Novak Djokovic deportation 2.0: World No. 1 launches appeal just hours after having visa cancelled

Novak Djokovic has avoided detention — for now — after an eventful late-evening court hearing, where lawyers revealed fears for his security. RE-CAP THE HEARING.

Novak Djokovic, late on Friday night, won a dramatic court order to delay deportation after Immigration Minister Alex Hawke cancelled the world No.1’s visa for a second time.

Djokovic will have another interview with government officials at 8am Saturday, before being detained by border force officers from 10am.

He will then meet his lawyers, along with the border force officers, where they will face a 10.15am online hearing in the Federal Court to determine issues before the main event on Sunday.

Federal Court Justice David O’Callaghan will now preside over the hearing, which will be livestreamed on YouTube and can be viewed by any member of the public.

SCROLL DOWN TO RE-CAP THE EVENTFUL LATE-NIGHT COURT HEARING

Djokovic was not detained by Australian Border Force last night, but will meet with his lawyers at an unspecified location amid fears of a media circus and security risks.

His lawyers also claimed the Federal Government relied on the tennis star’s “anti-vax sentiments” to cancel his visa, even though he posed no threat to the Australian ­community.

In a statement just before 6pm on Friday, the minister made the dramatic call which has pushed the case that’s made global headlines back into court.

Novak Djokovic’s case could have major draw implications. Picture: AFP
Novak Djokovic’s case could have major draw implications. Picture: AFP

Prime Minister Scott Morrison ­issued a statement on the visa cancellation an hour after it was announced. He said: “Australians have made many sacrifices during this pandemic, and they rightly expect the result of those sacrifices to be protected. This is what the minister is doing in taking this action today.”

Djokovic’s lawyers were served a notification of his visa cancellation at 6.03pm – more than 10 minutes after the media was notified by Mr Hawke’s office.

Mr Hawke said he had exercised his power to cancel Djokovic’s visa under “health and good order grounds, on the basis that it was in the public interest to do so”.

“In making this decision, I carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic,” Mr Hawke said in a statement.

Mr Hawke’s decision came after an embarrassing capitulation by lawyers for Home Affairs Minister Karen Andrews on Monday, who accepted that Djokovic’s visa cancellation by a Border Force officer on January 6 was invalid.

Migration lawyer Kian Bone, from Macpherson Kelley law firm, said because of the Act that Mr Hawke had made his decision under, “natural justice and procedural fairness don’t apply”.

“You can’t change the minister’s mind, you can only challenge the ground,” he said.

Ben Petrie, immigration law barrister, said the practical consequence of Mr Hawke’s sweeping powers was that “the courts have less power to intervene”.

“But that is not to say the minister is above the law,” he said. “There are certain inviolable restraints that even the minister must observe.

“The High Court has been very careful to emphasise that a decision affected by error is regarded, in law, as no decision at all.”

Amid the storm, Djokovic has practiced at Melbourne Park. Picture: Getty Images
Amid the storm, Djokovic has practiced at Melbourne Park. Picture: Getty Images

The cancellation decision comes despite Djokovic having drawn fellow Serb Miomir Kecmanovi in the first round, a match supposed to be played on Monday or Tuesday.

If Djokovic withdraws from the tournament – by his own wishes or otherwise – prior to the announcement of the first day of play, the No.5 seed Andrey Rubley would take his opponent.

However, if he withdrew after the first day of play was announced – which was set to occur this weekend – he would be replaced in the draw by a lucky loser.

The Serbian embassy confirmed to the Saturday Herald Sun that Djokovic held a diplomatic passport. First counsellor Ivana Isidorovic said that passport – granted in 2011 for being a Davis Cup champion – should mean he received “adequate treatment”.

“Djokovic, as our most recognisable representative in the world, is the holder of a diplomatic passport, which should, in diplomatic theory and consular practice, guarantee him adequate treatment when crossing borders,” she said.

But Mr Bone expected Djokovic would get no special treatment from the passport.

“In my view, any claim for diplomatic immunity is only extended to ‘diplomatic agents’ and would not extend to a private citizen of Serbia,” Mr Bone said.

