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Novak Djokovic has won an appeal against a decision to refuse him a visa ahead of the Australian Open – but lawyers for the country’s Government warned that the world number one men’s tennis player could still be barred if a minister exercises a ‘personal power of cancelation’.
Djokovic had been detained in a notorious Melbourne immigration detention facility since his unsuccessful bid to enter Australia last Wednesday, where he was denied entry on the basis he was unvaccinated and did not have a valid exemption.
But in a legal hearing at the Federal Circuit Court of Australia, Judge Anthony Kelly quashed the visa cancellation and ordered the Australian Government to pay legal costs and release Djokovic from detention within half an hour.
Djokovic, 34, will now be free to leave the Park Hotel in Carlton – where he has spent the last four nights alongside refugees and detainees – by 7pm local time.
But Government lawyer Christopher Tran told the judge after the ruling that the minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Alex Hawke, ‘will consider whether to exercise a personal power of cancelation.’
That would mean mean Djokovic could again face deportation and could miss the Australian Open, which starts on January 17.
Djokovic had argued that a recent positive Covid-19 test qualified him for the medical exception from the country’s requirement for all visitors to be double vaccinated.
The Australian government, however, had argued that non-citizens had no right of guaranteed entry to Australia and stressed that even if the Serbian won the court action, it reserved the right to detain him again and remove him from the country.
Serbian tennis player Novak Djokovic stands at a booth of the Australian Border Force at the airport in Melbourne, Australia, on January 5
Supporters of Djokovic are seen holding hands as they protest against his detention outside the Park Hotel on Monday
Supporters of Djokovic are seen outside the Park Hotel on January 10, 2022 in Melbourne, Australia, where the tennis star is detained
The virtual court hearing at the Federal Circuit and Family Court of Australia (file image) has been beset with technical issues, which has stopped Djokovic as well as members of the public from viewing the proceedings online
Dijana (centre) and Srdjan (right) were among members of the Djokovic family protesting in Belgrade
Dozens of people attended the protest outside the National Assembly in Belgrade on Sunday
Judge Anthony Kelly quashed the visa cancellation and ordered the Australian Government to pay legal costs and release Djokovic from detention within half an hour
File photo: Novak Djokovic and Jelena Djokovic arrive at the Giorgio Armani show during Milan Fashion Week, 2017
The car park of the Park Hotel, where the star athlete has been held during a legal challenge over his visa, in Melbourne, Australia, January 10
Earlier in the day Djokovic was removed from detention to be with his lawyers during the hearing, and Judge Anthony 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.
Earlier, the court published an order made yesterday that Djokovic be taken from the Park Hotel – where he had been held since Thursday – and brought to ‘a premises as specified by the applicant’s solicitors’ during the hearing.
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, 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.’
Mr Morrison refused to comment on court documents submitted by the government which indicate Djokovic may remain in detention despite winning his appeal.
The documents urged the court to only ‘quash the decision and costs’ and said ‘it is inappropriate to make any further orders, whether they be for immediate release or even remitter to the delegate for reconsidering according to the law’.
They also noted: ‘An order for immediate release does not prevent re-detention if there is power to detain.’
It was revealed in court documents submitted by Djokovic’s lawyers that the player had been infected with Covid-19 in December 2021. 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.’
Demonstrators also took to the streets in Melbourne – using Djokovic’s incarceration in the deportation hotel to highlight conditions there
Serbian tennis player Novak Djokovic’s father Srdjan Djokovic (centre) poses with a fan holding a painting of Novak Djokovic during a rally in front of Serbia’s National Assembly, in Belgrade, on Sunday
The virtual court hearing at the Federal Circuit and Family Court of Australia had been beset with technical issues, which has stopped Djokovic as well as members of the public from viewing the proceedings online.
Judge Kelly had ruled that in the face of technical difficulties, Djokovic must be released from the hotel and taken to a different location where he able to watch the hearing, reports News.com.au.
The judge said he was ‘agitated’ after learning all the steps the World No.1 took to comply with Australia’s Covid rules – only to be detained in an immigration detention facility when he landed at Melbourne airport.
Judge Kelly also raised concerns about how the Serbian was treated by border officials on arrival to the country.
