The world number one’s visa has been cancelled again. But he’s fighting on in court ahead of the Australian Open. What legal options does he have left? And why did the minister intervene to kick him out?
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Immigration Minister Alex Hawke has used rare personal powers to cancel Novak Djokovic’s visa in the interest of “public health and good order”, just days after the tennis star won his court bid to stay in the country to compete for his 10th Australian Open title.
The federal government has now dropped its argument that Djokovic did not have a valid medical exemption from vaccination when he came to Australia, and conceded that he poses a low risk of catching COVID-19 and passing it on to others, due to his recent infection.
But the minister is now arguing that his presence here during the two weeks of the Open, as a high-profile vaccine sceptic, may put lives and civil order at risk by stirring up anti-vax sentiment and disregard for COVID-19 rules. Djokovic’s lawyers have slammed the move as “irrational” and “starkly different” to immigration’s original reasoning for cancelling his visa when he landed at Melbourne airport last week.
It’s the latest twist in a bizarre and bruising saga that has taken the world number one into detention alongside asylum seekers at Melbourne’s notorious immigration hotel, sparked street protests, investigations, and calls between world leaders (and, briefly, crashed the Federal Circuit Court’s livestream feeds). This time, the minister’s intervention means Djokovic will have a much harder time staying in the country for the Open – and he faces a three-year ban on coming back.
But he’s already taking the fight back to court. During a late-night hearing just hours after the minister’s decision came down, the judge ordered that Djokovic not be deported until the new case is resolved. The tennis star was taken back into detention today but has been allowed to meet with his lawyers as they prepare for the full hearing tomorrow. Meanwhile, he’s still in the draw to play his first-round match at the Australian Open – that’s now set for Monday when the tournament begins.
So is this really the end of the road for the defending champion? How might the showdown in the Federal Court play out tomorrow? And what does this mean for the Open and the rest of the tennis season?
Novak Djokovic has very little ground left for appeal.Credit:The Age/The Sydney Morning Herald
How did we get here again?
Strap in, it’s quite a ride. Djokovic is the most high-profile vaccine sceptic in tennis but for months he had refused to clear up intense speculation about his vaccination status (or plans for the Open) – until January 4 when he revealed on Instagram that he was jetting off to Australia to play after all thanks to a “special exemption”. It brought to a head a long-running row between the state and federal governments, as well as Open organiser Tennis Australia, over unvaccinated players.
Victoria initially said no exceptions would be made, despite Tennis Australia’s concerns that new vaccine mandates would turn off big names. Two blind expert panels set up by the state and Tennis Australia ended up granting a “handful” of tennis professionals and staff medical exemptions from vaccination to participate in the Open, without knowing their identities or countries, out of 26 applications.
One of them, we now know, was Djokovic. He’d also been approved for a visa by the Commonwealth but, as he landed in Melbourne on a wave of public backlash, Border Force rejected his exemption.
The border rules loosened on December 15 and that meant people on certain visas no longer needed to apply for special permission to travel to Australia, so long as they were vaccinated, or had a medical exemption. Tennis Australia, which helped coordinate his application, had been warned by the federal government that a recent COVID infection (as Djokovic had in December) was not considered a valid reason under those rules to delay vaccination and so obtain an exemption as an international arrival. But it seemed players (and the state government) didn’t know that when he was granted one on those grounds, and even Tennis Australia had been redirected to existing Victorian guidelines to bypass hotel quarantine (based on Australia’s vaccine advisory group ATAGI advice) when it requested that Commonwealth double-check all the exemptions given.
Then, as it emerged that other tennis players and staff had already made it through international customs using the same reason as Djokovic, Border Force scrambled to investigate. Czech player Renata Voracova was promptly deported (she’s now chasing compensation from Tennis Australia for cancelled flights and other expenses).
But Djokovic pulled off a surprise win in court (after filing a hasty court injunction against deportation), arguing that he wasn’t given enough chance to respond at the border during an interrogation that went into the early hours of the morning and cut him off from his support entourage.
Not long after Djokovic was released and made his triumphant return to Melbourne Park, the plot thickened yet again – fresh inconsistencies had been picked up in his paperwork, including prior travel to his adopted home of Spain not declared on arrival in Australia, which Spanish authorities say they are now investigating, and a breach of isolation rules in his native Serbia in December while infected (one at a children’s tennis tournament when Djokovic says he had not yet heard of his positive result, and one when he knowingly attended a media interview wearing a mask).
If Djokovic won, why did the minister get involved?
