Djokovic’s victory is far from the game, the set and the match

Novak Djokovic’s path to legal justification has been long and complicated, but UniSA Associate Law Professor Joe McIntyre says it can also be fleeting.

The world No.1 tennis player is – at least for now – free to defend his Australian Open title after Federal Circuit and Family Court judge Anthony Kelly canceled his visa cancellation yesterday following an agreement between Djokovic’s lawyers and the government.

After a confused day of court hearing involving dense legal arguments, Djokovic was released from immigrant detention on procedural grounds – the judge said he did not have enough time to challenge the initial cancellation of his visa last Thursday morning.

But that left open the bigger question of whether Djokovic had the right to rely on a medical exemption from Tennis Australia to enter the country and participate in the tournament without being vaccinated against COVID-19.

It’s entirely possible that Djokovic’s success in these proceedings will be an empty victory, with government attorney signaling that Immigration Minister Alex Hawke will now consider exercising his personal power to cancel the star’s visa. tennis for the second time.

Grounds for contesting the cancellation of the visa

The saga surrounding the nine-time Australian Open champion has gripped the sports world since Djokovic was arrested upon arriving in Melbourne last week over questions about his medical exemption from vaccination to compete in the tournament starting on January 17.

Djokovic was transferred to immigrant detention at Melbourne’s famous Park Hotel following the cancellation of his visa. His lawyers then filed a request to challenge this annulment through a judicial review procedure.

Demonstration in front of the hotel where Novak Djokovic is being held.

Protesters gather outside an immigrant detention hotel in Melbourne where Serbian Novak Djokovic has been held for last week. Hamish Blair / AP

The judicial review process allows a judge to review the legality of government decision-making. This is a limited process, not concerned with whether a fair, preferable, or just decision was made, only whether the decision followed the appropriate legal processes and requirements.

Before the start of the hearing yesterday, Djokovic’s lawyers had put forward eight distinct reasons why, they said, the decision to cancel Djokovic’s visa was not legal.

These included technical issues, such as the claim that the notice given to Djokovic to cancel his visa was invalid and the decision was based on non-existent grounds under the migration law.

Likewise, his lawyers argued that the process was unfair because Djokovic was “forced” to agree to a decision on his visa without first consulting his lawyers.

The big question around a medical exemption

The substance of Djokovic’s challenge, however, revolved around his claim that by testing positive for COVID-19 on December 16, he was exempt from any requirement to get the vaccine for six months.

His lawyers based this argument on guidelines set by ATAGI, Australia’s Immunization Technical Advisory Group, which said:

“Vaccination against COVID-19 in people who have had a PCR-confirmed SARS-CoV-2 infection may be postponed for up to six months after the acute illness, as a temporary exemption due to ‘an acute serious illness. “

In response, the government argued that this approach was an inaccurate reading of the guidelines, saying a simple previous infection would not be enough to allow an unvaccinated person to enter Australia. Essentially, the guidelines provide for a postponement of the vaccination, not a reason to avoid it altogether.

Further, the Commonwealth argued that Djokovic’s reliance on Tennis Australia’s exemption letter was wrong and ultimately failed to provide enough information to justify entry without vaccination.

Tennis Australia’s medical exemption was a major point of contention between the parties. During the hearing, Kelly appeared to show deference to Djokovic’s argument, stating:

“Here, a professor and an eminently qualified doctor produced and gave the applicant a medical waiver. In addition, this medical exemption and the basis on which it was granted were granted separately by another group of independent experts established by the Government of the State of Victoria. […] The point that worries me is, what more could this man have done? “

The Commonwealth has argued that whatever Tennis Australia or the Victorian government decides, it is up to the federal government to decide whether a visa should be canceled for public health reasons.

And it highlights the federal government’s significant powers over immigration matters, and that ultimately, according to government court documents, there is “no guarantee of non-national entry. in Australia”.

What could happen next

The two sides agreed at the end of the day that Djokovic had not had enough time to respond to the notification of cancellation of his visa. He was told by border officials that he would have until 8:30 a.m. Thursday to respond, but his visa was canceled at 7:42 a.m. Based on this, Kelly ordered Djokovic’s release.

But the government lawyer immediately predicted that Hawke would consider using his personal power to cancel Djokovic’s visa again.

If such a decision is made, we should expect further litigation. Kelly said he expected to be “fully informed in advance” if he is required for future proceedings, observing worryingly “the stakes have risen rather than fallen”.

Kelly also noted that Djokovic could be barred from returning to Australia for three years if the minister’s personal power were used, although reports suggest that this exclusion period could be lifted.

For now, Djokovic is a free man. But it remains to be seen whether he will spend the next few days on a tennis court or back in federal court.The conversation

Joe McIntyre, Associate Professor of Law, University of South Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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