Novak Djokovic will remain locked up in a refugee detention centre after the Federal Court ruled his appeal to be let into the country ahead of the Australian Open would be adjourned until Monday.
Lawyers on Thursday appearing for the world No.1 appealed to Judge Anthony Kelly to review the decision made by the Department of Home Affairs to deport him.
The Serbian Covid vaccine critic had posted on social media before departure that he was heading Down Under with a medical ‘exemption’ but upon arrival at Melbourne Airport on Wednesday night, he was denied entry and detained by Border Force agents.
Novak Djokovic arrives at Adelaide Airport on January 14, 2021 in Adelaide, Australia
It comes amid reports Tennis Australia granted medical exemptions to two other individuals which don’t meet the requirements, both of whom are now subjects of Border Force investigations.
Djokovic’s barrister Nick Wood SC told the court on Thursday he was determined to find a way for his client to play in the Australian Open from January 17, and the visa issue is what is standing in his way.
‘The absence of a visa, if the cancellation decision is valid, is an insuperable obstacle to Mr Djokovic competing in the tournament,’ Mr Wood said.
Judge Kelly said he was prepared to sit late on the case to reach an outcome, and asked if the tennis star had a court to train on in the hotel he is being detained.
It appears likely Djokovic will not be expected to return home tonight after all, as Christopher Tran, who is representing the government, said he does not consider it ‘in the interests of justice’ to make a hasty decision this evening.
Novak Djokovic ‘s last ditch bid to have the decision to cancel his visa overturned will go ahead in the Federal Court of Australia this afternoon
The court also heard Tennis Australia wants a ‘definitive answer’ about whether Djokovic will be able to play by Tuesday for scheduling requirement ahead of the Melbourne Grand Slam which commences January 17.
‘The tail won’t be wagging the dog here, Mr Wood,’ Judge Kelly responded.
‘If Tennis Australia decides to do what it wants to do in running its enterprise, it will.’
Australian Border Force officials are now investigating their cases, ABC Defence Correspondent reported.
The process of rushing a dispute of this nature through the Federal Court is understood to be costly.
One immigration lawyer said it highlighted Djokovic’s privilege and status that the matter was dealt with so quickly.
Novak Djokovic (with wife Jelena) will be sent on the first plane home if he can’t provide evidence to support his vaccination exemption, Scott Morrison has said
Rival Rafael Nadal speaks out in response to the Novak Djokovic situation to tennis writer Ben Rothenberg
‘It’s only people with money and a high profile that can afford these very quick legal proceedings… They’re not easily accessible,’ the source said.
Tass Liveris, the president of the Law Council of Australia, told Daily Mail Australia it is ‘critical visa applicants are given an opportunity to have their decision reviewed’.
‘These decisions will almost always have a profound impact on the lives of individuals and their families.’
Mr Liveris said administrative and judicial review processes – like the one Djokovic’s lawyers have applied for in this instance – are fundamental to ensuring visa decisions are correct and just.
Prime Minister Scott Morrison on Thursday said the Serbian star’s claim he received a special medical exemption to fly in to Australia and defend his title was false.
‘I am advised that such an exemption was not in place, and as a result he is subject to the same rule as anyone else,’ Mr Morrison said.
‘People try to run the border all the time. People come with a visa that may not satisfy other requirements for entry – and they are put back on planes and turned back all the time.’
The federal government later explained the visa approval is an automated process – it is up to an individual to prove their vaccination status or valid exemption on arrival.
Djokovic’s initial statement sparked widespread outrage given his refusal to confirm his vaccination status.
While he does not legally have to share the grounds of his alleged medical exemption, it’s understood doing so may have helped his case when entering Australia.
Medical exemptions are being approved by border force officers ‘regularly’, one source explained, adding it wouldn’t be unreasonable to assume Djokovic met the criteria to qualify for a valid exemption.
But they said if he then refused to release the grounds of said exemption – particularly to officials at the border – ‘therein lies the problem’.
Novak Djokovic (pictured in Adelaide while quarantining for the 2021 Australian Open) may have a hard time having the decision to cancel his visa overturned ahead of the start of the Australian Open in two weeks – amid calls for him to explain his reasons for his vaccination exemption
Upon touching down in Melbourne about 11.30pm on Wednesday, the outspoken vaccine critic was whisked away and interrogated by immigration officials. By Thursday morning, Australian border force officials confirmed his visa had been cancelled
Upon touching down in Melbourne about 11.30pm on Wednesday, the outspoken vaccine critic was whisked away and interrogated by immigration officials.
By Thursday morning, Australian border force officials confirmed his visa had been cancelled.
Initial reports suggested the visa he was granted did not allow medical exemptions for the unvaccinated, but Mr Morrison later confirmed that regardless, no exemption was in place.
Djokovic’s exemption to play the Australian Open while unvaccinated was reportedly awarded because he has already been struck down Covid.
But that policy usually only applies to people who had been infected in the last six months. Djokovic contracted Covid in June 2020 shortly after he hosted a number of players in an exhibition tournament in south-east Europe.
Immediately, Djokovic’s team indicated they would fight the decision in court.
