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The Guardian - AU
Sport
Luke McLaughlin (now) and Mostafa Rachwani (earlier)

Djokovic’s lawyers say Australian visa cancelled to avoid ‘exciting’ anti-vaxxers – as it happened

  • Novak Djokovic’s visa was cancelled for a second time today on the basis his presence could “excite anti-vaccination sentiment”.
  • His legal team are appealing today’s decision.
  • In just a few hours’ time he is scheduled to be interviewed by Australian immigration officials (at 8am Melbourne time).
  • The proceedings have been transferred to Federal Court, and the full hearing will take place on Sunday morning, the day before the Australian Open begins.

If the decision by Alex Hawke, the immigration minister, to cancel the visa stands, that will of course prevent Djokovic from playing at the Australian Open, and also lead to him being put on a plane home at the earliest opportunity.

Novak Djokovic’s diary this weekend (courtesy of our reporter Paul Karp):

  • 8am Saturday – interview with Border Force
  • Then detention, including
  • 10am-2pm at his lawyers offices on Saturday; then
  • From 9am Sunday, also at his lawyers offices, this time for the hearing

Thanks for reading today and we’ll see you very soon for the latest instalment of the Djokovic saga. Here is the latest report:

Bye for now.

Updated

As we mentioned earlier, the opinion of the Australian public law expert Associate Professor Janina Boughey is that, if there have been no procedural errors, the discretionary powers of the minister means Djokovic’s appeal will fail.

In a video posted online by the University of New South Wales, Boughey explains that there are now fewer avenues of appeal for Djokovic:

Under the section that gives the minister personal discretion, there are fewer avenues of appeal so Mr Djokovic could not appeal to the Administrative Appeals Tribunal.

All he could do is seek judicial review in the courts. And what the courts doing judicial review is determine whether the power has been exercised lawfully.

So, it would all depend on how the minister exercises the power and whether he does so in a manner which is lawful.

The discretion that the minister has is very broad, so realistically, unless the minister makes a procedural error, doesn’t comply with the terms of the Act, or unless the decision is ... really has no basis ... then Mr Djokovic is unlikely to succeed.

Updated

In case you missed it yesterday:

Novak Djokovic has been “playing by his own rules” and has put his bid for a 21st grand slam title at risk by not following Australia’s Covid-19 vaccination requirements, according to the world No 4, Stefanos Tsitsipas.

This is from a couple of days ago, and serves as a useful reminder of the timeline of events leading up to this week’s drama:

Novak Djokovic’s Australian visa has again been cancelled days before the start of the Australian Open on the basis his presence could “excite anti-vaccination sentiment”.

Updated

A reminder that one of the reasons stated for cancelling Djokovic’s visa today is that he could ‘excite anti-vax sentiment’ ... which, to a non-legal person like me, would seem to open the decision up to a challenge. But, again, if the minister has the power to do whatever they like, then Djokovic’s appeal will surely fail.

It certainly felt like there was an amount of straw-clutching going on by Djokovic’s legal team in that hearing, but it was enough to put the judge on the back foot, and visibly annoy him with the way it was all unfolding.

Djokovic to be interviewed by immigration officials tomorrow

So, after a brief adjournment, the parties agreed to clarify the orders so that Djokovic can be taken into detention after his interview tomorrow at 8am at a location of the parties’ choosing. This is to avoid a “media circus” at the Lonsdale St offices identified in the hearing.

Djokovic’s diary is:

  • 8am Saturday – interview with Border Force
  • Then detention, including
  • 10am-2pm at his lawyers offices on Saturday; then
  • From 9am Sunday, also at his lawyers offices, this time for the hearing

Via Reuters, various reactions to the decision to cancel Djokovic’s visa for a second time. Former Australian PM Kevin Rudd reckons the timing, late afternoon/early evening on Friday in Australia, was to ‘win the weekend media cycle’.

