Djokovic Visa Case

Djokovic Visa Case

Re: the Legality of denying entry into Australia without vaccination

Facts of the Case

Dates: Jan 9 & 16, 2022 [3]
Location: Melbourne, Australia [3]
Court: Federal Circuit & Family Court of Australia [3]
Case #:
Plaintiff: Novak Djokovic

Defendant: Australian Government
Trial Type:
Judge:
Status: Decided
Verdict #1: for the Plaintiff
Verdict #2: for the Defendant

Background

Tennis world number one Novak Djokovic said in a legal challenge on Saturday to being refused entry to Australia that he had been given medical exemption from vaccination against COVID-19 because he had contracted the illness last month. [1]

In a court filing ahead of a hearing on Monday over his visa cancellation Djokovic said he had received the exemption from tournament organizer Tennis Australia, with a follow-up letter from the Department of Home Affairs saying he was allowed into the country. [1]

Federal officials have deemed that exemption insufficient for the 34-year-old to be allowed into the country, and initially moved to cancel his visa in the hours after his arrival. [11] Authorities promptly assessed Djokovic and rejected him for entry upon arrival. His visa was canceled on the spot and he was taken into temporary immigration detention on grounds he failed to provide evidence he was double-vaccinated or had a legitimate exemption to the policy. [12]

The Serbian player, hoping to win his 21st Grand Slam at the Australian Open later this month, is on his third day in immigration detention in Melbourne – a case that has caused a sporting, political and diplomatic furor. [1]

“I explained that I had been recently infected with COVID in December 2021 and on this basis I was entitled to a medical exemption in accordance with Australian Government rules and guidance,” Djokovic said in the filing and told Australian Border Force officers that “I had correctly made my Australian Travel Declaration and otherwise satisfied all necessary requirements in order to lawfully enter Australia on my visa”. [1]

Djokovic had his first positive COVID-19 test on Dec. 16 but by Dec. 30 “had not had a fever or respiratory symptoms of COVID-19 in the last 72 hours”, the filing said. [1]

On Jan. 1, it said, he received a document from Home Affairs telling him his responses indicated that he met “the requirements for a quarantine-free arrival into Australia”. [1]

The federal court has ordered Home Affairs to file its response by Sunday. The Australian Open starts on Jan. 17. [1]

At the heart of the dispute is Djokovic’s refusal to be vaccinated against COVID. Under current Australian law, all international arrivals are required to be vaccinated against COVID unless they have a medical exemption. [12] The tennis star said in the past that he opposed vaccination and “wouldn’t want to be forced by someone to take a vaccine in order to be able to travel.” [5]

Detainment

Djokovic’s court filing confirmed a media report that he had asked to be moved to lodgings with access to a tennis court but that his request was denied. The Park Hotel, where he is staying, is also home to dozens of asylum seekers trying to enter the country. [1]

Serbian Prime Minister Ana Brnabic said the player had been provided with gluten-free food, tools to exercise and a sim card. [1]

“He’s staying in Park Hotel until the final decision is made,” Brnabic told Serbian media. “We’ve managed to make sure gluten-free food is delivered to him, as well as exercising tools, a laptop and a sim card so that he is able to be in contact with his family.” [1]
“It’s a positive tone from the Australian side. The Serbian government is ready to provide all the guarantees necessary for Novak to be allowed to enter Australia, the Serbian president (Aleksandar Vucic) is also involved,” Brnabic said. read more [1]

The player’s family has been vocal in its support in recent days and his father, Srdjan Djokovic, said on Saturday he was “disgusted” at his son’s treatment in Australia. Djokovic’s parents joined a protest rally in downtown Belgrade. [3]

Djokovic’s mother, Dijana Djokovic said that the conditions in the hotel in Melbourne where Djokovic is staying are “not humane.” [3]

“He doesn’t even have breakfast,” she said. “He has a wall to stare at and he can’t even see a park in front or go out of the room.” [3]

Government Response

The federal and Victorian state governments and Tennis Australia have denied responsibility for the dispute. [1]

