Current world No. 6 Rafael Nadal said he felt sorry that Novak Djokovic was denied entry into Australia, but added that the he knew for months he could potentially face problems if he arrived without being vaccinated. Video / SNTV via AP
Novak Djokovic is free to play at the Australian Open after a decision to cancel the 20-time grand slam winner's visa was quashed by a Federal Circuit Court today.
On Monday afternoon, Judge Anthony Kelly read out a minute agreed to by both Djokovic and the government, which ordered the government to pay Djokovic's costs and release him from detention within 30 minutes.
The ruling means Djokovic's passport and personal effects must be returned to him.
However, after the ruling, government lawyer Christopher Tran indicated the federal Minister for Immigration and Migrant Services, Alex Hawke, would consider whether to use his "personal power of cancellation" to cancel Djokovic's visa again.
The world's top male tennis player — who is unvaccinated — thought he'd successfully received a medical exemption to enter the country but he was turned around by the Australian Border Force when he touched down in Melbourne last week.
Djokovic has since been holed up in a detention hotel as he waited for his lawyers to have the chance to argue his case to remain in Australia and chase his 10th title at Melbourne Park.
In a submission to the Federal Circuit Court, Djokovic's lawyers said he contracted Covid-19 in December, which was the basis for his exemption application. But there has been confusion over whether being infected with the virus in the past six months was a valid reason to receive an exemption from being vaccinated.
The court has released more documents pertaining to the case, including a transcript of Djokovic's interview with officials after landing in Melbourne.
That transcript includes confirmation that Djokovic is not vaccinated against Covid, and has caught the virus twice.
"I am not vaccinated," he said.
"Thank you. Have you ever had Covid?" a Border Force official asked.
"Yes," Djokovic answered.
"So when did you?" they asked.
"I had Covid twice. I had Covid in June of 2020 and I had Covid recently in - I tested positive on December 16, 2021," he said.
Djokovic said he had the documents to confirm that infection if required. The interviewer said they would make a photocopy of them.
The player showed officials evidence of a positive PCR test on December 16 and a subsequent negative PCR test on December 22.
Minister to consider cancelling visa again
This chaotic saga may not be over yet, despite the outcome in court today.
After Judge Anthony Kelly read out the minute agreed to by both sides, which will set Djokovic free from detention, government lawyer Christopher Tran indicated the federal Minister for Immigration and Migrant Services, Alex Hawke, would consider whether to use his "personal power of cancellation" to cancel Djokovic's visa again.
BREAKING:
Djokovic wins Round 1 of his legal appeal on procedural grounds, quashing the border officer’s initial decision to cancel Djokovic’s visa.
The Australian government has expressed its readiness to recancel the visa and redetain Djokovic, so Round 2 is coming soon.
That scenario would come with an additional, significant wrinkle: it could entail banning the world number one from Australia for three years.
"If this man is to be summarily removed, he cannot return to this country for three years. Am I right about that?" Judge Kelly asked.
Tran indicated that was indeed the case.
Such a decision could be appealed.
"The stakes have now risen, rather than receded," the Judge noted. He said he expected to be informed in advance if he would be required for further proceedings going forward.
At about 7:15pm NZ time, as court resumed, Judge Anthony Kelly read out a minute agreed to by both Novak Djokovic and the government, which quashed the decision to revoke the player's visa.
The government was ordered to pay the tennis player's costs and release him from detention within 30 minutes. Djokovic's passport and personal effects must be returned to him as well.
Judge Kelly said the decision to cancel Djokovic's visa under Section 116 of the Migration Act was "unreasonable" because he'd been told, at 5:20am local time on the morning of January 6, that he could have until 8:30am to respond to officials.
The decision to cancel Djokovic's visa happened before that deadline, at 7:42am. Judge Kelly said that robbed Djokovic of time he could have used to "consult others" and make further submissions about "why his visa should not be cancelled".
Djokovic deportation injunction extended
The hearing was adjourned for lunch shortly after 2pm and was expected to restart at 5.15pm NZ time. However, was pushed back until 5.45pm.
The injunction preventing the Australian government from deporting Djokovic was due to expire at 6pm NZT on Monday but when the hearing resumed, Judge Anthony Kelly agreed to extend the injunction on his deportation until 10pm.
Shortly after that decision was confirmed, the court was temporarily adjourned again.
Meanwhile, the Herald Sun reports Djokovic has left the hotel he was being detained in to join his legal team at another premises for the hearing.
On Monday Judge Kelly ordered Australian Border Force to allow the tennis star out of immigration detention at the Park Hotel in Carlton so he can view the hearing at another location.
Although allowed of his hotel for the hearing, Djokovic remains in detention and will return at the end of today's proceedings.
'What more could this man have done?'
Judge Anthony Kelly has questioned what more Djokovic could have done to ensure his entry to Australia after securing a medical exemption from Tennis Australia.
The court heard Djokovic had gained a medical exemption from the chief medical officer at TA to support his claim he had a medical contraindication to a Covid-19 vaccination.
Kelly told the court the Serbian was right to assume his medical exemption was valid.
"Here, a professor and a physician have produced and provided to [Djokovic] a medical exemption. Further to that, that medical exemption and the basis on which it was given, was given by a [panel] established by the Victorian Government," Kelly said.
