Djokovic’s lawyers say Australian visa cancelled to avoid ‘exciting’ anti-vaxxers – as it happened

• Novak Djokovic’s visa was cancelled for a second time today on the basis his presence could “excite anti-vaccination sentiment”.
  
• His legal team are appealing today’s decision.
• In just a few hours’ time he is scheduled to be interviewed by Australian immigration officials (at 8am Melbourne time).
• The proceedings have been transferred to Federal Court, and the full hearing will take place on Sunday morning, the day before the Australian Open begins.

If the decision by Alex Hawke, the immigration minister, to cancel the visa stands, that will of course prevent Djokovic from playing at the Australian Open, and also lead to him being put on a plane home at the earliest opportunity.

Novak Djokovic’s diary this weekend (courtesy of our reporter Paul Karp):

• 8am Saturday – interview with Border Force
• Then detention, including
• 10am-2pm at his lawyers offices on Saturday; then
• From 9am Sunday, also at his lawyers offices, this time for the hearing

Thanks for reading today and we’ll see you very soon for the latest instalment of the Djokovic saga. Here is the latest report:

Bye for now.

As we mentioned earlier, the opinion of the Australian public law expert Associate Professor Janina Boughey is that, if there have been no procedural errors, the discretionary powers of the minister means Djokovic’s appeal will fail.

In a video posted online by the University of New South Wales, Boughey explains that there are now fewer avenues of appeal for Djokovic:

Under the section that gives the minister personal discretion, there are fewer avenues of appeal so Mr Djokovic could not appeal to the Administrative Appeals Tribunal.

All he could do is seek judicial review in the courts. And what the courts doing judicial review is determine whether the power has been exercised lawfully.

So, it would all depend on how the minister exercises the power and whether he does so in a manner which is lawful.

The discretion that the minister has is very broad, so realistically, unless the minister makes a procedural error, doesn’t comply with the terms of the Act, or unless the decision is ... really has no basis ... then Mr Djokovic is unlikely to succeed.

In case you missed it yesterday:

Novak Djokovic has been “playing by his own rules” and has put his bid for a 21st grand slam title at risk by not following Australia’s Covid-19 vaccination requirements, according to the world No 4, Stefanos Tsitsipas.

This is from a couple of days ago, and serves as a useful reminder of the timeline of events leading up to this week’s drama:

14 Jan 202207.43 EST

Paul Karp

Novak Djokovic’s Australian visa has again been cancelled days before the start of the Australian Open on the basis his presence could “excite anti-vaccination sentiment”.

A reminder that one of the reasons stated for cancelling Djokovic’s visa today is that he could ‘excite anti-vax sentiment’ ... which, to a non-legal person like me, would seem to open the decision up to a challenge. But, again, if the minister has the power to do whatever they like, then Djokovic’s appeal will surely fail.

It certainly felt like there was an amount of straw-clutching going on by Djokovic’s legal team in that hearing, but it was enough to put the judge on the back foot, and visibly annoy him with the way it was all unfolding.

14 Jan 202207.26 EST

Djokovic to be interviewed by immigration officials tomorrow

Paul Karp

So, after a brief adjournment, the parties agreed to clarify the orders so that Djokovic can be taken into detention after his interview tomorrow at 8am at a location of the parties’ choosing. This is to avoid a “media circus” at the Lonsdale St offices identified in the hearing.

Djokovic’s diary is:

• 8am Saturday – interview with Border Force
• Then detention, including
• 10am-2pm at his lawyers offices on Saturday; then
• From 9am Sunday, also at his lawyers offices, this time for the hearing

Via Reuters, various reactions to the decision to cancel Djokovic’s visa for a second time. Former Australian PM Kevin Rudd reckons the timing, late afternoon/early evening on Friday in Australia, was to ‘win the weekend media cycle’.

Australian PM, Scott Morrison: “I note the Minister for Immigration’s decision in relation to Mr Novak Djokovic’s visa. I understand that following careful consideration, action has been taken by the Minister to cancel Mr Djokovic’s visa held on health and good order grounds, on the basis that it was in the public interest to do so. This pandemic has been incredibly difficult for every Australian but we have stuck together and saved lives and livelihoods.”

