NOVAK'S Visa Appeal

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Here’s a summary of what Novak Djokovic is claiming in court about why he believes the government made an error in cancelling his visa:

The Institute of Public Health in Serbia recorded Djokovic was Covid-19 positive on 16 December, and this positive test result formed the basis of the medical exemption he received from Tennis Australia and the Victorian government on 30 December.

Djokovic argues he relies on the advice of the Australian Technical Advisory Group on Immunisations, which said vaccination can be deferred for up to six months due to a Covid-19 infection.

He argues, therefore, it is illogical that the government now argues that recent Covid-19 infection is not a grounds for medical exemption from vaccination.

He is also arguing he was denied procedural fairness in not being given more time between given the notice of the intent to cancel his visa at 4am on 6 January, and when it was cancelled at 7.42am. He wanted to wait until he could speak to his lawyers at 8am.

The government has argued:

That granting such a wait would amount to a procedural filibuster given Djokovic had given a response about his application during the interviews in the morning.

The Atagi advice on vaccination exemption needs to be read with a December guide on vaccination put out by Atagi which states that people are able to be vaccinated against Covid-19 after recovering from acute major medical illness from Covid-19, and says “the evidence is that the applicant has recovered”.

If the court grants Djokovic a win, the government could once again cancel his visa and detain him.

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Judge Anthony Kelly is quizzing Djokovic’s legal team about the notices given to him about the intention to cancel his visa, and asking them to go through the timeline of Djokovic’s interview with Border Force. Djokovic’s team is arguing the notices were pre-printed.

Kelly said:

It’s absurd to think the delegate arrived at 4am and gave to the applicant a copy of part C before there’d been any interview.


Djokovic’s lawyers replied that he received a notice of intention to cancel his visa at 3:55am. Judge Kelly warned him not to refer to this as a “Noic” because he “hates acronyms”.

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Judge Anthony Kelly has noted that the ONLY ground the delegate relied on when deciding to cancel Djokovic’s visa is that: ”the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community”.

Nicholas Wood argued this was “more than a typo” in the decision, but a “confusing blend of two grounds”, including a separate ground that the applicant had not been immigration cleared.

He argued that the “only expression of satisfaction” of the test was a mash-up of two grounds so there “wasn’t the requisite state of satisfaction to enliven the power” and the decision was invalid.

Kelly doubts that - he notes that all the grounds in section 116(1) are “disjunctive”; the delegate decides on one ground, or another, or another, not some combination of them.

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Wood says under the requirements on the visa application, Djokovic made a declaration of the medical exemption from vaccination as he was required to, and was not required to provide the evidence for that medical exemption. He said it was patently false to suggest the medical evidence was required.

But he notes that Djokovic ultimately did provide that evidence.

Justice Anthony Kelly notes the requirement to provide evidence would have been required by the parliament - either by regulation or legislation - if that was intended, and he notes that there are 30 penalty units under the Biosecurity Act for contravention - i.e. misleading on declarations, which would act as a deterrent.

30 penalty units is about $5,500.

Incidentally, Kelly also tells Djokovic’s counsel they won’t need to ask for more time for oral submissions until about 1.45pm AEST. Which is about three hours after they have been talking. We’d need to hear from the government counsel after that. The oral submissions from both parties was originally scheduled to go to 3pm.

Judge Kelly has noted that in his interview Djokovic said words to the effect of “if you let me talk to people I will try and get what you want”.

Nicholas Wood replied that he was “doing his level best to provide everything” he could and “did indeed provide that evidence from medical practitioners, before he boarded the aircraft”.

Wood again argues it is “manifestly incorrect” that the biosecurity determination requires both a declaration of an exemption and evidence of the exemption - only the former is required, Djokovic’s team argues.

Any conclusion that Djokovic breached the determination is “clearly erroneous”, Wood says.

Mr Djokovic did provide evidence both before boarding and upon arriving of the matter.

'What more could this man have done?': Judge Kelly
We are now going through Djokovic’s travel declaration before he arrived in Australia. It was filled out by his agent. His counsel Nicholas Wood notes in the request for declaration of vaccination, Djokovic has claimed he cannot be vaccinated on medical grounds.

