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Novak Djokovic court case decision: Showdown over Australian Open

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Novak Djokovic will remain in Australia until at least 8pm on Monday as Australian government lawyers put the finishing touches on their case.  

Six hours after the matter kicked off in the Federal Court, Judge Anthony Kelly extended the injunction keeping the world No.1 in Australia for four more hours as he prepares to make a decision on his fate.

Judge Kelly appeared sympathetic toward Djokovic during the morning session of the hearing, granting him permission to leave detention to remotely tune in to proceedings and expressing frustration over the medical exemption process which Djokovic appears to have fallen foul to. 

Djokovic was granted permission to leave the Park Hotel in Carlton on Sunday, but the order was only made public from midday on Monday. 

The tennis star was transported to an undisclosed location to watch as his lawyers argued his right to remain in Melbourne and compete in the Australian Open.

That marks the first time Djokovic has left his tiny hotel room since he was first detained there on Thursday morning. 

The revelation comes after Judge Kelly told the Federal Court he was ‘agitated’ after learning all the steps the world No.1 took to assure he’d be welcome in Australia and free to play his favourite Grand Slam. 

‘A professor and qualified physician provided the applicant a medical exemption, the basis of which was given by an independent expert panel established by the state government… that document was in the hands of the delegate,’ Judge Kelly said.

‘The point I’m somewhat agitated about is, what more could this man have done?’   

Djokovic’s barrister Nick Wood SC said he’d been asking himself the same question, adding the Serbian star was adamant he did everything that was asked of him.   

Djokovic was transported to an undisclosed location to watch as his lawyers argued his right to remain in Melbourne and compete in the Australian Open

Novak Djokovic 's last ditch attempt to overturn his visa cancellation and stay in Melbourne to compete in the Australian Open has descended into farce

Novak Djokovic ‘s last ditch attempt to overturn his visa cancellation and stay in Melbourne to compete in the Australian Open has descended into farce 

Judge Anthony Kelly (above) granted Djokovic permission to leave the Park Hotel in Carlton on Sunday, but the order was only made public from midday on Monday

Judge Anthony Kelly (above) granted Djokovic permission to leave the Park Hotel in Carlton on Sunday, but the order was only made public from midday on Monday

The hearing descended into a farce from the outset this morning, with an old link to broadcast over Microsoft Teams hijacked with pornographic pictures and techno music. 

Meanwhile, an alternative livestream set up by Federal Court staff crashed when the world’s media tried to log in. 

The tennis champion has been detained in a Melbourne hotel used to house refugees since his unsuccessful bid to enter Australia last Wednesday, where he was denied entry on the basis he was unvaccinated and did not have a valid exemption. 

The hearing began without the press or interested parties watching on, due to the IT difficulties, but was up and running for the public by 10.45am.

By midday, the link was broken once again.  

Mr Wood argued a typo in the Notice of Intention to Consider Cancellation rendered the entire document ‘defective’. 

Home Affairs said the typo was an unfortunate but immaterial mistake that should not discount the context of the message. 

Novak Djokovic (pictured with Tennis Australia boss Craig Tiley in 2021) is set to learn his fate after a whirlwind trip to try and defend his Australian Open title - which would make him the most successful men's player of all time

Novak Djokovic (pictured with Tennis Australia boss Craig Tiley in 2021) is set to learn his fate after a whirlwind trip to try and defend his Australian Open title – which would make him the most successful men’s player of all time

An old link to broadcast the hearing over Microsoft Teams was hijacked with pornographic pictures and techno music on Monday morning

An old link to broadcast the hearing over Microsoft Teams was hijacked with pornographic pictures and techno music on Monday morning 

Mr Wood also argued Djokovic went beyond what was required of him by providing evidence of his medical contraindication. 

He said government entry requirements specify a traveller must declare they can prove their exemption, but does not state they will have to do so. 

‘He was not required to provide evidence, even though as a matter of fact, he did,’ Mr Wood said. 

There are also concerns over the several hours Djokovic was detained at the airport on Wednesday night. 

His lawyers claimed a border security officer expressed that his ‘shift was ending soon’ and questioned whether this impacted the decision to renege on an agreement to give Djokovic several hours rest and time to consult his legal team.

Djokovic had asked for any further questioning to be delayed until 8.30am to give him time to consult with his team and it’s understood this was initially agreed to.

Later, he was told it was in his interests to proceed immediately, and his visa was cancelled about 7.40am.

The court heard Djokovic told border officers: ‘If you let me talk to people, although you’ve taken my phone from me, I will try and get you what you want’.

Mr Wood told the court it was ‘spurious rationale’ to tell Djokovic it was in his interests to allow the visa cancellation without consulting his team.

