Lawyers for Novak Djokovic will make a last-ditch bid for the world No. 1 to stay in Australia by hitting Immigration Minister Alex Hawke with a new argument when the blockbuster case goes before the Federal Court on Sunday.
A final ruling on whether the unvaccinated tennis star can play in Monday’s Australian Open is almost certain to be made by the court, after the Serbian had his visa cancelled for a second time on the grounds his participation in the tournament would ‘foster anti-vaccination sentiment’.
But the 34-year-old’s crack legal team have a plan to demolish Immigration Minister Alex Hawke’s decision by arguing there is no legal basis for the Minister to determine if Djokovic has a ‘well-known stance on vaccination’.
They say 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.
Top Silk Nicholas Wood SC will also make the case that 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.
Lawyers for Novak Djokovic (pictured) will make a last-ditch bid for the world No. 1 to stay in Australia by hitting the Immigration Minister with a new argument when the blockbuster case goes before the Federal Court on Sunday
WIN, LOSE OR DRAW: WHAT COULD HAPPEN IN THE NOVAK DJOKOVIC COURT BATTLE?
WHAT HAPPENS IF DJOKOVIC WINS?
In a significant victory for Djokovic, the case will be heard in front of three Federal Court judges at 9:30 on Sunday. The federal government wanted the matter heard by one judge.
The full bench means neither side will 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 if he wins.
WHAT HAPPENS IF DJOKOVIC LOSES?
A ruling against the unvaccinated Serbian would leave him out of options apart from a High Court challenge, which would not have any chance of being heard in time for the tournament.
The 34-year-old would be ushered onto a plane and sent packing.
He would also likely banned from Australia until 2024.
WHAT HAPPENS IF NO RULING IS REACHED?
If there is no decision on Sunday and the government is faced with the international embarrassment of the Australian Open beginning while the tournament’s main drawcard is in detention, there may be extreme pressure to allow Djokovic to play.
In this case, the Minister could issue Djokovic with a bridging visa, former deputy secretary of the Immigration Department Abul Rizvi said.
But he added that would be unlikely.
Until the hearing commences, Djokovic is being held along asylum seekers at an immigration detention hotel at the notorious Park Hotel, in the inner Melbourne suburb of Carlton.
The reigning Australian Open champion spent the morning 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 today 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, who heard submissions from both legal teams this morning.
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 key reasons behind Novak Djokovic’s (pictured with wife Jelena) visa cancellation have been revealed with Immigration Minister Alex Hawke saying his presence in Australia may ‘foster anti-vaccination sentiment’
Immigration Minister Alex Hawke (pictured) made the call to give unvaccinated Djokovic the boot from Australia
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.’
Novak Djokovic’s last ditch bid to have the decision to cancel his visa overturned will be heard on Sunday
The tennis ace (pictured with wife Jelena) 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
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.’
NOVAK DJOKOVIC’S AUSTRALIAN OPEN EPIC VISA SAGA
Novak Djokovic’s defence of his Australian Open title remains in doubt after Australian immigration officials cancelled his visa for the second time.
Here’s how the saga has unfolded:
Jan 4: Djokovic tweets that he is on his way to the Australian Open under a medical exemption. He writes on Instagram: ‘I’ve spent fantastic quality time with my loved ones over the break and today I’m heading Down Under with an exemption permission. Let’s go 2022!!’
Jan 5: Australian Prime Minister Scott Morrison warns Djokovic he will be on the ‘next plane home’ if his medical exemption is deemed insufficient, and is adamant Djokovic will not receive preferential treatment.
Jan 5: Djokovic’s visa is cancelled upon his arrival in Melbourne. The Australian Border Force announces that the player ‘failed to provide appropriate evidence to meet the entry requirements for Australia’.
Jan 6: Djokovic is sent to the Park Hotel in Melbourne after being refused a visa. He launches an appeal, which is adjourned until 10am on January 10. Serbian president Aleksandar Vucic says Djokovic is the victim of ‘persecution’.
Jan 9: Djokovic’s lawyers claim he was granted a vaccine exemption to enter Australia because he recorded a positive Covid-19 test in Serbia on December 16. However, social media posts suggest he attended a number of social events in the days following his apparent diagnosis.
Jan 10: Djokovic’s visa cancellation is quashed by Judge Anthony Kelly, who orders the Australian Government to pay legal costs and release Djokovic from detention within half-an-hour. Djokovic says he is ‘pleased and grateful’ and wishes to ‘stay and try to compete’.
Jan 11: Djokovic’s title defence remains in doubt as the Australian Immigration Minister ponders whether to over-ride the court’s ruling, reportedly due to an alleged misleading claim made by Djokovic on his entry form relating to his movements in the 14 days prior to arrival in Australia.
Jan 12: Djokovic admits making an ‘error of judgement’ by attending an interview with a French journalist while Covid positive. He adds that, although he attended a children’s tennis event the day after being tested, he did not receive notification of the positive test until after the event.
Jan 13: Djokovic is drawn to face fellow Serb Miomir Kecmanovic in the first round.
Jan 14: Immigration minister Minister Alex Hawke cancels Djokovic’s visa for a second time, saying in a statement it was ‘on health and good order grounds’.
Reporting by PA