Novak Djokovic was never assured of entry to Australia, say state lawyers

Lawyers for Australia's home office have insisted Novak Djokovic was never given any assurances his medical exemption would allow him to enter Australia.

While also confirming that the world number one is unvaccinated, the legal team from the Australian government said ahead of Monday’s appeal hearing that there is no valid reason for the 34-year-old to be granted access to Australia for the tournament which begins on January 17th.

Djokovic saw his visa cancelled after arriving in Melbourne last week, and his lawyers have submitted a lengthy document arguing he fulfilled the criteria for a vaccine exemption certificate because of a recent Covid infection.

However, a court filing on Sunday read: “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,” adding there was “no such thing as an assurance of entry by a non-citizen into Australia”. It also said that “it is common ground” between the two parties that “the applicant is unvaccinated”.

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In an order, published on Sunday, judge Anthony Kelly rejected the move which would have delayed the hearing until Wednesday – after Tennis Australia's stated deadline to include the Serb, nine-times the men's singles champion, in the Australian Open draw.

Legal experts have warned even with the hearing proceeding on Monday, there is no guarantee Djokovic could secure a court order restoring his visa in time to play, and he could also face his visa being revoked again on fresh grounds.

The Australian home affairs minister, Karen Andrews, applied to the court for the case to be delayed but the judge rejected that in an order made on Saturday – although he left open the option of the government trying again after Djokovic's opening submissions at 10am on Monday.

‘Shocked’

If the current timetable remains in place, the government’s lawyers will present oral submissions on Monday afternoon.

Meanwhile, the former world number one Andy Murray, who is set to compete in Melbourne, said the saga around Djokovic and his being barred entry to Australia was "really not good for tennis".

Murray, a long-time friend and rival of the Serb, said: “I think everyone is shocked by it, to be honest. I hope that Novak is okay. I know him well, and I’ve always had a good relationship with him and I hope that he’s okay. It’s really not good for tennis at all, and I don’t think it’s good for anyone involved.”

The court heard on Thursday that Tennis Australia had said it would need to know whether Djokovic could compete by Tuesday for scheduling purposes.

Kelly said at that time he would try to accommodate the parties to come to a resolution but stressed the court would not be rushed. “The tail won’t be wagging the dog here,” he said.

The Australian government on Sunday confirmed that Czech doubles specialist Renata Voracova and a tennis official, both of who travelled to attend the Australian Open, had left the country voluntarily after their visas were cancelled.

The health minister, Greg Hunt, told reporters border force had now finished its investigation into Australian Open visas. He would not comment on Djokovic's case because that matter was before the court.

“Two other individuals have now voluntarily left the country . . . any individual who has their visa cancelled is entitled to leave the country at any time, even while they are going through a court proceeding, but that is a matter for them,” Hunt said.

Djokovic obtained a medical exemption to compete in the Australian Open but then fell foul of Australian border rules – which require arrivals to be fully vaccinated unless they can prove a valid exemption. He is currently in immigration detention at the Park hotel in Melbourne.

Djokovic’s court challenge seeks to argue that errors in the notice of intention to cancel his visa and in the home affairs minister’s delegate’s decision mean the visa must be reinstated.

‘Wriggle around’

Refugee lawyer and the founder of Human Rights for All, Alison Battisson, said if Djokovic won on Monday the government should respect the court's decision rather than "seek to wriggle around by finding another way to cancel his visa".

“What we do know, however, with our dealings with the department of home affairs is that is often not the case,” she warned, citing three instances she had won in the federal court only for the minister to find a fresh reason to cancel a visa.

Battisson suggested it would be “extraordinary” if the court decided the case in time for the Australian Open deadline as it was hearing “a visa issue not a playing tennis issue” and other urgent cases took weeks – at a minimum – to be resolved.

Battisson argued Djokovic was experiencing the “draconian” way Australia runs immigration appeals which were “stacked against” the applicant in detention without access to documents.

Former immigration department deputy secretary, Abul Rizvi, said he would be "surprised" if the government cancelled Djokovic's visa again in the event the world number one succeeded on Monday.

“They’d have to find another reason or it would be contemptuous of court,” he said.

Rizvi said it was “possible” Djokovic might not have a result by the deadline but “his lawyers will argue that he can’t be left in detention while the judge cogitates on it”.

– Guardian