Australian PM, Scott Morrison: “I note the Minister for Immigration’s decision in relation to Mr Novak Djokovic’s visa. I understand that following careful consideration, action has been taken by the Minister to cancel Mr Djokovic’s visa held on health and good order grounds, on the basis that it was in the public interest to do so. This pandemic has been incredibly difficult for every Australian but we have stuck together and saved lives and livelihoods.”

Former PM Kevin Rudd: “What a surprise! Morrison’s govt cancels Djokovic’s visa to win the weekend media cycle - showing us all how hairy chested he is. Why on earth did they issue the visa in the first place? One big political distraction from empty shelves & the national shortage of boosters & RATs.”

Andy Murray: “It’s unfortunate that it’s ended up in this sort of situation, and who knows? I don’t know what route he goes down, if he can appeal that and, you know, how long that takes, and can he still be out practicing whilst that process is going on or still competing in the tournament? Just want it to get resolved. I think it would be good for everyone if that was the case. It just seems like it’s dragged on for quite a long time now, and yeah, not great for the tennis, not great for the Australian Open, not great for Novak.”

Justine Henin: “I think it’s the best thing he doesn’t play at the moment. When something is so complicated, I don’t say that Djokovic doesn’t have to fight, because he thought it was the right thing to do, but I think now it’s been proved that so many Australian people don’t want him to play. “So maybe it’s better for everyone, for tennis, for the tournament, and maybe for him, that he doesn’t play the tournament.”

Darren Cahill, coach and former player: “Fault lies everywhere here. It’s been a mess. Novak, TA, Vic Gov, Federal Gov. It should’ve been a hard rule entering this country considering what the folks have been thru. Get vaccinated and come play the AO, or if not maybe see you in 23’. No wiggle room.”

Former player Janko Tipsarevic: “Toxic Shame on each and everyone involved in this process...”

Tennis fan Lou Ricciardi at Melbourne Park: “I do agree with what the government has done. Rules are rules. If you break the rules there are a lot of consequences. It’s unfortunate for the Open but ... the Open is bigger than just one man. The other players have got to just put up with what’s happened and hope there’s no distractions.

What more could Djokovic have done to avoid all this? Quite a bit, as it turns out, writes Paul Karp:

Updated

The hearing has now restarted ... the judge thanks those present for their efforts, and says he will publish his decision(s) tomorrow morning. And with that he says ‘adjourn the court’ – and that would appear to be it for the night.

Updated

Earlier in the hearing, Djokovic’s lawyers mentioned that he had a ‘medical contraindication’ with regard to vaccination. This (Paul Karp tells me) is legalese for the fact that Djokovic tested positive for Covid-19 last month.

Updated

Anyway, the court is due be back for more in a couple of minutes, but we are effectively no closer to a final resolution to the issue of Djokovic’s visa and his participation at the Australian Open. As stated below the judge has transferred the case to Federal Court, and Djokovic is due to attend an interview with immigration officials at 8am tomorrow. Which is only nine hours from now.

Updated

The hearing has just been adjourned for another five minutes. It’s now a few minutes before 11pm in Melbourne where the hearing is taking place. Judge Kelly looks frustrated and even angry with the direction – or directions – in which Djokovic’s lawyers are taking this hearing.

Updated

Proceedings transferred to Federal Court

The Judge Anthony Kelly has also ordered the proceedings to be transferred to the Federal Court, that’s a slight setback from Djokovic, whose lawyers had urged it to stay with this court (Federal Circuit), to speed things up.

Updated

Nicholas Wood, Djokovic’s counsel, has expressed concern about security and “a potential media circus” if Djokovic is taken into detention at his solicitors’ offices, a location identified now publicly in the hearing. Wood said: “I can’t see any practical disadvantage for him to be taken into detention at a location agreed between parties but not one announced to the world.”

Updated

Djokovic to attend interview with immigration officials tomorrow

The judge’s orders are as follows:

  • Djokovic to serve as soon as is reasonably practical an originating application, an affidavit attaching Alex Hawke’s reasons and submissions for decision
  • The minister will not take any step to remove Djokovic from Australia
  • Djokovic will attend an interview at 8am Saturday with immigration officials, then will be supervised by Border Force officers from 10am to 2pm on Saturday at his solicitors’ offices
  • Djokovic may continue in detention from 9am Sunday 16 January, at his solicitors’ offices

Updated

Judge Anthony Kelly is now reading a fairly lengthy statement on the way forward from here ... details to follow shortly.

