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In a statement Mr Djokovic said he was “extremely disappointed with the Court ruling” but he respected it and vowed to “cooperate with the relevant authorities”.
“I am uncomfortable that the focus of the past weeks has been on me and I hope that we can all now focus on the game and tournament I love. I would like to wish the players, tournament officials, staff, volunteers and fans all the best for the tournament,” he added. You can read the full statement at the bottom of the page.
Mr Djokovic’s legal team were seeking the same order Federal Circuit Court Judge Anthony Kelly made earlier in the week, quashing the cancellation and releasing Djokovic from detention within half an hour.
But the court instead dismissed the application to review the cancellation, with costs to be agreed to later.
Before handing down the full bench of the court’s orders, Chief Justice James Allsop stressed the court was ruling only on the “lawfulness or legality” of the decision.
“It is no part of the function of the court to decide upon the merits or wisdom of the decision,” he said, shortly before 6pm on Sunday.
Djokovic left Melbourne’s Park Hotel about 8.30am today, where he had been staying under immigration detention after the Federal Government cancelled his visa for the second time.
The hearing in the Federal Court of Australia started at 9.30am AEDT and was conducted online, with Chief Justice Allsop, Justice Anthony Besanko and Justice David O’Callaghan presiding over the hearing in three separate locations.
Scroll down for the key points from the court hearing
The grounds presented by Mr Djokovic’s lawyers were as follows:
Ground One: The government failed to consider the consequences of cancelling his visa.
Ground Two: Not open to the minister to be satisfied the presence of Mr Djokovic “is or may be” a relevant risk.
Ground Three: “Unreasonableness and irrationality” in regard to Mr Djokovic’s vaccination stance
Djokovic’s lawyer Nick Wood, SC, said the possibility of his client’s visa being cancelled, leading to his deportation, could incite “anti-vax sentiment” in itself – a factor he claimed the Minister of Immigration had not considered.
Mr Hawke had argued Djokovic being permitted to stay in Australia could spark anti-vaccination sentiments across Australia.
“We contend the Minister did not consider the obvious alternative scenario,” Mr Wood said.
“The possibility that (Mr 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.”
Minister’s move ‘based on select quotes’
Mr Wood has argued the Minister of Immigration’s assertion on Mr Djokovic not getting vaccinated is based on select quotes from a BBC article.
He also referred to articles on anti-vaccination groups and protests published by the Guardian and ABC News.
Mr Wood said “Mr Djokovic (was) not referred to once” in these articles, so to speculate his presence may lead to less uptake of vaccination or reinforce views of a minority against vaccination, was “plainly wrong”.
“The content of the articles all concern events prior to this year and prior to his arrival in Australia.”
He said the comments in the story were made before COVID-19 vaccines were available.
Mr Wood said the anti-vaccination protests that have occurred this week were “directed to action by the state” to cancel his client’s visa.
He added Mr Djokovic had played in numerous tennis tournaments since COVID-19 vaccines rolled out globally and no anti-vaccination rallies had occurred at these events.
He argued the government cancelling Mr Djokovic’s visa was the “only trigger for galvanisation of anti-vax sentiment”.
Mr Wood has argued the Immigration Minister has only taken into account the possible anti-vaccination reaction if Mr Djokovic is permitted to stay in Australia, which is “unreasonable and irrational”.
“It is irrational and unreasonable to look at only one side of the coin,” he said.
“It is somewhat perverse to adopt such a narrow focal pointal lens.”
He has reiterated the BBC article provided as evidence by Mr Hawke is not strong enough to justify his client’s deportation.
Djokovic views ‘not sought’
Mr Wood said Mr Hawke had not sought Mr Djokovic’s current views about vaccination and he instead relied on select quotes from the BBC article, published in April 2020, which stated he opposed vaccination.
The Immigration Minister did not include Mr Djokovic’s clarification as part of his evidence, where he later stated he was no expert, but kept an open mind and would choose what was best for his body.
“It also necessarily implies that the minister accepts that he, therefore, doesn’t know what Mr Djokovic’s views presently are,” Mr Wood said.
Off the back of Mr Djokovic’s lawyer, Mr Wood, claiming the government had not sought his client’s current views on vaccination, Mr Hawke’s representation,Stephen Lloyd SC, said the tennis star could have used this hearing to set the record straight.
“Mr Djokovic has chosen not to go into evidence in this proceeding,” Mr Lloyd said.
“He plainly could and he could set the record straight, if it needed correcting.
