By: Paul Sakkal and Simone Fox Koob
Novak Djokovic will be denied the chance to defend his Australian Open title after the Federal Court validated a federal government decision to deport him because of his stance on vaccination.
The tennis champion’s dramatic, week-long legal challenge failed about 5.45pm on Sunday when a full bench of the court ruled unanimously that he should be removed from the country because of the danger he would stoke anti-vaccination sentiment.
He boarded an Emirates flight to Dubai on Sunday night, a journey expected to take 14 hours.
In a statement released minutes after the court’s decision, Djokovic said he was “extremely disappointed” but would co-operate with authorities in his deportation. A source close to his team confirmed he would not take the case to the High Court, which would have been a lengthy process unlikely to succeed.
Prime Minister Scott Morrison and his Immigration Minister Alex Hawke welcomed the decision, emphasising it was about the security of Australia’s borders, “social cohesion” and a tribute to the efforts of Australians to be vaccinated.
Djokovic thanked his family, friends, team, supporters, fans and “my fellow Serbians” for the support he said had been “a great source of strength to me”.
“I am extremely disappointed with the court ruling to dismiss my application for judicial review of the Minister’s decision to cancel my visa, which means I cannot stay in Australia and participate in the Australian Open.
“I respect the court’s ruling and I will co-operate with the relevant authorities in relation to my departure from the country. 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.”
The Prime Minister said in a statement that he “welcome[d] the decision to keep our borders strong and keep Australians safe”.
“I thank the court for their prompt attention to these issues and the patience of all involved as we have worked to resolve this issue. It’s now time to get on with the Australian Open and get back to enjoying tennis over the summer.”
The Australian government initially cancelled the player’s visa on the basis that his medical exemption – a prior COVID-19 infection – was not a valid exemption.
However, in a shift branded as “remarkable” by Djokovic’s lawyers, the government revoked his visa for a second time on entirely different grounds: that his vaccine scepticism posed a risk to public health and good order of Australian society.
Chief Justice of the Federal Court of Australia, James Allsop, announced the unanimous decision of a full bench of the court just before 6pm and ordered Djokovic to pay the government’s costs.
He opened his brief remarks by stating the court’s role was not to judge the merits of the government’s decision to cancel Djokovic’s visa, but rather to test its legality on the three grounds put forward by the player’s lawyers.
These grounds were that there was minimal evidence to suggest the Serbian was an anti-vaxxer, that his presence would not stoke anti-vaccine sentiment and that cancelling his visa would spark more provocation among anti-vaxxers than him remaining in Melbourne.
“These grounds focus on whether [the] decision was … irrational or legally unreasonable,” the judge said. “It is not part of the function of the court to decide upon the merits or the wisdom of the decision [by Mr Hawke].”
Delivering the verdict, he said: “The orders of the court are … the amended application be dismissed with costs.”
On the key point of whether Djokovic’s removal would have stirred up more anti-vaccine sentiment, government barrister Stephen Lloyd, SC, said: “The Commonwealth ought not be bound to suffer the presence of an alien for fear of what might occur if they were removed, which is in essence what the applicant’s case requires.“
Djokovic left immigration detention at the Park Hotel about 8.30am and drove to his lawyers’ offices inside Melbourne’s Rialto Tower. The tennis star could not be seen on the livestream of the court hearing, which at some points of the day was being streamed by more than 80,000 people.
The debate over whether Djokovic could stay in Australia earlier focused heavily on one quote from April 2020, in which the tennis champion expressed scepticism about vaccination at the start of the coronavirus pandemic.
The government argued his presence in Australia during the two weeks of the Open, as a high-profile vaccine sceptic, may put lives and civil order at risk by stirring up anti-vaccine sentiment and disregard for COVID-19 rules. Djokovic’s lawyers slammed the move as “irrational” and “starkly different” to the Immigration Department’s original reasoning.
On Sunday morning, Djokovic’s counsel Nick Wood, SC, referred to an online article from the BBC titled “What has Novak Djokovic actually said about vaccines?” contained in an affidavit filed by the Immigration Minister.
Parts of the article were the “sole factual foundation for the minister’s case about Mr Djokovic’s supposed stance with respect to vaccination”, he said, but noted the comments by Djokovic in the story were made before a COVID-19 vaccination was approved for use. Further, the comments did not advocate that others should not be vaccinated.
Mr Wood said that, over the past few days, the minister had not sought Djokovic’s current view about vaccination.
Mr Wood said that the minister referred in his submissions to Djokovic’s “well-known stance” on vaccination.
“What is that well-known stance?” asked Mr Wood. “The minister doesn’t identify, couldn’t possibly identify it because, as the minister says, he didn’t know what it was and decided not to ask.
Djokovic’s legal team also argued that Mr Hawke did not properly consider that anti-vax sentiment would be stoked if the tennis star’s visa was cancelled and he was expelled from the country.
“It is irrational or unreasonable to look at only one side of the coin,” he said. “There was only one single item of evidence … that actually bore on this question and that item of evidence was the BBC report that only suggested anti-vax sentiment [was] aggravated by the cancellation.
“There was no evidence at all about anti-vax sentiment being fostered by the option the minister did not pursue, which is simply letting my client play tennis for two weeks.”
Stephen Lloyd, SC, acting for the Immigration Minister, said it was wrong to claim that Mr Hawke had not properly assessed the reaction to the cancellation of the visa.
“Obviously the minister was aware his decision to cancel would result in some level of further unrest. But the minister was no doubt principally concerned … that Mr Djokovic’s presence would encourage people to emulate his position and that would put the health of Australians at risk.”
Mr Lloyd told the court tha,t under the Migration Act, Mr Hawke had no obligation to consider any unrest triggered by Djokovic’s deportation. “The powers in [the Migration Act] reflect the sovereign right of the Commonwealth to determine who is bound to be in Australia,” he said.
While Djokovic was infected with coronavirus in mid-December, there was nothing to explain why he had not been vaccinated in the year or so prior, Mr Lloyd told the court, which meant it was open for the minister to assume the tennis star was against vaccination.
“A large part of the issue is not just what his views are but how his views are perceived … to that extent there is no reason to think there was any duty to inquire,” he told the court.
Djokovic chose not to give evidence during the proceedings, he said. He stressed that the government did not have to prove that Djokovic would definitely foster anti-vaccination sentiment, but that he may foster it.
“We say that the known facts, the facts of Mr Djokovic’s views or perceived views, knowledge of his perceived views, and historical views … in combination with his status and presence could be seen to contribute significantly to those issues, and that’s all that’s required to make the inference the minister made.”
In a statement, the Association of Tennis Professionals said Djokovic’s visa cancellation marked the end of a “deeply regrettable series of events”.
“Ultimately, decisions of legal authorities regarding matters of public health must be respected,” the sport’s peak governing body said. “More time is required to take stock of the facts and to take the learnings from this situation.
“Irrespective of how this point has been reached, Novak is one of our sport’s greatest champions and his absence from the Australian Open is a loss for the game.”