Even as the first appeal ruling came down on Monday, the department warned it could still cancel Djokovic’s visa again. He had won on grounds of procedural fairness – he hadn’t proved his exemption was valid. Minister Hawke said he would consider using his own sweeping powers as minister to cancel his visa – a move notoriously difficult to overturn.
“That’s big,” explains immigration lawyer Karyn Anderson. Because a visa cancellation by a minister’s “personal power” does not involve the same right of reply or appeal route as a regular cancellation by the department, the minister must not only believe there are grounds allowed by the law to deport someone but that it is in the national interest to intervene.
In this case, the minister considered two main grounds for visa cancellation: whether Djokovic might pose a threat to “the health, safety and good order” of Australia or whether he gave false information on his paperwork. The minister will also sometimes revoke a visa on character grounds, say in cases involving criminal history, though experts stress the powers are designed for extreme cases and should not be used lightly.
What did the minister decide?
On Friday evening, Minister Hawke announced he had used his powers under section 133(C) of the Migration Act to cancel Djokovic’s visa on health and good order grounds because it was in the public interest. “I carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic,” he said. “The Morrison Government is firmly committed to protecting Australia’s borders, particularly in relation to the COVID-19 pandemic.”
It came as a surprise to some legal minds watching the case. If Hawke had cancelled Djokovic’s visa on the grounds he gave incorrect information on his visa or passenger card or presented bogus documents, the case would have been more straightforward, said immigration lawyer David Prince. Djokovic had already apologised for a mistake on his travel declaration form, filled in by his agent, which failed to disclose he had recently been in Spain. But, while this paperwork is now treated as a statutory declaration (and so an offence to lie on), it itself is a new pandemic-era policy and Prince notes the question of whether it counted as a “visa or passenger card” may have caused headaches for the government in court.
Instead, the minister chose health and good order grounds – grounds which have been loosened by the Morrison government in recent years to include anyone who might pose a risk, not just those who are considered to. That gives the government a lot of room to move, according to lawyer and deputy chair of the Visa Cancellations Working Group Sanmati Verma, as the government has also expanded the minister’s power to overturn court decisions favourable to applicants.
What happened then?
People whose visas are cancelled personally by the minister usually find out when Border Force arrives at their door to take them into detention for deportation, says Prince. This time, Djokovic had notice, as the minister revealed he was considering the matter, giving the player’s legal team time to streamline their appeal and send through more documentation in an effort to have the case resolved over the weekend.
As the decision loomed, Djokovic had continued to train at Melbourne Park as helicopters hovered overhead. The Australian Open draw went ahead on Thursday with its reigning champion Djokovic still in his world number-one slot. (That spot can be replaced by a wildcard entry.)
Then, just minutes before the minister announced his decision on Friday evening, Djokovic’s lawyers were told, and shortly after served documents. Djokovic was asked to present for an interview with immigration officials the following day, when it was agreed he would go back into detention, but be allowed to meet with his lawyers, shadowed by two Border Force guards, to prepare a legal challenge.
At the emergency hearing, Judge Anthony Kelly, who oversaw Djokovic’s first successful visa appeal, ordered that border officials cannot remove Djokovic from Australia while this new legal challenge is underway. On Saturday morning, the case had been transferred to the Federal Court and in a short hearing presided over by Justice David O’Callaghan, both parties agreed to a full hearing at 9:15am on Sunday. The Federal Court has since announced that the matter will be heard by the full court, rather than single judge – a move opposed by the government’s lawyers as it means neither side can appeal the final decision, not even the minister.
As Prince notes, while there are duty judges available at odd hours, whether Djokovic’s legal team can subpoena and collect all the necessary documents they need to make their case over the weekend is unclear. The player could have also applied to the minister for revocation first, but he would only be able to argue on the grounds for cancellation, not whether the minister’s intervention was in the public interest, Prince explains, and time is not on his side.
So what options does Djokovic have for an appeal?
Not many, given the broad scope of the minister’s powers.
While Hawke did not explain his decision further publicly on Friday, his reasoning was laid out in court documents released overnight. It hinged on concern that Djokovic could become the poster boy of Australia’s hard-core anti-vax movement that has already staged mass rallies in capital cities and infiltrated the union movement as well as fringe political parties.
He cited Djokovic’s past public comments that he did not want to be forced to get vaccinated, as well as his recent breach of COVID rules while infected, and argued that allowing him to compete in the tournament could, in turn, lead to a breakdown in the community following public health orders, and even potentially more “civil unrest of the kind previously experienced in Australia with rallies and protests, which may themselves be a source of community transmission”.
