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Novak Djokovic has failed to convince three senior judges of his right to stay in Melbourne to compete in the Australian Open and faces deportation – after the government’s lawyers argued he’d become an ‘icon’ for anti-vaxxers.
The 20-time Grand Slam champion had his appeal heard in the Federal Court on Sunday in a last ditch attempt to stay and compete for the title.
Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan unanimously decided Djokovic did not have grounds to dispute Immigration Minister Alex Hawke’s deportation order.
Mr Hawke wielded his discretionary power on Friday afternoon to deport Djokovic despite a court ruling last week in his favour.
But the odds were stacked against Djokovic heading into Sunday’s hearing despite his previous court win, because Mr Hawke’s power is so broad.
Chief Justice James Allsop wanted to make clear Djokovic had not launched an official appeal against Mr Hawke’s decision. Instead, he had the opportunity to have the judges review the order based on its merit.
The world No.1 was required to prove to the court that Mr Hawke acted irrationally or legally unreasonably in choosing to use his discretionary powers.
Justice Allsop earlier said he accepted Djokovic could be seen as ‘an iconic sports star that is setting an example that is not ideal to be followed’.
‘If Mr Djokovic won the Open, as he has in the past, there is an example embedded in the Minister’s reasoning that this is an example for young and not so young fans of tennis.’
The government did not indicate whether they would take up the option to prevent Djokovic from applying for a visa to enter Australia for the next three years.
Novak Djokovic has failed to convince three senior judges of his right to stay in Melbourne to compete in the Australian Open and will be deported
Djokovic was briefly permitted to leave his detention hotel to view the court case from his lawyer’s office
Djokovic will be deported after failing to overturn Minister Hawke’s decision to cancel his visa
More than 83,000 people were tuned in to the Federal Court livestream of the proceedings by 11am to watch the showdown.
Responding to Djokovic’s argument deporting him would cause havoc – with riots and protests expected in the streets of Melbourne – lawyers for the government said they would not be deterred based on the fear of public backlash.
They insist he poses an ‘overwhelming risk’ to the Australian public – demonstrated by his decision to ignore safety measures in his home country and attend work obligations while knowingly infected with Covid-19.
‘The Commonwealth should not be bound to suffer the presence of an alien for fear of what might happen if they were removed,’ Stephen Lloyd, for the Minister, said on Sunday afternoon.
‘Rightly or wrongly, he is perceived to endorse an anti-vaccination view.’
He noted vaccination rates in Djokovic’s home country of Serbia were significantly lower than in Australia.
While Australia has a vaccination rate of 92.5 per cent, less than half of all eligible Serbians are double-jabbed.
Mr Lloyd argued this demonstrated the Minister’s belief that Djokovic could be seen to influence his fans based on his own perceived stance on vaccines and ‘may foster anti-vaccination sentiment in Australia’.
Mr Wood, during his lengthy submissions this morning, failed to build his argument that Mr Hawke acted irrationally in cancelling his client’s visa
Djokovic’s high-powered legal team, led by Nick Wood SC, took issue with Mr Hawke’s reasoning for cancelling the visa, which was primarily a result of his decision not to get vaccinated against Covid.
They rebuffed statements Djokovic has ‘a well-known stance on vaccination’.
Mr Wood argued comments the tennis star made about vaccines in April 2020 which have been used to justify the Minister’s decision are not necessarily relevant.
They say Djokovic insisted he was ‘not an expert’ and would do what was best for his body, after indicating he wouldn’t want to be ‘forced’ to take a Covid vaccine well before a jab to protect against the virus had even been developed.
The Minister, the court heard, never asked Djokovic to confirm his present stance on vaccination and has not publicly aligned himself with either side of the argument.
‘The minister is not permitted to cancel a visa based on an evidence-free figment of his imagination,’ Mr Wood said.
This black car, which many fans were convinced was taking Djokovic away from his lawyer’s office on Monday night, was quickly surrounded as police tried to keep them back
There were jubilant scenes on the streets on Melbourne on Monday night after Novak Djokovic was freed from immigration detention
But Mr Lloyd argued Djokovic’s personal or private thoughts mean very little given the way he is perceived by the Australian public.
‘People use high level athletes to promote ideas and causes all the time,’ he said. ‘I’m not saying this is advertising but his connection to a cause – whether he wants it or not – is still present.
‘His presence in Australia was seen to pose an overwhelming risk and that is what has motivated the Minister.’
He also cited Djokovic’s history of breaching public health orders.
By his own admission, Djokovic failed to heed the advice of his own government after testing positive to Covid, meeting with a journalist and posing for a photo without his mask just days after returning a positive test.
‘The applicant has a history of ignoring safety measures,’ Mr Lloyd said.
‘When he was infected he undertook an interview and a photo shoot [with L’Equipe] which included taking his mask off and the minister took the view his presence in Australia would encourage people to emulate his apparent disregard for those kinds of safety measures.’
The Immigration Minister cited potential unrest, rallies and protests as part of his reasoning for cancelling Djokovic’s visa again. On Sunday, fans slowly began arriving outside his lawyer’s office and the Federal Court awaiting the outcome of his court case
Serbian fans of Djokovic are slowly building outside the Federal Court of Australia as his lawyers argue his right to stay in Melbourne and compete in the Australian Open
Chief Justice Allsop appeared to swing toward the government’s argument, telling Mr Wood the Minister has the power to draw on ‘rational and reasonable use of perception and common sense’ in determining Djokovic’s views.
