Novak Djokovic's lawyers take on Immigration Minister Alex Hawke - claiming his decision to cancel the tennis star's visa was based on comments the world No.1 made about vaccinations TWO YEARS ago
- Novak Djokovic has left notorious immigration detention centre in Melbourne to watch his court case
- His Australian visa was cancelled for a second time on Friday afternoon by the federal government
- The world No. 1 Serbian tennis star is considered a 'health and good order risk' due to anti-vax sentiment
- A final decision on whether he is free to stay is expected to be made at a Federal Court hearing on Sunday
- If his legal team wins Djokovic is likely to step out on court in Melbourne in the first round on Monday
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 brought about by 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 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.
Chief Justice James Allsop indicated the hearing could wrap up by midday due to the quality of written submissions filed by both parties.
Djokovic's barrister Nicholas Wood SC kicked off proceedings by arguing against the reasons Immigration Minister Alex Hawke listed to justify using his far-reaching ministerial powers to cancel Djokovic's visa on Friday afternoon despite a monumental court win against the government earlier in the week.
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 that comments the tennis star made about vaccines in 2020 which have been used to justify the Minister's decision are not necessarily relevant.
They say Djokovic clarified 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.
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.
While Mr Wood acknowledged fans in Australia have supported Djokovic, he said the high profile visa debate galvanised anti-vax sentiment and spawned further outrage despite Djokovic never expressing an extreme position for or against the jab.
Novak Djokovic has slipped out of his immigration detention hotel and is heading to his lawyer's office as he launches a last-ditch attempt to stay in Melbourne and compete in the Australian Open
'The only evidence the minister claimed to rely on simply doesn't exist,' Mr Wood argued. 'The only evidence before the minister concerning any relationship or causal connection between Mr Djokovic and what we might call anti-vax groups is an article.'
The article in question was a BBC article which 'reported the first visa decision had galvanised anti-vax groups'.
'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.'
Some 55,000 people tuned in to a Federal Court stream at 9.30am to watch the legal showdown kick off.
They will also argue the government has 'cited no evidence' that Djokovic will rile up the anti-vaxxer community, and will 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
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.
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 will be 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
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 tomorrow, 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.'
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2022-01-15 22:03:40Z
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