Novak Djokovic has lost his bid to stave off deportation, with the Federal Court upholding the decision by Immigration Minister Alex Hawke on Friday that he should be thrown out in the “public interest”.
After Sunday’s hearing, a full court under Chief Justice James Allsop announced the unanimimous decision by the three judges.
The government had argued Djokovic’s ongoing presence in Australia
may lead to an increase in anti-vaccination sentiment generated in the Australian community, potentially leading to an increase in civil unrest of the kind previously experienced in Australia with rallies and protests.
Djokovic’s legal team countered by arguing the minister hadn’t taken into proper account that deporting him could fuel disruptive behaviour.
But Stephen Lloyd, legal counsel for the government, said,
Obviously the minister was aware his decision to cancel would result in some level of further unrest. But the minister was no doubt principally concerned […] that Mr. Djokovic’s presence would encourage people to emulate his position and that would put the health of Australians at risk.
Djokovic said in a statement he was “extremely disappointed” with the decision, but he would respect it and cooperate with the authorities with his departure from Australia.
I am uncomfortable that the focus of the past weeks has been on me and I hope that we can all now focus on the game and tournament I love.
The deportation will be politically popular. A poll published in the Nine papers at the weekend found 71% of Australians believed he should not be allowed to stay and play in the Australian Open, which starts on Monday. Djokovic had been due to play against a fellow Serb on Monday evening.
But it will further infuriate Serbia. In a four-minute video titled “Support for Novak Djokovic and response to the Prime Minister of Australia”, Serbian President Aleksandar Vučić said: “Is all this necessary to win the elections and please your public?"
If you wanted to forbid Novak Djokovic to win the [Australian Open] trophy for the 10th time, why didn’t you return him immediately, why didn’t you tell him that it was impossible to get a visa?
The government had lost the initial decision to cancel Djokovic’s visa when it had to concede in the Federal Circuit Court a week ago that he had not been accorded procedural fairness.
The tennis star’s interview by Border Force had lasted several hours in the early morning of January 6, but given the time, he had not had an opportunity to contact advisers.
Djokovic, who is unvaccinated, had obtained a medical exemption from COVID vaccination on the grounds he had contracted COVID in December. The exemption was granted through a process run by Tennis Australia and the Victorian government.
Prime Minister Scott Morrison initially suggested the issue was a matter for the Victorian government. "They have provided him with an exemption to come into Australia, and so then we act in accordance with that decision,” he said.
But he then quickly changed his line after a big public backlash, distinguishing the issue of the exemption from that of visas, which are exclusively the federal government’s responsibility.
Hawke acted under the extremely wide discretionary power accorded to the immigration minister to act in individual cases.
In announcing the decision, Allsop said the case had not involved an appeal against the government’s decision but an application for the court to review that decision’s “lawfulness or legality” – whether it was irrational or legally unreasonable.
He said it was not the court’s function to decide on the merits or the wisdom of the decision. The judges will give their reasons at a later date.
Morrison said Sunday it was “now time to get on with the Australian Open and get back to enjoying tennis over the summer”.
Labor shadow health minister Mark Butler, meanwhile, criticised the prime minister.
This has been an embarrassing soap opera of Scott Morrison’s making. If Mr. Djokovic did not satisfy the entry test to come into Australia, he should not have been granted a visa way back in November.