The current state of play is that Novak Djokovic’s visa has been cancelled for a second time. Australia’s immigration minister, Alex Hawke, announced earlier that he cancelled the visa “on health and good order grounds, [and] on the basis that it was in the public interest to do so”.

A late-night (in Australia) hearing is ongoing, and has just restarted ...

The hearing remains adjourned. As soon as it restarts, we’ll bring you the details.

Elsewhere in tennis: Andy Murray has defeated American Reilly Opelka at the Sydney Tennis Classic to reach his first ATP Tour final for more than two years:

In “I am not a lawyer, but ...” news: It seems to me there is plenty of ambiguity and potential for legal argument in Alex Hawke’s statement regarding his reasons for cancelling Djokovic’s visa for a second time. But that said, if his ministerial powers allow him to make such a decision and legal procedure has been correctly followed in all other ways, then Djokovic’s lawyers seem destined to lose their second appeal, and he’ll be on the plane home. We shall see.

And here’s our video explainer on how this saga has unfolded:

Here is Paul Karp’s story from a little earlier on the immigration minister Alex Hawke’s decision to revoke the Serb’s visa for a second time:

Rather than the main court hearing on the key issue of Djokovic’s visa, the one taking place now is more procedural.

Our reporter Paul Karp explains what the current hearing (which must be bringing in record numbers to the Federal Circuit and Family Court of Australia YouTube channel) is all about:

“It’s mainly just which court will hear it, timetabling, interim orders re: whether he’ll be in detention ... It sounds like main hearing will be Sunday.”

So we’ve got at least a couple more days of this to look forward to.

Updated

Thank you Mostafa and greetings, everyone. Novak Djokovic’s lawyers continue to fight this with the same stubbornness that the Serb brings to a baseline rally. Today’s hearing – taking place late on Friday evening in Australia, and now late morning in the UK – has been adjourned for now ... we’ll bring you updates as and when things resume.

The hearing is available to watch on YouTube here:

Updated

OK and with that, I will hand over the blog to Luke McLaughlin. Thanks for reading.

Updated

At an urgent court directions hearing on Friday evening, Novak Djokovic’s counsel Nicholas Wood confirmed that he is not in detention tonight and is due to attend an interview with immigration officials at 8am on Saturday.

The Australian government’s counsel, Stephen Lloyd, said the immigration minister proposed that Djokovic would be taken into detention at that time, taken to the offices of his solicitors for the hearing.

Updated

Court has been adjourned

And with that, the court has been adjourned after the parties made their submissions, and with a decision on the coming timeline still up in the air.

Djokovic ejected for risk of 'exciting anti-vax sentiment', lawyer says

Novak Djokovic’s lawyer Nicholas Wood says he doesn’t anticipate cross-examination or subpoenas, and he anticipates narrow grounds of appeal.

Wood says the immigration minister Alex Hawke’s reasons stand in “stark contrast” to the ones used by the Australian Border Force delegate.

He says:

The delegate said Mr Djokovic may infect other people because he’s unvaccinated. The present set of reasons is starkly different. The minister assumes in Mr Djokovic’s favour every single fact that might have been in issue previously, that he’s complied with the law, that he poses only a negligible risk to others, Mr Djokovic has a medical reason not to be vaccinated, and that Mr Djokovic is of good standing.

Wood says the central thrust of the case is that Hawke had a “binary” decision: that Djokovic could stay in Melbourne leading to potential “excitement” in the anti-vax community; versus the forceable removal of a man of good standing who has a medical contraindication.

Wood says there is a “clear jurisdictional error” of “irrationality” in that the ground of “exciting anti-vax sentiment” is premised on Djokovic only having that impact if he remains in Australia.

