Novak Djokovic will be allowed to remain in Australia after winning an appeal against a decision to refuse him a visa.
Judge Anthony Kelly quashed the visa cancellation and ordered the Australian Government to pay legal costs and release the world number one men’s tennis star from detention within half an hour.
However, Government counsel Christopher Tran notified the court that the Minister for Immigration, Alex Hawke – not the minister who made the original visa cancellation – will now consider whether to exercise a personal power of cancellation of Djokovic’s visa.
This means that despite winning his appeal to stay in Australia, there is no guarantee Djokovic will secure a court order restoring his visa in time to play in the Australian Open, and he could still face his visa being revoked again on fresh grounds.
Why was Djokovic’s visa cancelled?
The Serbian tennis star had his visa rejected by border control at Melbourne Airport last week due to his Covid vaccination status, despite being granted permission to play at the Australian Open through a medical exemption.
Djokovic, 34, confirmed in court that he is not vaccinated, which was a mandate to compete in Melbourne at the Australian Open, and his medical exemption has been met with huge backlash across the tennis community.
He was refused entry into Melbourne after being interrogated by border officials for several hours, but Djokovic’s legal team managed to delay the process of him being deported after setting up an appeal hearing on Monday (10 January).
He had been detained in quarantine at the Park Hotel until the hearing.
What happened at the appeal?
Djokovic was removed from detention to be with his lawyers during the hearing, and Judge Anthony Kelly expressed agitation over the rejection of his medical exemption.
The tennis star’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 that Djokovic was not given adequate time to respond to the notification to cancel his visa.
Earlier, the court published an order made yesterday (9 January) 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.
Djokovic’s lawyers argued their case to Judge Kelly, who asked the court “What more could this man have done?”.
Judge Kelly said: “Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption.
“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, 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 the Serb 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.”
Will Djokovic play in the Australian Open?
An Australian lawyer has said he believes Djokovi could be allowed to compete at the Australian Open, despite it being a requirement to be fully vaccinated against Covid-19 to take part.
Justin Quill, a partner at Thomson Geer Lawyers, told Australia’s Channel 9's Today Show that a lengthy legal battle could provide world number one with a loophole to compete while challenging the cancellation of his visa.
Mr Quill said he thinks there is a “a pretty good chance he will be playing at the Australian Open”, by being granted an interlocutory injunction, which would prevent his deportation so the case can be heard properly.
The lawyer explained: “I suspect what’s going to happen is – and I suspect not so much because he is going to win his case, but that it is going to be found that there needs [to be] more time, and he will be allowed to stay in the country, compete in the Australian Open, and then the lawyers will argue about this in the weeks and months to follow.
“It will be a bit of an irrelevant case at that stage, but I suspect that’s probably where we are going to land with this.
“The imposition on Djokovic not being allowed to compete is arguably greater than the imposition on the Minister for Home Affairs.
“So, I suspect the court is going to land there and say, ‘I’m going to allow you to stay in the country while we sort this out over the following weeks and months’.”
What medical exemption does Djokovic have?
It was revealed in court documents submitted by Djokovic’s lawyers that the 34 year-old has been infected with Covid-19 twice and has not been vaccinated.
Djokovic confirmed to the court: “I had Covid twice, I had Covid in June 2020 and I had Covid recently in – I was tested positive – PCR – 16th December 2021.
“I sent the blood analysis for my antibodies and had a sufficient amount and I was granted the access to Australia and I received the documentation that supported my medical exemption and the travel declaration coming from the federal government.”
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 that was required to enter Australia”.
However, Australia’s Home Affairs Department filed court documents which 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.
The documents read: “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.”
This article originally appeared on our sister site, NationalWorld.