The Department of Foreign ­Affairs and Trade website states: “Diplomatic and official passports do not confer on the holder any special rights or privileges”.

Outspoken tennis anti-vaxxer US tennis player Tennys Sandgren lashed the decision to cancel Djokovic’s visa for a second time.

Sandgren, who will not compete in the Australian Open after refusing to be vaccinated, said the Serbian star was only being sent home because “an example must be made”.

“This is a humiliation ritual at this point,” he said.

Deputy Premier James Merlino denied that the saga had damaged Melbourne’s reputation.

“No, I don’t think so,” he said at a press conference. “Melbourne and Victoria have, for decades now, a very proud history of delivering world-best major events,”

Earlier on Friday, Senator Jacqui Lambie demanded that Mr Hawke make a decision after stalling for four days.

“If you can’t make a decision on Novak Djokovic, goodness me, how are you guys running the country?” she said in a blistering statement.

“This is an absolute shambles. Let alone what it’s making us look like in the face of the rest of the world. It’s absolutely a shocker.”

Cricket legend Shane Warne weighed in, saying Djokovic was “one of the all-time greats”.

“But he’s lied on his entry forms, been out in public when he knew he had Covid and is now facing legal cases,” he said on social media.

“He’s entitled to not be jabbed but Oz is entitled to throw him out! Agree?”

WHAT HAPPENS NEXT?

- Djokovic’s visa is immediately cancelled under Mr Hawke’s personal powers under section 113 of the Migration Act. He’s now in Australia unlawfully
- Written notice is given to Djokovic, who is expected to challenge the decision in the Federal Circuit Court
- Hawke can make the cancellation call on a number of grounds, including it being in the public interest, on Djokovic’s vaccine exemption, his character, or even his entry declaration lie
- The Serbian must then argue the grounds for cancelling his visa don’t exist
- He will remain in detention while the case runs through court, with legal experts saying a person with a cancelled visa is very rarely allowed to be in the community
- A judge may grant temporary relief to allow Djokovic to play, or the government could offer an olive branch to allow him to play
- If challenged in court, the drama is set to run over the weekend

THE DJOKER HEARING: BLOW BY BLOW

11.11pm BACK... FOR A MOMENT... AND WE’RE DONE!

Proceedings resumed for all of a minute. Mr Wood said it was agreed to change the interview location Djokovic will attend tomorrow morning to avoid a media circus. And they’ve adjourned again, but we’re not clear on his detention position.

11.03PM DJOKER SCHEDULED FOR MONDAY

Some late news from the Grand Slam organisers, the top half of the Aus Open draw is to be played on Monday — guess which half Novak is in. Organisers did have the option to hold off until Tuesday. It means Djokovic has to appear on court at Melbourne Park on Monday or he is out.

10.54pm ANOTHER BREAK

Judge Kelly is not happy. He has taken another recess. He had made specific orders on Djokovic’s detention, but the government has asked to have them amended. The two parties are not in agreeance. The government wants the flexibility to change the arrangement and is seeking the consent from Djokovic’s lawyers, which has not been given.

10.52pm CONFIRMED: The case will be transferred to the Federal Court of Australia.

The impact of moving courts is that it could cause delays catching another presiding judge up as Judge Kelly will no longer be involved.

10.50pm DJOKER’S LAWYER WANTS TO AVOID MEDIA CIRCUS

Mr Wood called for Djokovic not to be taken into detention at the Immigration Minister’s offices because “we have a genuine concern about security and a potential media circus, to be frank”. Judge Kelly said the issue of a “media circus” should not be laid at his feet. He said the “obviousness of that circus might have occurred to everyone before 10.55pm on Friday”.

10.42pm WE ARE BACK: DJOKER’S DEPORTATION ON HOLD ... FOR NOW

So much for a short break — 42 minutes.

Orders being handed down. Lots of “bracket, bracket, colon, pursuant, etc.” but the court has ordered that Djokovic will not be deported until the end of the hearing or whether he decides to go himself and will not be detained on Friday night.

