Novak Djokovic’s high-powered legal team have argued any anti-vax sentiment brought about in the community since the tennis ace arrived in Australia was a result of the government’s decision to cancel his visa.
The world No.1 was seen leaving the notorious Park Hotel – an immigration detention centre – about 9am to watch the high-stakes Federal Court proceedings from his lawyer’s office nearby.
Djokovic is making a final, last-ditch effort to stay in Melbourne and compete in the Australian Open after the federal government twice opted to cancel his visa on grounds related to his failure to get a Covid vaccine.
Barrister Nicholas Wood SC kicked off proceedings by arguing against the reasons Immigration Minister Alex Hawke used to justify using his far-reaching ministerial powers to cancel Djokovic’s visa on Friday afternoon.
Mr Hawke determined the Serbian’s participation in the Grand Slam would ‘foster anti-vaccination sentiment’ and could lead to rallies and protests – whether they were against the star or in support of him. Mr Hawke claimed the rallies could become super spreading events and lead to significantly higher rates of community transmission.
But Djokovic’s lawyers argue 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.
‘The minister is not permitted to cancel a visa based on an evidence-free figment of his imagination,’ Mr Wood said.
Novak Djokovic left his immigration detention hotel and went to his lawyer’s office as he launches a last-ditch attempt to stay in Melbourne and compete in the Australian Open
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
Mr Wood argued 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.
‘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.’
Mr Wood said Covid vaccines have been developed and discussed for more than a year, and yet Djokovic’s ‘mere presence’ at competitions had never sparked rallies or protests in that time despite his perceived stance.
‘If there is any foundation for thinking… a tennis tournament might lead to anti-vax sentiment, one expects it to be supported by the evidence about anti-vax protests or rallies or the like at tennis events or grounds or surrounds,’ mr Wood said.
‘There is nothing of any kind like that identified by the Minister.’
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
Australian authorities on Friday revoked the Serbian tennis superstar’s visa for a second time
Djokovic’s legal team appear to be building an argument that Mr Hawke acted irrationally in cancelling the visa on the basis of unrest within the community by failing to consider the ramifications of deporting him.
‘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.’
But Stephen Lloyd, who is representing the Minister, 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.’
Chief Justice James Allsop also 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.
More than 83,000 people were tuned in to the Federal Court livestream of the proceedings by 11am to watch the showdown.
Djokovic’s lawyers also argue the government has ‘cited no evidence’ that he will rile up the anti-vaxxer community, and claim expelling him from the country will do more to fuel anti-jab sentiment Down Under.
‘We contend the Minister did not consider the obvious alternative scenario … the possibility that [Mr Djokovic’s] visa might be cancelled, [he is] expelled from the country and impaired in his career generally… it’s quite obvious that in itself may generate anti-vax sentiment,’ Mr Wood told the court.
Lawyers for Novak Djokovic (pictured) will make a last-ditch bid for the world No. 1 to stay in Australia by hitting the Immigration Minister with a new argument when the blockbuster case goes before the Federal Court on Sunday
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 – only to be re-detained days later
In court documents filed late on Saturday and made public on Sunday, the Minister argues his decision to cancel Djokovic’s visa had little to do with concern about him infecting others with Covid.
Instead, he argued 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 is 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.
The Minister is, legally, within his rights to cancel the visa if he is satisfied there is a risk to certain members of the public simply due to Djokovic’s presence in Australia. He does not need to ascertain the likely or possible conduct of the visa holder.
But Associate Professor Maria O’Sullivan of Monash University said it would be ‘difficult to prove’ Djokovic’s failure to abide by health orders in his home country of Serbia will incite similar behaviour here in Australia.
‘The Djokovic appeal raises issues about the breadth of the power of the Australian Minister for Immigration, including the authority to cancel a visa if they think it’s in the public interest,’ she said.
‘Many organisations and academics have criticised these powers over the past few years because they give largely unconstrained powers to one person.’
The reigning Australian Open champion spent Saturday being grilled by Border Force officers at a secret location before being hauled away under guard while a brief court hearing got underway.
His counsel had a significant win in the drawn out saga on Saturday with a judge ruling the matter would be heard in the Federal Court before a full bench – something the government fiercely opposed.
The case is being overseen by Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan.
The development means if the Australian government lose the case, it will not be able to appeal the ruling – leaving the world No. 1 free to play in Monday’s Australian Open tournament where he is chasing a 10th title.
Alternatively if Djokovic loses he will be booted out of the country and may not be able to return until 2024.
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’
Immigration Minister Alex Hawke (pictured) made the call to give unvaccinated Djokovic the boot from Australia
Members of the Serbian community (pictured) are seen marching through Melbourne on Monday night, with the scene soon becoming violent as protesters crashed with police – leading to many being pepper-sprayed
The tennis ace originally had his visa cancelled upon his arrival at Melbourne Airport on January 5 for inconsistencies in his declaration form granting him an exception for not being vaccinated against Covid.
He was then detained before successfully winning an appeal, only to have the Immigration Minister use his discretionary powers to cancel the visa once more.
There is a still a remote chance the court may fail to come to a decision, leaving Djokovic in limbo for the tournament.
If this happens, former deputy secretary of the Immigration Department Abul Rizvi said, there is a slim chance Djokovic could get to play.
‘A court cannot issue a visa. Only the minister, or the minister’s delegate can issue a visa,’ he told the ABC.
‘What a court can do is quash the visa cancellation which would reinstate Mr Djokovic’s earlier visa.
‘Alternatively, what the minister could do — if for example, he was confronted with a situation where the court was unable to make a decision by Sunday evening or Monday morning and we had the prospect of the world’s number one tennis player being in detention in Melbourne whilst the Australian Open goes on —an option open to the minister is to grant Mr Djokovic a bridging visa whilst the court considers its decision.
‘Now I think that is unlikely… I don’t think the government would do that.’
Novak Djokovic’s last ditch bid to have the decision to cancel his visa overturned will be heard on Sunday
The tennis ace (pictured with wife Jelena) originally had his visa cancelled upon his arrival at Melbourne Airport on January 5 for inconsistencies in his declaration form granting him an exception for not being vaccinated against Covid
Other Australian legal experts are not entirely convinced of Djokovic’s prospects either.
‘I think the odds are against Djokovic simply because Hawke’s power is so broad, but he’s made credible arguments and has a shot,’ immigration expert from the University of NSW Dr Sangeetha Pillai said.
‘So Djokovic is left with the tougher job of arguing that Hawke couldn’t have rationally arrived at the decision to cancel. It doesn’t matter if it wasn’t the optimal decision; it basically just needs to be sane.’
‘I suspect the court will probably decide quickly, even if it gives full reasons later. This means we may see a decision in time for Djokovic to play if he wins.’