If he fails to have his visa cancellation overturned and gets deported, Djokovic could be barred from the country for up to three years. [3]

In an emailed response to The Associated Press about what could transpire if Djokovic loses his legal fight, the Australian Border Force said: “A person whose visa has been canceled may be subject to a three-year exclusion period that prevents the grant of a further temporary visa…The exclusion period will be considered as part of any new visa application and can be waived in certain circumstances, noting each case is assessed on its own merits.” [3]

Morrison had come out firmly in support of the Australian border authorities and their initial decision to cancel Djokovic’s visa. [4]

“Djokovic’s visa has been cancelled. Rules are rules, especially when it comes to our borders. No one is above these rules,” Australian Prime Minister Scott Morrison tweeted at the time. [5]

Other Players

Djokovic was one of two players put into detention in a hotel in Melbourne that also houses refugees and asylum seekers. A third person, reported to be an official, left the country voluntarily after border force investigations. [3]

Meanwhile Czech player Renata Voracova, who was detained in the same detention hotel as Djokovic and had her visa revoked after issues with her exemption, [1] had already been in Australia for a week before an investigation by the border officials. She told media from the Czech Republic she’d been confined to a room and there was a guard in the corridor. [3] She left the country on Saturday, the Czech Foreign Ministry said. [1]

Significance

The drama has caused tensions between Serbia and Australia and has also become a flashpoint for opponents of vaccine mandates around the world. [1]

The tennis icon’s case has transcended sport to become an international row, with Serbian President Aleksandar Vucic accusing Australia and its prime minister, Scott Morrison, of conducting a “political with hunt” against Djokovic. [4]

According to the the Australian Lawyers Alliance (ALA) : [10] The argument of the Federal Government in the Novak Djokovic case sets a dangerous precedent in a democratic society.

“Our key concern was not whether Mr Djokovic was able to play tennis this week. Our concern is the Federal Government’s view that it did not have to prove that Mr Djokovic would foster views about vaccination that are contrary to the government, but simply that he may foster those sentiments,” said Mr Greg Barns SC, spokesperson for the ALA.
“This is a very low bar for excluding a person from Australia ….
“Using the criteria of a possible risk to public order as a reason to refuse a person entry into the country is troubling in a society supposedly committed to freedom of speech and freedom of thought.

Plaintiff’s Argument

Novak Djokovic said to being refused entry to Australia that he had been given medical exemption from vaccination against COVID-19 because he had contracted the illness last month. [1]

The virtual hearing began Monday in Melbourne, with Djokovic appealing his visa cancellation amid a growing public debate over his positive coronavirus test that his lawyers used as grounds in applying for a medical exemption to Australia’s strict vaccination rules. [2]

Djokovic’s lawyers filed court papers Saturday in his challenge against deportation from Australia that show the tennis star tested positive for COVID-19 last month and recovered, grounds he used in applying for a medical exemption to the country’s strict vaccination rules. [3]

The court submission Saturday said Djokovic received confirmation from Australia’s Department of Home Affairs saying that his travel declaration had been assessed and that his responses indicated he met the requirements for quarantine-free arrival in Australia. [3]

Defendant’s Argument

Tennis Australia and the government of Victoria state, where the Australian Open is played, are blaming confusion over the precise definitions regarding grounds for medical exemptions. [3]

The Victoria state government mandated that all players, staff, fans and officials must be fully vaccinated for COVID-19 to enter the tournament.

The state, which approved the medical exemptions for Djokovic, said those exemptions for were for access to Melbourne Park, not the border.

Australian Open organizers have not commented publicly, except to tell Australian newspapers that no players have been misled over the vaccination requirements.