Former PM Kevin Rudd: “What a surprise! Morrison’s govt cancels Djokovic’s visa to win the weekend media cycle - showing us all how hairy chested he is. Why on earth did they issue the visa in the first place? One big political distraction from empty shelves & the national shortage of boosters & RATs.”

Andy Murray: “It’s unfortunate that it’s ended up in this sort of situation, and who knows? I don’t know what route he goes down, if he can appeal that and, you know, how long that takes, and can he still be out practicing whilst that process is going on or still competing in the tournament? Just want it to get resolved. I think it would be good for everyone if that was the case. It just seems like it’s dragged on for quite a long time now, and yeah, not great for the tennis, not great for the Australian Open, not great for Novak.”

Justine Henin: “I think it’s the best thing he doesn’t play at the moment. When something is so complicated, I don’t say that Djokovic doesn’t have to fight, because he thought it was the right thing to do, but I think now it’s been proved that so many Australian people don’t want him to play. “So maybe it’s better for everyone, for tennis, for the tournament, and maybe for him, that he doesn’t play the tournament.”

Darren Cahill, coach and former player: “Fault lies everywhere here. It’s been a mess. Novak, TA, Vic Gov, Federal Gov. It should’ve been a hard rule entering this country considering what the folks have been thru. Get vaccinated and come play the AO, or if not maybe see you in 23’. No wiggle room.”

Former player Janko Tipsarevic: “Toxic Shame on each and everyone involved in this process...”

Tennis fan Lou Ricciardi at Melbourne Park: “I do agree with what the government has done. Rules are rules. If you break the rules there are a lot of consequences. It’s unfortunate for the Open but ... the Open is bigger than just one man. The other players have got to just put up with what’s happened and hope there’s no distractions.

What more could Djokovic have done to avoid all this? Quite a bit, as it turns out, writes Paul Karp:

The hearing has now restarted ... the judge thanks those present for their efforts, and says he will publish his decision(s) tomorrow morning. And with that he says ‘adjourn the court’ – and that would appear to be it for the night.

Earlier in the hearing, Djokovic’s lawyers mentioned that he had a ‘medical contraindication’ with regard to vaccination. This (Paul Karp tells me) is legalese for the fact that Djokovic tested positive for Covid-19 last month.

Anyway, the court is due be back for more in a couple of minutes, but we are effectively no closer to a final resolution to the issue of Djokovic’s visa and his participation at the Australian Open. As stated below the judge has transferred the case to Federal Court, and Djokovic is due to attend an interview with immigration officials at 8am tomorrow. Which is only nine hours from now.

The hearing has just been adjourned for another five minutes. It’s now a few minutes before 11pm in Melbourne where the hearing is taking place. Judge Kelly looks frustrated and even angry with the direction – or directions – in which Djokovic’s lawyers are taking this hearing.

14 Jan 202206.52 EST

Proceedings transferred to Federal Court

Paul Karp

The Judge Anthony Kelly has also ordered the proceedings to be transferred to the Federal Court, that’s a slight setback from Djokovic, whose lawyers had urged it to stay with this court (Federal Circuit), to speed things up.

14 Jan 202206.51 EST

Paul Karp

Nicholas Wood, Djokovic’s counsel, has expressed concern about security and “a potential media circus” if Djokovic is taken into detention at his solicitors’ offices, a location identified now publicly in the hearing. Wood said: “I can’t see any practical disadvantage for him to be taken into detention at a location agreed between parties but not one announced to the world.”

14 Jan 202206.48 EST

Djokovic to attend interview with immigration officials tomorrow

Paul Karp

The judge’s orders are as follows:

• Djokovic to serve as soon as is reasonably practical an originating application, an affidavit attaching Alex Hawke’s reasons and submissions for decision
• The minister will not take any step to remove Djokovic from Australia
• Djokovic will attend an interview at 8am Saturday with immigration officials, then will be supervised by Border Force officers from 10am to 2pm on Saturday at his solicitors’ offices
• Djokovic may continue in detention from 9am Sunday 16 January, at his solicitors’ offices

Judge Anthony Kelly is now reading a fairly lengthy statement on the way forward from here ... details to follow shortly.