He said his intervention was “consistent with the Australian Government’s strong stance on the benefits of vaccination” and efforts to control the pandemic, now threatening to overwhelm hospitals during a major Omicron surge. Yet, in the same document outlining his reasoning, the minister also acknowledged that Djokovic has not attempted to break any Australian laws and was a “person of good standing” known for his philanthropy.
As the matter returned to court on Friday night, Djokovic’s lawyers argued the government could have no way of knowing what effect the star’s deportation would have on anti-vaxxers. The player himself has not advocated against vaccines but expressed his personal scepticism.
In court, Djokovic’s team will argue that cancelling his visa in this way, without natural justice, is not in the national interest. “There is vocal support in Australia and abroad for Mr Djokovic to remain in Australia and play in the Australian Open 2022,” his lawyers wrote in court documents filed today, referring to a recent online poll published by The Age and Sydney Morning Herald which showed 60 per cent of readers agreed he should be able to play.
But, exactly what that public interest means in these cases is “incredibly vague”, Anderson says – and courts are generally reluctant to overturn the view of an elected official on what it is.
Djokovic could argue instead that the minister missed a crucial point or considered an irrelevant one, or failed to apply the law properly in making his decision..
In their submissions, Djokovic’s legal team have lashed the intervention as both irrational and inherently political, a view echoed by the Serbian government who overnight accused the Australian government of harassing Djokovic to win an election.
Whatever arguments unfold, “this will be a completely different case to the one we heard [based around procedure] on Monday,” Prince says.
Are there any other options?
Djokovic already holds a diplomatic passport through the Serbian government, as well as his regular passport, and some have speculated that may allow him a loophole to stay in the country. But Djokovic is not a registered diplomat and arrived in Australia on a different, temporary visa. As Prince explains it, he would still need a diplomatic visa as well, and that would take time to arrange, even if Australia agreed to it. “The Serbian government would need to make a formal request to our Foreign Minister.”
Other experts have suggested Djokovic could be released from detention on a bridging visa while the appeal proceeds, but Prince says that too would take time to apply for.
If he loses, is he banned from Australia?
A visa cancellation under the minister’s personal power comes with an automatic three-year ban on entering Australia. That can be waived if someone applies early for a visa (say for next year’s tournament), but only if it’s accepted there are compelling or compassionate reasons to be let in early, Prince says. Those reasons can apply to the individual, but also Australia’s interests.
“You could certainly make a case there, on the commercial impact of the Open alone,” he says. “He’s not coming in to snorkel up at the Great Barrier Reef. He’s a world number-one tennis player.”
As for the lingering question of mistakes in Djokovic’s paperwork, under the law the star is responsible for false information provided on official border documents, even if it has been filled in on his behalf. But the minister has now abandoned that matter as grounds for kicking Djokovic out, effectively conceding his exemption was valid and that Djokovic had believed he met all the requirements when he landed in Melbourne. Judge Kelly has also noted Djokovic’s confusion and repeated statements during his initial interrogation at the border that he wouldn’t have come if he hadn’t received paperwork from both the federal and state governments that seemed to green light his entry.
Meanwhile, conspiracies are rife that the dates on Djokovic’s test results may have been manipulated, after differing time stamps and a QR code on his paperwork raised questions, including from Border Force. Serbian health authorities have since confirmed his infection and, after investigation, said his document “was absolutely valid”.
Is there a problem with the border system?
Immigration lawyers say the case has highlighted Australia’s complex and restrictive border apparatus, where visas can be granted automatically and paperwork checked only at arrival gates. Anderson, who calls Australia’s immigration law “overly complex”, says the system should have been ironed out by now to allow for assessment of vaccine exemptions before people board planes. “They’ve been checking people trying to leave Australia during the pandemic and churning out decisions in about 48 hours, and the amount applying to visit with exemptions would be much smaller [than that].”
Labor leader Anthony Albanese agrees, calling the Djokovic saga “diabolical”. “Australia has a policy of not allowing unvaccinated people into Australia. The government is yet to explain how that occurred,” he said on Thursday ahead of the decision, though he stopped short of calling on them to deport Djokovic. “This is an international embarrassment for Australia. Everyone knew about Novak Djokovic and the Australian Open. It’s not like we didn’t know when the date was.”
But those watching the case might have noticed something else about Australia’s immigration law too. As refugee law expert Sangeetha Pillai writes, “even those with little love for Djokovic may find it harsh and surprising that the government”, after losing the fight on procedure, “simply gets another go”. This is common in Australia’s migration law, where immigration ministers wield more personal discretionary power than any other in government (often called God Powers), and rules are even sometimes rewritten to fit decisions.
