Lawyers for Novak Djokovic have made a late night appearance before a federal judge seeking an injunction to prevent the tennis star from being deported or taken into detention.
The preliminary directions hearing started in the Federal Circuit and Family Court at 8.45pm on Friday – three hours after Immigration Minister Alex Hawke used his discretionary powers to cancel Djokovic’s visa. The proceedings were streamed on the court’s YouTube channel.
While legal experts have raised doubts the unvaccinated Serbian will be able to play in the Australian Open, his lawyers will be buoyed by the fact Judge Anthony Kelly is once again sitting on the case after ruling in Djokovic’s favour on Monday.
The latest twist in the dramatic saga could continue until Sunday – just one day before the Grand Slam starts.
Lawyers for the athlete argued the Immigration Minister’s decision is based on unfounded fears that letting the unvaccinated tennis star stay in the country and play in the Australia Open would excite ‘anti-vax sentiment’.
Tennis superstar Novak Djokovic has had his visa cancelled for a second time and is set to be deported, despite a judge finding he could stay in Melbourne to defend his Australian Open crown
Novak Djokovic timeline ahead of the Australian Open (pictured) – on January 4 he told his social media followers he was heading down under – despite being unvaccinated
Nick Wood SC told the court his client is ‘seeking an injunction to stop his deportation and get him out of detention’ so the world No. 1 can compete in his first round clash on Monday night.
‘I do seek leave to orally apply for relief with respect to the decision of the minister to cancel Mr Djokovic’s visa.’
He added that a formal application to stay in the country will be tendered to the court as soon as possible.
‘We think we will be in a position to file a formal application by 10.15pm tonight.’
Despite the Immigration Minister’s order, Djokovic has not yet been detained but will have to attend an 8am interview on Saturday with border officials.
‘Where this is leading your honour in terms of timetabling … is that we expect that we [would be able to file an originating application tonight … and final submissions by midday tomorrow]’, Mr Wood said.
‘We would expect the minister to file submission, we suggest, by 10pm tomorrow, and a hearing to happen on Sunday.’
Immigration Minister Alex Hawke was handed the poisoned chalice of deciding whether Novak Djokovic would be allowed to stay in Australia after his visa was originally cancelled upon arrival
Minister Hawke used his discretionary powers to cancel the Serbian’s visa on Friday, four days after the Federal Government had backed down on sending him home.
Officials said the world No. 1, who is unvaccinated against COVID-19, may pose a risk to the community, dashing his hopes of competing for his 21st grand slam.
Shortly after the announcement, Prime Minister Scott Morrison released a statement saying ‘Australians have made many sacrifices during this pandemic, and they rightly expect the result of those sacrifices to be protected.
‘This is what the Minister is doing in taking this action today.’
The cancellation means Djokovic could be barred from a new Australian visa for three years, except under certain circumstances.
Djokovic, pictured with his wife Jelena, could be barred from entering Australia for three years following Alex Hawke’s decision
Djokovic concedes he provided false information on his travel entry form, which incorrectly claimed he had not travelled in the 14 days before his arrival in Melbourne, despite visiting Spain
The 34-year-old’s legal team was reportedly told of his visa cancellation 13 minutes before the media, and went straight into discussions with the Federal Government.
Despite the late-night proceedings, legal experts say it will be difficult – if not impossible – for Djokovic to successfully challenge a visa cancellation decision made personally by the Immigration Minister.
Mr Hawke said: ‘Today I exercised my power under section 133C(3) of the Migration Act to cancel the visa held by Mr Novak Djokovic on health and good order grounds, on the basis that it was in the public interest to do so.
‘This decision followed orders by the Federal Circuit and Family Court on 10 January 2022, quashing a prior cancellation decision on procedural fairness grounds.
‘In making this decision, I carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic.
‘The Morrison Government is firmly committed to protecting Australia’s borders, particularly in relation to the Covid-19 pandemic.
‘I thank the officers of the Department of Home Affairs and the Australian Border Force who work every day to serve Australia’s interests in increasingly challenging operational environment.’
