Novak Djokovic: judge asks what more tennis star could have done to prove vaccination exemption

The judge hearing Novak Djokovic’s case has queried “what more” he 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.

Judge Anthony Kelly said he was “preoccupied” and “somewhat agitated” by the issue of why Australian officials did not accept an exemption document provided by the world No 1 male tennis player from a qualified physician, backed up by an independent Victorian government panel.

The federal circuit court began to hear Djokovic’s case on Monday morning, allowing him temporarily out of detention to view the hearing away from the Park hotel in Melbourne, where he is being held.

The expedited hearing comes ahead of a looming Tennis Australia deadline of Tuesday for Djokovic to be included in the draw to play the Australian Open.

Djokovic is seeking to win a record 10th Australian Open which would be his 21st open grand slam title, the most ever for a male player in singles.

He now finds his fortune at the whims of Australian administrative law which advocates have long complained is stacked against those seeking to regain visas, including the refugees held at the Park hotel, in detention for up to nine years.

Djokovic arrived in Australia late on Wednesday evening before his visa was cancelled at 7.29am on Thursday morning on the basis he may be a threat to health and safety because he was unvaccinated.

Djokovic’s counsel, Nicholas Wood, told the court the Serbian tennis star had done his “level best” to provide everything to substantiate his exemption that he recently had Covid-19, including uploading a medical exemption from the chief medical officer of Tennis Australia before travelling.

Kelly interrupted to comment that the status of Djokovic’s medical exemption “preoccupied” him, describing it as a “relatively significant fact” that Djokovic had obtained an exemption from

“a professor and eminently qualified physician”, which was further approved by an independent expert panel established by the Victorian state government.

“That document was in the hands of the delegate [who cancelled his visa]. The point I’m somewhat agitated about is: what more could this man [Djokovic] have done?”

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Wood said that Djokovic had been “utterly confused” when interviewed on Thursday morning, pointing to a note he received before travelling from the home affairs department that his claim for an exemption had been assessed and accepted.

The department argues that response does not amount to an assurance his medical exemption would allow him to enter Australia.

Kelly noted Djokovic was “effectively incommunicado” from 4am when he was asked to switch his phone off until 7.42am when he was told of the cancellation, as the department reneged on an agreement to give him until 8.30am to consult Tennis Australia.

The Australian government has argued visa-holders cannot be allowed to “filibuster” by refusing to completely respond to a notice to cancel a visa.

Wood submitted that Djokovic had wanted to wait for a particular time to speak to Tennis Australia and the judge appeared to accept he had done so to “effectively take up the opportunity … to provide [authorities] anything further [they] might want”.

Kelly noted that Djokovic was urged not to get in touch with his lawyers, which Wood said occurred on the “spurious rationale” it would be in his interests to complete his interview without them.

In its written submission the Australian government argued that any failure to consider further representations from Djokovic is immaterial. Wood labelled that view “erroneous” unless the delegate had a closed mind about the case.

Kelly suggested on one view the interview could be seen as an ex-postfacto justification for the cancellation decision.

The Australian government submitted that recent infection with Covid-19 by itself is not enough for a medical exemption, and the evidence established that Djokovic “has recovered” and is therefore not entitled to one.

Through counsel, Christopher Tran, it submitted that Djokovic had given a response to the notice to cancel the visa in the interview and there was no denial of procedural fairness.

Tran said Djokovic may have felt “pressured” to respond, but urged the judge not to find that was Border Force officials’ intention.

The hearing continues on Monday afternoon, with further submissions from Tran. The morning’s remote hearing suffered technical outages in webcasting that triggered adjournments or closed it from public view.

Earlier on Monday, Wood accused the delegate of the home affairs minister of a “paucity of evidence” for the decision to cancel Djokovic’s visa, and warned that any defect in reasoning should see it reinstated.

Legal experts have warned even after the expedited hearing, there is no guarantee Djokovic could secure a court order restoring his visa in time to play, and he could also face his visa being revoked again.

In written submissions the home affairs minister, Karen Andrews, has asked the court, if it sides with Djokovic, to quash the original decision but not to order his release.

The government submitted it had the power to make a fresh cancellation decision and noted “other powers” including re-detention.

Wood sought an interlocutory injunction to release Djokovic pending the result of the case. Kelly noted on Thursday Tran had ruled out deporting Djokovic before the result.