Foreword: As an 18-year-old lawyer, the author of this article has long been concerned about sports legal matters, not long ago, Deyo and the Japanese ASICS company cooperated with the brand encountered a trademark infringement lawsuit in South Korea, and finally ASICS won the lawsuit. Deyo in the past three years can be said to be a storm, on January 16, the Australian Federal Court rejected the Djokovic indictment, Deyo's dream shattered the Australian Open, which is undoubtedly the most influential ruling in the history of world tennis, let us review the process of the case together.
I. Review of the facts of the German visa case
Arrived in Australia on 5 January 2022. Upon arrival, he was taken to an immigration checkpoint and interrogated by immigration officials until the early hours of January 6, 2022.
On 6 January 2022, THE MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (herein translates collectively as "Ministry of the Interior"), a representative cancelled his visa under Section 116(1)(e)(i) of the Immigration Act 1958.
(e) the presence of its holder in Australia is or may be, or may be, a risk to:
(i) the health, safety or good order of the Australian community or part of the Australian community ...
On January 6, 2022, Deyo filed a lawsuit with the Federal Circuit and Family Court (2nd Division, or FCFC) in an attempt to revoke its decision to cancel its visa on the grounds that the visa officer's enforcement proceedings were illegal, and that the FCFC judge granted Djokovic provisional relief that night, scheduled for a final hearing scheduled to begin on Monday, January 10, 2022.
On January 10, the focus of the hearing was the focus of the dispute and the law stipulated:
Home Office counsel also acknowledged that it was legally unreasonable for a Home Office representative to cancel a visa, and the Federal Circuit and Family Court ordered the cancellation of the Home Office representative's decision.
Rationale: This is a power that cannot be exercised by a representative of the Ministry of the Interior, but can only be considered and exercised by the Minister personally under section 133C(3) of the Act.
Legal basis: The provisions of sections 116(1)(e)(i) of the Immigration Act 1958 133C(3) and (4). as follows:
The Minister may cancel a visa held by a person in the following circumstances:
(a) The Minister is satisfied that there are grounds for cancellation of the visa under section 116; and
(b) The Minister is satisfied that it is in the public interest to cancel the visa.
Accordingly, Deyo's lawyer provided a plea that was not the exercise of power by the minister, and the visa officer made a 10-page statement.
Deyo received FCFC interim relief support, due to the start of the 17th Australian Open, there was no time to prepare a written application, Deyo's lawyer signed a commitment to submit the documents as soon as possible, on this basis, the FCFC judge approved the oral application, canceled the first decision of the Home Office, and Djokovic also made a commitment to damages.
Visa officials have also pledged not to deport Djokovic until the application for judicial review is heard and confirmed.
The FCFC subsequently referred the proceedings to the Federal Court of Australia under section 153(1) of the Australian Federal Circuit and Family Courts Act 2021, which has jurisdiction over the case under section 32AD(3) of the Commonwealth Court of Australia Act 1976 (Cth).
After the hearing obtained interim relief, the time was very tight, and Deyo and his lawyer submitted a number of applications and 20 pieces of evidence on the 14th and 15th, and the document was nearly 300 pages long.
Figure: File material
The Federal Court was also extremely efficient in guaranteeing covenant rights, and the Chief Justice instructed the court to sit on Sunday, January 16.
2. Applicable law and relevant jurisprudence
1. Applicable Law
Court of The Commonwealth of Australia circuit and family law 153, 153(1)
Australian Federal Court Act 20(1A), 32AD, 32AD(3) 1976
1958年移民法116, 116(1)(e)(i), 133C, 133C(3), 133C(3)(a), 133C(3)(b), 133C(4), 476, 476A
Amendments to the Immigration Act of 2014
2. The lawyers of the Ministry of the Interior also cited a large number of summaries of similar case views and sufficient evidence to make a 32-page defense.
