The judge hearing Novak Djokovic’s appeal against deportation has ordered that the Australian Border Force must release the tennis star from a Melbourne immigration detention facility so that he can watch the virtual court hearing following a series of technical issues.
Judge Anthony Kelly said that Djokovic must be released from the Park Hotel so that he can view the virtual hearing at another more reliable location.
The tennis player has 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.
It was one of a series of early winners scored by the Serb’s legal team, who appeared to have the judge on side the in the legal hearing from Melbourne’s Federal Court.
Djokovic has 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, said 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.
The virtual court hearing at the Federal Circuit and Family Court of Australia has been beset with technical issues, which has stopped Djokovic as well as members of the public from viewing the proceedings online.
Judge Kelly 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 order stands for Monday ‘and each day thereafter, including upon the delivery of judgment to permit him to remain there until the conclusion of each hearing and to secure his safe return to detention upon the conclusion of each hearing’.
Judge Kelly had earlier questioned what more the tennis star could have done to satisfy border officials that he was medically except from the Covid vaccine.
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.
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
NOVAK DJOKOVIC VISA SAGA: WHAT YOU NEED TO KNOW
What happened when Djokovic arrived in Australia?
Novak Djokovic touched down in Melbourne about 11.30pm on Wednesday night, and was swiftly taken in for questioning by Border Force officials.
He spent about six hours speaking with officials before a decision was made to cancel his visa on the basis that he could not validate his medical exemption to arrive in Australia without a Covid-19 vaccine.
He was swiftly taken to a detention centre in the heart of Melbourne, where he remains.
Why is Djokovic in court?
Immediately after his visa was cancelled, Djokovic and his team indicated they would fight the decision.
They appeared before the Federal Circuit and Family Court of Australia on Thursday afternoon, where the matter was postponed until Monday, 10am.
On Monday, Djokovic’s lawyers will argue to reverse the decision to cancel the visa. The government hope to have the decision supported.
If Djokovic loses his appeal, he could be deported as early as Monday night, but it is likely to be more complex than that.
Who is responsible for the bungle?
Court documents and leaked letters have helped piece together the puzzle of how the messy visa situation occurred.
Since Djokovic was detained, officials have hand balled responsibility between themselves.
Djokovic was informed by Tennis Australia that he was exempt to travel to Australia and play. It’s understood his application was assessed by two bodies – one assigned by TA and the other by the Victorian state government.
On Saturday night, it was revealed via court documents that Djokovic had also received correspondence from the Department of Home Affairs – a federal body – which indicated he was free to travel to Australia.
But this has been revealed to be an arrivals assessment form, and not official confirmation he was granted quarantine-free travel.
No single party has accepted responsibility for the debacle, and at least one other tennis player has been sent home after they were initially approved with the same exemption.
Will Djokovic play in the Australian Open?
Djokovic will likely know if he will be competing in the Australian Open 2022 by 4pm Monday.
Commentators and legal experts are finding it challenging to predict an outcome for the case given it is constantly developing and has happened so quickly.
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 7.42 a.m. 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.
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 hearing will see Judge Kelly decide whether the unvaccinated Serb will be deported from Australia after his visa was cancelled by authorities.
The 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.
A spokesperson for the Federal Circuit of Australia said: ‘I am now advised the hearing has started. The court is working to rectify the situation.’
Djokovic did not tune in for the hearing and remains in the Park Hotel, a five-storey facility that holds about 32 migrants trapped in Australia’s hardline immigration system – some for years on end.
The Australian Open begins on January 17 — just a week from Djokovic’s court date.
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.’
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
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
Protesters demanded Djokovic’s release from Australian immigration custody at the demo
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, 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.
During the court hearing, the 34-year-old’s lawyers will also tell the court he should be allowed to remain in Australia because a recent second Covid infection made him exempt from vaccine entry requirements.
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.
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
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’.
Yesterday, 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.
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.
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
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.