He will be able to attend his lawyer’s offices during the court hearings at the weekend, but will otherwise be detained by Border Force officials

10pm BREAK

The hearing has been briefly adjourned. No word on when it will resume yet.

It’s not often 50,000 people log on to watch a court case, but that’s what’s happened tonight on the live stream. Not sure how many would have understood what was going with all the legal jargon, but the public interest is undeniable. That figure has now plummeted to less than 20,000 and continues to fall. Will there be a spike again when the hearing resumes?

9:58pm DJOKER BACK INTO DETENTION TABLED

No detention tonight. 8am for an interview and then from the interview the ABF takes Djokovic back into detention. This is the proposal from Stephen Lloyd SC. Assuming there is to be a hearing on Sunday, Djokovic rejoins his team.

Mr Lloyd said the only concessions that Minister Hawke would be willing to make was to have Djokovic not be detained on Friday night.“I think we’ve come a long way to give him what he wants,” he said of Djokovic’s team’s requests.

9:49pm IT’S STILL GOING

I’m no expert but this seems like a heck of a lot of jargon for us all to get to the same point. Lets resume Sunday so Djoker can leave or play tennis. Djoker’s lawyers still going on about the radically different approach from the Minister.

9:32pm REASONS ARE NOT ENOUGH

Mr Wood said the reasons for cancelling Djokovic’s visa a second time were in “stark contrast” to the decision to cancel his visa by the Border Force delegate at the airport.

Mr Wood said Mr Hawke’s decision to cancel his visa was “patently irrational” and was based on the claim his being in Australia could excite “anti-vaxx sentiment”.

9:24pm GET IT DONE BEFORE TENNIS

Bottom line from Djoker’s team is this needs to get sorted in court on Sunday. They’ve also had a crack at the Immigration Minister time wasting.

“The position we find ourselves in today is because we were given a decision at 6pm to the extent that media commentary that the Minister was burned by material we were providing. The only material was a set of scholarly articles, the ones about natural immunity were expressly not read by the Minister. The health advice the Minister received is recorded on the 11th. We are where we are because of the mInister’s time.”

9:18pm DJOKER IS NOT IN DETENTION

Mr Wood confirmed Djokovic had not been taken into detention at 9.15pm. He said an Australian Government solicitor advised it wasn’t proposed to retain Djokovic tonight.

Djokovic is due for an 8am AEDT interview Saturday.

Djokovic’s team has called for the Serbian to be permitted to stay with his legal team on Saturday, and stay at his current residential address on Friday night.

9:15pm DJOKER’S TEAM WANT HEARING DONE NOW

Djokovic’s lawyers have raised concern about the case being transferred to the Federal Court.Nick Wood SC said the tennis ace’s counsel was concerned about the “chewing up of time” before the Australian Open launches on Monday saying every minute of time was “precious”.

“Given the extraordinary situation my client finds himself in, every minute that we have is precious. There are delays and perhaps unnecessarily so.”

Mr Wood said the Djokovic’s team had no concerns about the potential of “apprehended bias” that the judge would bring to the matter, after he presided over the earlier court case where a Border Force delegate tried to cancel his visa for the first time.

9:10pm DJOKER’S LAWYER

Novak Djokovic’s lawyers are seeking relief against the cancellation his visa, including an injunction and restraint from him being deported. “We are more ambitious on timing (to deliver application). We think we can file a formal application by 10:15pm tonight.”

9:05pm DJOKER ‘STAYING’ TIL 4PM TOMORROW

Judge Kelly wants to make an order preventing them from shipping Djokovic out before 4pm tomorrow (Saturday). There’s a bit of chatter about whether this hearing should be sent to Federal court and Kelly asking if he has the power to stop Hawke taking Djoker into custody.

8:54pm WE ARE UNDERWAY

Same judge as we had on Monday. What else would you rather be doing on a Friday night?

In the hearing: Judge Anthony Kelly, lawyer for the government Stephen Lloyd and Djokovic’s lawyers Nick Wood SCand Paul Holdenson QC.

