Minister to make call on whether to cancel Djokovic’s visa again

But his future in Australia remains uncertain, with Mr Hawke reiterating that he still had the “personal power” to cancel Djokovic’s visa.

“The Minister is currently considering the matter and the process remains ongoing,” a spokesperson for Mr Hawke said, in a statement.

Former foreign minister Alexander Downer said the judge’s criticism of Djokovic’s treatment by Border Force would “weigh heavily” on Mr Hawke’s decision but “politics will come into it”.

“The politics of this will probably favour kicking him out on the grounds that he was unvaccinated and wanted an exemption from two weeks’ quarantine,” Mr Downer told the BBC.

“So you know, 94 per cent of Australians are double vaccinated — Australians over 16 years of age — so they won’t be too sympathetic with people who are anti-vaxxers who want special privileges.”

Speaking to Today, senior lawyer Justin Quill said the government essentially surrendered by agreeing to quash the cancellation of his visa, but it was “not quite” a decision by the judge.

“What happened was the government … performed a massive capitulation and agreed to consent orders being made,” he said.

“They agreed to give Djokovic everything he wanted, which was the decision to cancel his visa quashed.

“He went being here unlawfully without a visa to being here lawfully. He also got costs paid and an acknowledgement in the orders that the process undertaken by Border Force was unreasonable – massive capitulation – but not quite a decision by the judge.”

But the decision may have been a “strategic” move by the government to avoid a judgment being handed down from a judge, which would prevent them from cancelling his visa again.

“It might have been strategic, it might have been a decision by the government to avoid the judge making findings that were going to be even worse for the government.”

Fans swarm car leaving lawyer’s office

Earlier, police used pepper spray as fans swarmed a car they wrongly believed to be carrying the tennis star as it left his Melbourne lawyer’s office just before 9pm AEDT.

“Extraordinary. And it’s turned violent,” 9News reporter Adam Hegarty said from the scene.

“Police pepper spraying Novak fans … as they swamp a black Audi leaving the car park, assuming it’s Novak.”

A 27-year-old man from Hampton was arrested during the incident on Flinders Lane after allegedly assaulting police and acting in a “riotous manner”.

“Due to the aggressive behaviour of the crowd, police were forced to deploy OC spray,” a police statement read.

“A male Leading Senior Constable and a female Constable received minor injuries not requiring treatment.”

Media and police gathered outside the office as the tennis star’s father said they were still awaiting news from the Immigration Minister.

Djokovic later posted a picture from the Australian Open courts, thanking thanking fans and saying he was grateful for the Federal Circuit Court decision.

Djokovic released as judge finds cancellation ‘unreasonable’

The judge said the cancellation “was unreasonable”.

The Australian government has been ordered to pay all of Djokovic’s costs.

Judge Kelly ordered Djokovic be released from immigration detention within 30 minutes of the order, which was read in open court about 5.15pm.

However, Commonwealth government barrister Christopher Tran, told the court he had been instructed Mr Hawke could now use his discretionary powers to cancel Djokovic’s visa.

Judge Kelly confirmed that if Djokovic was summarily removed in that way, he would not be able to return to Australia for three years.

Judge Kelly cited the procedure in which the delegate dealt with Djokovic as the reason the visa cancellation was quashed.

“If the applicant had had until 8.30am he could have consulted others and made submissions to the delegate about why his visa had not been cancelled,” Judge Kelly said.

How the day played out

The much-anticipated hearing encountered several technical issues throughout the day, with media around the world initially locked out after a glitch knocked out the live stream.

The live stream was restored after the hearing began, but crashed again.

In early remarks, Djokovic’s lawyer Nick Wood, SC, told the court the Biosecurity Act requires overseas travellers to declare whether they are vaccinated, unvaccinated or medically contraindicated upon arrival into Australia.

“Mr Djokovic made a declaration that he had a medical contraindication,” Mr Wood said.

He said Djokovic did his “level best” to provide authorities with the evidence and documentation necessary to lawfully enter the country on his visa.

Upon arrival into Australia, the tennis star’s phone was confiscated at Melbourne’s Tullamarine Airport, Judge Kelly said.

“If you will let me talk to people – although you’ve taken my phone from me – I will try and get you what you want,” he said, according to Judge Kelly.

Mr Wood said Djokovic provided the evidence required for vaccination exemption in Dubai before he boarded the plane and when he landed in Australia.

Judge Kelly further addressed the medical exemption Djokovic received, which was was separately further reviewed by an independent specialist panel established by the Victorian Government.

“The point I am somewhat agitated about is what more could this man have done?” he said.