“We’re an island and tough borders play well,” Anderson says. “I think the government is reading the public outcry on this ahead of the election. It’s become a Tampa-like moment to prove how tough they are.” (In 2001, the then Howard government’s decision to turn away and then detain a large boatload of asylum seekers rescued at sea by a Norwegian freighter sparked a row with Norway and gave birth to Australia’s hard border policies).
But the main intention of the God Powers, lawyers say, was to intervene to help, rather than deport, allowing people to stay in Australia on compassionate grounds.
The same minister also has another high-profile case before his desk for consideration: that of the Murugappan family of Tamil asylum seekers, who had been part of the Queensland community Biloela until 2018 when their visas expired and they were taken to Christmas Island. After years in detention centres (and public backlash over the mounting health problems of their two Australian-born daughters), the minister used his powers to let the family move into community detention late last year. But he can yet intervene to keep the family in Australia, Anderson says, just as he can for the dozens of refugees and asylum seekers still held in the very hotel where Djokovic was detained.
Protesters gathering again outside the Park Hotel in Carlton are now urging Djokovic to speak up in support of refugees. And advocacy groups are calling for an urgent review of the minister’s powers as well as the broader system, noting visa cancellations have ramped up in recent years.
The Visa Cancellations Working Group, Asylum Seeker Resource Centre and Refugee Advice and Casework Centre say Djokovic’s ability to even properly challenge his first cancellation – let alone successfully – was “the absolute exception”. Verma says most detainees are denied procedural fairness, cut off from their lawyers, without time to properly respond to a cancellation.
“Many are turned around at the border quickly while in immigration clearance with little or no recourse … even if they face serious harm in their home country.” Under the current laws, people are automatically detained until they are granted a visa or deported, she said, meaning “many people being detained for years, even indefinitely”.
Now, Djokovic’s visa cancellation shows how political such decisions about borders and migration really are in Australia, says barrister Greg Barns, SC, of Australian Law Alliance. “The broad discretion given to the Minister means that political considerations drive decisions that can seriously impact people’s lives. It is astonishing that we have allowed one person to have this level of unchecked control and extraordinary power.”
What does it mean for the tennis world?
This summer’s Open is the first major of the international season – and the first time tennis stars have faced mandatory COVID-19 vaccination. As the saga unfolds, France has already said Djokovic will be allowed on court at the French Open “because the protocols, the health bubble, allows it”. But how the rest of Djokovic’s season plays out without the jab remains unclear.
It seems that at least the Open, already overshadowed by the Djokovic mess, will have to move forward without one of its greatest champions. The next big tournaments on the horizon are the Miami Open and Indian Wells in the United States. But, like Australia, the US also requires visitors to be vaccinated to travel, with limited medical exemptions possible. (Even if Djokovic does make it through, officials for the US Open coming up in August have suggested that when unvaccinated players can play might depend on the weather – if play is forced to move under enclosed roofs, they’ll be out.)
Djokovic’s situation has inspired both sympathy and criticism from his fellow tennis players.
Andre Agassi’s former coach Brad Gilbert says he had thought Djokovic was on course to break the men’s record for grand slam titles (which Djokovic currently holds with rivals Roger Federer and Rafael Nadal). But his aversion to receiving the COVID-19 vaccine could now jeopardise his career. “It’s going to be a very difficult proposition to be a full-time player being unvaccinated.”
Vaccination rates among ATP and WTA players have shot up in recent months, after a slow start, and stars such as Nadal and Andy Murray have strongly encouraged players to follow the mandate to stop more disastrous COVID outbreaks at sporting events. Last month, Australian Open boss Craig Tiley said he expected the vaccine take-up among players to hit 95 per cent by January.
Whether he intended to or not, Djokovic has now become a lightning rod for vaccine hesitancy, as anti-vax demonstrators again stir on the streets of Melbourne to protest his detention. It follows big rallies around Australia last year against lockdowns and workplace vaccine mandates, some of which were attended by federal MPs such as George Christensen and Craig Kelly.
Former American player Pam Shriver says that if Djokovic is ultimately deported from Australia, it will be a “big blow” to the Serbian star’s legacy, already at times controversial given his preference for alternative therapies over conventional medicine and that infamous default from the 2020 US Open (when he inadvertently hit a line judge in the throat with a ball he struck in anger).
But many experts say the stakes are higher than Djokovic. “It will clearly have significant implications for our international reputation, including as the hosts of major events,” says Anderson.
This explainer was original published on January 14 and updated on January 15 to reflect developments.
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