Judge reinstates Djokovic’s visa, orders release

MELBOURNE, Australia — Tennis star Novak Djokovic on Monday won a court battle to stay in Australia to play in the Australian Open despite being unvaccinated against COVID-19, but the government threatened to cancel his visa a second time.

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 had spent the previous 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.”

Hawke was still considering whether to cancel Djokovic’s visa, a spokesman said later on Monday.

“Following today’s Federal Circuit and Family Court determination on a procedural ground, it remains within Immigration Minister Hawke’s discretion to consider canceling Mr. Djokovic’s visa under his personal power of cancellation within section 133C(3) of the Migration Act,” the spokesman said, in the first comments from the minister’s office after the court quashed an earlier visa cancellation.

“The Minister is currently considering the matter and the process remains ongoing.”

That would mean Djokovic could again face deportation and could miss the Australian Open, which starts 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. But hundreds of fans gathered late Monday outside his lawyers’ office in Melbourne, many carrying Serbian flags and wearing the banner’s red, white and blue colors. They chanted “Free Nole,” using the star’s nickname. Police later dispersed them when they surrounded a car trying to leave the area.

Spanish tennis star Rafael Nadal called the controversy “a circus” and said he supported the decision allowing his rival to play in the upcoming tournament.

“Beyond me agreeing or not with Djokovic on certain things, there’s no question that justice has spoken and has said that he has the right to take part in the Australian Open,” Nadal said Monday during an interview with Spain’s Onda Cero radio.

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 Andrews, under whose authority Djokovic’s visa was earlier canceled.

Tran and colleague Naomi Wootten confirmed that Djokovic, 34, would be banned from Australia for three years.

The government canceled 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 state he is unvaccinated.

Prime Minister Scott Morrison 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 on 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.

Kelly noted that Djokovic had provided officials at Melbourne’s airport with a medical exemption given to 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.

Andrews said in their submission that the vaccination requirement could be deferred only 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.

Kelly said if Djokovic had been given until 8:30 a.m., he could have consulted others about the decision.

Neither Andrews nor Hawke immediately responded to requests for comment.

Australia’s efforts to let the media and public watch Djokovic’s court appeal against his visa cancellation descended into farce as pranksters hijacked the internet links to stream loud music and pornography.

Due to coronavirus restrictions, the hearing was conducted virtually, through audiovisual links between the judge’s chambers and lawyers for the government and Djokovic.

Minutes before proceedings were due to begin, journalists clicked on a just-expired video link supplied by the court, unaware that the court had replaced it with an updated version. Expecting to see proceedings in real time, they were instead confronted with pornographic images.

The virtual hearing also crashed several times because of an overwhelming number of people from around the world trying to watch the proceedings.

Djokovic is a nine-time Australian Open champion. He is the defending champion and has won the past three titles at Melbourne Park.

Djokovic has 20 Grand Slam singles titles, a men’s record he shares with Roger Federer and Nadal.

The Associated Press contributed to this report.