Prime Minister Scott Morrison released a statement shortly after Djokovic’s visa was cancelled
Prime Minister Scott Morrison backs Immigration Minister
Prime Minister Scott Morrison released a statement shortly after Djokovic’s visa was cancelled.
‘I note the Minister for Immigration’s decision in relation to Mr Novak Djokovic’s visa,’ Mr Morrison said.
‘I understand that following careful consideration, action has been taken by the Minister to cancel Mr Djokovic’s visa held on health and good order grounds, on the basis that it was in the public interest to do so.
‘This pandemic has been incredibly difficult for every Australian but we have stuck together and saved lives and livelihoods.
‘Together we have achieved one of the lowest death rates, strongest economies and highest vaccination rates, in the world.
‘Australians have made many sacrifices during this pandemic, and they rightly expect the result of those sacrifices to be protected.
‘This is what the Minister is doing in taking this action today.
‘Our strong border protection policies have kept Australians safe, prior to COVID and now during the pandemic.’
Minister Hawke’s decision comes just three days out from the start of the Australian Open on January 17 where Djokovic had hoped to become the most successful male player of all time.
The fallout from the ordeal has throw the tournament into further disarray.
Djokovic, who has won the Australian Open a record nine times, could be held in detention in Melbourne while the tournament goes on, creating a nightmare scenario for Tennis Australia.
In the delayed draw on Thursday afternoon, Djokovic was drawn to play against fellow Serb Miomir Kecmanovic, who is ranked world No.78.
Protests have been predicted and the Federal Government can expect an international backlash in response to its decision, particularly from Serbia.
Djokovic could be held in detention in Melbourne while the Open goes on without the world’s top ranked player, creating a nightmare scenario for Tennis Australia
Protests have been predicted and the federal government can expect an international backlash in response to its decision, particularly from Serbia. Members of Melbourne’s Serbian community are pictured on Monday
Calls for Djokovic to be deported increased after inconsistencies emerged between his sworn evidence on immigration documents and social media posts.
Djokovic was denied a visa to enter Australia on January 6 by a Border Force official but that decision was overturned by the Federal Circuit Court on Monday.
He has since admitted providing false information on his travel entry form, which incorrectly claimed he had not travelled in the 14 days before his arrival in Melbourne, despite visiting Spain.
Djokovic has also conceded he breached Serbia’s isolation rules after learning he had tested positive to the virus on December 16.
Djokovic (pictured with wife Jelena) has been advised to attend an interview with immigration officials on Saturday – and it is believed he will remain out of detention until that is completed
Djokovic said he had been interviewed in person by a French newspaper while infected with Covid, and blamed his agent for the ‘administrative error’ on his travel entry form.
Discrepancies emerged after Djokovic issued a lengthy Instagram statement on Wednesday to clarify ‘misinformation’ about his movements while positive with Covid.
‘I want to address the continuing misinformation about my activities and attendance at events in December in the lead-up to my positive Covid test result,’ it began.
‘I want to emphasise that I have tried very hard to ensure the safety of everyone and my compliance with testing obligations.’
THE THREE ‘INCONSISTENCIES’ IN NOVAK DJOKOVIC’S STORY
1. WHEN DID THE WORLD NO. 1 FIND OUT HE WAS POSITIVE? AND WAS HIS COVID TEST MANIPULATED?
There are serious questions about when the anti-vaxxer learned of his positive Covid test. A sworn affidavit to the Federal Circuit Court claimed the tennis star was ‘tested and diagnosed’ for Covid on December 16.
This contradicts his Instagram statement on Wednesday, after pictures emerged of the Serbian star at an event in Belgrade on December 17 presenting awards to children without a mask.
He said he only learned of his positive test shortly after the meet and greet.
Djokovic was told he could fly into Melbourne on the basis he tested positive to the virus in Serbia on December 16 and then negative six days later.
But German publication Der Spiegel claims when its reporter entered the QR code for his December 16 test into the official Serbian health database at 1.19pm on Monday, the result came back negative.