When prompted to provide proof, Djokovic uploaded the medical exemption document from the CMO at Tennis Australia.

Kelly says a “matter that has really preoccupied me” is the status attached to the Tennis Australia document, and questions why it was not accepted by the delegate making the decision on the visa:

Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption. 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.

The point I am agitated about is ‘what more could this man have done?’

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Djokovic’s counsel, Nicholas Wood, is now going through the process medical practitioners go through to register someone on the Australian Immunisation Register for people who register as not being able to get vaccinated against Covid-19 on medical grounds.

Under “temporary vaccine exemption”, it allows people to tick a box for “acute major medical illness”, and then the guidelines refer to the Atagi advice document on major medical illnesses that mention having a PCR-confirmed Covid-19 infection in the past six months.

“This is the critical Atagi document ... it is an eminently clear expression by Atagi ... that a valid reason for a temporary exemption for an acute major medical condition ... [includes a] PCR confirmed infection,” Wood says.

He says this advice is unremarkable; someone who has recently had Covid-19 has some level of natural immunity from having had Covid-19. He said vaccination “is not advisable” and would have limited utility for someone who has recently had Covid-19, combined with the risk of an adverse effect.

Those are his words.

Wood says the delegate for the minister making the decision to cancel Djokovic’s visa has not provided evidence that previous infection from Covid-19 is not a valid reason for medical exemption from being vaccinated against Covid-19 prior to entering Australia.

And in that case, the only evidence that can be relied upon is the Atagi guidelines, which did say vaccination can be deferred for up to six months from infection as a valid reason for a medical exemption.

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Djokovic’s lawyers have finished their oral submissions, and have proposed orders including Djokovic’s release from detention if they are successful.

We are now onto Christopher Tran, the counsel for the federal government, who will speak for about half an hour before we go to a break.

Tran argues that Judge Anthony Kelly cannot find that Border Force officials pressured Djokovic during the interview process.

Kelly responds that he would be “most reluctant on the available evidence” to suggest an actual intention to pressure, but it doesn’t “kill the point” that Djokovic felt pressured.

He says over a period of about eight hours, delegates were “darting in and out” of the interview room, which was being recorded, so Djokovic did feel pressured.

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A white van has left the Park Hotel after Novak Djokovic was allowed to move to another, unknown address, so he can watch the court proceedings remotely.

Guardian Australia cannot verify if the tennis star was inside the van, which had its windows blackened out and left the centre at around 3 pm.

There were extra police on the scene and a large crowd of media taking photos of it as it left.

On Monday afternoon, Federal Circuit Court Judge Anthony Kelly ordered that the Australian Border Force must allow Djokovic out of the Carlton immigration centre so he can watch the hearing from another location.

He will come back to the hotel tonight if his appeal is not finalised.

The order reads:

The respondent, by her servants or agents, including the Australian Border Force, take all steps and do all things as may be necessary to bring the applicant to premises as specified by the applicant’s solicitors on Monday, 10 January 2022 (and each day thereafter, including upon the delivery of judgment), to permit him to remain there until the conclusion of each hearing and to secure his safe return to detention upon the conclusion of each hearing.

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Novak WINS!!!!!!!!!!!!!!!!

Court quashes visa decision

Judge Anthony Kelly, reads out a minute agreed to by both the government and Djokovic, where he quashes the decision to cancel Novak Djokovic’s visa, orders government to pay costs, and for Djokovic to be released from detention in 30 minutes with his passport and personal effects released to him.

The minute notes Djokovic was allowed until 8.30am when he was originally detained to response to the notification to cancel his visa, but the decision was made at 7.42am.

And found if he had had more time he could have consulted wider and responded further than he was able to.

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Minister still wants to cancel his visa.

Government counsel Christopher Tran says the immigration minister, Alex Hawke, will consider whether to exercise a personal power of cancelling the visa.

That means that once the decision is revoked, Hawke could re-cancel it, as was flagged earlier in the day.

Kelly notes that if the minister makes a decision to remove, then Djokovic cannot return for three years, and it could be appealed. He expects to be “fully informed in advance” if he is required for future proceedings.

“In a view, the stakes have risen rather than receded,” he said.