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The 34-year-old world tennis No.1 will be free to leave the Park Hotel in Carlton – where he’s spent the last four nights alongside refugees and detainees – by 5.46pm.
Judge Anthony Kelly’s decision is a huge blow to the government, who hoped he’d be deported this afternoon after claiming he relied on out-of-date ATAGI advice to enter the country.
The court determined Djokovic must be released from detention within the next 30 minutes.
The government has also been ordered to cover all costs related to the appeal.
While Djokovic and his team are undoubtedly celebrating the monumental win, the court heard the Minister for Immigration, Alex Hawke, has powers to personally cancel the visa.
Judge Kelly told the court in no uncertain terms, that if the government does consider this motion he must be given ample notice to prepare for future proceedings.
He also noted if Djokovic were to be deported, he’d be forbidden from returning to Australia for three years.
Djokovic supporters had high hopes for the case after Judge Kelly said he was ‘agitated’ learning all the steps the world No.1 took to assure he’d be welcome in Australia and free to play his favourite Grand Slam.
‘A professor and qualified physician provided the applicant a medical exemption, the basis of which was given by an independent expert panel established by the state government… that document was in the hands of the delegate,’ Judge Kelly said.
‘The point I’m somewhat agitated about is, what more could this man have done?’
Novak Djokovic has successfully challenged the Australian Government’s decision to cancel his visa and will play in the Australian Open
The 34-year-old world tennis No.1 will be free to leave the Park Hotel in Carlton – a ‘human zoo’ where he’s spent the last four nights alongside refugees and detainees
The decision is a major win for the Serb star and his loyal fans
Djokovic will be defending his title at the Australian Open after five days in a detention centre
While Djokovic is now free to begin training again and remain in Australia, the debacle has prompted fierce backlash online, with many saying the incompetence of the Australian government has been thrust into the spotlight.
Ironically, Djokovic was granted a 403 visa which provides ‘a temporary visa to work in specific circumstances that improve Australia’s international relations’.
The monumental bungle and subsequent handling of his individual case has done the very opposite.
Fellow tennis star Andy Murray says the uncertainty over Djokovic’s situation is ‘really bad’ for tennis and claims the scenario has ‘shocked’ the athletes.
Speaking ahead of the Australian Open, Murray told reporters in Melbourne: ‘I think everyone is shocked by it to be honest. I’m going to say two things on it just now.
‘The first thing is that I hope that Novak is OK. I know him well, and I’ve always had a good relationship with him and I hope that he’s OK.
‘It’s really not good for tennis at all, and I don’t think it’s good for anyone involved.’
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
Police stand guard outside a government detention centre where Serbia’s tennis champion Novak Djokovic is staying
Djokovic’s lawyer Nick Wood SC said the star went beyond what was required of him by providing evidence of his medical contraindication when he was detained at the airport
There has been outrage that Djokovic – one of the world’s greatest sportsmen – has been detained in a $109-a-night hotel alongside refugees and detainees.
Protesters gathered outside for days on end arguing for the freedom of the detainees inside.
‘9 years. Human zoo,’ one of the residents wrote on a handwritten note stuck to the window of his room.
Djokovic’s lawyer Nick Wood SC said the star went beyond what was required of him by providing evidence of his medical contraindication when he was detained at the airport.
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.
A van enters a government detention centre where Serbia’s tennis player Novak Djokovic is staying in Melbourne
Police stood guard on Monday as protesters demanded equal rights for refugees
Mr Wood also noted Djokovic felt pressured when giving evidence to border force officials after touching town from 25 hours of long-haul travel.
He claimed an officer expressed that his ‘shift was ending soon’ and questioned whether this impacted the decision to renege on an agreement to give Djokovic several hours rest and time to consult his legal team.
Djokovic had asked for any further questioning to be delayed until 8.30am to give him time to consult with his team and it’s understood this was initially agreed to.
Later, he was told it was in his interests to proceed immediately, and his visa was cancelled about 7.40am.
The court heard Djokovic told border officers: ‘If you let me talk to people, although you’ve taken my phone from me, I will try and get you what you want’.
Mr Wood told the court it was ‘spurious rationale’ to tell Djokovic it was in his interests to allow the visa cancellation without consulting his team.
