Novak Djokovic: Tennis star leaves detention after winning visa battle

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Novak Djokovic’s chances of playing in the Australian Open still hang in the balance tonight as the country’s immigration minister considers using his personal powers to re-cancel the anti-vaxxer’s visa – despite a judge freeing him from detention this morning. 

The tennis star celebrated his reprieve by posting a picture of himself getting back onto the courts with a midnight training session in Melbourne on Twitter  – alongside a message thanking the judge.

‘I’m pleased and grateful that the Judge overturned my visa cancellation. Despite all that has happened, I want to stay and try to compete,’ Djokovic wrote alongside an image of himself on court with his team.

‘I remain focused on that. I flew here to play at one of the most important events we have in front of the amazing fans. For now I cannot say more but thank you  all for standing with me and encouraging me to stay strong.’

The image caps off a dramatic day in which a judge ruled the government acted ‘unreasonably’ when it tore up Djokovic’s visa at the border last week and then tried to deport him for violating Covid vaccine rules.

Judge Anthony Kelly ruled border agents had not given Djokovic enough time to put together a defence when at 4am they demanded more documents to support his visa and allowed him just 20 minutes to produce them – as revealed by a transcript of the nearly eight-hour long interview.

Kelly’s ruling freed Djokovic from migrant detention where he has been languishing for the last six days in a ‘torture chamber’ hotel alongside refugees, but does not spell an end to the drama as he still faces being kicked out of the country by immigration minister Alex Hawke who has the power to rip up individual visas.

Mr Hawke declined to use those powers on Monday night but insisted he is still actively considering the move, leaving a Sword of Damocles hanging over Djokovic’s head even as he prepares to compete at the Open in a bid to become the most-decorated men’s singles player of all time.

Speaking at a press conference in his native Serbia after the verdict, Djokovic’s family blasted his treatment by Australian authorities which mother Dijana said amounted to ‘torture’. 

‘This is the biggest victory in his career, it is bigger than any Grand Slam he has won,’ she told the world’s media. ‘As a boy he was taught not to put up with lies and cheating, he has always fought for justice.

‘He did nothing wrong, he hasn’t broken any of their laws, he was subjected to torture, to harassment. He fought against that system and against the government, he felt he had the right to be there… Never before have we faced a situation like this, it was extremely difficult to for us [but] justice did prevail, he has been freed.’ 

Today’s rapid-fire developments were just the latest twists and turns in a tale that began Wednesday when Djokovic arrived in Australia to compete in the Open holding what he thought was a valid medical exemption to vaccination rules, stating that he had been infected with Covid last month and recovered. 

But border guards rejected the documents and tore up the visa, with Djokovic thrown into detention while he waited for his appeal to come before the courts.

That hearing took place today, with Judge Kelly quashing the decision to revoke his visa after ruling that the medical exemption was valid and the tennis star had done everything in his power to prove he was not a health risk.  

‘What more could this man have done?’ he asked a virtual hearing.

As part of the hearing, a transcript between Djokovic and border guards was released that laid bare the star’s confusion as he was told that his visa was being cancelled unless he could come up with more documents to support it – in the early hours of the morning and without being allowed to use his phone.

‘I am really failing to understand what else do you want me to provide to you. I have provided all the documents that Tennis Australia and Victorian government has asked me to do in the last three/four weeks, this is what we have been doing,’ Djokovic said.

‘I applied [for a medical exemption], they approved, I just really don’t know what else do you want me to say. I arrived here because of these documents otherwise I wouldn’t have been allowed to come in. I just really don’t understand what is the reason you don’t allow me to enter your country.’

After being told he has 20 minutes to come up with a reason why the visa shouldn’t be cancelled, Djokovic adds: ‘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? 

‘I mean you kind of put me in a very awkward position where at 4 in the morning I can’t call director of Tennis Australia, I can’t engage with anybody from the Victorian state government through Tennis Australia. I just you put me in a very uncomfortable position. I don’t know what else can I tell you. I mean everything that that they.. that I was asked to do is here.’  

After being told by border guards that having recovered from Covid is not sufficient reason to get a border certificate, Djokovic adds: ‘The federal government said okay, fine, access granted, travel declaration, QR code, you are free to go.

‘Otherwise I wouldn’t be flying here. There’s absolutely no way I would put myself in a position to come and sit here with you… I made it all the way to Australia because you know they all made it very clear and certain to me that I have all the documentation that I possibly can provide to you.’

Djokovic’s lawyer presented the same line of argument in court, saying he had received assurances 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.

It appears the government used the adjournment to withdraw its case, before agreeing with Djokovic’s legal team on the wording of the judge’s subsequent order. 

The minutes note Djokovic was not given adequate time to respond to the notification to cancel his visa.

Earlier, the court published an order made yesterday that Djokovic be taken from the Park Hotel – where he had been held since Thursday – and brought to ‘a premises as specified by the applicant’s solicitors’ during the hearing.

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 indicate 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.

The virtual court hearing at the Federal Circuit and Family Court of Australia had been beset with technical issues, which has stopped Djokovic as well as members of the public from viewing the proceedings online. 

Judge Kelly had ruled that in the face of technical difficulties, Djokovic 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.    