An hour later at 2.33pm, the scan returned a positive result – in what could simply be a quirk of the system.
A negative result would have invalidated Djokovic’s claim to enter Australia on a temporary working visa for the tournament.
2. DJOKOVIC BREACHED COVID ISOLATION RULES IN SERBIA
The 34-year-old disclosed he had attended an event with children while he was Covid positive, but claimed he didn’t know he was infected until afterwards.
He had taken a PCR test the day before and was awaiting results, but said he tested negative to a rapid antigen test so went along.
Djokovic has been the subject of intense scrutiny for presenting awards to kids at an event in Belgrade on December 17 – a day after recording a positive result for the virus.
The Serbian maintained he was not aware of his diagnosis until shortly after but did admit to conducting an in-person interview with French newspaper L’Équipe knowing he was positive.
He called his decision to go ahead with the Q and A an ‘error in judgement’ but said he maintained social distancing and wore a mask.
Under Serbian law, where anyone Covid positive must isolate for 14 days, such a breach can carry a maximum sentence of three years behind bars.
3. THE TENNIS STAR PROVIDED FALSE INFORMATION ON HIS DECLARATION FORM AND TO THE COURT
Djokovic is alleged to have written incorrect information on his landing card telling Border Force he had not travelled in the past 14 days despite visiting Spain.
He later said this was an administrative mistake make by his agent, who ‘ticked the incorrect box’.
He also declared he was ‘tested and diagnosed’ for Covid on December 16 in a court document but now says he learnt of his positive test on December 17.
Djokovic admitted doing a interview and photo shoot L’Equipe while infected with Covid as he had a long standing commitment to do so.
‘I cancelled all other events except for the L’Equipe interview,’ Djokovic said.
‘I felt obliged to go ahead and conduct the L’Équipe interview as I didn’t want to let the journalist down, but did ensure I socially distanced and wore a mask except when my photograph was taken.’
He also addressed the ‘human errors’ on his travel declaration which failed to declare that he had visited Spain in the 14 days before his arrival at Melbourne Airport.
‘This was submitted by my support team on my behalf – as I told immigration officials on my arrival – and my agent sincerely apologises for the administrative mistake in ticking the incorrect box about my previous travel before coming to Australia,’ Djokovic continued.
‘This was a human error and certainly not deliberate. We are living in challenging times in a global pandemic and sometimes these mistakes can occur.
‘Today, my team has provided additional information to the Australian government to clarify this ‘matter.’
Djokovic had been granted a medical exemption to play in Melbourne by Tennis Australia. He believed he had met criteria set by Australia’s advisory board on immunisation and been given a federal government declaration he could travel.
He took his case to the Federal Circuit Court where the federal government agreed to settle the case and Judge Kelly quashed the cancellation of Djokovic’s visa on Monday.
Judge Kelly found that tearing up Djokovic’s visa had been unreasonable and he had not been given enough time by Australian Border Force officials to respond to their concerns.
Having beaten the Minister for Home Affairs, Karen Andrews, Djokovic then had to contend with Mr Hawke, a close ally of Mr Morrison.
It was originally speculated Mr Hawke had just four hours to make a decision on Djokovic’s visa after it was reinstated by a Federal Circuit Court judge on Monday
Djokovic posted this picture of himself practising at Rod Laver area just hours after he was finally released from detention after a five-day-long ordeal
Mr Hawke had three options open to him.
He could have let Djokovic stay in Australia to compete in the Open, he could re-cancel his visa and ban the star from coming to Australia for three years, or he could cancel the visa but not impose a three-year ban.
Either of the second and third options was likely to lead to more legal action.
Djokovic first responded on Monday to the federal government’s failed cancellation of his visa, saying he still wanted to compete at the Australian Open.
‘I’m pleased and grateful that the judge overturned my visa cancellation,’ he wrote on Twitter.
‘Despite all that has happened, I want to stay and try to compete.
‘I remain focused on that. I flew here to play at one of the most important events we have in front of the amazing fans.’