“He has no rational basis to say” Djokovic staying would cause more anti-vax sentiment, Wood submits.

Updated

Djokovic's lawyers propose Sunday hearing

Nicholas Wood has proposed he will make submissions by midday Saturday, with the minister’s to follow by 10pm tomorrow, ready for a hearing on Sunday.

Wood says:

Mr Djokovic may be scheduled to play on Monday night or Tuesday night ... In those circumstances we’re very concerned about time.

Wood is blaming the government for giving the decision “shortly after 6pm on a Friday”, four days after the federal circuit court decision and more than a week after the original decision. He’s laying into media reporting that the immigration minister, Alex Hawke, was “burdened” by lengthy submissions from Djokovic.

Wood reveals Djokovic’s material included scholarly articles about natural immunity, and reveals that Hawke’s decision said he hadn’t read them! Well this is going swimmingly.

Updated

Djokovic is not in detention, lawyer says

Nicholas Wood has confirmed that his client, Novak Djokovic, has not been taken back into detention.

He says an Australian Government Solicitor lawyer has advised “it is not proposed to re-detain my client tonight”.

Djokovic’s interview tomorrow is at 8am.

Updated

Every minute is precious, Djokovic's lawyer says

Nicholas Wood is explaining why Novak Djokovic is in such a hurry – “every minute before the tournament commences on Monday” is “precious”.

Wood is suggesting that Judge Anthony Kelly could retain the matter in the federal circuit court to prevent the loss of time to transfer it to the federal court.

Wood argues that there is no issue of Kelly having apprehended bias, despite having heard the earlier case, because the second visa cancellation is an “entirely separate process” to the first.

Updated

Nicholas Wood SC, on behalf of Novak Djokovic, has just asked the court for an injunction preventing his removal.

He undertakes to file a written application as soon as practical – suggesting he will be able to do so by 10.15pm tonight! Much sooner than the 4pm tomorrow the judge offered.

So the suggestions that Djokovic’s lawyers are ready to go seems to be borne out.

Updated

Judge Anthony Kelly notes the last time this case was run, the parties were able to agree to preserve the status quo, and the same might be required again tonight.

Kelly says this could include a brief interim injunction to 4pm Saturday 15 January preventing Djokovic being deported. Kelly notes that Novak Djokovic has been invited to an interview on Saturday.

Updated

Judge Anthony Kelly is noting the possibility the case will have to be transferred from the federal circuit court to the federal court.

Kelly says:

While I have what it seems is an unappealable power to transfer this matter to another court, it is qualified by the requirement ... that the federal court of Australia confirms the order I make.

Kelly says this ought to be decided now, and directions would be taken up by the federal court.

Oh great, so we’re here for a preliminary discussion of which court is going to hear this, before it moves to a docket of another judge, before we get directions. The entree to the entree.

Updated

The hearing has started.

Judge Anthony Kelly starts by noting that the government’s counsel, Christopher Tran, had informed the court on Monday that the immigration minister, Alex Hawke, was considering cancelling Djokovic’s visa.

There’s a bit of housekeeping about how the court can get the facts in front of it when no originating application has been made.

Kelly makes a number of observations:

  1. In an urgent circumstance if it is necessary a party can make an application before the formal process starting the court case.
  2. The court may be prepared to accept an undertaking from parties to file and serve an affidavit which exhibits material documents at soonest opportunity.

Kelly is outlining the documents he has: the immigration minister Alex Hawke’s decision cancelling Djokovic’s visa; and a government submission. There’s also a document titled “sensitivities” that the judge won’t read. We want him to read it.

Updated

Judge Anthony Kelly has opened by going through the history of proceedings leading up to this point.

Hearing has begun

We will continue to bring updates from the Federal Circuit Court.

The hearing appears to be delayed, but it is interesting to see that over 12,000 people have tuned in to the live feed. Clearly some interest in the outcome.

Have just spoken to Prof Jack Anderson, professor and director of sports law at the University of Melbourne, who has explained what we are likely to see in the next few minutes.

