Novak Djokovic’s legal team took exception to one particular aspect behind his visa cancellation, but one judge’s comments spell bad news.
Novak Djokovic’s legal team have made their case to the Federal Court today as he challenges the Immigration Minister’s decision to cancel his visa.
The tennis champion’s lawyer has said the minister’s reason for trying to kick out Djokovic were “wrong,” “extremely weak,” and “irrational”.
But a comment from one the three judges could help the Government’s legal team which has now taken the stand.
On Friday, Alex Hawke make the call to deport the tennis star from Australia “on health and good order grounds, on the basis that it was in the public interest to do so”. The Minster used his personal power to overturn a decision in the Federal Circuit Court on Monday that allowed Djokovic to remain in the country.
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Djokovic was taken back to a detention hotel on Saturday after Mr Hawke said the tennis star’s opposition to getting the jab “may foster anti-vaccination sentiment” and cause “civil unrest”.
With the Australian Open starting on Monday, Djokovic has launched a last-ditch legal bid to keep his dream of winning a 21st grand slam title alive.
The case is being heard by a full bench of the Federal Court of Australia, comprised of Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan.
The hearing is being live streamed on the Federal Court’s YouTube page. You can follow all the latest updates with our rolling blog below.
Blow to team Djokovic
Lawyers for Novak Djokovic have been trying to persuade the three judges that much of the immigration minister’s reason for barring the tennis star was down to alleged anti-vaccination comments in a single BBC News article (see below for more on this).
They have argued the quote used by the minister was “selective” and “misleading”.
But in what could be a blow for the world No 1’s legal team, Justice James Allsop has said the minister can also draw on “rational and reasonable use of perception and common sense” in determining Djokovic’s views.
So while Djokovic’s team is relying heavily on essentially throwing out the BBC article, one of the three judges has said the minister can assume the star has anti-vaccination tendencies based on far more than one story and he doesn’t have to lay out all the sources for that conclusion.
That’s a huge help to Stephen Lloyd, the QC for the minister, who has now begun laying out the government’s case for why the visa cancellation should stand.
He has said Djokovic’s vaccination stance is indeed based on more than one quote in one article.
“It’s not just the applicant’s public statements that he is opposed to vaccination, it is the fact of his ongoing non-vaccinated status.
“He could have been vaccinated if he wanted to be”.
Mr Lloyd has backed up the minister’s view that Djokovic’s mere presence in Australia could whip up anti-vax sentiment.
“The applicant has a history of ignoring safety measures,” he said.
“When he was infected he undertook an interview and a photo shoot [that’s the now infamous L’Equipe interview] which included taking his mask off and the minister took the view his presence in Australia would encourage people to emulate his apparent disregard for those kinds of safety measures.”
‘Grasping at straws’: Djokovic’s lawyers make their case
Lawyers for Novak Djokovic have tried to demolish the reasons for cancelling the tennis champ’s visa saying they were “wrong,” “extremely weak,” and “irrational”.
Nick Wood SC, representing Djokovic, on Sunday said the statement of reasons given by Immigration Minister Alex Hawke regarding the visa cancellation was “grasping at straws”.
“The Minister tries to cut us off at the knees,” Mr Wood said at today’s hearing, referring to the reference to Djokovic potentially being a rallying point for those against vaccination.
But Mr Wood argued that the Minister overreached in this explanation and that the visa cancellation was “irrational, logical and unreasonable” as it could actually stir up anti-vax sentiment more than the Serb remaining in Australia.
“The proposition we put is it’s quite obvious that (cancelling the visa) might be apt to generate anti-vax sentiment and the evidence before the minster went that way,” Mr Wood said.
“Not a single line of evidence in the material before the Minister provided any … foundation whatsoever for the proposition that the mere presence of Mr Djokovic … in Australia may somehow, to use the Minister’s expression, ‘foster anti vaccination sentiment’”.
Djokovic’s legal team has also delved into a BBC News article cited by the Minister in his reason to cancel the visa.
The article headlined What has Novak Djokovic actually said about vaccines? was published on January 6.
A line in the article said: “In April 2020, well before Covid vaccines were available, Djokovic said he was ‘opposed to vaccination’.”
However Djokovic’s legal team has said this passage was “selectively” chosen by the Minister and was “somewhat misleading”.
They pointed out that just under that line was another that said Djokovic “later clarified his position by adding that he was ‘no expert’ and would keep an ‘open mind’ but wanted to have ‘an option to choose what’s best for my body’.”
Mr Wood said it was “plainly wrong” to rely on that line to show that Djokovic was an anti-vax hero.