‘There was no reason, no intelligible reason, not to allow him that more time,’ he said.    

Police personnel watch pro-refugee protestors rally outside the Park Hotel on Monday

Police personnel watch pro-refugee protestors rally outside the Park Hotel on Monday

The court initially issued a Microsoft Teams link to livestream the hearing, but later updated the advice with a new website to watch proceedings.

Minutes before the case was set to begin, the initial link was overrun by members of the Serbian public and foreign press and at one stage, an unknown person took over control and displayed pornographic pictures for hundreds to see. 

Others were being generally disruptive in the link, making silly noises, shouting and playing techno music as the court official tried to find a way to mute all.   

The new link also crashed due to overwhelming global interest. Officials are aware of the issue and working to fix it. 

In court, each party will have no more than 120 minutes to make their submissions. 

Lawyers for the Minister of Home Affairs filed their submissions at 10.30pm on Sunday – less than 12 hours before the case will be heard in the Federal Court.

The government maintains the decision to tear up Djokovic’s visa was correct on the basis he failed to justify his purported medical exemption, and that his team was using outdated vaccination advice.

Even if Djokovic is successful in his visa battle, lawyers for the government say they could cancel his visa again, leaving him in perpetual limbo just a week before the Open begins.

Their submission claims Djokovic is of a ‘greater health risk’ of spreading the virus than an vaccinated person, and that infecting others would ‘burden the health system’. 

Djokovic's supporters have camped outside his Melbourne detention hotel for days (pictured on Sunday), waving Serbian flags and chanting for their idol to be released

Djokovic’s supporters have camped outside his Melbourne detention hotel for days (pictured on Sunday), waving Serbian flags and chanting for their idol to be released

Police personnel detain a pro-refugee protestor outside the Park Hotel, where Serbian tennis player Novak Djokovic is being held

Police personnel detain a pro-refugee protestor outside the Park Hotel, where Serbian tennis player Novak Djokovic is being held

Victoria alone tallied up 44,155 new Covid cases on Sunday, as several states in Australia quickly go from boasting among the world’s lowest infection rates to some of the highest.

‘An order for immediate release does not prevent re-detention if there is power to detain’, the submission read, raising questions about whether any outcome on Monday would see the tennis great released in time to play even if the court ruled in his favour.

But his high powered legal team argues border officers acted unjustly and made critical jurisdictional errors in cancelling his temporary worker visa in the early hours of Thursday. 

They claim the Australian Travel Declaration assessment, which arrivals on most visas must complete before boarding, said he had met quarantine-free arrival requirements.

NOVAK DJOKOVIC VISA SAGA: WHAT YOU NEED TO KNOW 

What happened when Djokovic arrived in Australia?

Novak Djokovic touched down in Melbourne about 11.30pm on Wednesday night, and was swiftly taken in for questioning by Border Force officials.

He spent about six hours speaking with officials before a decision was made to cancel his visa on the basis that he could not validate his medical exemption to arrive in Australia without a Covid-19 vaccine.

He was swiftly taken to a detention centre in the heart of Melbourne, where he remains. 

Why is Djokovic in court?

Immediately after his visa was cancelled, Djokovic and his team indicated they would fight the decision. 

They appeared before the Federal Circuit and Family Court of Australia on Thursday afternoon, where the matter was postponed until Monday, 10am.

On Monday, Djokovic’s lawyers will argue to reverse the decision to cancel the visa. The government hope to have the decision supported.

If Djokovic loses his appeal, he could be deported as early as Monday night, but it is likely to be more complex than that.

Who is responsible for the bungle?

Court documents and leaked letters have helped piece together the puzzle of how the messy visa situation occurred.

Since Djokovic was detained, officials have hand balled responsibility between themselves. 

Djokovic was informed by Tennis Australia that he was exempt to travel to Australia and play. It’s understood his application was assessed by two bodies – one assigned by TA and the other by the Victorian state government.

On Saturday night, it was revealed via court documents that Djokovic had also received correspondence from the Department of Home Affairs – a federal body – which indicated he was free to travel to Australia.

But this has been revealed to be an arrivals assessment form, and not official confirmation he was granted quarantine-free travel. 

No single party has accepted responsibility for the debacle, and at least one other tennis player has been sent home after they were initially approved with the same exemption.

Will Djokovic play in the Australian Open?

Djokovic will likely know if he will be competing in the Australian Open 2022 by 4pm Monday.

Commentators and legal experts are finding it challenging to predict an outcome for the case given it is constantly developing and has happened so quickly.

