Novak Djokovic’s bid to stay in Australia and defend his Australian Open title will be decided in hours, as the full federal court adjourned to consider the world No. 1’s last-ditch legal challenge.
On Sunday the court heard the Australian immigration minister, Alex Hawke, had failed to ask Djokovic his views on vaccination and to consider the impact of deporting him on anti-vaccination sentiment.
Chief justice James Allsop adjourned the court at 2.40pm, indicating that a result would likely be given on Sunday evening, just hours before the Open tournament is due to start on Monday morning.
In his Friday decision Hawke concluded that Djokovic’s presence in Australia might risk “civil unrest” because he is a “talisman of anti-vaccination sentiment” because of his earlier statements and public perception of his views on vaccination.
In amended submissions lodged overnight, Djokovic’s lawyers argued Hawke failed to consider that cancelling his visa will also have the effect of inciting anti-vax sentiment.
The case is likely to hinge on whether Hawke had any evidence to conclude Djokovic’s presence could be harmful and whether the god-like powers of Australian migration law allowed him to cancel the visa without explicitly weighing the harm of the alternative: to deport Djokovic.
Djokovic’s lawyers argued any unrest around Djokovic had only been sparked by the original decision by a home affairs delegate to cancel his visa, citing a BBC World story about backlash in the wake of that decision, later overturned by the federal circuit court.
“It was irrational, illogical or unreasonable for the minister to fail to consider the influence of Mr Djokovic’s removal on anti-vaccination sentiment,” they submitted.
Djokovic’s lawyers warned Hawke was not entitled to cancel Djokovic’s visa based on an “evidence-free figment of his imagination” about unrest if he stayed without considering the reverse.
But chief justice James Allsop interrupted Djokovic’s barrister, Nicholas Wood, to note that use of the term “evidence” could “mislead” because the decision-maker is also entitled to use their “perception and common-sense”.
Allsop later remarked that “common-sense and intuition” would suggest that “if Mr Djokovic won the Open – there’s an example, embedded in the minister’s reasons – for young and not so young fans of tennis”.
Allsop also suggested the immigration minister might have been “alive to” problems in the future if he did cancel Djokovic’s visa without “finely balancing” the detriments.
Djokovic’s lawyers disputed claims the tennis star is an anti-vaxxer, arguing this was based on one statement in April 2020 “well before Covid vaccines were available”.
Djokovic later clarified his view when he said he was “no expert”, would keep an “open mind” but wanted to have “an option to choose what’s best for my body”, they said.
“There was no evidence before the minister that Mr Djokovic has ever urged any others not to be vaccinated. Indeed, if anything, Mr Djokovic’s conduct over time reveals a zealous protection of his own privacy rather than any advocacy.”
Hawke’s counsel, Stephen Lloyd, responded at the hearing that the minister was entitled to infer that Djokovic “could have been vaccinated if he had wanted to be”.
In court documents also released on Sunday morning, Hawke submitted there was “insufficient basis for the court to make the finding” that he failed to consider unrest in the event Djokovic was deported, and that the onus lay with Djokovic to prove he hadn’t done so.
They submitted that in his decision the minister noted support in Australia and abroad for Djokovic to stay, the risk to Australia’s global reputation, the risk to hosting the Australian Open and “the appearance of politically motivated decision-making”.
This showed the minister had adequately considered the consequences of removing Djokovic, they submitted.
Allsop asked how the court should decide if it was “plain to anyone with common-sense that cancelling the visa would cause overwhelming public discord and risks of transmission through very large public gatherings”.
Lloyd replied that this would lead to the “surprising notion” that Australia could not exercise its sovereignty by deporting someone “because the cancellation might lead to adverse consequences”.
Lloyd argued Australia “must not be bound to suffer the presence of an alien for fear of what might happen if they were removed”.
“The minister was obviously aware his decision will result in some level of further unrest, but he was principally concerned that Mr Djokovic’s presence would encourage people to emulate his position, putting the health of Australians at risk,” Lloyd said.
Lloyd said given the minister was aware of “the broad possibility of unrest, whatever his decision” – citing demonstrations after the first cancellation – it was “impossible to infer” Hawke hadn’t considered the risk of a second cancellation.
Even if Hawke didn’t consider the risk of anti-vaxx sentiment if Djokovic was deported, the minister argued that didn’t make his decision illogical, irrational or unreasonable, and it was not a material error.
Djokovic’s amended submissions criticised Hawke for not making “the obvious, critical and easy inquiry of Mr Djokovic as to what his sentiment [about vaccination] in fact was”.
Hawke responded that this exercise would have made no difference, questioning “what Mr Djokovic could have said to the minister in response”. It argued this “would not have altered the fact of his previous public statements and the views of those in the Australian community as to what his views on vaccination were”.
Sunday’s hearing began with a statement from Chief Justice James Allsop explaining while appeal is possible from a single judge, no appeal will be possible from the full court.