3. The focus of the dispute between the two parties
(1) Whether the right of the Minister of the Interior to cancel the visa is properly exercised on behalf of the Representative, and the subjective and objective criteria for visa officers and representatives
a) The Covenant poses a threat to the health, safety or good order of the Australian community;
b) Whether the dejointed commitment to compensation is reasonable or cannot be achieved on appropriate material or lawful grounds.
2. Whether the "public interest" on which the cancellation of the visa is based is established
4. The process of trial and debate
1. The main points put forward by Deyo lawyers:
Rights under Section 133C(3) of the Immigration Act 1958 were challenged, the procedure was unlawful and Deyo had the right to express an opinion before a decision was made.
The choice to be decided under section 133C(3) should take into account both exceptional circumstances and the public interest in resolving the matter expeditiously, considering the possibility of speedy cancellation of the visa. Such public interests include:
(a) the Australian Open is about to begin;
(b) The prospect of challenging the decision to cancel the visa through litigation and, if possible, whether it would be appropriate for the court to have time to hear the arguments and take a decision immediately;
(c) Deyo is in the community and he may pose a threat to health and good order;
2. The main views of the Ministry of the Interior officials' reply:
1) Has allowed Deyo to fully appeal and express his opinion;
2) The Australian community is experiencing a large and rising number of CASES of COVID-19 and there is an active, outspoken minority in the community who opposes vaccination (or mandatory vaccination) against COVID-19;
3) Deyo has not yet been vaccinated against COVID-19, as promised in Deyo's commitment document for his trip to Australia;
4) Mr. DJOKOVIC also provided a copy of his COVID-19 test results, namely a positive polymerase chain reaction (PCR) test (result dated December 16, 2021), a negative PCR test (result dated December 22, 2021) and a positive SARS-COV-2 RBD IgG test, which seems to confirm that Mr. DJOKOVIC was identified as a recent or previous infection (result dated December 23, 2021);
5) Djokovic also provided Associate Professor Verica Jovanovic's "testimony" of January 12, 2022, stating that the positive test results of Djokovic's sample on December 16, 2021 and the subsequent negative test results due on December 22, 2021, were "legitimate." Associate Professor Sor Jovanovic also said that "the test system is reliable and accurate, and the test results of Mr. Novak Djokovic are legitimate";
6) I received a letter from Tennis Australia signed by Dr Carolyn Broderick and reviewed by a panel of independent expert medical examiners. I take into account that, upon receiving this letter, Mr DJOKOVIC considers that he has a valid medical exemption to come to Australia and that he will be entitled to remain in Australia thereafter. In exercising my discretion as to whether or not to cancel, I give this factor a certain weight;
7) Notwithstanding the above assumptions and acknowledging that Djokovic has a negligible personal risk of spreading COVID-19 to others;
But I still think his presence could pose a risk to the health of the Australian community.
8) Because of this, I believe that Mr DJOKOVIC's presence in Australia may pose a health risk to the Australian community as his presence in Australia may fuel anti-vaccination sentiment;
9) The officials of the Ministry of the Interior also presented evidence and views against the Deyo:
a) On December 18, 2021, Djokovic deliberately participated in an interview and filming with L'Equipe. He said he made sure he practiced social distancing and wore a mask, but did not wear a mask when taking pictures.
b) Djokovic's high-profile status and status as a role model for the sporting world and the wider community, and his continued presence in Australia could cause similar disregard for prevention requirements after receiving a positive COVID-19 test in Australia. In particular, his actions may encourage or influence others to emulate his previous behavior and failure to comply with appropriate public health measures after testing positive for COVID-19, which in itself can lead to the spread of the disease and pose a serious threat to his health and others. I think it's another factor that puts the health of Communities in Australia at risk.
c) Djokovic is a high-profile man with role modelship in sport and the wider community, not only has Djokovic not been vaccinated, but it is openly and widely known that his opposition to vaccination in Australia's presuppositions could fuel anti-vaccination sentiment. He has been or may have been involved in anti-vaccination groups in civil unrest and unrest.