“A directions hearing is about getting the formalities sorted for a further hearing,” he says.

Djokovic’s lawyers will be pushing for an expedited hearing – saying that they can put in short written submissions and get this done quickly ... High stakes!

Updated

As we wait for the hearing, I’d recommend this searing analysis on the situation from Paul Karp as essential reading:

Hearing in federal circuit court set for 8.45pm

And in breaking news, a directions hearing will be conducted tonight at 8.45pm before judge Anthony Kelly in the federal circuit court.

Updated

Australian public law expert Assoc Prof Janina Boughey says the decision by immigration minister Alex Hawke will very likely stand up to any appeal, due to the wide powers the minister has.

In a video posted online by the University of New South Wales, Boughey explains that there are now fewer avenues of appeal for Djokovic:

Under the section that gives the minister personal discretion, there are fewer avenues of appeal so Mr Djokovic could not appeal to the Administrative Appeals Tribunal.

All he could do is seek judicial review in the courts. And what the courts doing judicial review is determine whether the power has been exercised lawfully.

So, it would all depend on how the minister exercises the power and whether he does so in a manner which is lawful.

The discretion that the minister has is very broad, so realistically, unless the minister makes a procedural error, doesn’t comply with the terms of the Act, or unless the decision is ... really has no basis ... then Mr Djokovic is unlikely to succeed.

Updated

Novak Djokovic will not be removed from the Australian Open draw until it is certain that he is unable to compete at the tournament. Should he be deported, the Australian Open draw would face a minor reshuffle.

Andrey Rublev, the fifth seed, would move into Djokovic’s place at the top of the draw, Gael Monfils, the 17th seed, would take Rublev’s spot and there would be a new 33rd seed, Alexander Bublik, who would take Monfils’ previous spot. A lucky loser, one of the defeated players in the final round of qualifying, would be added to the draw.

It is not a dramatic change and top players do occasionally withdraw from major tournaments after the draw is made. However, all of these players, plus Djokovic’s scheduled first round opponent Miomir Kecmanovic, are affected as they will not be certain about their first round opponent until this is resolved.

Immigration officials to interview Djokovic tomorrow

I can confirm that arrangements have been made for Djokovic to attend an interview with immigration officials tomorrow

Updated

The Australian Lawyers Alliance has released a statement saying that the government’s decision highlights Australia’s “arbitrary and unfair border policies”.

Greg Barns SC, spokesperson for the alliance, said the decision demonstrated how political decisions about borders and migration are in Australia.

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.

The powers given to the Immigration Minister and our border officials have been increasing over time with no corresponding increase in transparency or accountability. In many cases, there are no rights to appeal the Minister’s decision or any meaningful scrutiny of these decisions.

Most people don’t have the resources that Djokovic has to engage legal teams to defend them.

This government’s obsession with harsh border policies combined with its arbitrary approach to visa cancellation and detention has created a debacle this week but, more importantly, has destroyed the lives of thousands of people for many years.

Updated

And if you’d like to watch an explainer as a refresher on the week-long drama, you can watch the video at the link below:

And we’re hearing reports that a black Mercedes van has pulled up to Djokvic’s lawyers’ office in Melbourne.

The van, with tinted windows, drove into the office car park around 6.30pm.

The van reportedly left about five minutes later with a passenger, although it is unclear if Djokovic is the passenger.

Updated

PM says decision is to 'protect sacrifices of Australians'

Prime minister Scott Morrison has spoken out on the decision, backing his immigration minister and saying it was done to “protect” the sacrifices Australians have made during the pandemic:

I note the Minister for Immigration’s decision in relation to Mr Novak Djokovic’s visa.

I understand that following careful consideration, action has been taken by the Minister to cancel Mr Djokovic’s visa held on health and good order grounds, on the basis that it was in the public interest to do so.

This pandemic has been incredibly difficult for every Australian but we have stuck together and saved lives and livelihoods.

Together we have achieved one of the lowest death rates, strongest economies and highest vaccination rates, in the world.

Australians have made many sacrifices during this pandemic, and they rightly expect the result of those sacrifices to be protected.