Djokovic’s family said in a press conference in Serbia that he had returned to training on the tennis court and the ‘rule of law has won’.
His father Srdjan said: ‘I call on Queen Elizabeth, the leader of the Commonwealth, to intervene and protect the human rights of my son and to stop the political prosecution carried out against him since he came to Australia.’
EXCERPT OF NOVAK DJOKOVIC VISA INTERVIEW TRANSCRIPT
Interview #1 begun at 12.21am on January 6:
INTERVIEWER: Thank you. So when I ask you what were your reasons for travelling to Australia today?
DJOKOVIC: I’m a professional tennis player and the main reason for me coming to Australia is participating in the Australian Open in Melbourne, Victoria.
INTERVIEWER: Thank you. Now question regarding your vaccination, are you vaccinated for COVID-19? Not vaccinated?
DJOKOVIC: I am not vaccinated.
INTERVIEWER: Thank you. Have you ever had COVID?
DJOKOVIC: Yes. I had COVID twice, I had COVID in June 2020 and I had COVID recently in – I was tested positive – PCR –16th of December 2021.
DJOKOVIC: I have the documents as well to confirm that if you want I can provide
INTERVIEWER: Thank you. I’ll just make a photocopy of those documents.
Djokovic’s visa was originally cancelled upon his arrival at Melbourne Airport and he was held in a cheap hotel under an immigration detention order while he waited for his appeal to be held.
Then followed five days of chaotic bureaucracy and finger pointing between the federal government, the Victorian government and Tennis Australia.
After hours of legal argument Judge Kelly ordered Djokovic be freed from detention at Melbourne’s Park Hotel by no later than 5.46pm on Monday.
He quashed the decision to tear up Djokovic’s visa and ordered that his passport and other personal belongings be returned.
DJOKOVIC COMES CLEAN ABOUT HIS COVID TESTS AND VISA DEBACLE
‘I want to address the continuing misinformation about my activities and attendance at events in December in the lead-up to my positive Covid test result.
This is misinformation which needs to be corrected, particularly in the interest of alleviating broader concern in the community about my presence in Australia, and to address matters which are very hurtful and concerning to my family.
I want to emphasise that I have tried very hard to ensure the safety of everyone and my compliance with testing obligations.
I attended a basketball game in Belgrade on 14 December after which it was reported that a number of people tested positive to Covid-19.
Despite having no Covid symptoms, I took a rapid antigen test on 16 December which was negative, and out of an abundance of caution, also took an official and approved PCR test on that same day.
The next day I attended a tennis event in Belgrade to present awards to children and took a rapid antigen test before going to the event, and it was negative.
I was asymptomatic and felt good, and I had not received the notification of a positive PCR test until after that event.
The next day, on 18 December I was at my tennis centre in Belgrade to fulfil a long-standing commitment for a L’Équipe interview and photoshoot. I cancelled all other events except for the L’Equipe interview.
I felt obliged to go ahead and conduct the L’Équipe interview as I didn’t want to let the journalist down, but did ensure I socially distanced and wore a mask except when my photograph was taken.
Djokovic is pictured practising on Rod Laver Arena on Wednesday, ahead of his bid to win a tenth Australian Open crown
When I went home after the interview to isolate for the required period, on reflection, this was an error of judgment and I accept that I should have rescheduled this commitment.
On the issue of my travel declaration, this was submitted by my support team on my behalf – as I told immigration officials on my arrival – and my agent sincerely apologises for the administrative mistake in ticking the incorrect box about my previous travel before coming to Australia.
This was a human error and certainly not deliberate. We are living in challenging times in a global pandemic and sometimes these mistakes can occur. Today, my team has provided additional information to the Australian government to clarify this matter.
While I felt it was important to address and clarify misinformation I will not be making any further comment out of utmost respect for the Australian government and their authorities and the current process.
It was always an honour and a privilege to play in the Australian Open. The Australian Open is much-loved by players, fans and the community, not just in Victoria and in Australia but around the globe, and I just want to have the opportunity to compete against the best players in the world and perform before one of the best crowds in the world.’