Novak Djokovic has won his visa battle with the Australian government – paving the way for him to compete at the Australian Open in a week’s time, unless ministers choose to cancel his visa a second time.
The 34-year-old Serb, who has been detained in a notorious Melbourne immigration detention facility since being stopped at the border last week, emerged victorious from today’s court hearing after government lawyers withdrew their case hours into the proceedings.
The government had been attempting to argue that Djokovic did not have a valid medical exemption to bypass rules which state anyone entering Australia has to be vaccinated against Covid.
But the case fell apart after the court was told Djokovic did have an exemption that had been certified by ‘a professor and an eminently qualified physician’ which stated he had been infected with Covid on December 16. The same exemption was approved by a medical panel set up by Victoria state, where the Open is being played.
Judge Anthony Kelly, sitting at the Federal Circuit Court of Australia, quashed the decision to tear up Djokovic’s visa at the border on Wednesday last week and ordered that he be immediately released and all his personal belongings returned, asking the court: ‘What more could this man have done?’
But Christopher Tran, who was leading the government’s case, warned that immigration minister Alex Hawke may still use his personal power to revoke Djokovic’s visa – a decision that would see the athlete banned from the country for three years and almost certainly land the parties back in court.
Until then, Djokovic is free to enter Australia and compete at the Open – which starts on January 17 – where he will bid to become the most-decorated men’s singles player of all time.
The Serb is currently level with Federer and Nadal on 20 Open titles each. Federer is out of this year’s tournament with injury, while Nadal will be competing in Melbourne.
Djokovic had argued that a recent positive Covid-19 test qualified him for the medical exception from the country’s requirement for all visitors to be double vaccinated.
The Australian government, however, had argued that non-citizens had no right of guaranteed entry to Australia and stressed that even if the Serbian won the court action, it reserved the right to detain him again and remove him from the country.
Earlier in the day Djokovic was removed from detention to be with his lawyers during the hearing, and Judge Anthony Kelly expressed agitation over the rejection of Djokovic’s medical exemption.
Djokovic’s lawyers presented their arguments to the court, but government lawyer Mr Tran only spoke for half an hour before a lengthy adjournment.
During that break the two parties agreed on the minutes of Judge Kelly’s order.
The minutes note Djokovic was not given adequate time to respond to the notification to cancel his visa.
Earlier, the court published an order made yesterday that Djokovic be taken from the Park Hotel – where he had been held since Thursday – and brought to ‘a premises as specified by the applicant’s solicitors’ during the hearing.
The hearing was delayed by technical issues with the court’s video link, but Djokovic’s lawyers argued their case to Judge Kelly, who asked the court ‘What more could this man have done?’ and said he was ‘agitated’ about the issue of Djokovic’s medical exemption.
‘Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption,’ Judge Kelly said.
‘Further to that, that medical exemption and the basis on which it was given was separately given by a further independent expert specialist panel established by the Victorian state government and that document was in the hands of the delegate.’
Djokovic’s lawyer, Nicholas Wood, has argued the notice of intention to cancel his visa was defective because it was made on ‘a confusing blend of two grounds’.
He also argued that Djokovic was treated at the airport as if access to lawyers ‘couldn’t possibly’ be of assistance in the matter and was not given a reasonable chance to respond to the notice.
At a press conference, Australia’s Prime Minister Scott Morrison was asked by a reporter to respond to comments from Tennis Australia chief executive Craig Tiley stating he was given conflicting government advice on medical exemptions.
Mr Morrison said: ‘Well, the matter is before the court so I can’t comment on the matter before the court … but in relation to the government, our government, the federal government’s advice to Tennis Australia, that was set out very clearly in November, as I read the extract from this very podium, it could not be more clear.’
Mr Morrison refused to comment on court documents submitted by the government which indicate Djokovic may remain in detention despite winning his appeal.
The documents urged the court to only ‘quash the decision and costs’ and said ‘it is inappropriate to make any further orders, whether they be for immediate release or even remitter to the delegate for reconsidering according to the law’.
They also noted: ‘An order for immediate release does not prevent re-detention if there is power to detain.’
It was revealed in court documents submitted by Djokovic’s lawyers that the player had been infected with Covid-19 in December 2021. The documents said the infection was the basis of Djokovic’s medical exemption.
The documents also noted that Djokovic expressed ‘shock’, ‘surprise, and ‘confusion’ when he was notified of his visa cancellation ‘given that (as he understood it) he had done everything he was required to enter Australia’.
But Australia’s Home Affairs Department filed court documents in which it stated ‘there is no such thing as an assurance of entry by a non-citizen into Australia’ and noted that the Minister has the power to cancel Djokovic’s visa a second time if the court rules in his favour.
‘As the Court raised with the parties at a previous mention, if this Court were to make orders in the applicant’s favour, it would then be for the respondent to administer the Act in accordance with law. That may involve the delegate deciding whether to make another cancellation decision, but there are also other powers in the Act, as the Court would be aware.’
Source Dailymail
