'Patently irrational': Refusing to concede - Djokovic's last-ditch plan

Author
news.com.au,
Publish Date
Sat, 15 Jan 2022, 9:06AM
(Photo / File)
(Photo / File)

'Patently irrational': Refusing to concede - Djokovic's last-ditch plan

Author
news.com.au,
Publish Date
Sat, 15 Jan 2022, 9:06AM

Novak Djokovic has sought and obtained an urgent injunction to prevent the government from deporting him following Friday's decision by Immigration Minister Alex Hawke to cancel his visa. 

During a hastily scheduled late-night hearing in the Federal Circuit Court on Friday, Judge Anthony Kelly ordered that the federal government not take any steps to remove Djokovic from Australia before the tennis star's appeal is resolved. 

Djokovic also cannot be detained until 8am on Saturday, when he will attend an interview with federal officials. 

Following that meeting, Djokovic will be allowed to visit the offices of his lawyers to discuss his case, escorted by two Border Force officials, before being taken into detention. 

And he can return to those offices on Sunday, when a final hearing on the matter is expected to take place. 

Judge Kelly also said the case would be transferred to the Federal Court of Australia. 

Djokovic's legal team, led by Nicholas Wood SC, had argued for the matter to remain in the Federal Circuit Court in the interest of resolving it as quickly as possible. 

Mr Wood stressed that any legal proceedings would involve the "chewing up of time that is extremely precious, every minute that we have before the tournament commences". 

The Australian Open, for which Djokovic is the number one seed, begins on Monday. 

"I don't wish to be critical. The position we find ourselves in today is the product of being given reasons for decision material shortly after 6pm on a Friday. More than four days after the original decision was made," he said. 

"We are where we are because of the time the Minister has taken. We are moving as fast as we possibly can. 

Mr Wood said he wanted the matter to be decided in time for Djokovic to play on Monday night, should he succeed. 

"Mr Djokovic may be scheduled to play on Monday night or Tuesday night. In those circumstances, we're very concerned about time," he said. 

He said the grounds of appeal were narrower than in last week's hearings, and he did not expect cross-examination or subpoenas to be necessary. 

Mr Wood estimated each side could make its arguments in under an hour. 

Djokovic's initial visa cancellation at the hands of Border Force officials was overturned in court on Monday, but Mr Hawke still had the chance to exercise his extensive personal power as Immigration Minister, which he did after deliberating for most of the week. 

Djokovic team previews its argument 

In a lengthy exchange with Judge Kelly, Mr Wood revealed the core of the argument he intended to make on Djokovic's behalf to contest the Minister's decision. 

He argued the reasons set out by Mr Hawke in support of his decision stood "in stark contrast" to those given by the Border Force officials for cancelling Djokovic's visa on January 6. 

Mr Wood said that initial cancellation was due to the prospect of Djokovic "infecting other people because he's not vaccinated". 

"The present set of reasons is starkly different," said Mr Wood. 

"What the minister does is, in substance, to assume in Mr Djokovic's favour every fact that might have been a factor previously." 

He said that, according to Mr Hawke's reasoning, Djokovic "complied with the law" in all respects, posed "only a negligible risk to others", was a person "of good standing", and had a valid "medical reason for not being vaccinated". 

Mr Wood ridiculed Mr Hawke for, in his view, worrying that Djokovic's presence at the Australian Open could inflame anti-vaxxer sentiment without considering the inflammatory effect deporting him might have. 

"The Minister was making a binary decision. If he did not cancel Mr Djokovic's visa, then Mr Djokovic stays in Melbourne, plays in the Australian Open," he said. 

"The binary alternative is that the Minister cancels Mr Djokovic's visa. That leads to the forcible, mandatory removal of this man of good standing who has complied with law, who poses a negligible risk to the community. 

"The Minister only considers the potential for exciting anti-vax sentiment in the event that he's present. 

"The Minister gives no consideration whatsoever to what effect (removing Djokovic) may have on anti-vax sentiment and indeed on public order. 

"That seems patently irrational." 

Djokovic will be detained on Saturday 

The world number one's lawyers argued that he should remain free on Saturday and then spend the hearing, should it happen on Sunday, in his lawyers' offices. 

Mr Wood said it would be "rather more kerfuffle than is necessary or appropriate" to detain Djokovic following his meeting with officials at 8am on Saturday in front of a "media circus". 

"Particularly when the Minister has not sought to detain Mr Djokovic tonight," he added. 

He expressed concern for Djokovic's security and requested he be taken into custody at a location agreed to by both sides, but not announced publicly. 

The government did not agree to let Djokovic remain free, but did agree to the possibility of Djokovic's interview happening at an undisclosed location. 

Minister's late-afternoon visa decision 

Mr Hawke finally came to a decision on Friday afternoon, invoking his discretionary power and immediately seeking to deport Djokovic. 

"Today I exercised my power under section 133C (3) of the Migration Act to cancel the visa held by Mr Novak Djokovic on health and good order grounds, on the basis that it was in the public interest to do so," Mr Hawke said in a statement. 

