga.

Novak Djokovic came to Australia to play tennis. But first, he was detained in Australian Immigration Detention for four nights. The above words, however, are not attributed to Mr. Djokovic’s detention. They are, instead, the words of refugee, Ismail Hussein, describing his own detention at the same facility Mr. Djokovic was held.[1] Mr Hussein has allegedly been in detention for almost nine years.[2] He came to Australia for his life.

Mr. Djokovic and Mr. Hussein are just two of the hundreds of “unlawful non-citizens” detained under Australia’s mandatory detention laws.

“Unlawful non-citizens” must be detained

The Migration Act 1958 (Cth) (‘the Act”) sets out Australia’s law on mandatory detention. Anyone who is not a citizen of Australia, who arrives in Australia without a valid visa, is considered an unlawful non-citizen, and must be detained. Further, anyone who arrives in Australia with a valid visa and subsequently becomes unlawful because their visa has expired or been cancelled, must be detained.  The law makes no distinction between adults and children.

Mr. Djokovic had a visa prior to and on his immediate arrival to Australia and was therefore authorised to enter the country. However, it was later cancelled shortly after he arrived, deeming him an unlawful non-citizen, and he was sent to Immigration Detention.

Under the Act, a person can be detained indefinitely. Once detained, a person will no longer be free to leave detention and their documents and possessions will be held by authorities. Once detained in Australian Immigration Detention, a person is now in the care of the Australian Government.

In Mr. Djokovic’s case, he was able to leave detention after a Judge quashed the decision to cancel his visa. With a valid visa, Djokovic’s status was returned to lawful non-citizen, and he was released from detention.

Mr. Hussein, however, arrived in Australia by boat in 2013 after fleeing Somalia due to escalating violence.[3] With no visa, he is an unlawful non-citizen. He will remain in detention indefinitely.

Detention facilities and their conditions

Australia has three types of Immigration Detention facilities: Immigration Detention Centres, Immigration Transit Accommodation, and Alternative Places of Detention.

Mr. Djokovic was detained at Park Hotel Melbourne, an Immigration Transit Accommodation, alongside Mr. Hussein and 31 other refugees. Mr. Hussein was originally detained at an Immigration Detention Centre on Manus Island since 2013 but was transferred to Melbourne in 2019 for medical treatment. He has not yet received medical treatment.

Mr. Djokovic’s mother described the conditions and treatment her son faced while detained as “not human”.[4] She said he was having trouble sleeping and described Park Hotel as having “bugs… terrible food and accommodation”.[5]

Mr. Djokovic’s experience is not an isolated case. The Park Hotel facility has been labelled by others as “cruel”, a “coffin”, an “aquarium”, a “torture centre.[6]

In other facilities, however, it gets worse. Amin Afravi, an Ahwazi Arab from Iran, has been detained at Brisbane Immigration Transit Accommodation for more than two years after a medical transfer from Manus Island.[7] During his detention in Manus Island, he was involved in a riot in 2014 where his neck was slashed, and he received 16 stitches.

A day after Mr Afravi’s throat was cut, Iranian asylum seeker Reza Barati, 23, was murdered by two men who were working at the detention centre during the 2014 riots.[8]

Mr Afravi said if he were to be released, it would take some time for his physical and mental health to recover before he can go ahead with his life again.[9] For now, he remains in detention indefinitely.

Release from detention

Mr. Djokovic was released after Judge Anthony Kelly overturned the cancellation of Mr. Djokovic’s visa, saying the move to cancel it was “unreasonable”. This was because:[10]

  1. at 5:20am on 6 January 2022 [Mr. Djokovic] was told that he could have until 8.30am to provide comments in response to a notice of intention to consider cancellation under s 116 of the Migration Act 1958 (Cth);
  2. instead, [Mr. Djokovic]’s comments were then sought at about 6:14am.
  3. the delegate’s decision to cancel the applicant’s visa was made at 7.42am;
  4. [Mr. Djokovic] was thus denied until 8.30am to make comments;
  5. had [Mr. Djokovic] been allowed until 8:30am, he could have

consulted others and made further submissions to the delegate

about why his visa should not be cancelled.

Detainees can only be released if they are granted a visa or are deported. Refugees and asylum seekers who have arrived by boat, however, like that of Mr. Hussein, may not apply for any visa unless the Minister for Immigration considers that it would be in the public interest to allow such an application.