It’s understood Djokovic’s legal team will likely try to have an injunction put in place in the Federal Court of Australia while they assess their options
Professor of Public Law at University of Sydney, Mary Crock, said if Djokovic had in fact applied for the wrong visa, there is ‘limited discretion’ to grant a new visa at the border.
‘If a visa has been cancelled, the consequences of that are very long term – both for Australia and any other country he enters, because you are always asked ”have you been deported or excluded”,’ she said.
‘If he’s deported from Australia, there’s a potential he could be excluded for three years.’
She further said it could be legally challenging to fight the decision in the Federal Court.
‘His visa will have been cancelled either on the basis that he didn’t meet the entry requirements, or he made some false statement,’ she said.
‘He doesn’t have the right to appeal on the merits of anything – he can’t say ”I’m the best tennis player, let me in”.’
Novak Djokovic will be on a flight out of Australia tonight if he cannot successfully apply to stay
Instead, the onus will be on Djokovic’s lawyers to prove the cancellation of his visa was a ‘legal error’.
Prime Minister Scott Morrison confirmed Djokovic’s visa had been cancelled on Thursday morning.
‘Rules are rules, especially when it comes to our borders. No one is above these rules,’ Mr Morrison wrote on Twitter.
‘Our strong border policies have been critical to Australia having one of the lowest death rates in the world from COVID, we are continuing to be vigilant.’
He’d earlier vowed to put Djokovic ‘on the next plane home’ if he couldn’t provide acceptable proof of his medical exemption.
‘The circumstances are not unique. The issue is whether he has sufficient evidence to support that he would qualify for the exemption.’
Health Minister Greg Hunt also confirmed the visa cancellation, and Border Force issued a statement to that effect.
Novak Djokovic was caught up in a late night visa bungle as he touched down in Melbourne late on Wednesday night. By Thursday morning, his visa had been cancelled
‘The ABF can confirm that Mr Djokovic failed to provide appropriate evidence to meet the entry requirements to Australia, and his visa has been subsequently cancelled.
‘Non-citizens who do not hold a valid visa on entry or who have had their visa cancelled will be detained and removed from Australia.’
Officials denied claims he had no access to his phone during the detention period.
The world number one touched down on an Emirates flight from Dubai about 11.30pm Wednesday AEST, just 24 hours after he confirmed he would play in the Australian Open.
He never made it past the passport checkpoint and was whisked into an isolated room under police guard, where he remained for at least several hours.
Djokovic’s coach, former tennis star Goran Ivanisevic, and support staff were swiftly processed through immigration, but stayed at the airport while he was questioned.
Djokovic is likely to be on a flight out of Australia today after the visa mix up
His father Srdjan confirmed to a Serbian radio station that the star was ‘isolated in a room’ at the airport with his support staff banned from entering and without access to a mobile phone, even claiming he was under ‘police guard’.
‘Novak is currently in a room which no one can enter,’ he told the B92 internet portal. ‘In front of the room are two policemen.’
Mr Djokovic Snr warned protesters would gather on the Serbian streets if border officials didn’t make a decision in the next half hour.
‘I have no idea what’s going on, they’re holding my son captive for five hours,’ he said. ‘This is not a fight for the libertarian world, this is not just a fight for Novak, but a fight for the whole world.
‘If they don’t let him go in half an hour, we will gather on the street, this is a fight for everybody.’
Djokovic’s declaration to the world that he was on his way to Australia sparked an outpouring of anger on a day the nation identified a record 64,770 new Covid cases
Border Force officials learned while Djokovic was in the air that he would be trying to enter the country on a visa that doesn’t permit medical exemptions for the unvaccinated, sources said.
A day before he arrived, Novak Djokovic announced to the world he was on his way to Australia after being granted an exemption (pictured, the photo he used to accompany his social media announcement)
Leading immigration lawyers tell Daily Mail Australia an injunction could allow Djokovic to stay Down Under as his legal team fights for his right to play in his favourite competitio (pictured with his wife)
Tennis Australia chief executive Craig Tiley said the independent panel that awarded the exemption consisted of doctors from the fields of immunology, infectious disease and general practice.
He insisted all exemptions met conditions set out by the Australian Technical Advisory Group on Immunisation as he came out in defence of the controversial decision.
‘It’s ultimately the decision of the medical experts and we follow that accordingly,’ Tiley said.
‘We completely understand and empathise with… people being upset about the fact that Novak has come in because of his statements over the past couple of years around vaccination.’
Tiley acknowledged questions will be asked about the exemption and the only person who can answer them is Djokovic.
‘It’ll certainly be helpful if Novak was to explain the conditions in which he’s sought an exemption… but ultimately it’s up to him,’ he said.
All players and spectators at the Australian Open need to be vaccinated or secure an exemption like Djokovic, which is assessed by an independent panel of experts.
Djokovic will surpass Roger Federer and Rafael Nadal as with the most Grand Slam wins in the sport’s history if he wins his tenth Australian Open title on January 30, taking his tally of Grand Slam titles to 21.
A letter sent from the Department of Health to Tennis Australia boss Craig Tiley warns past diagnosis of Covid is not a valid exemption
Djokovic’s exemption to play the Australian Open while unvaccinated was reportedly awarded because he has already been struck down Covid
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