Novak Djokovic has won the first round of the Immigration saga and, following today’s court ruling, is free to leave the detention centre he has inhabited for the past four days, to join his team and lawyers following the overruling of the Morrison government’s decision to cancel his visa.
That decision was reached by Judge Anthony Kelly and while it is a major blow to the Government, they can still decide to deport the Serbian as Immigration Minister Alex Hawke, has the power to reinstate the cancelation which would prevent Djokovic from playing in next week’s Australian Open.
Should Mr Hawke decide not to go another round, then the world No.1 and defending AO champion will be free to play the first grand slam of the season and try to win his 10th AO title, his 21st at grand slam level to establish two new records.
The verdict came at 5-15pm local time following a heated hearing between both legal parties in the Federal Circuit Court and is a major embarrassment for Prime Minister Scott Morrison.
He had stressed that ‘Rules are Rules’ in his support of the visa cancelation on Djokovic’s arrival in Melbourne last Thursday and his detention in the Park Hotel with other ‘failed’ immigrants.
But Judge Kelly, who had denied the Government an extra couple of days to prepare for the hearing, adjudged the decision by the Australian Border Force to annul his visa as ‘unreasonable’.
He pointed out that at 5.20am that Thursday morning, officials told the 34-year-old that he would have until 8.30am to respond to their notice of intention to cancel his visa.
As it turned out he was given less than an hour before the decision was made just before 8am.
Had Djokovic been allowed that originally promised extra time he could have consulted other people and made submissions about why his visa shouldn’t be cancelled, Judge Kelly said.
Earlier in the court, after hearing the lawyers’ arguments, the Judge had asked what more could the plaintiff had done to prove he had permission to enter Australia.
On their client’s behalf, his lawyers pointed out Djokovic had permission to land in the country and compete at the Australian Open unvaccinated, citing his approved visa, a medical exemption from Tennis Australia and the Victorian government, and a travel declaration which “indicated” he met requirements for quarantine-free travel.
But while Judge Kelly agreed it was a “relatively significant fact” that Djokovic had obtained a medical exemption after an assessment from independent medical experts and that the exemption process was run by Tennis Australia and the Victorian government, it did not assure him of entry into Australia.
In response Djokovic’s lawyers noted pointed out the exemption had been uploaded to their client’s travel declaration – a system run by Home Affairs – which was approved before he landed in Australia.
The Court was also told that the unvaccinated Djokovic’s medical exemption’ had been obtained on the grounds that he had recently recovered from a case of COVID-19 which he ‘recorded’ on December 19 and is now becoming the most contentious element of the whole affair.
A day later he was pictured without a mask, attending a children’s event and handing out awards when he should have been isolating in accordance with Serbian regulations.
Finally, Djokovic’s lawyers argued that officials had “radically and fundamentally” misapplied guidance from Australia’s expert vaccine panel – known as ATAGI – in ruling a recent infection with COVID-19 was not grounds for a medical exemption.
The saga continues and with the Government facing humiliation, the bell should ring for round two soon.