The Minister generally has the power to grant a visa of any class to a person who is in Immigration Detention. However, the Act provides that the Minister does not have a duty to consider whether to exercise this power, even if a request is made by a person in Immigration Detention.

Sadly, for dozens of people in detention, their release has come in the form of death, including:[11]

  • Omid Masoumail, 23, publicly set himself on fire during a UN monitoring visit in protest at his indefinite detention on Nauru. It was several hours before he was given painkillers and adequate treatment on Nauru. His transfer to Australia was delayed and he died in Brisbane hospital several days later.
  • Hamid Kehazaei, 24, had a minor infection in his leg that was not effectively treated in the Manus Island medical centre. His transfer to Australia was delayed by resistance from the Department of Immigration and by the time he was moved, he was septic. He was moved to Port Moresby, where he suffered a massive heart attack, before finally being transferred to Australia – several days after doctors first recommended his transfer – where he was declared brain dead. His life support was switched off on 5 September 2014.
  • Rakib Khan, 26, was taken to Nauru hospital after a suspected overdose. Suffered a series of heart attacks and died on the island.

Immigration Detention is harmful

Mr. Djokovic’s brief detainment has highlighted the plight many hundreds of men, women and children suffer whilst in the care, or lack thereof, of the Australian Government.

The Australian Government has kept this law of mandatory detention for all unlawful non-citizens in force since 1992. There is no doubt many hundreds, if not thousands, of people who have suffered within the confines of Australia’s Immigration Detention, leading to significant decline in mental and physical wellbeing, and even death.

Though the Novak Djokovic saga has brought significant media attention, one thing remains clear – Mr. Djokovic came to play tennis; Mr Hussein came for his life. Mr. Djokovic will play tennis; Mr. Hussein will remain detained indefinitely.  Sadly, perhaps it is because Mr. Djokovic is a person of means, who could afford top quality legal representation, that he was able take on the system and successfully challenge the decision to cancel his visa.

Immigration and Visa Assistance

If there is one thing to take away from the Novak Djokovic saga, it is that time is of the essence when it comes to questions around a person’s immigration status. Immigration Law is a difficult beast, and a person has very limited options once a visa has been cancelled or expired.

If you or someone you know is in a situation where there are concerns around being detained or deported, contact Aulich Civil Law for advice.

[1]           “‘Speak up’: Australia refugees urge Djokovic to advocate for them”, dated 8 January 2022, sourced from Aljazeera <https://www.aljazeera.com/news/2022/1/8/speak-up-australia-refugees-urge-djokovic-to-advocate-for-them>.

[2]           “Asylum seekers beg Australians: ‘Don’t forget us when Djokovic leaves’”, dated 10 January 2022, sourced from SBS News <https://www.sbs.com.au/news/asylum-seekers-beg-australians-don-t-forget-us-when-djokovic-leaves/a1705542-309c-4f99-add2-86321ad450eb>.

[3]           Ibid.

[4]           “Novak Djokovic’s dad says son’s deportation is politically motivated, hits out at Scott Morrison”, dated 7 January 2022, sourced from ABC News <https://www.abc.net.au/news/2022-01-07/novak-djokovic-dad-says-deportation-is-politically-motivated/100743158>.

[5]           Ibid.

[6]           “Park Hotel detainees housed alongside Novak Djokovic describe ‘disgusting’ and ‘cruel’ conditions”, dated 9 January 2022, sourced from ABC News <https://www.abc.net.au/news/2022-01-09/park-hotel-detainee-speak-out/100745456>.

[7]           Asylum seekers beg Australians: ‘Don’t forget us when Djokovic leaves’, above n 2.

[8]           Ibid. And  “Two men jailed for murder of asylum seeker Reza Barati”, dated 19 April 2016, sourced from SBS News <https://www.sbs.com.au/news/two-men-jailed-for-murder-of-asylum-seeker-reza-barati>.

[9]           Ibid.

[10]          Novak Djokovic v Minister for Home Affairs MLG35/2022, dated 10 January 2022, per Judge A Kelly.

[11]          “Deaths in offshore detention: the faces of the people who have died in Australia’s care”, dated 20 January 2018, sourced from The Guardian <https://www.theguardian.com/australia-news/ng-interactive/2018/jun/20/deaths-in-offshore-detention-the-faces-of-the-people-who-have-died-in-australias-care>.