3. Deyo lawyers defend their views
1) The visa officer did not logically, unreasonablely or unreasonably reached the level of satisfaction he or she was reasonably satisfied with and unreasonably exercised the discretion to cancel the visa, because the visa officer did not consider whether the cancellation of Djokovic's visa itself would in itself fuel anti-vaccination sentiment in Australia.
2) The reasoning of the visa officer, under this central premise, it involves an unreasonable, illogical or unreasonable method to allegedly form any one or both of the necessary states of satisfaction in sections 133C(3)(a) and (b), or to exercise discretion:
(1) Address the prospects of Djokovic's presence in Australia (due to the decision not to cancel) "fostering anti-vaccination sentiment"; however
(2) The prospect of not addressing the binary alternative outcome (due to the cancellation decision of the visa officer's final choice), namely Djokovic's detention and expulsion from Australia and the attraction of the consequent obstacles to re-entry into "promoting anti-vaccination sentiment", including emotions that may at least not be deeper or broader.
(3) If the visa is cancelled and the previous visa holder is expelled from Australia, then the promotion of demonstrations may pose a greater risk to good order or health, but this is a statutory investigation into the risk posed by the visa holder's presence in Australia. Visa officers must logically examine both assumptions, a perception that is merely intended to force visa officers to take a way to exercise discretion.
(4) The Decision of the Home Affairs Visa Officer to Cancel Djokovic occurred the day after his arrival in Australia after the community occurred. The visa officer also said: "I also admit that there have been some riots so late that it is impossible to avoid it." In my opinion, this is contrary to the cancellation of the public interest".
At the end of the trial on the 16th, the judge issued a decision to reject the dejo application, and the two parties negotiated the fee, and the reasons for the rejection will be announced separately.
V. Author's Comments
1) There is a hypothesis
Through complaints, hearings, debates and proceedings by Deyo and the consular officer in just ten days, a large amount of information was formed. Putting aside the legal process, Djokovic, Federer and Nadal have been dominating the three grand slams of Australia, Vancouver and France for a long time, but in the big three, Djokovic has caused more controversy in the tennis world than other top players, his personality is angular, dare to think and dare to say, so it is easy to offend the fans of other players, this time Djokovic refused to vaccinate and also expressed some of his own views, which is also a confrontation with the Australian government.
Suppose this incident had occurred with another player, or another visa officer, that it might have been possible, because the Home Office Minister, when rejecting the Visa, subjectively did take into account the Facto's status as the world number one and the impact of his words and deeds on Australia's vaccination.
2, the temperature of the law
The Decision Of the Court mentions that the Court has no doubt that, in matters of a high degree of public affairs, during the four days that the Ministry of the Interior considered the matter and finalized and presented the reasons, the presentation of reasons was given with care and consideration, and the theme of encouraging and imitating sports heroes and idols permeated the reasons for satisfaction with health and good order and the public interest.
As the Court said at the end of Sunday's debate, the Court was and is grateful to all counsel on both sides for preparing comprehensive, erudite and clear statements under very tight time constraints, as well as for the economic and dispatchy nature of the oral arguments, which greatly assisted the Court in dealing with the matter in a timely manner.
In the Djokovic visa case, it seems that neither side is right or wrong, but in general, the home office provides a sufficient jurisprudence, showing a lot of evidence against Djokovic, mainly identifying that Deyo, as one of the most influential players in the tennis world, has been infected with the new crown virus and has shown opposition to vaccination, which may encourage australia's trend against vaccination, thus affecting the public interest.
As mentioned above, Australian law does not have specific provisions, but the incident combined visa laws and epidemic prevention and control policies, which is undoubtedly a major precedent in the history of major sports events on the balance between private rights and public interests. In any one country, combined with specific national conditions and laws, there may not be different results, so this case has important reference value for promoting national sports legislation, especially the "public interest" refusal clause in visa laws.
