Novak Djokovic’s hopes of defending his Australian Open title rest on a last-gasp legal challenge to be decided on Sunday – one day before the first grand slam of the season begins.
In a Friday night hearing of the Federal Circuit Court that continued from 8.45pm AEDT for over two hours, lawyers for the world No. 1 began a legal challenge against the decision of Immigration Minister Alex Hawke to cancel Djokovic’s visa on Friday evening.
Minister Hawke enacted his discretionary powers to cancel the Serbian’s visa for a second time, after a Federal Circuit Court on Monday quashed an initial cancellation of Djokovic’s visa from Border Force officials.
But Djokovic’s legal team is challenging the minister’s decision and seeking to again overturn the cancellation of the Serbian’s visa, in time for Djokovic to take to the court at Melbourne Park on Monday.
Djokovic, meanwhile, will await his fate in immigration detention, with Border Force officials set to detain the polarising player on Saturday morning after one final night out of custody.
The 34-year-old’s lawyers told the late-night hearing – live-streamed by 50,000 people on YouTube – that the minister’s reasoning for cancelling the superstar’s visa was “patently irrational” and based on a “radically different approach” to the prior cancellation.
The minister, Djokovic’s lawyers claimed, made the decision based on Djokovic potentially stoking “anti-vax sentiment” if he remains in Australia, rather than on the validity of his medical exemption to vaccination.
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The case will be moved from the Federal Circuit Court to the Federal Court and will be heard on Sunday.
Djokovic will not be deported before Sunday’s hearing, but will be detained by Border Force officials on Saturday morning – meaning he could spend Saturday night in an immigration detention facility such as the hotel where he was housed with locked-up refugees last weekend.
If he loses the legal challenge, Djokovic will not merely be deported but will also be banned from entering Australia for three years. That automatic ban can only be overturned by the Immigration Minister, in this case Mr Hawke, in “compelling circumstances”.
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The core argument of Djokovic’s lawyers against Mr Hawke’s decision are that the move was ‘patently irrational’ and based on reasons completely different to those behind Djokovic’s visa being rejected for the first time.
Djokovic’s visa was initially rejected by a Border Force official on the basis that his application for medical exemption to vaccination – based on having contracted the virus in December – was not valid.
But Djokovic’s lawyer, Nicholas Wood, SC, claimed the minister’s reasons for cancelling Djokovic’s visa on Friday were based on the potential of Djokovic “exciting anti-vax sentiment” if he was allowed to remain in Australia and compete.
Wood claimed that reasoning “stand(s) in stark contrast to the reasons that were promulgated by the delegate at the airport”. He later added the minister had taken a “radical new approach” and a “radically different approach”.
Wood also argued the minister had not considered in his decision what effect the opposite decision – cancelling Djokovic’s visa and deporting him – would have on anti-vax sentiment in Australia.
He claimed that not considering that scenario was “patently irrational”.
Djokovic’s lawyers also slammed the amount of time it took for Hawke to make his decision – which was announced only at 6pm AEDT on Friday night, a full four days after Federal Circuit Court Judge Anthony Kelly quashed the first cancellation of Djokovic’s visa.
“I don’t wish to be critical. The position we find ourselves in today is the product of being given reasons for decision material shortly after 6pm on a Friday. More than four days after the original decision was made,” he told the same Judge on Friday night.
Wood added: “We are where we are because of the time the minister has taken. We are moving as fast as we can.”
He added at another point: “(it is) extremely precious, every minute that we have, before the tournament commences on Monday.”
Djokovic will remain in his “residential premises” on Friday night. He was already set to meet with immigration officials in Melbourne at 8am Saturday, at which time Border Force officials will take Djokovic back into detention.
Djokovic will be taken by Border Force to his lawyers’ offices on Saturday at 10am following the meeting with immigration officials, and will again be taken by Border Force staff to his lawyers’ offices on 9am Sunday for the virtual hearing of the Federal Court.
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DJOKOVIC’S VISA CANCELLED ‘IN THE PUBLIC INTEREST’
Mr Hawke said on Friday he had exercised his broad powers under section 133C (3) of the Migration Act to cancel Djokovic’s visa “on health and good order grounds, on the basis that it was in the public interest to do so”.
“This decision followed orders by the Federal Circuit and Family Court on 10 January 2022, quashing a prior cancellation decision on procedural fairness grounds,” he said in a statement.
“In making this decision, I carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic.
“The Morrison government is firmly committed to protecting Australia’s borders, particularly in relation to the COVID-19 pandemic.”
Prime Minister Scott Morrison also weighed in on the decision on Friday.
“This pandemic has been incredibly difficult for every Australian but we have stuck together and saved lives and livelihoods,” Morrison said in a statement.
“Together we have achieved one of the lowest death rates, strongest economies and highest vaccination rates, in the world.
“Australians have made many sacrifices during this pandemic, and they rightly expect the result of those sacrifices to be protected.
“This is what the Minister is doing in taking this action today.
“Our strong border protection policies have kept Australians safe, prior to Covid and now during the pandemic.
“Due to the expected ongoing legal proceedings, I will not be providing any further comment.
If Djokovic is forced to withdraw from the tournament after the first day’s order of play is released, likely on Saturday morning, he will be replaced by a Lucky Loser (one of the highest-ranked losers from the final round of qualifying).
That would have a radical impact on the tournament draw, given the first four seeds are handed significant advantages by the grand slam draw system.
In this case, the player who replaces Djokovic would be given a hugely fortuitous path to the final, avoiding a number of top tennis stars.
If Djokovic withdraws prior to the first day’s order of play being released, the draw will be rearranged to create a more fair tournament.
The No. 5 seed (Andrey Rublev) will take his spot in the bracket, while Rublev’s spot would be taken by the No. 17 seed (Gael Monfils), and Monfils’ spot would be taken by the highest-ranked non-seed (Alexander Bublik).
The megastar flew into Melbourne airport on January 5 claiming a vaccine exemption because of a positive PCR test result on December 16.
Border agents rejected his exemption, tore up his visa and placed him in a notorious Melbourne detention centre where he spent four nights.
The Australian government insists a recent infection does not qualify as a vaccine exemption for foreign nationals trying to enter the country.
Djokovic’s top-flight legal team dramatically overturned the visa decision because border officials at the airport had failed to give him the agreed time to respond.
As the Omicron variant raced through Australia’s population, Djokovic’s actions came under greater scrutiny.
The tennis ace described reports about post-infection outings without a mask in Serbia as “misinformation” in an Instagram post Wednesday.
On the day of his claimed positive test in Serbia, he attended a ceremony to honour him with stamps bearing his image. The following day he attended a youth tennis event. He appeared at both apparently without a mask.
Djokovic said he only received the PCR test result after going to the children’s tennis event on December 17.
But he admitted that he also went ahead with an interview with French sports daily L’Equipe on December 18.
“On reflection, this was an error of judgment and I accept that I should have rescheduled this commitment,” Djokovic said.