‘A professor and qualified physician have provided the applicant a medical exemption, the basis of which was given by a further independent expert specialist panel established by the Victorian state government… that document was in the hands of the delegate,’ he said.
‘The point I’m somewhat agitated about is, what more could this man have done?’
Djokovic’s barrister Nick Wood said he’d been asking himself the same question, and said the Serbian star was adamant he did everything that was asked of him.
Before the court hearing began, Djokovic’s parents Dijana and Srdjan joined hundreds of supporters in the Serbian capital Belgrade, insisting that the world will ‘hear the truth’.
The defence team’s arguments finally got underway on Monday after the virtual hearing was hijacked by Serbians who displayed porn and played techno music in a protest against the tennis star’s detention.
Exchanges between Judge Kelly and Mr Wood revealed that officials made Djokovic switch off his phone from midnight to around 7.42am local time, when the decision to cancel his visa was made.
Officials reneged on an agreement to give him until 8.30 a.m. to speak to tournament organiser Tennis Australia, Wood said, and dissuaded him from waiting to speak to lawyers.
Supporters hold a banner reading ‘Let’s go Nole (Novak)’ with a picture of Serbian tennis player Novak Djokovic, during a rally in front of Serbia’s National Assembly, in Belgrade, on Sunday
Wood said Djokovic had clearly declared he had a medical contraindication that exempted him from the requirement to be double vaccinated and, even though he was not required to, had provided evidence to support that claim both before boarding his flight to Australia and on arrival.
The court case got off to a rough start, after an old link to broadcast the hearing over Microsoft Teams was overrun with pornographic pictures and music.
Meanwhile, an alternative livestream set up by staff at the Federal Circuit and Family Court of Australia crashed when the world’s media and public tried to log in on Monday morning.
The court had initially issued a Microsoft Teams link to livestream the hearing, but later updated the advice with a new website to watch proceedings.
Minutes before the case was set to begin, the initial link was overrun by members of the Serbian public and foreign press and at one stage, an unknown person took over control and displayed pornographic pictures for hundreds to see.
Others were being generally disruptive in the link, making silly noises, shouting and playing techno music as the court official tried to find a way to mute all.
The new link provided by the federal court staff also crashed due to overwhelming global interest, with the hearing eventually getting underway half-an-hour late at 10.30 am local time (23.30 GMT Sunday). Court officials said they were working to rectify the problem.
The case has polarised opinion around the world and elicited heartfelt support for the tennis star in his native Serbia.
‘Today is a big day. Today, the whole world will hear the truth,’ Djokovic’s mother Dijana Djokovic told the crowd in Belgrade.
‘We hope that Novak will come out as a free man. We send great love to Novak. We believe in him, but also in the independent judiciary in Melbourne,’ she said.
Djokovic’s father Srdjan Djokovic said ‘this is happening because we are only a small part of the world, but we are proud people’.
The family were joined by hundreds of supporters, including the UK’s former UKIP leader Nigel Farage, in Belgrade, with the ex-politician saying he was waiting for the result of the visa hearing with Djokovic’s relatives.
Video footage shows Farage walking into a trophy room with Djokovic’s brother Djordje.
UK tennis star Andy Murray was quick to comment and wrote to the former right-wing politician: ‘Please record the awkward moment when you tell them you’ve spent most of your career campaigning to have people from Eastern Europe deported.’
Protesters demanded Djokovic’s release from Australian immigration custody at the demo
Novak Djokovic (pictured with Tennis Australia boss Craig Tiley in 2021) is set to learn his fate after a whirlwind trip to try and defend his Australian Open title – which would make him the most successful men’s player of all time
He added: ‘They can’t break us. Novak is the personification of freedom, everything human that one man contains in himself. Shame on them!’
Mrs Djokovic said that the conditions in the hotel in Melbourne where Djokovic is staying are ‘not humane’.
‘He doesn’t even have breakfast,’ she said. ‘He has a wall to stare at and he can’t even see a park in front or go out of the room.’
Djokovic’s lawyer, Nick Wood, had argued during the court hearing that the Australian government’s visa cancellation notice was ‘defective’ because it has a typo.