‘There was no reason, no intelligible reason, not to allow him that more time,’ he said.
Judge Anthony Kelly’s decision is a huge blow to the government, who hoped he’d be deported this afternoon after claiming he relied on out-of-date ATAGI advice to enter the country
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.
Police personnel detain a pro-refugee protestor outside the Park Hotel, where Serbian tennis player Novak Djokovic is being held
Lawyers for the Department of Home Affairs indicated in submissions made about 10.30pm on Sunday night they had the ability to contest a decision in Djokovic’s favour.
In fact, they say they could cancel his visa all over again, leaving him in perpetual limbo just a week before the Open begins.
Their submission states Djokovic is of a ‘greater health risk’ of spreading the virus than an vaccinated person, and that infecting others would ‘burden the health system’.
But the tennis ace’s lawyers said he posed a minuscule risk to the health of Australian citizens given his reduced risk of reinfection so soon after recovering from the virus.
They also noted NSW and Victoria were already recording tens of thousands of new cases each day by the time the decision to cancel his visa was made.
Djokovic’s high powered legal team argued border officers acted unjustly and made critical jurisdictional errors in cancelling his temporary worker visa in the early hours of Thursday.
An ATAGI document, which the Federal Government uses to determine if someone is eligible for an exemption, states a previous infection can be used as a reason not to be vaccinated yet
They claim the Australian Travel Declaration assessment, which arrivals on most visas must complete before boarding, said he had met quarantine-free arrival requirements.
Results of the assessment are processed by a computer in just 60 seconds, with the government saying the document isn’t official proof someone can enter the country and exists purely to give travellers an idea of whether they’re eligible to enter or not.
His team also argues he was not given time to rest, having travelled for 25 hours, or speak to a lawyer during hours of questioning at Melbourne Airport, with the star left ‘confused’.
ATAGI website guidelines which Djokovic and his team based their understanding of his ‘medical exemption’ on, state ‘PCR-confirmed SARS-CoV-2 infection,’ is a valid reason for a temporary medical exemption.
‘Vaccination can be deferred until 6 months after the infection,’ the guidelines state.
In these circumstances, a person would be considered exempt from getting the jab if they can prove they’ve been diagnosed with Covid in the last six months.
The statement echoes what NSW’s chief health officer Dr Kerry Chant advised on Friday, which is that a person could wait up to six weeks after their symptoms finished to get jabbed.
Djokovic (pictured with his wife Jelena) was reportedly denied access to a lawyer on even an hour’s sleep during his initial gruelling questioning, despite having travelled for 25 hours
How Australian authorities have handballed responsibility over the Djokovic visa saga
Victorian acting Sports Minister Jaala Pulford says:
‘The Federal Government has asked if we will support Novak Djokovic’s visa application to enter Australia. We will not be providing Novak Djokovic with individual visa application support to participate in the 2022 Australian Open Grand Slam.
‘We’ve always been clear on two points: visa approvals are a matter for the Federal Government, and medical exemptions are a matter for doctors.’
Home Affairs Minister Jaren Andrews says:
‘The ABF did not request Victorian government support for a visa. The ABF reached out to the Victorian government to validate their public statements about their support for Mr Djokovic’s entry, and whether Victoria had further information related to his medical exemption documentation.
Prime Minister Scott Morrison says:
‘Tennis Australia, as I understand, said that he could play and that is fine, that is their call. But we make the call on the border and that is where it is enforced.
‘I am unaware of the Victorian government position on whether they were prepared to allow him to not have to quarantine or not.’
Victorian Health Minister Martin Foley says:
‘The Commonwealth lets you into the country. Tennis Australia, in partership with the state, lets you into the tournament… Someone issued Novak Djokovic a visa, and it wasn’t the Victorian government.
‘I’m not blaming the Commonwealth for anything. All I’m saying is there is a two-step process to get into the country… You get into the country, that’s the Commonwealth of Australia’s responsibility.
Novak Djokovic’s brother Djordje says:
‘He had the same document as several tennis players who are already in Australia. Novak and his team had no way of contacting federal authorities. The only way to make contact was via Tennis Australia. Novak didn’t apply, Tennis Australia did.’
Source: Daily Mail