A Federal Court challenge to overturn the decision was launched and, on Monday, was ruled in Djokovic’s favour.
But in a legal hearing at the Federal Circuit Court of Australia, Judge Anthony Kelly quashed the visa cancellation and ordered the Australian Government to pay legal costs and release Djokovic from detention within half an hour.
Djokovic, 34, will now be free to leave the Park Hotel in Carlton – where he has spent the last four nights alongside refugees and detainees – by 7pm local time.
But 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 cancelation.’
That would mean Djokovic could again face deportation and could miss the Australian Open, which starts on January 17.
Djokovic had argued that a recent positive Covid-19 test qualified him for the medical exception from the country’s requirement for all visitors to be double vaccinated.
The Australian government, however, had argued that non-citizens had no right of guaranteed entry to Australia and stressed that even if the Serbian won the court action, it reserved the right to detain him again and remove him from the country.
Earlier in the day, Djokovic was removed from detention to be with his lawyers during the hearing, and Judge Anthony Kelly expressed agitation over the rejection of Djokovic’s medical exemption.
Djokovic’s lawyers presented their arguments to the court, but government lawyer Mr Tran only spoke for half an hour before a lengthy adjournment.
During that break, the two parties agreed on the minutes of Judge Kelly’s order.
The minutes note Djokovic was not given adequate time to respond to the notification to cancel his visa.
The hearing was delayed by technical issues with the court’s video link, but Djokovic’s lawyers argued their case to Judge Kelly, who asked the court ‘What more could this man have done?’ and said he was ‘agitated’ about the issue of Djokovic’s medical exemption.
‘Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption,’ Judge Kelly said.
‘Further to that, that medical exemption and the basis on which it was given was separately given by a further independent expert specialist panel established by the Victorian state government and that document was in the hands of the delegate.’
Djokovic’s lawyer, Nicholas Wood, has argued the notice of intention to cancel his visa was defective because it was made on ‘a confusing blend of two grounds’.
He also argued that Djokovic was treated at the airport as if access to lawyers ‘couldn’t possibly’ be of assistance in the matter and was not given a reasonable chance to respond to the notice.
At a press conference, Australia’s Prime Minister Scott Morrison was asked by a reporter to respond to comments from Tennis Australia chief executive Craig Tiley stating he was given conflicting government advice on medical exemptions.
Mr. Morrison said: ‘Well, the matter is before the court so I can’t comment on the matter before the court … but in relation to the government, our government, the federal government’s advice to Tennis Australia, that was set out very clearly in November, as I read the extract from this very podium, it could not be more clear.’
Mr. Morrison refused to comment on court documents submitted by the government which indicates Djokovic may remain in detention despite winning his appeal.
The documents urged the court to only ‘quash the decision and costs’ and said ‘it is inappropriate to make any further orders, whether they be for immediate release or even remitter to the delegate for reconsidering according to the law’.
They also noted: ‘An order for immediate release does not prevent re-detention if there is power to detain.’
It was revealed in court documents submitted by Djokovic’s lawyers that the player had been infected with Covid-19 in December 2021. The documents said the infection was the basis of Djokovic’s medical exemption.
The documents also noted that Djokovic expressed ‘shock’, ‘surprise, and ‘confusion’ when he was notified of his visa cancellation ‘given that (as he understood it) he had done everything he was required to enter Australia’.
But Australia’s Home Affairs Department filed court documents in which it stated ‘there is no such thing as an assurance of entry by a non-citizen into Australia’ and noted that the Minister has the power to cancel Djokovic’s visa a second time if the court rules in his favour.
‘As the Court raised with the parties at a previous mention, if this Court were to make orders in the applicant’s favour, it would then be for the respondent to administer the Act in accordance with law. That may involve the delegate deciding whether to make another cancellation decision, but there are also other powers in the Act, as the Court would be aware.’
Judge Kelly ruled must be released from the hotel and taken to a different location where he able to watch the hearing, reports News.com.au.
The judge said he was ‘agitated’ after learning all the steps the World No.1 took to comply with Australia’s Covid rules – only to be detained in an immigration detention facility when he landed at Melbourne airport.
Judge Kelly also raised concerns about how the Serbian was treated by border officials on arrival to the country.
‘A professor and qualified physician have provided the applicant a medical exemption, the basis of which was given by a further independent expert specialist panel established by the Victorian state government… that document was in the hands of the delegate,’ he said.
‘The point I’m somewhat agitated about is, what more could this man have done?’
Djokovic’s barrister Nick Wood said he’d been asking himself the same question, and said the Serbian star was adamant he did everything that was asked of him.
Exchanges between Judge Kelly and Mr. Wood revealed that officials made Djokovic switch off his phone from midnight to around 7.42am local time when the decision to cancel his visa was made.
Officials reneged on an agreement to give him until 8.30 a.m. to speak to tournament organiser Tennis Australia, Wood said, and dissuaded him from waiting to speak to lawyers.
Wood said Djokovic had clearly declared he had a medical contraindication that exempted him from the requirement to be double vaccinated and, even though he was not required to, had provided evidence to support that claim both before boarding his flight to Australia and on arrival.
The government also challenged the claim by Djokovic, a vocal sceptic of vaccines, for a medical exemption on the basis he had contracted COVID-19 in mid-December and had recovered two weeks later.
‘There is no suggestion that the applicant had ‘acute major medical illness’ in December 2021. All he has said is that he tested positive for COVID-19. This is not the same,’ court filing said.
The government will seek to have his appeal dismissed with costs, paving the way for his deportation as soon as Monday evening.
Lawyers for Home Affairs Minister Karen Andrews said the country’s vaccination exemption form makes clear that a previous infection ‘is not a contraindication to immunisation’.
The government stated: ‘There is no suggestion that the applicant had ‘acute major medical illness’ in December 2021.
‘All he has said is that he tested positive for Covid… That is not the same. Thus the ATAGI Vaccination Advice uses different terms, such as mere ‘past infection’ and also ‘symptomatic infection.”
The document adds that even if hearing is concluded in Djokovic’s favour, it does not mean he could not be re-detained or have his visa cancelled again.
‘If this Court were to make orders in the applicant’s [Djokovic] favour, it would then be for the respondent [Australian government] to administer the Act in accordance with law,’ federal lawyers stated.