Men’s tennis world number one Novak Djokovic has lost his bid against the federal government’s decision to cancel his visa on the eve of the Australian Open.
The case was heard on Sunday by a full three-judge bench of the Federal Court that included Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan.
Chief Justice Allsop said the three judges had unanimously ruled to uphold the government's cancellation of Djokovic's visa.
Chief Justice Allsop said it was not “part of the function of the court” to decide upon “the merits or wisdom” of Immigration Minister Alex Hawke's decision to cancel Djokovic’s visa.
He said the court “was not in a position to deliver reasons today” but further reasoning on the court’s decision will be published “at a later date.”
The court also ordered that Djokovic pay the government’s legal costs for the hearing.
The Serbian player went to the airport in Melbourne just hours after the court ruling. Federal agents escorted him and his team from the business lounge to the gate, where he boarded an Emirates flight bound for Dubai. The flight took off shortly before 11pm.
The decision means that Djokovic, who is not vaccinated against COVID-19, will not compete in the Australian Open.
World number 150 Salvatore Caruso of Italy now finds himself replacing Djokovic at the top of the draw.
Djokovic issued a statement on Sunday night addressing the outcome of the hearing.
Protestors and fans of Serbia's Novak Djokovic outside the Park Hotel. Source: AAP
He said while he was "extremely disappointed" with the ruling, he will "cooperate with the relevant authorities in relation to his departure" from Australia.
"I will now be taking some time to rest and to recuperate, before making any further comments beyond this," he said.
"I am uncomfortable that the focus of the past weeks has been on me and I hope that we can all now focus on the game and tournament I love.
"I would like to wish the players, tournament officials, staff, volunteers and fans all the best for the tournament."
Minister Hawke welcomed the decision by the Federal Court to uphold Djokovic's visa cancellation in "the public interest".
Australian Immigration Minister Alex Hawke. Source: AAP
"Australia’s strong border protection policies have kept us safe during the pandemic, resulting in one of the lowest death rates, strongest economic recoveries, and highest vaccination rates in the world," he said in a statement on Sunday.
"Strong border protection policies are also fundamental to safeguarding Australia’s social cohesion which continues to strengthen despite the pandemic."
Australian Prime Minister Scott Morrison speaks to the media during a press conference following a national cabinet meeting, at Parliament House in Canberra. Source: AAP Images
"Strong borders are fundamental to the Australian way of life as is the rule of law.
"Our Government has always understood this and has been prepared to take the decisions and actions necessary to protect the integrity of our borders."
But Labor immigration spokeswoman Kristina Keneally said Djokovic should not have been granted a visa to travel to Australia in the first place.
"This mess is not a failure of our laws. It is a failure of the Morrison government's competence and leadership," she said.
"Australians have made all the hard sacrifices during lockdowns, only for Mr Morrison and his Government to serve up an embarrassing and farcical series of unforced errors after they foolishly granted Mr Djokovic a visa 60 days ago."
Senator Keneally said Tennis Australia tried multiple times to work with the government on the medical exemption process, but were "ignored".
Mr Morrison said it's time "to get on with the Australian Open and get back to enjoying tennis over the summer".
‘Anti-vaccine sentiment and civil unrest’
The 34-year-old first had his visa cancelled by the federal government on 6 January upon his arrival into Melbourne for failing “to provide appropriate evidence to meet the entry requirements to Australia”.
The Federal Court on Monday quashed that decision, claiming it was unreasonable.
Mr Hawke then used his powers of ministerial discretion to cancel the visa for a second time on Friday, with the decision upheld by the Federal Court on Sunday.
Novak Djokovic practices on Rod Laver Arena ahead of the Australian Open tennis championship in Melbourne, Australia, Wednesday, Jan. 12, 2022. Source: AP /Mark Baker
The minister had claimed the presence of a "high profile" athlete like Djokovic, who is unvaccinated, could foster "anti-vaccine" sentiment and "civil unrest" in Australia.
Representative for the government, Stephen Lloyd, argued during Sunday's court hearing that the minister was concerned that Djokovic’s presence in Australia would encourage others to “emulate his position”, putting the “health of Australia at risk".
Mr Lloyd said there had already been unrest from supporters of Djokovic, particularly after the first decision to cancel his visa, and that support for the tennis star to stay in Australia could materialise into further disorder.
“People use high-level athletes to promote ideas and causes all the time,” he said, noting that Djokovic has a “history” of ignoring public safety measures.
The Serbian tennis star has previously admitted to attending an interview and photoshoot in the days after contracting the virus last month.
"Even when he was infected and had received a positive test, he undertook an interview and a photo shoot, which included taking his mask off,” Mr Lloyd said.
Mr Lloyd said at this stage of the pandemic, it was open to infer that “Djokovic could have been vaccinated if he wanted to be".
"Even before vaccines were available he was against it - his prima facie position was to be against them,” Mr Lloyd said.
He also argued that while the tennis star made a public statement clarifying he was “no expert” and would keep an “open mind”, he had not retracted earlier comments in which he said he was "personally opposed" to vaccination.
Djokovic’s lawyer, Nick Wood said it was "irrational" for the minister to consider that anti-vaccine sentiment could be sparked from Djokovic being allowed to stay in Australia, but not from Djokovic's visa cancellation and deportation.
"The minister is grasping at straws," said Mr Wood, who claimed that the minister's only argument is that Djokovic’s presence will "galvanise" anti-vaxxers.
Mr Wood said a titled ‘What has Novak Djokovic actually said about vaccines’, which was published after the government cancelled the athlete’s visa, was the “sole actual… evidentiary foundation” of the minister’s case.
Tennis world number one Novak Djokovic. Source: AAP
He said the minister had not given evidence to show Djokovic’s participation in the Australian Open would lead to anti-vaccine protests and claimed rallies had been due to “action by the state” such as vaccine mandates.
“Those statements are from a long time ago,” Mr Wood said.
“Not a single line of evidence in the material before the minister provided any specific, logical or probative foundation of the proposition that the mere presence of Djokovic himself – not the cancellation of his visa and expulsion – may somehow foster anti-vaccination sentiment.”
But Chief Justice Allsop noted that the minister has broad powers and is entitled to rely on "perception and common sense" rather than evidence to make his decisions.
"You can use common sense and human intuition about how people behave,” he said.
“If Mr Djokovic won the Open, there’s an example, embedded in the minister’s reasons, for young and not so young fans of tennis."
Chief Justice Allsop also asked Mr Lloyd if the minister gave proper consideration that Djokovic’s visa cancellation could inflame anti-vaccine demonstrations.
Djokovic departs from the Park Hotel government detention facility in Melbourne, Sunday, January 16, 2022. Source: AAP James Ross
Mr Lloyd said the possibility of unrest if Djokovic were deported “must have been part of the consideration of balance”.
“The minister has to make a decision about risk, having regard to what has just happened recently and how he [Djokovic] has now become an icon for the anti-vaccination groups," Mr Lloyd said.
“Rightly or wrongly, he’s perceived to endorse an anti-vaccination view.”
Mr Lloyd also said Djokovic's presence in Australia could influence people not to get vaccinated.
“People of Mr Djokovic’s status are able to influence people who look up to him,” Mr Lloyd said.
“That seems to be, one might have thought, common sense and uncontroversial in having regard to how celebrities engage.”