"This decision followed orders by the Federal Circuit and Family Court on 10 January 2022, quashing a prior cancellation decision on procedural fairness grounds. 

"In making this decision, I carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic. 

"The Morrison Government is firmly committed to protecting Australia's borders, particularly in relation to the Covid-19 pandemic. I thank the officers of the Department of Home Affairs and the Australian Border Force who work every day to serve Australia's interests in increasingly challenging operational environments." 

Djokovic will be banned from being granted another visa for three years if he doesn't successfully appeal the decision – however this can be waived. 

Prime Minister Scott Morrison also shared a statement on Friday evening. 

"I note the Minister for Immigration's decision in relation to Mr Novak Djokovic's visa," he said. 

"I understand that following careful consideration, action has been taken by the Minister to cancel Mr Djokovic's visa held on health and good order grounds, on the basis that it was in the public interest to do so. 

"This pandemic has been incredibly difficult for every Australian but we have stuck together and saved lives and livelihoods. 

"Together we have achieved one of the lowest death rates, strongest economies and highest vaccination rates, in the world. 

"Australians have made many sacrifices during this pandemic, and they rightly expect the result of those sacrifices to be protected. 

"This is what the Minister is doing in taking this action today. 

"Our strong border protection policies have kept Australians safe, prior to Covid and now during the pandemic. 

"Due to the expected ongoing legal proceedings, I will be not be providing any further comment." 

Similarly, a Victorian Government Spokesperson said: "This visa issue remains between the federal government and Novak Djokovic, whose team has reportedly indicated the intention to take further legal action in the federal court system. It would therefore be inappropriate to comment at this stage." 

Djokovic could still play in the Australian Open 

The news that Novak Djokovic's visa had been cancelled quickly spread around the world but there is still hope for the Serbian's fans that he could play at Melbourne Park. 

Although it makes his path a lot more difficult, it doesn't completely close the door on his record-breaking grand slam attempt. 

Abul Rivzi, a former deputy secretary of the Department of Immigration, spoke on ABC News immediately after the decision was revealed. 

He said it meant Djokovic would have to be taken into detention and he added: "I assume his lawyers will now seek judicial review of that decision". 

He added that a judge would likely be asked to consider a bridging visa to allow him to play in the Australian Open. 

As for if he could compete in the Australian Open: "That is entirely in the hands of the relevant judge that is handling this matter," Mr Rivzi said. "He will need to sit over the weekend. There are complex issues to be considered, and the judge will have a difficult decision to make as to whether to release Novak Djokovic to allow him to play in the Australian Open. 

"Or indeed if it is the case that the judge accepts that there are strong public interest grounds for Mr Djokovic to remain in detention, he would stay there and that would mean he cannot compete." 

As for Australia, Mr Rivzi said it would show Australia is "tough on issues of Covid" but also the "poor handling of this matter". 

The Herald Sun also reported that legal experts have told the publication that it would be difficult to deal with before the start of the Australian Open on Monday. 

As Djokovic was also drawn into the Australian Open, it is also a headache for tournament organisers who will have to shuffle the draw if the world No. 1 is unable to play the tournament. 

New York Times tennis journalist Ben Rothenberg laid out the options for the Australian Open before the draw on Thursday. 

"Here's a brief rule book thread on how it will work with seedings re: Djokovic, as his fate remains unknown," Rothenberg said. "If Djokovic pulls out of #AusOpen in short time left before the draw (very unlikely), #2 Daniil Medvedev would become #1 seed. 

"If Djokovic pulls out after #AusOpen draw but before Day 1 order of play is released, #5 Andrey Rublev would be moved to Line 1 of draw to take Djokovic's slot. #17 Gael Monfils would move onto Rublev's line, and Alexander Bublik would become #33 seed and move onto Monfils' line. 

"And, of course, if Djokovic takes court at the #AusOpen for any of his matches, he would continue in the tournament until he is pulled out, loses, or wins the thing. He would not be replaced mid-tournament; his next opponent would simply be given a walkover into the next round." 

Djokovic's 11-year saving grace 

Novak Djokovic's possession of a diplomatic passport, which he obtained for being part of the Davis Cup championship team in 2011, could potentially serve as his saving grace amid the highly-publicised visa saga. 

Speaking to the Herald Sun, first counsellor at the Serbian embassy Ivana Isidorovic revealed that Djokovic's diplomatic passport should ensure "adequate treatment" of the 20-time grand slam champion. 

"Djokovic, as our most recognisable representative in the world, is the holder of a diplomatic passport, which should, in diplomatic theory and consular practice, guarantee him adequate treatment when crossing borders," she said in a statement. 

However, migration experts believe Djokovic's diplomatic passport shouldn't lead to special treatment in his visa fight. 

The Department of Foreign Affairs and Trade website states: "Diplomatic and Official Passports do not confer on the holder any special rights or privileges".