Novak Djokovic begins last-gasp bid to dodge deportation from Australia in ‘final’ court battle

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Novak Djokovic‘s lawyers are arguing that there is no evidence his continued presence in Australia would stoke anti-vaccination statement – as the tennis star’s visa battle with the government is set to be finally resolved. 

The high-powered legal team argued any anti-vax sentiment brought about in the community since the tennis ace arrived in Australia was a result of the government’s decision to cancel his visa. 

The world number one’s lawyer Nick Wood presented his case at the Federal Court of Australia to the trio of judges who will decide whether to quash the decision of Immigration Minister Alex Hawke to re-cancel Djokovic’s visa on the grounds of ‘health and good order’. 

Despite the 34-year-old being unvaccinated, Wood insisted he has not courted anti-vaxxer support and was not associated with the movement.

The government ‘doesn’t know what Mr Djokovic’s current views are’, Wood insisted.

Government lawyer Stephen Lloyd said the fact that Djokovic was not vaccinated two years into the pandemic and had repeatedly ignored safety measures – including failing to isolate while Covid-19 positive – was evidence enough of his views.

‘He’s chosen not to go into evidence in this proceeding. He could set the record straight if it needed correcting. He has not – that has important consequences,’ the government said in a written submission.

Lloyd also pointed to a series of protests already sparked by Djokovic’s arrival in Australia.

Those competing arguments will be weighed by a panel of three court justices, who are expected to give their verdict on Sunday, or at the latest on Monday.

Because of the format of the court, their decision will be extremely difficult to appeal by either side. 

If he loses, he will face immediate deportation and a three-year ban from Australia – dramatically shortening his odds of winning a championship he has bagged nine times before.

If he wins, it sets the stage for an audacious title tilt and will deal another humiliating blow to Australia’s embattled prime minister ahead of elections expected in May.

The world No.1 left the notorious Park Hotel – an immigration detention centre – in Carlton at about 9am (10pm GMT).

His high-powered legal team kicked off arguments in the Federal Court at 9.30am (10.30pm GMT) as Chief Justice James Allsop indicated the hearing could wrap up by midday due to the quality of written submissions filed by both parties.

Overnight, Djokovic was held alongside asylum seekers at the notorious Park Hotel, in the inner Melbourne suburb of Carlton.

Hawke based his decision on the view that Djokovic’s stance on vaccination could pose a threat to public health in the country if he stays in Melbourne and plays in the Australian Open.

Wood said: ‘Not a single line of evidence in the material provided any specific or logical foundation whatsoever that the mere presence of Mr Djokovic in Australia in itself may somehow foster anti-vaccination sentiment.

‘Is it conceivable that such a consequence might flow from Mr Djokovic’s presence in Australia? That’s not the point. One is looking for historic, past antecedent or evidence on which reasonable conjecture can be made.’ 

The hearing comes hours before the Australian Open is set to begin Monday, where Djokovic still hopes to defend his title and secure an unprecedented 21st Grand Slam triumph. 

Immigration Minister Alex Hawke utilised his far-reaching ministerial powers to cancel Djokovic’s visa on Friday afternoon despite a monumental court win against the government earlier in the week. 

On the issue of whether Djokovic’s presence would stoke anti-vaccination sentiment, Stephen Lloyd, representing the minister, made reference to such groups ‘treating the applicant as a hero’.

Lloyd said: ‘He’s a high profile person who is in many respects a role model for many people. His presence in Australia would present more strongly to Australians his anti-vaccination views.

‘People use high-level athletes to promote ideas and causes all the time. His connection to a cause, whether he wants it or not, is still present.’

Lloyd then spent a considerable amount of time countering the argument of Wood that Hawke had not considered the prospect that deportation could also stoke anti-vaccination sentiment and risk public order.

‘The minister was aware his decision to cancel would result in some level of further unrest but the minister was principally concerned that Mr Djokovic’s presence would encourage people to emulate his position and that would put the health of Australians at risk,’ said Lloyd.

The hearing was then adjourned for a lunch break, and it was likely to be late afternoon local time before the judges retired to consider their verdict, raising the possibility a judgment might not come until Monday.

The court’s format – a panel of three justices – leaves little room to appeal any decision. 

Djokovic’s high-powered legal team, led in court by Nicholas Wood SC, argued there is no legal basis for the Minister to determine if Djokovic has a ‘well-known stance on vaccination’.

Some 55,000 people tuned in to a Federal Court stream at 9.30am to watch the legal showdown kick off.

Djokovic’s lawyers were first to address the court.

They have indicated they will argue Mr Hawke’s ruling was made based on comments the 20-time Grand Slam winner made in 2020 and that there was no attempt by the government to seek his current views on Covid vaccinations.

They will also argue the government has ‘cited no evidence’ that Djokovic will rile up the anti-vaxxer community, and will claim expelling him from the country will do more to fuel anti-jab sentiment Down Under.