“It was irrational for the Minister to only contemplate the prospect of the fostering of anti-vax sentiment that might accrue from Mr Djokovic playing tennis and yet not consider the binary alternative, which was the prospect of anti-vax sentiment being fostered by … coercive state action.”
“The Minister is grasping at straws,” said Mr Wood, who added that elements of the cancellation reasons were “extremely weak” and there were “elementary errors” by Minister Hawke when he referred to press reports — some of which did not cite Djokovic at all.
One question Djokovic’s legal team wants answered
Djokovic’s legal team has said there is just one question that needs to be answered at today’s hearing.
In a revised submission from the tennis great’s legal team submitted on Sunday morning it was noted that immigration Minister Alex Hawke had said that Djokovic posed little or no direct health risk to the Australian public, had entered Australia lawfully and that he had been cooperative in his dealing with authorities.
“Why, then, was the Visa cancelled?” the document asks.
In his lengthy reasoning behind cancelling Djokovic’s visa, Mr Hawke did indeed say that the advice he had received was that the Serbian was a low or negligible risk to the direct health of Australians in terms of direct Covid-19 transmission.
He also agreed that Djokovic had been compliant with the Australian government and immigration authorities But the visa was cancelled on the grounds of the long term health of Australians.
“Mr Djokovic’s presence in Australia may pose a health risk to the Australian community, in that his presence in Australia may foster anti-vaccination sentiment leading to other unvaccinated persons refusing to become vaccinated, other unvaccinated persons being reinforced in their existing view not to become vaccinated, and/or a reduction in the uptake of booster vaccines,” Mr Hawke wrote.
But Djokovic’s legal team said on Sunday there was “no evidence that such sentiment has been foster or fomented in the communities of the many countries in which Mr Djokovic has been present”.
Djokovic on the move as bombshell claim addressed
A Serbian health ministry official has denied there is anything untoward about Djokovic’s positive Covid-19 test result from last month after questions were asked about its validity.
Last week reports emerged Djokovic’s positive Covid test on December 16 — the one he was using to justify obtaining a medical exemption to enter Australia — may have been “manipulated”.
According to an investigation by German newspaper Der Spiegel, the digital time stamps on Djokovic’s test result – accessed via Serbia’s public central test registry – suggested the test was not from December 16 at all, but rather 2.21pm on December 26.
Further details cast doubt on the nature of the test result but Zoran Gojkovic, who works as part of Serbia’s Crisis Staff fighting the spread of the virus in the country, claimed it was perfectly legitimate.
“After the documentation appeared on social networks we analysed the document, and the document is absolutely valid,” Gojkovic said.
Shortly after 8.30am, Djokovic left the Melbourne detention hotel he was moved back to last night and headed to his lawyers’ offices ahead of the hearing.
Serbian President takes aim at Scott Morrison
On Saturday Serbian President Aleksandar Vucic blasted Australia for “mistreating” Djokovic and accused Prime Minister Scott Morrison of using Serbia’s biggest sports star for political gain.
“If you wanted to ban Novak Djokovic from winning the 10th trophy in Melbourne why didn’t you return him immediately? Why didn’t you tell him, ‘It is impossible to obtain a visa?’” Mr Vucic said on Instagram.
“Why do you harass him, why do you mistreat him, as well as his family and (a) nation that is free and proud?
“Is all this necessary to win the elections and please your public?
“A president of a small country has appeared who has the courage to say that to one great prime minister of a large country — I can because I’m telling the truth and you know I’m telling the truth.”
Mr Vucic also slammed the messy process that has seen Djokovic’s visa cancelled twice and resulted in a second legal challenge.
“They often preach to us about the rule of law,” Mr Vucic said. “You can imagine what it would look like if a Minister in Serbia annulled court decisions.
“They showed us what an independent judiciary looks like, but they also showed us what an irrelevant judiciary looks like, because all the power there is in the hands of the executive.
“We will fight for Novak Djokovic and the fact that you will harass him for a day, two or five more will not change the sentiments of our people toward the people of Australia that we highly respect and appreciate, but also our opinion about Novak Djokovic.
“You can write hundreds of thousands of worst articles about Djokovic, he will remain the greatest tennis player of all time, and we will firmly keep him in our hearts.
“And you who think that you are achieving something by harassing him, you will never reach not only Novak Djokovic, but any ordinary man, both of our and your proud and dignified people.”
“Long live Serbia, Novak, we are with you.”
Coach leaves amid Djokovic mess
Croatian tennis coach Filip Serdarusic, who was allowed to enter Australia on a Covid-19 vaccine exemption, said he had opted to leave the country after being caught in the visa controversy enveloping Novak Djokovic.