In court documents filed late on Saturday, the Minister argued his decision to cancel Djokovic’s visa had little to do with concern about him infecting others with Covid.
Instead, he said Djokovic’s conduct and ‘position on vaccination… may encourage others to emulate him by reason of his high profile and status’.
‘If others were encouraged to take up or maintain resistance to vaccination or to COVID-19 restrictions, then that would present a problem for the health of individuals and the operation of Australia’s hospital system,’ court documents state.
The government’s legal team states the above reasons fall ‘comfortably’ within the Minister’s jurisdiction to exercise his power to cancel a visa.
The onus was on Djokovic’s legal team to prove the decision was not rational, logical or legal. They cannot simply argue that the ‘better’ decision would be to allow him to stay.
Novak Djokovic has left his immigration detention hotel and is heading to his lawyer’s office as he launches a last-ditch attempt to stay in Melbourne and compete in the Australian Open
Mr Wood, during his lengthy submissions this morning, failed to build his argument that Mr Hawke acted irrationally in cancelling his client’s visa.
He attempted to argue Mr Hawke did not consider the ramifications of deportation.
‘It was irrational, your honours, for the Minister to only contemplate the prospect of the fostering of anti vax sentiment that might accrue from Mr Djokovic playing tennis, in other words being present, and yet not consider the binary alternative, which was the prospect of anti vax sentiment being fostered by… coercive state action,’ Mr Wood said.
‘It is somewhat perverse to adopt such a narrow focal point or lens.’
Mr Wood said the only evidence tying Djokovic to anti-vax activists came about after the initial decision to cancel his visa and when he was detained in the immigration hotel.
The key reasons behind Novak Djokovic’s (pictured with wife Jelena) visa cancellation have been revealed with Immigration Minister Alex Hawke saying his presence in Australia may ‘foster anti-vaccination sentiment’
‘If he hadn’t have been cancelled, those people who were galvanised by coercive state action… there’s no logical connection that those same people would turn up and chant just because he plays tennis.
‘The anti-vax protests have been directed to action by the state… action by the state perceived to have some coercive effect… Evidence suggests that was the only trigger.’
But Mr Lloyd swiftly rebutted, arguing the Minister did consider all options and knew there would be dissatisfaction with whichever decision he made.
Djokovic will be released from immigration detention only to board a flight back to his home country of Serbia, where fans have already taken to the streets in protest over his treatment in Australia.
Many are of the impression he was ‘lured’ here only to be humiliated.
Fans also stormed the streets of Melbourne after the initial court case, and it is anticipated they will do the same today.
The outcome of the hearing is also bad news for Tennis Australia, who will have to swiftly rejig the competition draw within hours to accommodate for one less player.
NOVAK DJOKOVIC’S AUSTRALIAN OPEN EPIC VISA SAGA
Novak Djokovic’s defence of his Australian Open title remains in doubt after Australian immigration officials cancelled his visa for the second time.
Here’s how the saga has unfolded:
Jan 4: Djokovic tweets that he is on his way to the Australian Open under a medical exemption. He writes on Instagram: ‘I’ve spent fantastic quality time with my loved ones over the break and today I’m heading Down Under with an exemption permission. Let’s go 2022!!’
Jan 5: Australian Prime Minister Scott Morrison warns Djokovic he will be on the ‘next plane home’ if his medical exemption is deemed insufficient, and is adamant Djokovic will not receive preferential treatment.
Jan 5: Djokovic’s visa is cancelled upon his arrival in Melbourne. The Australian Border Force announces that the player ‘failed to provide appropriate evidence to meet the entry requirements for Australia’.
Jan 6: Djokovic is sent to the Park Hotel in Melbourne after being refused a visa. He launches an appeal, which is adjourned until 10am on January 10. Serbian president Aleksandar Vucic says Djokovic is the victim of ‘persecution’.
Jan 9: Djokovic’s lawyers claim he was granted a vaccine exemption to enter Australia because he recorded a positive Covid-19 test in Serbia on December 16. However, social media posts suggest he attended a number of social events in the days following his apparent diagnosis.
Jan 10: Djokovic’s visa cancellation is quashed by Judge Anthony Kelly, who orders the Australian Government to pay legal costs and release Djokovic from detention within half-an-hour. Djokovic says he is ‘pleased and grateful’ and wishes to ‘stay and try to compete’.
Jan 11: Djokovic’s title defence remains in doubt as the Australian Immigration Minister ponders whether to over-ride the court’s ruling, reportedly due to an alleged misleading claim made by Djokovic on his entry form relating to his movements in the 14 days prior to arrival in Australia.
Jan 12: Djokovic admits making an ‘error of judgement’ by attending an interview with a French journalist while Covid positive. He adds that, although he attended a children’s tennis event the day after being tested, he did not receive notification of the positive test until after the event.
Jan 13: Djokovic is drawn to face fellow Serb Miomir Kecmanovic in the first round.
Jan 14: Immigration minister Minister Alex Hawke cancels Djokovic’s visa for a second time, saying in a statement it was ‘on health and good order grounds’.
Jan 15: Djokovic’s lawyers have a minor win in court, with the judge agreeing to have the matter heard by a panel of three judges on Sunday – a decision fiercely opposed by the government
Jan 16: Djokovic LOSES his appeal and is told he will be deported
Reporting by PA