Novak Djokovic’s path to legal justification has been long and complicated – it can also be fleeting

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By Joe McIntyre for The Conversation

Novak Djokovic is – at least for now – free to defend his Australian Open title after Federal Circuit and Family Court judge Anthony Kelly overturns his visa cancellation following a deal between the tennis star’s lawyers and the government.

After a confused day of 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 overturn 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.

Also read: Gurus and “pyramids”: Djokovic’s penchant for original remedies

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.

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.

Prior to the start of the hearing today, Djokovic’s lawyers had advanced eight separate grounds for which they argued the decision to revoke Djokovic’s visa was not legal.

Also Read: Novak Djokovic’s Fight To Play Tennis Might Just Begin

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 grounds that did not exist 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 be vaccinated 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 can be postponed for up to six months after the acute illness, as a temporary exemption due to severe acute 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 physician produced and provided the applicant with 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 author is from the University of South Australia)

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