Novak Djokovic wins appeal against decision to cancel his Australian visa
Novak Djokovic will be immediately released from immigration detention in Australia, after the federal circuit court ordered a decision to cancel his visa be quashed.
But the Australian government’s counsel, Christopher Tran, has revealed the immigration minister will consider exercising a personal power to cancel Djokovic’s visa meaning he is not guaranteed to stay and compete in the Australian Open.
The decision now under consideration to cancel Djokovic’s visa anew would result in him being excluded from Australia for three years – significantly upping the stakes in a bizarre border row that threatens Djokovic’s quest to win the most grand slam singles titles of all time.
After a lengthy adjournment on Monday the judge Anthony Kelly read a consent minute agreed between the world No 1 male tennis player and the home affairs minister, Karen Andrews.
Djokovic, after being temporarily released from immigration detention earlier on Monday to attend the remote hearing, was present off-screen as Kelly ordered the visa cancellation decision be quashed and costs awarded in his favour.
After the decision is quashed, Djokovic must be released from detention within 30 minutes with his passport and personal effects be returned to him.
Kelly said it was “unreasonable” for Australian Border Force officials to interview Djokovic on Thursday morning and cancel his visa in circumstances where they had agreed to give him until 8.30am to speak to officials and respond to the proposed visa cancellation.
Court documents show Djokovic’s reason for seeking a medical exemption from Australia’s vaccination requirements was that he contracted Covid in mid-December.
This was accepted by Tennis Australia and the Victorian state governments medical panels which granted him the exemption on 30 December, but border force decided Djokovic had not satisfied entry requirements.
Tran informed the court that the immigration minister, Alex Hawke, would consider exercising a personal power to cancel Djokovic’s visa.
Kelly questioned if such a power was exercised whether Djokovic would be removed from Australia and unable to return for three years, which Tran confirmed.
“The stakes have now risen rather than receded,” the judge said.
“I cannot purport to encroach on the valid exercise of a minister of executive power.”
The power states that the minister would have to be satisfied “a ground exists to cancel the visa”, in this case a threat to public health because Djokovic is unvaccinated; that Djokovic can’t dissuade him of this; and that it is “in the public interest to cancel the visa”.
Immigration law professor, Mary Crock, told Guardian Australia the Migration Act gives the minister “godlike powers” to cancel visas and if “they really decide to … the power is there”.
“Everything that has gone before can be disregarded – it is set up precisely for this situation, to come in and cancel a visa anyway.
“The politics behind this is enormous … If the visa is cancelled under this provision – you’re excluded for three years … Australia would be at risk of losing the Australian Open.”
Crock said such a cancellation is “not common” and would “definitely end up in court again” – this time to answer the substantive question of whether an unvaccinated person poses a risk, and not just procedural questions. Kelly noted the personal cancellation could be appealed and warned he expected to be “fully informed in advance” if such a decision was taken.
Earlier, Kelly queried “what more” Djokovic could have done to prove his medical exemption and criticised the Australian government for reneging on a deal to give him more time to defend his visa from cancellation.
In a transcript of Djokovic’s interview with border officials, released after the hearing, the tennis star complained he had been put in a “very awkward position” by demands to substantiate the exemption.
“So you’re giving me legally 20 minutes to try to provide additional information that I don’t have? At 4 o clock in the morning?”
A spokesman for Hawke told Guardian Australia following the federal circuit court ruling on a procedural ground, “it remains within [his] discretion to consider cancelling Mr Djokovic’s visa under his personal power of cancellation”.
“The minister is currently considering the matter and the process remains ongoing.”