Novak Djokovic wins Federal Court battle to overturn cancellation of visa
The federal government's decision to revoke the visa of tennis world No. 1 Novak Djokovic has been overturned in federal court - but the superstar athlete's Australian Open fate is under a cloud.
The 34-year-old arrived in Australia late on Wednesday after announcing that he had a medical reason for not being vaccinated against COVID-19.
Djokovic was taken into immigration custody on Thursday morning after his visa was revoked.
A federal court challenge to overturn the decision was launched and on Monday it ruled in Djokovic's favor.
Judge Anthony Kelly delivered the ruling to release the Serbian superstar from house arrest within 30 minutes.
He says that the decision to cancel the visa will be canceled and the government will pay the cost.
However, Commonwealth counsel Christopher Tran said the minister of immigration and citizenship could still exercise his personal powers to revoke visas.
"I have been instructed that the Minister of Immigration, Citizenship, Overseas Services and Multicultural Affairs, not the Minister in this proceeding, shall consider whether to exercise the personal power of cancellation under 133C(3)," Mr. Tran he said.
"These are my instructions to inform the court."
Minister Hawke will have to decide on whether or not to implement the cancellation on Monday evening.
If that happens, Judge Kelly says, Djokovic will be barred from entering Australia for three years.
The hearing was plagued by technical issues on Monday, which collapsed under pressure from thousands of people trying to watch the live stream.
As a result, Judge Kelly first ordered Djokovic to be taken from custody to a confidential location designated by his lawyers from where he could watch the trial.
Nick Wood SC says Djokovic announced before boarding his flight from Dubai to Australia that he had a medical contraindication and was able to provide evidence - a medical waiver by Tennis Australia.
Judge Kelly asked: "What else could this man do?"
“Here, a professor and a reputedly qualified doctor have sought and granted medical exemption to the applicant,” he said.
"Furthermore, that medical exemption and the basis on which it was granted were given separately by another independent expert expert panel set up by the Victorian state government."
The judge said the documents were in the possession of a representative from the Department of Immigration who had made the decision to revoke his visa on behalf of Interior Minister Karen Andrews.
Mr Wood said Djokovic was "completely confused" as he did everything he was asked.
His lawyers argue that Djokovic contracted COVID-19 on 16 December and was symptom-free before his arrival.
He says he met the criteria for a temporary exemption under the Australian Technical Advisory Group on Immunization (ATAGI) guidelines and was denied procedural fairness during the decision to revoke his visa.
Authorities interrogated Djokovic overnight between his arrival just before midnight on Wednesday and the cancellation of his visa at 7.42 am on Thursday.
A partial transcript records Djokovic telling officials he had not been vaccinated against COVID-19. He had previously refused to confirm his vaccination status.
The government's arguments say it is wrong to challenge Djokovic's claim that past infection is grounds for exemption.
They say the ATAGI advice is clear that previous infection is not a contraindication for infection and that a person may instead postpone vaccination for six months following severe illness.
"There is no suggestion that the applicant had a 'serious serious illness' in December 2021," the documents said.
“He has only said that he tested positive for COVID-19. It's not the same."
The ATAGI advisory also says that a person who tests positive may receive the first or second dose of COVID-19 vaccination if they are asymptomatic.
Chris Tran, representing the Commonwealth, told the court that the case has a precedent to favor his arguments - ridiculing himself in the process.
"I think it would be useful for your honor to consider two matters - both of which are my losses, so I will revisit the happy memories," he said.
He will begin his detailed submission later on Monday.
Australian government lawyers have asked the judge to dismiss Djokovic's legal challenge and order him to pay the price.
But should he win and the court orders his immediate release, they want the judge to make it clear that nothing can stop him from being taken into custody again.
Hearing continues.
Murray: Djokovic saga bad for tennis
The saga has left the tennis world divided and Djokovic's quest for a record 21st Grand Slam title at Melbourne Park in turmoil.
Andy Murray is the latest big name to show concern for Novak Djokovic, while declaring that the world No. 1 saga is "really bad" for tennis.
"I think to be honest, everybody is shocked by this," the former world number one player told reporters.
"I'm going to say two things on this right now. The first thing is I hope Novak is okay. I know him well and I've always had a good relationship with him.
"The other thing I would say on this, is it really isn't good for tennis at all, and I don't think it's good for anyone involved. I think it's really bad.
"Some things have come up that really don't look good. I want to hear all the facts before I give my thoughts on this."
Murray's views have also been echoed by other tennis stars such as Australia's most high-profile male player Nick Kyrgios, who said: "I feel for him now. Like it's not really human, is it going on?"
Timeline of transition is a concern
Eyebrows have been raised about the timeline of Djokovic's COVID infection, documents show as of December 16 last year.
A series of photographs emerged showing Djokovic attending a series of events on 16 December. Subsequent photos show Djokovic was out in public over the next two days.
He was pictured at an award ceremony for junior tennis players, believed to have taken place on 17 December.
Following the release of court documents on Saturday night, French sports outlet L'Equipe shared that she did a promotional photo shoot with Djokovic on 18 December.
Meanwhile, a Tennis Australia document for players also indicated that the medical exemption application deadline was December 10 - suggesting Djokovic's upcoming positive test may be his only way to get the green light in the TA process.