Relevant Prior Judgements/ Cases

…More information is needed…

Decision #1

The Federal Circuit Court in Melbourne had ordered that Djokovic be released after stating that the Australian authorities had behaved “unreasonably” in canceling the world number one’s visa upon his arrival in the country last week. [4]

Aftermath #1

Despite being backed by Judge Anthony Kelly, who ordered his release, Djokovic was warned by government barrister Christopher Tan that Immigration Minister Alex Hawke could yet exercise his personal power to cancel Djokovic’s visa once again and deport him. [4]

However, it later emerged that no decision had been taken by Hawke and that “the minister is currently considering the matter and the process remains ongoing,” according to a spokesperson. [4]

Just four days after a federal judge ordered Djokovic released from hotel detention when his visa was revoked the first time, the minister’s decision moved to cancel the 34-year-old player’s visa citing “health and good order” grounds — just three days before the Australian Open begins [12]

Robert Kennedy Jr (a staunch advocate against Covid measures) defended Novak’s appeal for a medical exemption from vaccination is “squarely based in long-standing evidence” around the superior protection offered by natural immunity compared to vaccination. Kennedy added: [12]

“The science hasn’t changed over the last five days. Why the waffling around his visa status? Morrison’s attempt to frame the Australian citizens as the victims of Djokovic’s private health decision is a naked exercise in tyrannical political power. The ‘sacrifices’ of the Australian people Morrison refers to aren’t sacrifices at all. They are injuries borne of his nonsensical policies, and Djokovic is bringing international attention to them.”

Decision #2

Australian Minister for Immigration Hawke, successfully overturned the initial decision to cancel his visa on procedural grounds and re-imposed the penalty, citing the potential for Djokovic’s presence in the country to foster anti-vaccination sentiment. [9]

Alex Hawke’s decision to cancel the top seed and reigning champion’s visa for a second time was upheld by a court a day before the tournament started, leaving frustrated Djokovic to take a flight to Dubai rather than defend his title [6]

Announcing the decision, Hawke said the step was taken “in the public interest” while citing “health grounds.” [11]

Aftermath #2

By being deported from Melbourne, Djokovic was denied the chance to win a record 21st Grand Slam title overall, which would have moved him one ahead of great rivals Rafael Nadal and Roger Federer. [7]

Morrison has backed the actions of Hawke. “Our strong border protection policies have kept Australians safe, prior to Covid and now during the pandemic.” [11]

The tennis icon, who has already received emphatic backing from the likes of Serbian president Aleksander Vucic and even Serbian royalty, will have a message of support displayed prominently on the Belgrade Tower in the Serbian capital on Sunday evening. [8]

“Nole, you are the pride of Serbia,”
the message, which will be displayed between 8pm and 9pm local time, will read, before being replaced by the Serbian tricolor. [8]

Angry Vucic, who has described the attempts by Australian immigration authorities to revoke his visa as a “witch hunt“, castigated officials for their treatment of Djokovic. [8]

“[Against] Novak, they wanted to show how the world order works and how they can [act] against everyone. With [this decision], they humiliated not Novak, but themselves,” he said in reaction to the verdict. [8]
“I spoke to Djokovic and told him we cannot wait to see him,” he added. “I told him he is always welcome in Serbia.” [8]

Djokovic could find himself sidelined for another Grand Slam with new Covid rules set to be introduced in France. after the French National Assembly approved the introduction of a controversial new vaccine pass which will exclude anyone who is not fully jabbed from restaurants, sports arenas and other venues. [7]

The legislation is set to come into force in the coming days, and was backed by Sports Minister Maracineanu. [7]

The vaccination pass has been adopted. As soon as the law is promulgated, it will become mandatory to enter public buildings already subject to the health pass (stadium, theater or lounge) for all spectators, practitioners, French or foreign professionals,” she tweeted. [7]

Elsewhere, French President Emmanuel Macron vowed earlier this month to do everything he could to “piss off” the unvaccinated population.

Further Research

Court Documents:

Read the Statement from Alex Hawke, Australian Minister for Immigration, regarding Mr Novak Djokovic

In the news:

Media

Djokovic Supporters

https://youtu.be/sOBf3TLVGdI

source: Djoker Nole

Morrison cancels Djokovic

source: Alex Christoforou

World Council for Health Supports Djokovic

Source: World Council for Health

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