"That document was in the hands of the delegate. The point I am somewhat agitated about is what more could this man have done?"
Djokovic's lawyers said his client believed that he "had ticked every box".
Novak Djokovic with Australian Open tournament director Craig Tiley at the Australian Open tennis championships in Melbourne, Australia, 2021. Photo / AP
Victorian minister points finger at Federal Government
Speaking with reporters today, Victorian Health Minister Martin Foley said the confusion around Djokovic's visa was an issue for the Federal Government.
"Once you're approved to get into the country, we had an independent, arm's length process that compared anonymously - without any identifying features - the expert medical considerations as to whether you are eligible to play in a tournament," Foley said.
"Not whether you are eligible to get [into the] country. We determine who enters a tournament in partnership with Tennis Australia, we don't determine who gets a visa. Only one level of government determines that visa, and it's not the Victorian government."
Victorian Health Minister Martin Foley. Photo / Getty Images
Team Novak takes exception to 'typo'
Novak Djokovic's lawyer Nick Wood SC argued the Notice of Intention to Consider Cancellation of his client's visa is "defective" because it included a typo.
Lawyers for the Department of Home Affairs acknowledged in court filings on Sunday that a typo existed in the document but that it was insignificant.
They said the "unfortunate typo" is "unfortunate but immaterial".
But in court on Monday, Wood said it mattered. "It is more than a typo. The notice was defective," he said.
The court also hears Djokovic begged authorities to let him use his phone after it had been confiscated at Melbourne's Tullamarine airport.
"If you will let me talk to people although you've taken my phone from me I will try and get you what you want," he said, according to Judge Anthony Kelly.
Wood said his client did everything to provide authorities with documentation.
"Mr Djokovic was doing his level best to provide material to the officer at Tullamarine. Mr Djokovic did provide that evidence (in Dubai) before he boarded that aircraft," he said.
Police outside the MIQ hotel in Melbourne, Australia where Djokovic is staying. Photo / AP
Tech troubles plague Djokovic hearing
Tech dramas plagued the start of the hearing.
Members of the public were supposed to be able to watch and listen to proceedings via a secure link but that was not working at 10am AEDT.
It was suggested on social media the amount of people wanting to watch via the link may have caused disruptions.
An old audio/visual link that was sent out previously was reportedly working, but those on the call could allegedly be heard because they were not muted.
Australian journalist Sarah Dankert tweeted: "While there's a public broadcast, there's an old teams link that is still working for the Djokovic case and the court official is gone after having trouble with mute all. We've had techno blasting, giggling, shouting and someone is just saying Nole repeatedly in a pained voice."
The hearing was delayed before getting underway around 10.30am AEDT. The live stream continued to go down throughout the hearing.
Novak Djokovic is arguing he has a valid reason for a medical exemption not to be vaccinated against Covid-19 because he has contracted the virus within the last six months. Photo / Getty Images
Threat of re-detention
Djokovic is arguing he has a valid reason for a medical exemption not to be vaccinated against Covid-19 because he has contracted the virus within the last six months.
His lawyers submitted a 35-page document Saturday arguing his visa was wrongly cancelled and should be reinstated, allowing him to compete.
The team argued that Djokovic's claim of a positive PCR test on December 16 means he meets the criteria for a vaccine exemption under the guidance of Australia's immunisation advisory body.
But Australia's Home Affairs Department has rebuffed his arguments point-by-point and urged the judge to dismiss the case, with costs.
Djokovic is unvaccinated and poses a risk to people and the health system in Australia, the government said in a 13-page document lodged with the court on Sunday.
The government added "there is no such thing as an assurance of entry by a non-citizen into Australia".
"As for material given to the applicant by the Department, it had not represented to the applicant that his so-called 'medical exemption' would be accepted," the submission said.
Significantly, the government's submission also said it retains the right to keep Djokovic detained even if he wins Monday's case.
"If the Court makes an additional orders for immediate release of the applicant, notwithstanding the above, the respondent submits that the Court should make it expressly clear that that order does not purport to (nor could it) prevent the respondent or any officer of the Commonwealth from exercising any power to detain that might be available to him or her despite the quashing of the delegate's cancellation decision," the submission said.
"An order for immediate release does not prevent re-detention if there is power to detain."
Protesters gather outside an immigration detention hotel where Novak Djokovic has been held in Melbourne, Australia. Photo / AP
Djoker's family keeps on fighting
Djokovic's family has already blasted Scott Morrison and Australian authorities for their treatment of the 20-time grand slam champion and they were at it again overnight.
At a rally in the Serbian capital of Belgrade, Djokovic's mother Dijana said her son was staying "in not humane conditions".
"They detained him and even don't give him breakfast, he has only lunch and dinner," she said, quoted by N1 regional television.
"He does not have a normal window, he stares at a wall."
Srdjan Djokovic, Novak's dad, took another crack at Morrison, adding: "We hope the court is independent and that it will bring the right decision and that Novak will get out as a winner and as a free man as the person he is.
"What is it that (he did) to deserve such treatment from their politicians, from their prime minister? Their fight between the federal and local governments and the tennis association — we are not interested in that at all."