Serdarusic accompanied his brother Nino Serdarusic, who played in a Challenger event at Traralgon east of Melbourne and then in the Australian Open qualifying tournament where he lost in the first round.
Flip Serdarusic told a Balkans regional sports channel on Saturday that he was not vaccinated but had tested positive for Covid-19 in October.
The results were forwarded to the Tennis Australia and on December 10 he got the green light to travel to the country.
Upon arrival in Australia an “immigration lady asked me if I was vaccinated. I said no, but that I had the exemption,” Serdarusic told the SportKlub. “She told me there was a possibility that I go to a 14-day quarantine but I replied that I would not have arrived if I knew I would have to be in a quarantine”.
The immigration officer called her superior and Serdarusic was eventually allowed to enter.
But, on January 5, when Djokovic landed in Melbourne and immediately ignited a visa furore, Serdarusic received a call from the immigration centre to come for an interview.
“I had two options: to return home legally or apply for a new visa,” he said. “I decided to leave since I’m not ‘big’ like Novak to fight. If they stopped him they had to stop us too.”
Czech player Renata Voracova was detained on the same grounds as Djokovic and deported from Australia on January 8.
Serdarusic voiced support for the Serbian world No. 1, who is fighting against deportation.
“When we applied for a visa we had to meet the requirements,” he said. “Neither Novak nor I invented the exemption, we did it according to their rules and we were allowed to enter.
“We just used the opportunity they gave us.”
Djokovic could cause ‘civil unrest’
Australia returned Novak Djokovic to detention on Saturday, saying the tennis star’s opposition to vaccination could cause “civil unrest” and triggering a high-profile court showdown.
The case will be heard by the full Federal Court of three justices, a format that leaves little room to appeal any decision.
For now, the Serbian ace is back at a notorious Melbourne immigration detention hotel after a few short-lived days of freedom following his first successful court appeal on Monday. A motorcade was spotted moving from his lawyers’ offices — where he had been kept under guard for most of Saturday — to the former Park Hotel facility.
In court filings, Australia has cast Djokovic as a figurehead for anti-vaxxers and a catalyst for potential “civil unrest” who must be removed in the public interest.
Djokovic’s presence in Australia “may foster anti-vaccination sentiment”, Immigration Minister Alex Hawke argued, justifying his use of broad executive powers to revoke the 34-year-old’s visa.
Not only could Djokovic encourage people to flout health rules, Hawke said, but his presence could lead to “civil unrest”.
So with just two days before the Australian Open begins, the defending champion is again focused on law courts rather than centre court.
Exemption storm explodes on eve of Australian Open
After months of speculation about whether Djokovic would get vaccinated to play in Australia, he used a medical exemption to enter the country two weeks ago, hoping to challenge for a record 21st grand slam title at the Australian Open.
Many Australians — who have suffered prolonged lockdowns and border restrictions — believe Djokovic gamed the system to dodge vaccine entry requirements. Amid public outcry, Prime Minister Scott Morrison’s government revoked Djokovic’s visa on arrival.
But the government was humiliated when a judge reinstated Djokovic’s visa and allowed him to remain in the country.
This time, the government has invoked exceptional — and difficult to challenge — executive powers to declare him a threat to public health and safety. Experts say the case has taken on significance beyond the fate of one man who happens to be good at tennis.
“The case is likely to define how tourists, foreign visitors and even Australian citizens view the nation’s immigration policies and ‘equality before the law’ for years to come,” said Sanzhuan Guo, a law lecturer at Flinders University.
Djokovic’s lawyers argue the government “cited no evidence” to support their claims.
The Immigration Minister admitted that Djokovic is at “negligible” risk of infecting Australians, but argued his past “disregard” for Covid-19 regulations may pose a risk to public health and encourage people to ignore pandemic rules.
Djokovic contracted Covid-19 in mid-December and, according to his own account, failed to isolate despite knowing he was positive.
Public records show he attended a stamp unveiling, youth tennis event and granted a media interview around the time he got tested and his latest infection was confirmed.
Djokovic is the Australian Open’s top seed and a nine-time winner of the tournament. He had been practising just hours before Minister Hawke’s decision was announced.
If his visa cancellation is upheld, it could mean Djokovic would be barred from obtaining a New Australian visa for three years, except under exceptional circumstances.
He is currently tied with Roger Federer and Rafael Nadal with 20 grand slam titles each.
Spanish great Nadal took a swipe at his rival on Saturday as players complained the scandal was overshadowing the opening Grand Slam of the year.
“The Australian Open is much more important than any player,” Nadal told reporters at Melbourne Park. “Australian Open will be a great Australian Open with or without him.”
Originally published as Live: Judge’s retort is a big blow to Novak Djokovic