‘We contend the Minister did not consider the obvious alternative scenario … the possibility that [Mr Djokovic’s] visa might be cancelled, [he is] expelled from the country and impaired in his career generally… it’s quite obvious that in itself may generate anti-vax sentiment,’ Mr Wood told the court.

In court documents filed late on Saturday and made public on Sunday, the Minister argues his decision to cancel Djokovic’s visa had little to do with concern about him infecting others with Covid.

Instead, he argued Djokovic’s conduct and ‘position on vaccination… may encourage others to emulate him by reason of his high profile and status’.

‘If others were encouraged to take up or maintain resistance to vaccination or to COVID-19 restrictions, then that would present a problem for the health of individuals and the operation of Australia’s hospital system,’ court documents state.

The Minister also reasoned Djokovic’s presence could lead to rallies and protests – whether they be against the star or in support of him – which could become super spreading events and lead to significantly higher rates of community transmission.

The government’s legal team states the above reasons fall ‘comfortably’ within the Minister’s jurisdiction to exercise his power to cancel a visa.

The onus is on Djokovic’s legal team to prove the decision was not rational, logical or legal. They cannot simply argue that the ‘better’ decision would be to allow him to stay.

The Minister is, legally, within his rights to cancel the visa if he is satisfied there is a risk to certain members of the public simply due to Djokovic’s presence in Australia. He does not need to ascertain the likely or possible conduct of the visa holder. 

But Djokovic’s lawyers are also arguing that comments Djokovic made about vaccines in 2020 which have been used to justify the Minister’s decision are not necessarily relevant.

They say Djokovic clarified he was ‘not an expert’ and would do what was best for his body, after indicating he wouldn’t want to be ‘forced’ to take a Covid vaccine well before a jab to protect against the virus had even been developed.

The Minister, the court heard, never asked Djokovic to confirm his present stance on vaccination.

Mr Wood argued the only evidence tying Djokovic to anti-vax activists came about after the initial decision to cancel his visa and when he was detained in the immigration hotel.

While Mr Wood acknowledged fans in Australia have supported Djokovic, he said the high profile visa debate galvanised anti-vax sentiment and spawned further outrage despite Djokovic never expressing an extreme position for or against the jab.

‘The only evidence the minister claimed to rely on simply doesn’t exist,’ Mr Wood argued. ‘The only evidence before the minister concerning any relationship or causal connection between Mr Djokovic and what we might call anti-vax groups is an article.’

The article in question was a BBC article which ‘reported the first visa decision had galvanised anti-vax groups’.

‘If he hadn’t have been cancelled, those people who were galvanised by coercive state action… there’s no logical connection that those same people would turn up and chant just because he plays tennis.’

The reigning Australian Open champion spent Saturday being grilled by Border Force officers at a secret location before being hauled away under guard while a brief court hearing got underway.

His counsel had a significant win in the drawn out saga on Saturday with a judge ruling the matter would be heard in the Federal Court before a full bench – something the government fiercely opposed.

The case will be overseen by Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan.

The development means if the Australian government lose the case, it will not be able to appeal the ruling – leaving the world No. 1 free to play in Monday’s Australian Open tournament where he is chasing a 10th title.

Alternatively if Djokovic loses he will be booted out of the country and may not be able to return until 2024.

The tennis ace originally had his visa cancelled upon his arrival at Melbourne Airport on January 5 for inconsistencies in his declaration form granting him an exception for not being vaccinated against Covid.

He was then detained before successfully winning an appeal, only to have the Immigration Minister use his discretionary powers to cancel the visa once more.

There is a still a remote chance the court may fail to come to a decision tomorrow, leaving Djokovic in limbo for the tournament. 

If this happens, former deputy secretary of the Immigration Department Abul Rizvi said, there is a slim chance Djokovic could get to play. 

‘A court cannot issue a visa. Only the minister, or the minister’s delegate can issue a visa,’ he told the ABC.

‘What a court can do is quash the visa cancellation which would reinstate Mr Djokovic’s earlier visa.

‘Alternatively, what the minister could do — if for example, he was confronted with a situation where the court was unable to make a decision by Sunday evening or Monday morning and we had the prospect of the world’s number one tennis player being in detention in Melbourne whilst the Australian Open goes on —an option open to the minister is to grant Mr Djokovic a bridging visa whilst the court considers its decision.

‘Now I think that is unlikely … I don’t think the government would do that.’

Other Australian legal experts are not entirely convinced of Djokovic’s prospects either. 

‘I think the odds are against Djokovic simply because Hawke’s power is so broad, but he’s made credible arguments and has a shot,’ immigration expert from the University of NSW Dr Sangeetha Pillai said.        

‘So Djokovic is left with the tougher job of arguing that Hawke couldn’t have rationally arrived at the decision to cancel. It doesn’t matter if it wasn’t the optimal decision; it basically just needs to be sane.’  

‘I suspect the court will probably decide quickly, even if it gives full reasons later. This means we may see a decision in time for Djokovic to play if he wins.’