3. Legal issues of sports BIG IP
1) Benefits of The Sponsor:
Messi, Federer, Djokovic, Tiger Woods, Jordan, the commercial value of these sports BIG IP itself far exceeds the athletes' own bonuses, so there are professional teams to carry out global business operations, docking, and managing business cooperation. In particular, the agreement between Djokovic and the sponsor may contain terms for major events such as the "Four Grand Slams". For example, in the 2020 US Open, Deyo mistakenly injured the division line and was fined to retire, and now its dominant Australian Open, the future of the next three years is uncertain because of the visa case, commercial sponsorship contracts, personal value will also be affected.
2) Brand Cooperation:
The influence of sports big IP on sports brands is huge, almost every big star is a brand, and sports companies cooperate, Djokovic and Japan Asux company cooperation is very successful, mainly involving celebrity name rights (such as "Jordan"), trademarks, advertising endorsements and other brand cooperation, mainly IP intellectual property operation, just as the Korean "NOVAK" trademark owner sued Djokovic and Assyst Company to infringe the trademark right, and the Chinese Jordan case is very similar, NOVAK, as the English surname of Deyo, was registered as a trademark in Korea, which triggered a lawsuit, and we will share the Deyo Korean trademark lawsuit in another article.
3) The impact of the Australian Open visa case on the Deyo:
a) Direct loss of Deyo.
According to the information disclosed by the media, Deyo spent about $500,000 in the case, of which the lawyer's fee, according to the hourly fee, 10 days of intensive response, the legal team according to the input of 6 (four litigation lawyers and two assistant lawyers), according to the hourly work of 500-600 US dollars, working 8-10 hours a day, the legal fee is about 250,000-300,000 yuan, including the compensation that Deyo needs to bear, which may include compensation in commercial contracts, and compensation promised by the government.
b) Consequential losses of the Covenant.
Champion: about 2.2 million US dollars; runner-up: about 1.15 million; the final four is about 650,000 US dollars; the quarterfinals are about 530,000 US dollars, if Deyo successfully qualifies at the Australian Open, from the current level of promoted players, the chance of winning the runner-up is already very high, if it is smooth, you can win the championship, then Deyo's prize money loss is a good estimate.
Deyo was denied a visa at the Australian Open, causing follow-up commercial value, business cooperation can be expected losses, temporarily difficult to estimate, but also to consider other top players such as Nadal, Xiao Ziwei, Medvedev, etc. in the subsequent season rankings, of course, but also with the player's personal image, the culture of the country and region where they are located. The factors that sponsors and business investors assess the commercial value of players are also multifaceted.
c) Can the Australian Government recover the loss?
Despite media references to Deyo suing the Australian government for $4.5 million. However, judging from the final public judgment of the federal court, the lawyers of the Ministry of the Interior have sorted out the views of the past precedents on the law applied to the law in this case. Whether deyo will sue the Australian government for compensation, based on the evidence of the losses listed above and overturn the federal court decision, is difficult, and in the end, Deyo may not actually sue.
6. The two sides play against lawyers
Deyo appointed a lawyer
Djokovic commissioned Hall & Wilcox, an established Australian law firm with more than 850 lawyers, led by the head of the firm, Natalie Bannister, personally led the case. Four other lawyers appeared in federal court, Mr P Holdenson QC, Mr N Wood SC, Mr N Dragojlovic, and Mr J Hartley
Counsel appointed by the Ministry of the Interior
The Home Office commissioned Australia's largest government-serving law firm, Augustian Government Solicitor, with more than 400 lawyers, from public documents in the Federal Court, and its four lawyers, Mr S Lloyd SC, Mr C Tran, Ms N Wootton and Ms J Nikolic, were also very skilled, preparing a large number of precedents and evidence against Djokovic.
(Source: Tennis House Author: Tang Shunliang)
Mr. Tang Shunliang has nearly 20 years of tennis experience, loves tennis, has a considerable level of tennis theory, and is also a tennis coach. He has more than ten years of working experience in large enterprises, senior economist, published dozens of professional articles, participated in the editing of two books, and is good at providing professional compliance and risk control solutions for enterprises from the perspective of management. In the field of intellectual property, he has represented a large number of influential cases.
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