A man gestures in a window of the Park Hotel, where Serbian tennis player Novak Djokovic is being held

A man gestures in a window of the Park Hotel, where Serbian tennis player Novak Djokovic is being held

A prayer for Novak Djokovic is led by an Orthodox priest outside the Park Hotel in Melbourne on Sunday (pictured) where he is still being detained

A prayer for Novak Djokovic is led by an Orthodox priest outside the Park Hotel in Melbourne on Sunday (pictured) where he is still being detained

An ATAGI document, which the Federal Government uses to determine if someone is eligible for an exemption, states a previous infection can be used as a reason not to be vaccinated yet

An ATAGI document, which the Federal Government uses to determine if someone is eligible for an exemption, states a previous infection can be used as a reason not to be vaccinated yet

Results of the assessment are processed by a computer in just 60 seconds, with the government saying the document isn’t official proof someone can enter the country and exists purely to give travellers an idea of whether they’re eligible to enter or not. 

His team also argues he was not given time to rest, having travelled for 25 hours, or speak to a lawyer during hours of questioning at Melbourne Airport, with the star left ‘confused’. 

ATAGI website guidelines which Djokovic and his team based their understanding of his ‘medical exemption’ on, state ‘PCR-confirmed SARS-CoV-2 infection,’ is a valid reason for a temporary medical exemption.

‘Vaccination can be deferred until 6 months after the infection,’ the guidelines state.

In these circumstances, a person would be considered exempt from getting the jab if they can prove they’ve been diagnosed with Covid in the last six months. 

But the government argued on Sunday night this document is designed to be read in conjunction with a visa application form which clearly stipulates that this isn’t the case.

The response also states that regardless, the ATAGI guidelines are designed for people with ‘acute medical illness’, whereas Djokovic simply proved he was diagnosed with Covid, not necessarily how it impacted his health.  

Novak Djokovic is pictured mingling with children one day after he allegedly received a positive Covid test

Novak Djokovic is pictured mingling with children one day after he allegedly received a positive Covid test

The same day as the reported coronavirus test he is pictured attending a ceremony in his honour in Belgrade

The same day as the reported coronavirus test he is pictured attending a ceremony in his honour in Belgrade 

Court documents tendered to Judge Anthony Kelly ahead of Monday’s showdown state Djokovic produced documents of his diagnosis when he was interrogated by border force officials on the night of Wednesday, January 5.

‘The Delegate made the illogical or irrational finding that Mr Djokovic had not produced evidence of a medical contraindication when, in fact, he plainly had provided ample such evidence,’ the documents state.

‘Mr Djokovic produced evidence of a recent positive COVID test from the Institute of Public Health of Serbia. Two other medical practitioners provided him with an exemption consistent with ATAGI recommendations… He also produced the Exemption Certificate, itself signed by the Chief Medical Officer of Tennis Australia.’

Mr Wood claims the decision to cancel the tennis star’s visa was due to border controls which are primarily built upon advice issued by ATAGI.

Supporters have carried flags, placards and even framed photos of the star to show their support ahead of the crunch court battle (pictured outside the star's hotel on Sunday)

Supporters have carried flags, placards and even framed photos of the star to show their support ahead of the crunch court battle (pictured outside the star’s hotel on Sunday)

Therefore, he claims, it’s fundamentally incorrect to claim Djokovic does not meet the criteria given his recent Covid diagnosis.

‘If the Delegate intended to pick up ATAGI guidance, he radically and fundamentally, in a way that no decision-maker could reasonably have done, misapplied ATAGI’s advice,’ he said.

‘Mr Djokovic’s Exemption Certificate expressly relied on ATAGI guidance… Thirty seconds on Google would have produced the Department of Health webpage that links to all relevant ATAGI guidance.’

While disputes of this nature can drag on for months through the courts, it’s understood the parties – particularly Djokovic’s camp – want the matter resolved as quickly as possible.

It’s likely Monday’s hearing will result in one of five possible outcomes.

Novak Djokovic (with wife Jelena) was allowed little sleep at Melbourne Airport during his ordeal, his lawyers say

Novak Djokovic (with wife Jelena) was allowed little sleep at Melbourne Airport during his ordeal, his lawyers say

Furious fans have blasted the government for its treatment of the Serbian star (pictured, protesters outside his hotel on Sunday)

Furious fans have blasted the government for its treatment of the Serbian star (pictured, protesters outside his hotel on Sunday)

Legal experts predict the first option is perhaps the most likely – that the decision will be sent back to the Minister who will then having to make a call in accordance with the law. 

WHAT ARE THE LIKELY OUTCOMES FOR MONDAY’S COURT CASE? 