The current state of play is that Novak Djokovic’s visa has been cancelled for a second time. Australia’s immigration minister, Alex Hawke, announced earlier that he cancelled the visa “on health and good order grounds, [and] on the basis that it was in the public interest to do so”.

A late-night (in Australia) hearing is ongoing, and has just restarted ...

The hearing remains adjourned. As soon as it restarts, we’ll bring you the details.

Elsewhere in tennis: Andy Murray has defeated American Reilly Opelka at the Sydney Tennis Classic to reach his first ATP Tour final for more than two years:

In “I am not a lawyer, but ...” news: It seems to me there is plenty of ambiguity and potential for legal argument in Alex Hawke’s statement regarding his reasons for cancelling Djokovic’s visa for a second time. But that said, if his ministerial powers allow him to make such a decision and legal procedure has been correctly followed in all other ways, then Djokovic’s lawyers seem destined to lose their second appeal, and he’ll be on the plane home. We shall see.

And here’s our video explainer on how this saga has unfolded:

4:07

Here is Paul Karp’s story from a little earlier on the immigration minister Alex Hawke’s decision to revoke the Serb’s visa for a second time:

Rather than the main court hearing on the key issue of Djokovic’s visa, the one taking place now is more procedural.

Our reporter Paul Karp explains what the current hearing (which must be bringing in record numbers to the Federal Circuit and Family Court of Australia YouTube channel) is all about:

“It’s mainly just which court will hear it, timetabling, interim orders re: whether he’ll be in detention ... It sounds like main hearing will be Sunday.”

So we’ve got at least a couple more days of this to look forward to.

Thank you Mostafa and greetings, everyone. Novak Djokovic’s lawyers continue to fight this with the same stubbornness that the Serb brings to a baseline rally. Today’s hearing – taking place late on Friday evening in Australia, and now late morning in the UK – has been adjourned for now ... we’ll bring you updates as and when things resume.

The hearing is available to watch on YouTube here:

OK and with that, I will hand over the blog to Luke McLaughlin. Thanks for reading.

14 Jan 202206.02 EST

Paul Karp

At an urgent court directions hearing on Friday evening, Novak Djokovic’s counsel Nicholas Wood confirmed that he is not in detention tonight and is due to attend an interview with immigration officials at 8am on Saturday.

The Australian government’s counsel, Stephen Lloyd, said the immigration minister proposed that Djokovic would be taken into detention at that time, taken to the offices of his solicitors for the hearing.

And with that, the court has been adjourned after the parties made their submissions, and with a decision on the coming timeline still up in the air.

14 Jan 202205.35 EST

Djokovic ejected for risk of 'exciting anti-vax sentiment', lawyer says

Paul Karp

Novak Djokovic’s lawyer Nicholas Wood says he doesn’t anticipate cross-examination or subpoenas, and he anticipates narrow grounds of appeal.

Wood says the immigration minister Alex Hawke’s reasons stand in “stark contrast” to the ones used by the Australian Border Force delegate.

He says:

The delegate said Mr Djokovic may infect other people because he’s unvaccinated. The present set of reasons is starkly different. The minister assumes in Mr Djokovic’s favour every single fact that might have been in issue previously, that he’s complied with the law, that he poses only a negligible risk to others, Mr Djokovic has a medical reason not to be vaccinated, and that Mr Djokovic is of good standing.

Wood says the central thrust of the case is that Hawke had a “binary” decision: that Djokovic could stay in Melbourne leading to potential “excitement” in the anti-vax community; versus the forceable removal of a man of good standing who has a medical contraindication.

Wood says there is a “clear jurisdictional error” of “irrationality” in that the ground of “exciting anti-vax sentiment” is premised on Djokovic only having that impact if he remains in Australia.

“He has no rational basis to say” Djokovic staying would cause more anti-vax sentiment, Wood submits.

