Novak Djokovic wins appeal against a decision to refuse him a visa ahead of Australian Open

by 24britishtvJan. 10, 2022, noon 15
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Novak Djokovic has won a court battle to stay in Australia to contest the Australian Open despite being unvaccinated against COVID-19, but the government has threatened to cancel his visa for a second time.

Judge Anthony Kelly has quashed the visa cancellation, and ordered the Australian Government to pay legal costs and release Djokovic from detention within half an hour as he delivered his verdict at 6.16am GMT.

Government counsel Christopher Tran notified the court that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - not the minister who made the original visa cancellation - will now consider whether to exercise a personal power of cancellation of Djokovic's visa.

Shortly after the verdict, a transcript of Djokovic's interview with Border Force last week was released in which the world number one stated: "I am not vaccinated."

The Australian Open starts on Monday, January 17, with the draw taking place on Thursday, January 13.

Earlier in the day, Djokovic was removed from detention to be with his lawyers during the hearing, and Judge Kelly expressed agitation over the rejection of Djokovic's medical exemption.

Djokovic's lawyers presented their arguments to the court, but government lawyer Mr Tran only spoke for half an hour before a lengthy adjournment.

During that break, the two parties agreed on the minutes of Judge Kelly's order.

The minutes note Djokovic was not given adequate time to respond to the notification to cancel his visa.

The court published an order made on Sunday that Djokovic be taken from the Park Hotel - where he has been held since Thursday - and brought to "a premises as specified by the applicant's solicitors" during the hearing.

The order states: "The respondent, by her servants or agents, including the Australian Border Force, take all steps and do all things as may be necessary to bring the applicant to premises as specified by the applicant's solicitors on Monday, 10 January 2022 (and each day thereafter, including upon the delivery of judgment), to permit him to remain there until the conclusion of each hearing and to secure his safe return to detention upon the conclusion of each hearing."

Judge: What more could this man have done?

The hearing was delayed by technical issues with the court's video link, but Djokovic's lawyers argued their case to Judge Kelly, who asked the court "What more could this man have done?" and said he was "agitated" about the issue of Djokovic's medical exemption.

"Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption," Judge Kelly said.

"Further to that, that medical exemption and the basis on which it was given was separately given by a further independent expert specialist panel established by the Victorian state government and that document was in the hands of the delegate."

Djokovic's lawyer, Nicholas Wood, has argued the notice of intention to cancel his visa was defective because it was made on "a confusing blend of two grounds".

He also argued that Djokovic was treated at the airport as if access to lawyers "couldn't possibly" be of assistance in the matter and was not given a reasonable chance to respond to the notice.

At a press conference before the appeal verdict, Australia's Prime Minister Scott Morrison was asked by a reporter to respond to comments from Tennis Australia chief executive Craig Tiley stating he was given conflicting government advice on medical exemptions.

Mr Morrison said: "Well, the matter is before the court so I can't comment on the matter before the court - but in relation to the government, our government, the federal government's advice to Tennis Australia, that was set out very clearly in November, as I read the extract from this very podium, it could not be more clear."

The court released a transcript of Djokovic's interview with Border Force last week, during which the Serb shared his vaccination status. In response to a question about his status, he said: "I am not vaccinated."

It was also revealed in court documents submitted by Djokovic's lawyers that the player had been infected with Covid-19 in December 2021, confirmed by a PCR Test on December 16. The documents said the infection was the basis of Djokovic's medical exemption.

The documents also noted that Djokovic expressed "shock", "surprise, and "confusion" when he was notified of his visa cancellation "given that (as he understood it) he had done everything he was required to enter Australia".

But Australia's Home Affairs Department filed court documents in which it stated "there is no such thing as an assurance of entry by a non-citizen into Australia" and noted that the Minister has the power to cancel Djokovic's visa a second time if the court rules in his favour.

"As the Court raised with the parties at a previous mention, if this Court were to make orders in the applicant's favour, it would then be for the respondent to administer the Act in accordance with law. That may involve the delegate deciding whether to make another cancellation decision, but there are also other powers in the Act, as the Court would be aware."

Analysis: 'Novak believes he has been wronged'

One week before the start of the Australian Open and it's hard to remember a more shambolic situation.

This extraordinary legal fight is a career-defining moment for Djokovic who grew up in Serbia during the conflict in the Balkans. He would practice his tennis in an empty swimming pool and occasionally run for cover when bombing raids started.

"It made us more hungry, more hungry for the success" he has previously said. If he is to come back from this and maybe even win one more Australian Open it would make him the most successful man ever to play the game.

There are many elite athletes who would have recoiled at the sight of the cramped room at the quarantine hotel, turned their nose up at the ropey food on offer and skulked back to their home country on the first plane available. Novak though has stuck it out because he believes he has been wronged.

He is one of the most determined characters tennis has ever seen and whatever you think of him Djokovic is never easily beaten. He has proved so many times - both on the court and now in the courts of Australia - it's not over until it's over.

Following the news that Djokovic's appeal was successful Rafael Nadal, who warmed up for the Australian Open by clinching the Melbourne Summer Set title, gave his perspective on the situation.

"Whether or not I agree with Djokovic on some things, justice has spoken and has said that he has the right to participate in the Australian Open and I think it is the fairest decision to do so, if it has been resolved that way. I wish him the best of luck," Nadal told Spanish radio Onda Cero on Monday.

"On a personal level, I'd much rather he didn't play," Nadal said, laughing along with the interviewer.

"It's sports, many interests move around it, on a general level, at an economic, advertising level. Everything is much better when the best can be playing," Nadal said, before once again defending vaccination.

"The most important institutions in the world say that the vaccine is the way to stop this pandemic and the disaster that we have been living for the last 20 months."

Djokovic flew to Australia with a 'vaccine exemption' and arrived in Melbourne on Wednesday, but was ultimately denied entry into the country after nine hours at the airport.

The Serb's visa was one that did not allow for medical exemptions and was cancelled, after which he was moved to hotel quarantine as his team launched an appeal.

The Australian Home Affairs department appealed for the hearing to be delayed until Wednesday, but their request was rejected on Sunday by Judge Anthony Kelly.

On Sunday, the govt filled documents in defence of their decision to deny Djokovic entry. "This is because there is no such thing as an assurance of entry by a non-citizen into Australia. Rather, there are criteria and conditions for entry, and reasons for refusal or cancellation of a visa," the government's filing said.

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