An Australian court has ordered the immediate release of Novak Djokovic from immigration detention.
Judge Anthony Kelly quashed the cancellation of the tennis star's visa for not meeting Covid-19 entry requirements and ordered the government to pay legal costs and release Djokovic within half an hour.
The government's decision to revoke the tennis star's visa to enter Australia was "unreasonable", the judge said on Monday.
Government lawyer Christopher Tran told the court that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – not the minister who made the original visa reversal – will now consider whether to exercise a personal power of cancellation of Djokovic’s visa.
With the Australian government facing a humiliating and high profile defeat, Mr Tran informed the judge that Immigration Minister Alex Hawke may step in with executive powers.
"I'm instructed [that the minister] will consider whether to exercise a personal power of cancellation," he said.
Djokovic, 34, has been held in an immigration detention hotel alongside long-term asylum seekers since Thursday. He was permitted to attend his lawyers' chambers for the virtual hearings but has not been seen in public since arriving in Australia.
His lawyers argued that a recent Covid-19 infection qualified Djokovic for the medical exemption from a requirement for non-Australian citizens entering the country to be double vaccinated.
The government, however, said non-citizens had no right of guaranteed entry to Australia, questioned his claim of eligibility for exemption and stressed that even if Djokovic wins the court action, authorities reserved the right to detain him again and remove him from the country.
Earlier in the day the tennis player was removed from detention to be with his lawyers during the hearing, and Judge Kelly criticised 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.
During that break the two parties agreed on the minutes of Judge Kelly’s order.
The minutes note Djokovic was not given adequate time to respond to the notification to cancel his visa.
The court published an order made yesterday that Djokovic be taken from the Park Hotel – where he has been held since Thursday – and brought to “a premises as specified by the applicant’s solicitors” during the hearing.
The order states: “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.”
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?”
The judge 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 said 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 … but in relation to 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.”
The prime minister refused to comment on court documents submitted by the government, which indicate Djokovic may remain in detention even if he wins his case in court.
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 said 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.”