This is what the Minister is doing in taking this action today.

Our strong border protection policies have kept Australians safe, prior to COVID and now during the pandemic.

Due to the expected ongoing legal proceedings, I will be not be providing any further comment.

Updated

The former deputy secretary of the Department of Immigration, Abul Rizvi, was on the ABC earlier, outlining what he thinks will happen next, including the return of Djokovic to detention:

What that means now is that Novak Djokovic must be taken into detention. I assume he’ll go back to the same detention hotel that he was at previously. I assume his lawyers will now seek judicial review of that decision. And, the court will need to consider whatever application Mr Djokovic’s lawyers make.

I assume the applications will be for Novak Djokovic to be released in some way, probably directing the minister to release Mr Djokovic on a bridging visa to allow him to play in the Australian Open. The judge would consider that and make a decision

Djokovic likely to appeal

Further on what happens now, there are multiple reports that Djokovic’s legal team has indicated it will immediately take the decision to court.

It is understood the tennis star’s lawyers would seek to have a potential case fast-tracked by minimising the length of their submissions.

They’d also be hoping to have the case heard over the weekend and finalised soon, allowing him to take part in the Australian Open early next week.

Updated

The decision has also thrown the Australian Open draw into chaos, with Djokovic drawn as the top seed earlier this week.

Djokovic was eyeing a record 10th Australian Open and the men’s record for most grand slams at the upcoming tournament – all hopes that have been dashed.

According to the Grand Slam’s rule book, Djokovic’s withdrawal after the completion of the draw means his slot in the draw will go to No. 5 seed Andrey Rublev.

It is unclear as of yet how Tennis Australia will react themselves though.

Djokovic on his way to winning the 2020 Australian Open
Djokovic on his way to winning the 2020 Australian Open. His potential absence has presented fresh headaches for the tournament. Photograph: Greg Wood/AFP/Getty Images

Updated

So, what does that mean now?

Firstly, it means Djokovic, the No 1 men’s tennis player in the world, is banned from Australia for three years.

The cancellation issued by Hawke is classified as an adverse decision under section 133C(3), which means Djokovic cannot be granted another visa while offshore for the three years.

There are exceptions granted in “certain circumstances,” and the Serbian star is sure to appeal the decision, so that may come into play in the coming days.

Updated

Australia's immigration minister cancels Novak Djokovic's visa again

The Australian immigration minister, Alex Hawke, has re-cancelled Novak Djokovic’s visa.

We begin with Hawke’s statement, saying he “carefully considered” information provided to him:

Today I exercised my power under section 133C(3) of the Migration Act to cancel the visa held by Mr Novak Djokovic on health and good order grounds, on the basis that it was in the public interest to do so.

This decision followed orders by the Federal Circuit and Family Court on 10 January 2022, quashing a prior cancellation decision on procedural fairness grounds.

In making this decision, I carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic.

The Morrison Government is firmly committed to protecting Australia’s borders, particularly in relation to the COVID-19 pandemic.

I thank the officers of the Department of Home Affairs and the Australian Border Force who work every day to serve Australia’s interests in increasingly challenging operational environments.

Updated

The Australian immigration minister, Alex Hawke, has again cancelled Novak Djokovic’s visa.

Djokovic’s visa was first cancelled by a delegate of the home affairs minister last Thursday, on the basis a recent Covid infection by itself was not sufficient for an exemption from vaccination requirements and, since he was unvaccinated, Djokovic could pose a risk to public health.

The visa was restored by a federal circuit court judge ruling in Djokovic’s favour on Monday, but government lawyers immediately put the world No 1 on notice that Hawke could still exercise a personal power to re-cancel the visa.

On Wednesday, Djokovic conceded his agent made an “administrative mistake” when declaring he had not travelled in the two weeks before his flight to Australia and acknowledged an “error of judgment” by not isolating after he tested positive for Covid on 16 December.

Hawke’s decision, announced on Friday evening, indicates the minister is satisfied cancellation was in the public interest.

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