Novak Djokovic’s Australian Open dream is in tatters after a court found in favour of the Australian government’s right to cancel his visa and kick him out of the country.
Djokovic says he is ‘extremely disappointed’ with the decision. The Serbian star now faces being put on a plane back to Europe in sensational fashion.
Djokovic was back before the court in Australia as the Serbian tennis star attempted to overturn the cancellation of his visa for a second time to remain in the country.
The hearing in the Federal Court was before Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan. Their decision was unanimous.
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Chief Justice Allsop said the decision to boot out Djokovic was unanimous.
“This is not an appeal against the decision of the executive government,” he told the court.
“It is an application to the court as a separate arm of government being the Commonwealth judicial branch to review a decision by a member of executive, the minister, for the lawfulness or legality of the decision on the three grounds put forward.
“These grounds focus on whether decision was for different reasons irrational or legally unreasonable. It is no part or function of the court to decide upon the merit or wisdom of the decision.”
The Federal Court said its full reasons for the decision will be published in the coming days, but indicated that the decision reflected their belief that the Immigration Minister enjoyed the power to cancel visas at his discretion.
Soon after the decision, Djokovic released a brief statement to address the outcome of the court hearing.
“I will now be taking some time to rest and to recuperate, before making any further comments beyond this,” Djokovic said.
“I am extremely disappointed with the Court ruling to dismiss my application for judicial review of the Minister’s decision to cancel my visa, which means I cannot stay in Australia and participate in the Australian Open.
Earlier, the Australian government argued that tennis superstar posed a risk to public order and its vaccination policies, and also said he could have used his deportation hearing on Sunday to explain his vaccination views, but chose not to.
In the government’s written submissions to the court, Stephen Lloyd, SC – representing Australian Immigration Minister Alex Hawke – said “Mr Djokovic has chosen not to go into evidence in this proceeding”.
“He plainly could. And he could set the record straight, if it needed correcting.
“But he has not and that has important consequences.”
One of the Australian government’s reasons for wanting to deport Djokovic was that he had taken a well-known stance against vaccination which could galvanise the anti-vax movement in Australia.
It was a key point in Sunday’s hearing, with Djokovic’s lawyer, Nick Wood SC, repeatedly arguing against that idea.
Wood argued there was no evidence that Djokovic’s mere presence in Australia could incite anti-vax sentiment, instead contending that deporting him could generate that feeling.
“We contend the Minister did not consider the obvious alternative scenario … the possibility that [Djokovic’s] visa might be cancelled, [he is] expelled from the country and impaired in his career generally … it’s quite obvious that in itself may generate anti-vax sentiment,” Wood told the court.
Wood also argued that there was no proof that Djokovic’s appearance at tennis tournaments since the start of the pandemic had stirred up anti-vax protests, and said support in Australia for Djokovic had in fact been stirred up by the government’s decision to cancel his visa.
“Covid-19 vaccines have been part of our world, in the sense they developed, passed tests and varying degrees across the world, distributed and uptaken by humanity for now a year or more…A considerable period of time,” he said.
“Throughout that time, Mr Djokovic has been playing tennis. Indeed, he played tennis at the Australian Open 2021. All grand slam tournaments.
“When the Minister is contemplating whether he might be satisfied the mere presence of Mr Djokovic in Australia may foster anti-vax sentiment in Australia, which might then lead to some appreciably lesser uptake of vaccination is Australia, it’s not as though there wasn’t … a reservoir of evidence the Minister might call on.
“Mr Djokovic is a well-known public figure competing at tournaments with the media throughout. If there is any foundation for thinking … a tennis tournament might lead to anti-vax sentiment, one expects it to be supported by the evidence about anti-vax protests or rallies or the like at tennis events or grounds or surrounds.
“There is nothing of any kind like that identified by the Minister.”
Djokovic left his immigration detention hotel in Melbourne this morning and was photographed been driven to his lawyer’s office inside the city’s Rialto Tower.
Wood also criticised Hawke’s use of a BBC interview with Djokovic in 2020, which took place before Covid-19 vaccines were available, saying he had made no effort to contact Djokovic to gauge his current thinking.
“The necessary inference is the Minister contemplated the possibility … but elected, by reasons he did not explain, not to seek clarification.”
Wood says that parts of this article are the “sole factual foundational for the Minister’s case about Mr Djokovic’s supposed stance with respect to vaccination”.
World No 1 Djokovic, a 10-time winner in Melbourne, is the top seed at the tournament and needs to be on the tennis court on Monday for an opening-round clash with Serbian compatriot Miomir Kecmanovic.
Australian Open organisers are poised to make draw changes should Djokovic’s last-ditch legal bid fail.
Djokovic came under added scrutiny this week when he admitted in a statement he had provided false information on his travel declaration, blaming his agent for the error.
He also admitted attending a media interview in Serbia while knowingly Covid-19 positive and when he should have been self-isolating, calling it an “error of judgement”.
Serbia President Aleksandar Vucic has accused the Australian government of “harassing” and “maltreating” Djokovic, suggesting it was indulging in political point-scoring before the election.
But Australian Prime Minister Scott Morrison insists Djokovic’s visa cancellation was done in the public interest.
The ATP Tour has announced 150th ranked Salvatore Caruso is “set” to replace Djokovic in the men’s draw
– With AAP, The Sydney Morning Herald