Federal Circuit Court Judge Anthony Kelly reinstated
Djokovic’s visa, which was canceled after his arrival last week because
officials decided he didn’t meet the criteria for an exemption to an entry
requirement that all non-citizens be fully vaccinated.
The judge also ordered the government to release Djokovic
within 30 minutes from a Melbourne quarantine hotel where he has spent the last
four nights.
Government lawyer Christopher Tran told the judge after the
ruling that the minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs, Alex Hawke, “will consider whether to exercise a
personal power of cancellation.”
That would mean Djokovic could again face deportation and
could miss the Australian Open, which starts on Jan. 17.
Speaking with television network Prva in Belgrade, Serbia,
the tennis star’s brother, Djordje Djokovic, described the judge’s ruling as a
“great defeat for Australian authorities.”
He also alleged that “the latest information is that they
want to arrest him,” in an apparent reference to Australian authorities. He did
not immediately provide further details on the claim.
“This is definitely politics, all this was politics,” he
added.
The office of Home Affairs Minister Karen Andrews confirmed
that Novak Djokovic has not been arrested.
Kelly said the threat of a further visa cancellation meant
the “stakes have now risen rather than receded.”
“If this man is to be summarily removed upon a personal
exercise of cancellation power, he cannot return to this country for three
years, am I right about that?” Kelly asked lawyers for Home Affairs Minister
Andrews, under whose authority Djokovic’s visa was earlier canceled.
Tran and colleague Naomi Wootten confirmed that Djokovic
would be banned from Australia for three years.
The government canceled 34-year-old Djokovic’s visa shortly
after he arrived in Melbourne late Wednesday to play in the Australian Open.
There was a public backlash at news that Djokovic, who has
previously declined to reveal his vaccination status, would compete in
Melbourne because Australians who aren’t vaccinated, or are inoculated with
vaccines that aren’t recognized by Australian medical authorities, face tough
travel and quarantine restrictions. Court documents say he is unvaccinated.
Prime Minister Scott Morrison’s conservative government is
seeking re-election for a fourth three-year term at polls due by May.
While his government was widely praised for containing the
nation’s COVID-19 death toll at the start of the pandemic, omicron cases have
been rapidly surging. He has been criticized for shortages of rapid antigen
tests and for refusing to make the tests available to all for free.
He has sought to place the blame for the controversy on
Tennis Australia, which is organizing the Australian Open.
Djokovic has been under guard in hotel quarantine since
Thursday, when his visa was canceled.
He appealed the cancellation at the virtual court hearing
Monday amid a growing public debate over the positive coronavirus test that his
lawyers used as grounds in applying for a medical exemption to Australia’s
strict vaccination rules.
Djokovic argued he did not need proof of vaccination because
he had evidence that he had been infected with the coronavirus last month.
Australian medical authorities have ruled that a temporary
exemption for the vaccination rule can be provided to people who have been infected
with COVID-19 within six months.
Judge Kelly noted that Djokovic had provided officials at
Melbourne’s airport with a medical exemption given him by Tennis Australia and
two medical panels.
“The point I’m somewhat agitated about is what more could
this man have done?” Kelly asked Djokovic’s lawyer, Nick Wood.
Wood agreed with the judge that Djokovic could not have done
more.
Transcripts of Djokovic’s interview with Border Force
officials and his own affidavit revealed a “repeated appeal to the officers
with which he was dealing that to his understanding, uncontradicted, he had
done absolutely everything that he understood was required in order for him to
enter Australia,” Wood said.
Djokovic’s lawyers submitted 11 grounds for appeal against
his visa cancellation. The lawyers described the cancellation as “seriously
illogical,” irrational and legally unreasonable.
Lawyers for Home Affairs Minister Andrews said in their
submission that the vaccination requirement could only be deferred for arriving
travelers who have had a COVID-19 infection if their illness was acute.
“There is no suggestion that the applicant (Djokovic) had
‘acute major medical illness’ in December” when he tested positive, the written
submission said.
Andrews’ lawyers eventually conceded that the authorities’
decision to proceed with interviewing Djokovic in the early hours of Thursday
and cancel his visa before he could contact Tennis Australia or his lawyers was
unreasonable in the circumstances.
Djokovic was told at 5.20 a.m. on Thursday that he had until
8.30 a.m. to respond to a notice of intention to cancel his visa. His comments
were sought instead at 6.14 a.m.
The decision to cancel his visa was made just over an hour
later.
Judge Kelly said if Djokovic had been given until 8.30 a.m.
he could have consulted others about the decision.
Neither Ministers Andrews nor Hawke immediately responded to
requests for comment.
The virtual hearing crashed several times because of an
overwhelming number of people from around the world trying to watch the
proceedings.
At one point, an expired court link was apparently hacked
and broadcast pornography, The New Daily News website reported.
Djokovic is a nine-time Australian Open champion. He is the
defending champion and has won the last three titles at Melbourne Park.
Djokovic has 20 Grand Slam singles titles, a men’s record he
shares with Roger Federer and Rafael Nadal.