Mr Wood argued a typo in the Notice of Intention to Consider Cancellation rendered the entire document ‘defective’.
Home Affairs said the typo was an unfortunate but immaterial mistake that should not discount the context of the message.
Mr Wood also argues Djokovic went beyond what was required of him by providing evidence of his medical contraindication.
He said government entry requirements specify a traveller must declare they can prove their exemption, but does not state they will have to do so.
‘He was not required to provide evidence, even though as a matter of fact, he did,’ Mr Wood said.
Djokovic’s lawyers said he also had the necessary permissions to enter Australia, including an assessment from the Department of Home Affairs that responses on his travel declaration form indicated he met the conditions for quarantine-free arrival.
But the government lawyers rejected that argument, saying the department’s email was not an assurance ‘that his so-called ‘medical exemption’ would be accepted’, and his responses could be questioned and verified on his arrival.
The government also challenged the claim by Djokovic, a vocal sceptic of vaccines, for a medical exemption on the basis he had contracted COVID-19 in mid-December and had recovered two weeks later.
‘There is no suggestion that the applicant had ‘acute major medical illness’ in December 2021. All he has said is that he tested positive for COVID-19. This is not the same,’ court filing said.
Police personnel watch pro-refugee protestors rally outside the Park Hotel on Monday
An old link to broadcast the hearing over Microsoft Teams was hijacked with pornographic pictures and techno music on Monday morning
The government will seek to have his appeal dismissed with costs, paving the way for his deportation as soon as Monday evening.
Australian officials initially said Djokovic would be given an exemption to stringent vaccine rules by state authorities and be able to participate in the Australian Open.
But when he landed, his visa was cancelled by federal border officials.
The exemption request said Djokovic’s first positive test was on December 16 and, on the date of issue, it said the tennis player ‘had not had a fever or respiratory symptoms in the past 72 hours’.
His lawyers submitted a 35-page dossier, arguing that he met the requirements for a vaccine exemption certificate due the fact he had suffered Covid last month.
But in a 13-page court filing made public today, Australian government lawyers stated that it was ‘common ground’ between both sides of the legal fight that Djokovic is ‘unvaccinated’, Sky News reports.
Lawyers for Home Affairs Minister Karen Andrews said the country’s vaccination exemption form makes clear that a previous infection ‘is not a contraindication to immunisation’.
The government stated: ‘There is no suggestion that the applicant had ‘acute major medical illness’ in December 2021.
‘All he has said is that he tested positive for Covid… That is not the same. Thus the ATAGI Vaccination Advice uses different terms, such as mere ‘past infection’ and also ‘symptomatic infection.”
The document adds that even if hearing is concluded in Djokovic’s favour, it does not mean he could not be re-detained or have his visa cancelled again.
‘If this Court were to make orders in the applicant’s [Djokovic] favour, it would then be for the respondent [Australian government] to administer the Act in accordance with law,’ federal lawyers stated.
A supporter of Serbian tennis player Novak Djokovic holds a signed tennis ball and a newspaper front page reading ‘King Nole’ during a protest of support in Belgrade
Reporters wait outside the Park Hotel on Sunday ahead of Djokovic’s court hearing on Monday
Tennis Australia CEO Craig Tiley said in his first media interview since the furore began that his organisation had spoken with federal and state officials for months to ensure the safe passage of players.
For days, demonstrators and counter-demonstrators have gathered outside the facility. Nobody is allowed in or out except staff.
Hours before the hearing, a pro-refugee banner was unfurled from the roof and police removed a small number of protestors from the scene.
Social media is swamped with questions over Djokovic’s whereabouts after the alleged positive Covid-19 test amid a surge of the pandemic.
Djokovic attended two public events on December 16 in Belgrade, as well as a December 17 event in the Serbian capital honouring young tennis players.
The event was covered by local media, and parents posted photos on social media showing Djokovic and the children not wearing masks. It is not clear if Djokovic knew the results of his test at the time.
Days later he was shown playing tennis in a park in front of his apartment in Belgrade.
‘Legally, Djokovic doesn’t have to explain what happened (after his positive test) but it would be very good for his reputation here and the whole world,’ Sasa Ozmo, a Serbian sports journalist, told the N1 television.
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