Before the court hearing began, Djokovic’s parents Dijana and Srdjan joined hundreds of supporters in the Serbian capital Belgrade, insisting that the world will ‘hear the truth’.

The defence team’s arguments finally got underway on Monday after the virtual hearing was hijacked by Serbians who displayed porn and played techno music in a protest against the tennis star’s detention. 

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 court case got off to a rough start, after an old link to broadcast the hearing over Microsoft Teams was overrun with pornographic pictures and music. 

Meanwhile, an alternative livestream set up by staff at the Federal Circuit and Family Court of Australia crashed when the world’s media and public tried to log in on Monday morning.  

The court had initially issued a Microsoft Teams link to livestream the hearing, but later updated the advice with a new website to watch proceedings.

Minutes before the case was set to begin, the initial link was overrun by members of the Serbian public and foreign press and at one stage, an unknown person took over control and displayed pornographic pictures for hundreds to see. 

Others were being generally disruptive in the link, making silly noises, shouting and playing techno music as the court official tried to find a way to mute all. 

The new link provided by the federal court staff also crashed due to overwhelming global interest, with the hearing eventually getting underway half-an-hour late at 10.30 am local time (23.30 GMT Sunday). Court officials said they were working to rectify the problem.     

The case has polarised opinion around the world and elicited heartfelt support for the tennis star in his native Serbia.

‘Today is a big day. Today, the whole world will hear the truth,’ Djokovic’s mother Dijana Djokovic told the crowd in Belgrade.

‘We hope that Novak will come out as a free man. We send great love to Novak. We believe in him, but also in the independent judiciary in Melbourne,’ she said.

Djokovic’s father Srdjan Djokovic said ‘this is happening because we are only a small part of the world, but we are proud people’.

The family were joined by hundreds of supporters, including the UK’s former UKIP leader Nigel Farage, in Belgrade, with the ex-politician saying he was waiting for the result of the visa hearing with Djokovic’s relatives.

Video footage shows Farage walking into a trophy room with Djokovic’s brother Djordje.

UK tennis star Andy Murray was quick to comment and wrote to the former right-wing politician: ‘Please record the awkward moment when you tell them you’ve spent most of your career campaigning to have people from Eastern Europe deported.’

He added: ‘They can’t break us. Novak is the personification of freedom, everything human that one man contains in himself. Shame on them!’

Mrs Djokovic said that the conditions in the hotel in Melbourne where Djokovic is staying are ‘not humane’.

‘He doesn’t even have breakfast,’ she said. ‘He has a wall to stare at and he can’t even see a park in front or go out of the room.’

Djokovic’s lawyer, Nick Wood, had argued during the court hearing that the Australian government’s visa cancellation notice was ‘defective’ because it has a typo.  

Mr Wood argued a typo in the Notice of Intention to Consider Cancellation rendered the entire document ‘defective’. 

Home Affairs said the typo was an unfortunate but immaterial mistake that should not discount the context of the message. 

Mr Wood also argues Djokovic went beyond what was required of him by providing evidence of his medical contraindication. 

He said government entry requirements specify a traveller must declare they can prove their exemption, but does not state they will have to do so. 

‘He was not required to provide evidence, even though as a matter of fact, he did,’ Mr Wood said.   

Djokovic’s lawyers said he also had the necessary permissions to enter Australia, including an assessment from the Department of Home Affairs that responses on his travel declaration form indicated he met the conditions for quarantine-free arrival.

But the government lawyers rejected that argument, saying the department’s email was not an assurance ‘that his so-called ‘medical exemption’ would be accepted’, and his responses could be questioned and verified on his 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. 

Australian officials initially said Djokovic would be given an exemption to stringent vaccine rules by state authorities and be able to participate in the Australian Open.

But when he landed, his visa was cancelled by federal border officials.

The exemption request said Djokovic’s first positive test was on December 16 and, on the date of issue, it said the tennis player ‘had not had a fever or respiratory symptoms in the past 72 hours’. 

His lawyers submitted a 35-page dossier, arguing that he met the requirements for a vaccine exemption certificate due the fact he had suffered Covid last month. 

But in a 13-page court filing made public today, Australian government lawyers stated that it was ‘common ground’ between both sides of the legal fight that Djokovic is ‘unvaccinated’, Sky News reports.    

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. 

Tennis Australia CEO Craig Tiley said in his first media interview since the furore began that his organisation had spoken with federal and state officials for months to ensure the safe passage of players. 

For days, demonstrators and counter-demonstrators have gathered outside the facility. Nobody is allowed in or out except staff.

Hours before the hearing, a pro-refugee banner was unfurled from the roof and police removed a small number of protestors from the scene.

Social media is swamped with questions over Djokovic’s whereabouts after the alleged positive Covid-19 test amid a surge of the pandemic.

Djokovic attended two public events on December 16 in Belgrade, as well as a December 17 event in the Serbian capital honouring young tennis players.

The event was covered by local media, and parents posted photos on social media showing Djokovic and the children not wearing masks. It is not clear if Djokovic knew the results of his test at the time.

Days later he was shown playing tennis in a park in front of his apartment in Belgrade.

‘Legally, Djokovic doesn’t have to explain what happened (after his positive test) but it would be very good for his reputation here and the whole world,’ Sasa Ozmo, a Serbian sports journalist, told the N1 television.