Mr Wood agreed with the judge’s sentiment, saying the tennis star had abided by all the requirements he understood were necessary to enter Australia.

“He had done absolutely everything that he understood, was required to enter Australia,” Mr Wood said.

“He had engaged with Tennis Australia.”

Mr Wood said “any reasonable person” in the star tennis player’s case would have thought they had “ticked every box” regarding visa entry requirements into Australia.

“I am utterly confused, I have done everything that has been asked of me,” Mr Wood said Djokovic had told authorities.

“He was saying, ‘If there has been an error, I don’t understand what it is. I would like some time to speak to lawyers.'”

Mr Wood told the court that “it was abundantly clear throughout the whole process” of Djokovic being interviewed on the morning of January 6 that he wanted more time to speak to his advisors than Australian authorities gave him.

Mr Wood referenced multiple points throughout the transcript of discussions between authorities and Djokovic when the tennis star indicated he wanted more time.

Mr Wood said Djokovic wasn’t able to fully respond when the issues with his visa application arose at Melbourne Airport on January 6.

“He was essentially saying, ‘I have no idea how this could have come to pass,'” given advice he had been given from Tennis Australia and the state government, Mr Wood told the court.

“He needed to speak to people. He wanted to say more and wasn’t given this opportunity.”

Mr Wood has said it was unfair that the delegate and the officers did not give Djokovic more time.

“There was no intelligible reason not to allow him that more time,” he said.

Commonwealth government barrister Mr Tran was due to begin presenting the government’s case yesterday afternoon, which he previously flagged would show that the delegate’s process in dealing the Djokovic had not been unfair.

However, after Mr Tran requested the hearing be adjourned when his arguments were due to begin, the hearing returned straight to the judge making orders.

It is not known what occurred between the parties when the court was closed.

Djokovic was in the room with his lawyer during the hearing.

The world watches on

Djokovic’s case has attracted attention around the world, particularly in his homeland of Serbia, where the country will be watching for the outcome of the case very closely.

His lawyers argued the tennis star met Australia’s criteria for temporary vaccine exemption as he had contracted COVID-19 on December 16, which they believe to be a valid excuse under the Australian Technical Advisory Group on Immunisation (ATAGI) guidelines.

Documents released by the court cite the ATAGI advice to be: “COVID-19 vaccination in people who have had PCR-confirmed SARS-CoV-2 infection can be deferred for a maximum of six months after the acute illness, as a temporary exemption due to acute major medical illness”.

Djokovic provided evidence of his COVID-19 diagnosis upon arrival into the country.

However, lawyers representing the Federal Government were set to argue Djokovic was relying on outdated advice from the ATAGI, pointing to this line in the guidance: “Past infection with SARS-CoV-2 is not a contraindication to vaccination”.

Svjetlana Kovacevic from the Serbian Australian Chamber of Commerce defended Djokovic, telling Today the tennis star thought he had followed all rules and regulations of the Australian Government.

“The fact is he wouldn’t be on that plane at all if he hasn’t got his papers authorised by the Australian Government,” she said.

“All he knows he has done everything according to the rules and he follows the whole process to be able to come and play at the Open.

“Novak acted in good faith and believed that he had all the proper paperwork to compete at the Open.”

Ms Kovacevic described the situation as a “debacle” that was “not easy to comprehend”.

“Giving him the green light it is OK to come and play – as soon as he landed on Australian soil telling him that he needs to go back – I mean, I can’t think of a more embarrassing situation,” she said.

“It’s just hard to believe that something like this would happen to anyone.”

Ms Kovacevic did not confirm reports Djokovic had suffered fleas in his bed or maggots in his food, but said the conditions were “very restrictive” and claimed he needed to make special requests for food, medicine, and “basic necessities”.

“For him to be stuck in a detention centre in a small room by himself on Serbian Orthodox Christmas Day, not allowed to have a priest visit him when he normally goes to church, that’s a bit upsetting for him.”

The suggestion the Serbian tennis star was unfairly treated at Melbourne Airport has been rejected by the Federal Government.

In a 13-page response published late on Sunday to the Serbian’s The Federal Circuit and Family Court of Australia appeal, the Minister for Home Affairs argued Djokovic’s claims of “procedural unfairness” and “illogicality” were meritless.

His letter from Tennis Australia did not “give any medical reason why the applicant could not be vaccinated”.

The submission urged the court to avoid ordering the “immediate release” of the 34-year-old and argued even if such an order was made, it would not prevent Djokovic’s “re-detention”.

Nor would the quashing of the cancellation guarantee the nine-time Australian Open the chance to defend his 2021 title, the government argued, saying the Minister could then decide whether to make “another cancellation decision”.