14 Jan 202205.23 EST

Djokovic's lawyers propose Sunday hearing

Paul Karp

Nicholas Wood has proposed he will make submissions by midday Saturday, with the minister’s to follow by 10pm tomorrow, ready for a hearing on Sunday.

Wood says:

Mr Djokovic may be scheduled to play on Monday night or Tuesday night ... In those circumstances we’re very concerned about time.

Wood is blaming the government for giving the decision “shortly after 6pm on a Friday”, four days after the federal circuit court decision and more than a week after the original decision. He’s laying into media reporting that the immigration minister, Alex Hawke, was “burdened” by lengthy submissions from Djokovic.

Wood reveals Djokovic’s material included scholarly articles about natural immunity, and reveals that Hawke’s decision said he hadn’t read them! Well this is going swimmingly.

14 Jan 202205.18 EST

Djokovic is not in detention, lawyer says

Paul Karp

Nicholas Wood has confirmed that his client, Novak Djokovic, has not been taken back into detention.

He says an Australian Government Solicitor lawyer has advised “it is not proposed to re-detain my client tonight”.

Djokovic’s interview tomorrow is at 8am.

14 Jan 202205.17 EST

Every minute is precious, Djokovic's lawyer says

Paul Karp

Nicholas Wood is explaining why Novak Djokovic is in such a hurry – “every minute before the tournament commences on Monday” is “precious”.

Wood is suggesting that Judge Anthony Kelly could retain the matter in the federal circuit court to prevent the loss of time to transfer it to the federal court.

Wood argues that there is no issue of Kelly having apprehended bias, despite having heard the earlier case, because the second visa cancellation is an “entirely separate process” to the first.

14 Jan 202205.12 EST

Paul Karp

Nicholas Wood SC, on behalf of Novak Djokovic, has just asked the court for an injunction preventing his removal.

He undertakes to file a written application as soon as practical – suggesting he will be able to do so by 10.15pm tonight! Much sooner than the 4pm tomorrow the judge offered.

So the suggestions that Djokovic’s lawyers are ready to go seems to be borne out.

14 Jan 202205.08 EST

Paul Karp

Judge Anthony Kelly notes the last time this case was run, the parties were able to agree to preserve the status quo, and the same might be required again tonight.

Kelly says this could include a brief interim injunction to 4pm Saturday 15 January preventing Djokovic being deported. Kelly notes that Novak Djokovic has been invited to an interview on Saturday.

14 Jan 202205.04 EST

Paul Karp

Judge Anthony Kelly is noting the possibility the case will have to be transferred from the federal circuit court to the federal court.

Kelly says:

While I have what it seems is an unappealable power to transfer this matter to another court, it is qualified by the requirement ... that the federal court of Australia confirms the order I make.

Kelly says this ought to be decided now, and directions would be taken up by the federal court.

Oh great, so we’re here for a preliminary discussion of which court is going to hear this, before it moves to a docket of another judge, before we get directions. The entree to the entree.

14 Jan 202204.58 EST

Paul Karp

The hearing has started.

Judge Anthony Kelly starts by noting that the government’s counsel, Christopher Tran, had informed the court on Monday that the immigration minister, Alex Hawke, was considering cancelling Djokovic’s visa.

There’s a bit of housekeeping about how the court can get the facts in front of it when no originating application has been made.

Kelly makes a number of observations:

1. In an urgent circumstance if it is necessary a party can make an application before the formal process starting the court case.
2. The court may be prepared to accept an undertaking from parties to file and serve an affidavit which exhibits material documents at soonest opportunity.

Kelly is outlining the documents he has: the immigration minister Alex Hawke’s decision cancelling Djokovic’s visa; and a government submission. There’s also a document titled “sensitivities” that the judge won’t read. We want him to read it.

Judge Anthony Kelly has opened by going through the history of proceedings leading up to this point.

We will continue to bring updates from the Federal Circuit Court.

The hearing appears to be delayed, but it is interesting to see that over 12,000 people have tuned in to the live feed. Clearly some interest in the outcome.