Court overturns decision to cancel Novak Djokovic’s visa

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The federal government’s decision to cancel Novak Djokovic’s visa has been sensationally overturned, allowing the tennis superstar to stay in Melbourne and play in the Australian Open next week.

Federal Circuit Court judge Anthony Kelly ordered the immediate release of the tennis world no.1 from immigration detention just after 5pm after quashing the federal government’s decision to cancel his visa.

Novak Djokovic’s visa case is being heard in the Federal Circuit Court.Credit:AP

Judge Kelly told the hearing the decision to cancel the temporary visa was to be overturned and the respondent, being the Minister for Home Affairs, had to pay costs and take “all necessary steps to release the applicant immediately”.

Djokovic’s lawyer Nicholas Wood, SC, confirmed the tennis star was currently with his legal team at a location that is still unconfirmed.

Judge Kelly found it was unreasonable of an Australian Border Force official to cancel Djokovic’s visa last Thursday morning when the tennis star had been earlier told he could have more time.

Djokovic had wanted more time to contact his lawyers, the court heard, but was told at 7.42am that his visa had been cancelled.

Supporters of Novak Djokovic protest against his detention outside the Federal Circuit Court in Melbourne.Credit:Jason South

Judge Kelly said the delegate’s decision to cancel the visa early denied Djokovic the chance to consult with his lawyers and press his case to Border Force officials.

“If the applicant had had until 8.30am he could have consulted others and made submissions to the delegate about why his visa should not be cancelled,” the judge said.

Meanwhile, Immigration Minister Alex Hawke is considering whether to use his personal power under the Migration Act to cancel Djokovic’s visa after the court ruled that he needs to released and is allowed to play in the Australian Open.

In the dying minutes of Monday’s court hearing, the lawyer acting for the government, Christopher Tan, told the court that Mr Hawke will now consider whether to exercise his “personal power of cancellation” under section 133C(3).

Sources confirmed that Mr Hawke now has four hours to decide whether to use the power and it is under consideration.

If Mr Hawke uses the power, Djokovic could contest the cancellation. However, the power is extremely broad and discretionary and it would be more difficult to argue against it.

Djokovic could be banned from re-entering Australia for three years if the personal power of the minister is used.

Monday afternoon’s decision came after technology failures plagued the court hearing, and after Judge Kelly earlier questioned what more the tennis ace could have done to be granted legal entry into the country.

The court’s live stream of Djokovic’s online hearing repeatedly crashed on Monday as interested parties in Australia and Serbia and tennis fans across the world tried to watch lawyers for the world No.1 push their case for his deportation to be quashed.

Adding to the confusion, some people who could access the hearing posted unauthorised links on YouTube, which made it difficult to determine whether streams of the hearing were live, or to guarantee their authenticity. A court spokesman said IT staff were trying to rectify the technical problems.

Judge Kelly negotiated the interference several times during the hearing.

At one point, after a voice interrupted the hearing to say “we’re in”, Judge Kelly said it was important the only people who had microphones on were those making submissions to the court. The judge said there was a risk the bandwidth would be overwhelmed and the hearing would be interrupted again.

“That is utterly unacceptable,” Judge Kelly said.

At another point, Judge Kelly adjourned the hearing for less than one minute when the audio dropped.

Media outlets including The Age were unable to report on some submissions that weren’t heard during periods when the live stream dropped out and the hearing continued.

Judge Kelly earlier ordered that the 34-year-old could be moved to a location where he could watch it.

In a written order published on Monday, Judge Kelly ordered that Australian Border Force officials “take all steps” and “do all things as may be necessary” to allow the tennis champion to take part in the proceedings.

That would include being moved from the Park Hotel in Carlton, which authorities use as a makeshift immigration detention centre, to a location nominated by Djokovic’s legal team. The judge’s order also says Djokovic can be returned to detention after the hearing.

Djokovic’s lawyers want last week’s cancellation decision quashed and argue the world No.1 did everything asked of him to enter Australia.

‘What more could this man have done?’

Nicholas Wood, SC, leading Djokovic’s legal team, argued the tennis player met the criteria set by Australia’s advisory board on immunisation, received a travel declaration from the federal government, was granted a medical exemption by Tennis Australia, and also provided Border Force officials with evidence of the exemption.

Judge Kelly acknowledged the steps Djokovic took.

“The point I’m somewhat agitated about is what more could this man have done?” the judge said.

Mr Wood replied: To [Djokovic’s] understanding, uncontradicted, he had done absolutely everything that he understood was required in order for him to enter Australia.

“He did understand he had ticked every box.”

Mr Wood also argued Djokovic was denied procedural fairness in the hours after he arrived at Melbourne Airport last Wednesday night, as he wasn’t given enough time to contact his lawyers and was pressured to continue an interview with Border Force officials while jet-lagged.

Mr Wood said authorities had an agreement with Djokovic to cease discussing his entry into Australia and resume after the tennis player rested, but that officials “reneged” and ruled against him earlier. This was a “spurious” decision which indicated the official had a closed mind, Mr Wood said.

Djokovic’s lawyers say he was granted the medical exemption by Tennis Australia because he contracted COVID-19 in December. Djokovic tested positive on December 16 and his lawyers argue a recent bout of COVID-19 gave him grounds for “medical contraindication”, to not have a vaccine treatment.

But the federal government argues the visa cancellation was valid and that a recent case of COVID-19 didn’t constitute a reason not to be vaccinated. The government argues that if Djokovic recovered a fortnight after his positive test, then he have had time to start a vaccination course.

In the government’s written submissions, lawyers for Home Affairs Minister Karen Andrews argue the visa cancellation wasn’t unreasonable, Djokovic had nothing to add when his interview ended, and there was no evidence his lawyers could or would have done anything if contacted.

It was also reasonable for Border Force officials to conclude the unvaccinated Djokovic posed a risk to public health, the documents state.

The government has also warned in its written submissions that it could cancel Djokovic’s visa again even if Judge Kelly rules against the government and in the player’s favour.

Submissions filed on Sunday night say the government could use powers under the Migration Act to cancel Djokovic’s visa again.

“An order for immediate release does not prevent re-detention if there is power to detain,” the submissions say.

The hearing will continue on Monday afternoon.

Djokovic has won the Australian Open nine times. The tournament starts next Monday.

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