1. The matter is sent back to the Minister, who will then make a decision in accordance with the law

2. A clear win for Djokovic

3. A clear win for the government

4. The matter cannot be immediately resolved but the judge grants an exemption

5. The matter cannot be immediately resolved and no exemption is granted

The second is a clear win for Djokovic. This will see him released from the $109-a-night hotel where he’s spent four nights and free to play in the Australian Open. His visa will be reinstated and exemption maintained.

The third possible scenario is a clear win for the government. In this case, the judge will have to uphold the cancellation of Djokovic’s visa and he will likely be deported.

This outcome could have potential long term consequences for Djokovic. Most nations require a person to declare if they’ve ever been deported from a country, and there are policies in place in Australia which prevent a person applying for another visa for up to three years if they’ve been deported.

The final two options are more murky.

Both parties may find themselves at a stalemate and the judge may require more time to come to his conclusion. The matter could be delayed for days, weeks, or even months.

If this were the case, Djokovic would be relying on the judge to grant an interim order which would essentially allow him to go about his business while he deliberated. This option would leave the Serbian star free to compete.

But this is unlikely, given that the judge has indicated his desire to get the matter dealt with reasonably swiftly, though he declined to be pressed on time to match Tennis Australia’s schedule. 

Djokovic fans are seen arm in arm as they staged several days of protest outside his detention hotel in Melbourne (pictured on Sunday)

Djokovic fans are seen arm in arm as they staged several days of protest outside his detention hotel in Melbourne (pictured on Sunday)

Alternatively, the judge could make no interim ruling while he deliberates, effectively giving the Commonwealth the ability to once again show Djokovic his marching orders until the conclusion of the court case, at which point the match would have already concluded.

If any of the five aforementioned verdicts is reached, Djokovic will know by 4pm whether he’ll be defending his title.

Tennis Australia indicated during the initial hearing they hoped to have a definitive answer by Tuesday for scheduling purposes.

If Djokovic is green lit to play, he would have missed key preparation milestones in the lead up to his first match.

It’s understood he requested to be moved to a facility with tennis courts to train on and wanted meals cooked that suited his dietary requirements. Neither of these requests were granted.

Dancers performed traditional Serbian routines to show their support for the star, who is trapped in a hotel room (pictured outside on Sunday)

Dancers performed traditional Serbian routines to show their support for the star, who is trapped in a hotel room (pictured outside on Sunday)

Djokovic (pictured at the Australian Open in 2021) had hoped to fly Down Under to defend his title

Djokovic (pictured at the Australian Open in 2021) had hoped to fly Down Under to defend his title

Some protesters looked solemn, with others left in tears, as they gathered outside Djokovic's hotel to lend their support (pictured on Sunday)

Some protesters looked solemn, with others left in tears, as they gathered outside Djokovic’s hotel to lend their support (pictured on Sunday)

On Sunday, it was also revealed Tennis Australia had pleaded with the Department of Home Affairs to review the visa applications of several players weeks before they arrived, but the request was refused.

‘Health and Home Affairs are unable to provide or review certificates. Certificates are reviewed at check in,’ an official said in response to the request.

Craig Tiley, head of Tennis Australia, told the Herald Sun he and his team were simply seeking advice over how to proceed.

‘We are not migration experts, we want someone who is to make that assessment,’ he said.

‘We would ask the questions. We’ve also been told the medical exemption process is a state responsibility, and they will do it against the federal guidelines.’

Supporters are seen waving Serbian flags in support of Novak Djokovic outside the Park Hotel in Melbourne (pictured on Saturday)

Supporters are seen waving Serbian flags in support of Novak Djokovic outside the Park Hotel in Melbourne (pictured on Saturday)

Djokovic (pictured before his flight Down Under) surprised the world last week when he declared he had been given an exemption to come to Australia to compete in the Open

Djokovic (pictured before his flight Down Under) surprised the world last week when he declared he had been given an exemption to come to Australia to compete in the Open

He said over the course of preparing for the Australian Open this year, he’d repeatedly been given contradictory information at state and federal levels. 

A separate letter received from Victorian Chief Health Officer Brett Sutton reportedly stated: ‘Anyone with a history of recent COVID-19 infection (defined as within 6 months) and who can provide appropriate evidence of this medical history, is exempt from quarantine obligations upon arrival in Victoria from overseas.’

It has also been alleged that after testing positive on December 16, the infection he believed would grant an exemption, he attended events where he was seen giving a panel talk without a face mask as well as hugging children. 

Serbian regulations dictate that people need to self-isolate for 14 days following a positive diagnosis. 

A mass prayer session was held by a Serbian priest on Sunday outside Djokovic's hotel (pictured)

A mass prayer session was held by a Serbian priest on Sunday outside Djokovic’s hotel (pictured)



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