Novak Djokovic will be freed from immigration detention after a court sensationally overruled the Morrison government’s decision to cancel his visa.
However, Djokovic could be deported regardless as Immigration Minister Alex Hawke considers using his personal power to recancel the tennis star’s visa.
That could see the 20-time Grand Slam champion banned from returning to Australia for three years.
If Mr Hawke chooses not to purse that option, Djokovic will be free to contest next week’s Australian Open, where he’s aiming to secure a 10th title.
Judge Anthony Kelly handed down the verdict about 5.15pm Monday after a high-stakes hearing in the Federal Circuit Court.
Judge Kelly found the decision of Border Force officials to cancel Djokovic’s visa early last Thursday morning was “unreasonable”.
He noted that at 5.20am that morning officials told the 34-year-old that he would have until 8.30am to respond to their notice of intention to cancel his visa.
Instead, he was given less than a hour, before the decision was made just before 8am.
Had Djokovic been given more time he could have consulted other people and made submissions about why his visa shouldn’t be cancelled, Judge Kelly said.
The Canberra Times has approached the offices of Mr Hawke and Home Affairs Minister Karen Andrews for comment.
The 20-time Grand Slam champion has spent four nights in immigration detention in Melbourne after his visa was cancelled upon arrival in Australia.
Novak Djokovic wins visa legal fight – but could still face deportation
Novak Djokovic will be freed from immigration detention after the Federal Circuit Court overruled the Morrison government’s decision to cancel his visa.
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Judge Kelly had earlier on Monday questioned what more the Serbian tennis star could have done to prove he had permission to enter Australia, after hearing arguments from his lawyers.
Judge Kelly said it was a “relatively significant fact” that Djokovic had obtained a medical exemption after an assessment from independent medical experts.
That exemption process was run by Tennis Australia and the Victorian government. It did not assure him of entry into Australia.
However, Djokovic’s lawyers noted proof of the exemption was uploaded to their client’s travel declaration – a system run by Home Affairs – which was approved before he landed in Australia.
Acknowledging the official who cancelled Djokovic’s visa had access to the declaration, Judge Kelly asked: “What more could this man [Djokovic] have done?”
Court documents showed the unvaccinated tennis star was granted a medical exemption to compete in the tournament on the grounds he had recently recovered from a case of COVID-19.
Djokovic “recorded” a positive result on December 16 last year, according to court filings. Pictures have emerged of a maskless Djokovic attending a children’s tennis event the following day, raising questions about his infection.
Contention over whether an infection within the previous six months was grounds for a medical exemption for overseas travellers is at the heart of the saga.
Djokovic’s lawyers also argued officials “radically and fundamentally” misapplied guidance from Australia’s expert vaccine panel – known as ATAGI – in ruling a recent infection with COVID-19 was not grounds for a medical exemption.
Their submission pushed back against the tennis star’s claim he had “done everything he had been asked to do” in order to secure entry the country, pointing out there was no “such thing as an assurance of entry by a non-citizen into Australia”.
It also made clear the travel declaration document which Djokovic had relied on provided no assurances his medical exemption would be accepted.
The government has also insisted a recent infection was not grounds for a medical exemption from vaccination under ATAGI guidelines.
“The ‘radical’ and ‘fundamental’ error for which the applicant contends is thus not made out,” the submissions reads.
Mr Morrison on Monday dismissed suggestions from Tennis Australia boss Craig Tiley that it had gave conflicting advice on exemptions.
“It could not be more clear,” he said.
Mr Tiley made the comments after a leaked letter revealed Home Affairs had rejected Tennis Australia’s pleas to check paperwork of players before they landed in the country.
Ms Andrews’ lawyers pushed for Djokovic’s appeal to be dismissed with costs. They argued it would also be “inappropriate” to immediately release him.
The government has made it clear Djokovic was free to leave Australia at any time. Two other Australian Open participants who arrived under similar circumstances have already left the country.
The submissions notes if the court does rule in Djokovic’s favour, the government could consider “another cancellation decision”.
It noted a decision which freed Djokovic would not prevent him from being redetained.
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