8:43PM MURRAY SPEAKS OUT

Former world No.1 Andy Murray said there were consequences for decisions.

“It’s not a good situation. I’m not going to sit here and start kicking Novak whilst he’s down,” Murray said after reaching the Sydney Classic final on Friday.

“Ultimately people have to make their own choices. But there is also consequences sometimes for those decisions, as well...the lady who gave me my third jab, she works in the hospital in Central London, and she told me that every single person that is in ICU and on ventilators are all people that are unvaccinated.

“So to me, it makes sense, you know, for people to go ahead and have it done. Yes, most young, healthy athletes are probably going to be okay, but yeah, we’ve all got to play our part in this one, I think.”

The saga continues... Immigration Minister Alex Hawke (L) has revoked Novak Djokovic’s isa for a second time.
The saga continues... Immigration Minister Alex Hawke (L) has revoked Novak Djokovic’s isa for a second time.

HOW TODAY UNFOLDED

The saga returns to the Federal Circuit Court, where Djokovic won his case to have his first visa cancellation quashed on Monday.

A source close to Djokovic’s camp said he and his team are considering the decision and his options.

Djokovic’s legal team was served a notification of his visa cancellation at 6.03pm - almost 10 minutes after media was notified.

A final decision on Djokovic’s next move is expected soon.

But legal experts have told the Herald Sun it would be difficult for the court to deal with the fresh action by the Australian Open on Monday.

That means Djokovic could be spending the tournament locked up in detention, instead of on Centre Court for his round-one match against fellow Serb Miomir Kecmanovic.

Should Djokovic withdraw from the tournament – by his own wishes or otherwise – now that Thursday’s draw has been completed, the No.5 seed Andrey Rublev would take his opponent.

Rublev’s opponent would then fall to the No.17 seed, Gael Monfils.

But as the tournament grows closer, that could yet change again.

However, should he withdraw or be withdrawn after the first day of play is announced – which is set to occur this weekend – he would be replaced in the draw by a lucky loser.

In statement that came through late on Friday, Mr Hawke confirmed the decision was based “in the public interest”.

“Today I exercised my power under section 133C(3) of the Migration Act to cancel the visa held by Mr Novak Djokovic on health and good order grounds, on the basis that it was in the public interest to do so,” the statement read.

“This decision followed orders by the Federal Circuit and Family Court on 10 January 2022, quashing a prior cancellation decision on procedural fairness grounds.

“In making this decision, I carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic.

“The Morrison Government is firmly committed to protecting Australia’s borders, particularly in relation to the COVID-19 pandemic.

“I thank the officers of the Department of Home Affairs and the Australian Border Force who work every day to serve Australia’s interests in increasingly challenging operational environments.”

Novak Djokovic during last year’s Australian Open final. Picture: Getty Images
Novak Djokovic during last year’s Australian Open final. Picture: Getty Images

Earlier this week, Djokovic, who spent four nights in a detention hotel in Carlton, won a court battle against the Home Affairs Minister.

Judge Anthony Kelly found the decision to cancel the world No 1’s visa was “unreasonable” and ruled in favour of the Djokovic being allowed to remain in the country.

The win however did not guarantee him entry to the Australian Open as the government would have to decide whether or not they would act on the personal power of cancellation.

After deliberating since Monday night, Minister Hawke finally confirmed he would use that power on Friday.

WHAT SCOTT MORRISON SAID ON THE ISSUE

Prime Minister Scott Morrison released a statement lauding the nation’s sacrifices, low death rate, strong economy and high vaccination rate during the pandemic.

“Australians have made many sacrifices during this pandemic, and they rightly expect the result of those sacrifices to be protected,” Mr Morrison said.

“This is what the Minister is doing in taking this action today.

“Our strong border protection policies have kept Australians safe, prior to COVID and now during the pandemic.

“Due to the expected ongoing legal proceedings, I will be not be providing any further comment.”

Originally published as Novak Djokovic deportation 2.0: World No. 1 launches appeal just hours after having visa cancelled