“But he has not and that has important consequences.”
‘He was against vaccines’
The Federal Government’s lawyer Stephen Lloyd SC said the medical exemption Djokovic has obtained, which supposedly excused him from vaccination, related to contracting COVID-19 in mid-December.
However, Mr Lloyd pointed out he could have been vaccinated in the past year, but he chose not to be.
“The minister was entitled to assume that it was his choice,” he said.
“Even before vaccines were available he was against it – his prima facie position was to be against them.”
Mr Lloyd said Mr Hawke’s reasoning behind cancelling the tennis star’s visa was out of concern that his anti-vaccination views might hinder vaccination uptake in Australia and his presence in the country could spark “some measure of unrest”.
“The minister was concerned Mr Djokovic’s presence would encourage people to emulate his position and that would put the health of Australians at risk,” Mr Lloyd said.
He said Mr Hawke’s concern was not limited to anti-vaccination groups, but the wider Australian community.
“He is a high-profile person and in many respects, is a role model for many people,” Mr Lloyd said.
Mr Lloyd said there was also the issue of Mr Djokovic breaching COVID-19 restrictions overseas, referring to news of the tennis star conducting a media interview and photoshoot while knowingly infected with the virus.
The lawyer said Mr Hawke feared the Australian community would “emulate his disregard for those safety measures”.
Therefore, his presence in Australia posed an “overwhelming risk” to the community.
Consequence of cancelling visa ‘was considered’
Mr Lloyd said the Immigration Minister did consider the consequences of both cancelling Djokovic’s visa and allowing him to stay in the country.
“He’s done his best to consider the matters, alive to the fact (Djokovic’s) views weren’t sought. That suggests the minister tried to look at things broadly,” he said.
“The minister is aware there are consequences for his decision … both ways.”
Following lunch Mr Lloyd, representing the Immigration Minister, said his client acknowledges that “some unrest has already occurred” in the community due to Djokovic’s presence in Australia.
“He is aware of unrest and is taking that into account,” he said.
Mr Lloyd told the court his client was aware there were groups in Australia who “idolised” Djokovic for his stance on vaccination.
Mr Lloyd said Djokovic is “perceived to endorse an anti-vaccination view” which was a risk to Australian society, particularly among those who were uncertain about vaccination and those who idolised the tennis star, which could lead to “healthcare consequences”.
“His status is able to influence people that look up to him,” he said.
Mr Wood said if the judges are in favour of Djokovic he requests the decision of his client’s visa cancellation quashed and for him to be released from immigration detention within 30 minutes.
This is the same order Judge Kelly handed down at the start of the week when his visa was cancelled the first time.
Mr Wood supports an order being given today, with reasons to follow later, due to time constraints.
Novak Djokovic statement
“I would like to make a brief statement to address the outcomes of today’s Court hearing. I will now be taking some time to rest and to recuperate, before making any further comments beyond this.
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.
I respect the Court’s ruling and I will cooperate with the relevant authorities in relation to my departure from the country.
I am uncomfortable that the focus of the past weeks has been on me and I hope that we can all now focus on the game and tournament I love. I would like to wish the players, tournament officials, staff, volunteers and fans all the best for the tournament.
Finally, I would like to thank my family, friends, team, supporters, fans and my fellow Serbians for your continued support. You have all been a great source of strength to me.”
Background to case
In a document lodged with the court on Saturday, Djokovic’s lawyer claims the decision by Immigration Minister Alex Hawke to cancel the visa on Friday was “illogical, irrational and unreasonable”.
Meanwhile, part of Mr Hawke’s argument will be that Djokovic’s presence in Australia “may foster anti-vaccination sentiment” and undermines the country’s vaccination policies.
The minister has said this could specifically lead to:
- “An increase in anti-vaccination sentiment being generated in the Australian community, leading to others refusing to become vaccinated or refusing to receive a booster vaccine.”
- “A reinforcing of the views of a minority in the Australian community who remain unvaccinated against COVID-19.”
- “People deciding to not receive a booster vaccine.”
- “Unvaccinated persons becoming very unwell and/or transmitting it to others.”
- “Increased pressure placed on the Australian health system.”
In his reasoning, Mr Hawke has also said he has considered that Djokovic has shown “an apparent disregard for the need to isolate following the receipt of a positive COVID-19 test result”.
The minister has referenced the fact Djokovic attended an interview and photoshoot with French magazine L’Equipe on December 18 despite being knowingly positive for COVID-19.