Tennis champion Novak Djokovic, who has been described as a risk to “civil unrest” and a “talisman of anti-vaccination sentiment”, may never get the chance to defend his Australian Open title, facing a three-year ban from the country ahead of a last-ditch court challenge to stay.
Australia’s immigration minister, Alex Hawke, personally cancelled the unvaccinated world No 1’s visa, arguing his presence in Australia could incite “civil unrest” and encourage others to eschew vaccination against Covid-19.
Djokovic faces a federal court hearing Sunday morning, Australia time, which will determine whether the minister acted unreasonably in rescinding his visa.
Documents filed in the court reveal the minister’s reasons sent to Djokovic as justification for cancelling his visa.
Hawke said he accepted Djokovic’s recent Covid-19 infection meant he was a “negligible risk to those around him”, but that he was “perceived by some as a talisman of a community of anti-vaccine sentiment”.
“I consider that Mr 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 which may themselves be a source of community transmission.
“Mr Djokovic is … a person of influence and status.
“Having regard to … Mr Djokovic’s conduct after receiving a positive Covid-19 result, his publicly stated views, as well as his unvaccinated status, I consider that his ongoing presence in Australia may encourage other people to disregard or act inconsistently with public health advice and policies in Australia.”
Djokovic’s visa was cancelled under the extraordinary and broad powers vested in the Australian immigration minister under section 133C(3) of Australia’s Migration Act, introduced in 2014 when Scott Morrison, the current prime minister, was immigration minister.
Having had a visa cancelled under that section, a person is barred from returning to Australia for three years, except in extraordinary circumstances “that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen”.
Hawke said the consequences of Djokovic’s visa cancellation were “significant”.
“Mr Djokovic regularly travels to Australia to compete in tennis tournaments … this visa cancellation … may affect his ability to be granted a visa to enter Australia in the future.”
If the three-year ban is upheld against Djokovic, he would be 37 or 38 years old before being allowed back into Australia, to compete in a tournament he has won a record nine times.
Djokovic’s legal team argued the minister failed to consider that the government’s detention of Djokovic and his potential forced removal from Australia might also incite anti-vaccination sentiment.
In documents submitted to the court, lawyers for Djokovic argued the minister took an “illogical, irrational, [and] unreasonable approach to… the question of public interest” and his own exercise of ministerial discretion.
“The minister cited no evidence that supported his finding that Mr Djokovic’s presence in Australia may ‘foster anti-vaccination sentiment’, and it was not open to the minister to make that finding.”
Djokovic’s lawyers argued the minister’s characterisation that Djokovic held anti-vaccination views was unjustified, based on selectively edited historical comments in the media, and which had been repudiated by subsequent public statements that he was “not against vaccination”.
Djokovic confirmed in his airport interview that he was not vaccinated against Covid-19.
Migration law experts have questioned why, if the Australian government held concerns Djokovic would inspire anti-vaccination sentiment in Australia, this was not considered in the original decision to grant him a visa on 18 November, or when his visa was first cancelled at the airport.
Djokovic’s treatment has drawn fierce reaction in Serbia, where the Belgrade-born player is a national hero.
Serbia’s president, Aleksandar Vučić, went on social media to denounce “harassment” and a “political witch-hunt” targeting “the best tennis player in the world”, while the foreign ministry said he had been “lured to Australia to be humiliated”.
The Djokovic visa saga has now run 10 days, a distraction from surging Omicron variant case numbers across Australia, a lack of tests, shortages of food and other essentials, and a public health system under acute strain.
Djokovic arrived in Australia on the evening of 5 January. He believed that a visa granted on 18 November and an exemption approved by Tennis Australia’s chief medical officer and a Victorian government independent expert panel would be sufficient to enter Australia
After late-night questioning at Melbourne airport, Djokovic’s visa was initially cancelled by a delegate of the home affairs minister last Thursday, on the basis a recent Covid infection by itself was not sufficient for an exemption from Australia’s strict vaccination requirements.
The delegate concluded that, since he was unvaccinated, Djokovic posed a risk to public health.
But on Monday, a federal circuit court judge restored Djokovic’s visa, concluding it was unreasonable for the Australian Border Force to renege on a deal to give him more time at the airport to contact his legal team and to address the exemption.
Government lawyers immediately put the Australian Open No 1 seed on notice that the immigration minister would consider exercising his personal power to again cancel the visa.
Djokovic faced a nervous wait, with questions about his travel in the fortnight before arriving in Australia and attendance at events after his positive Covid diagnosis on 16 December.
On Wednesday, Djokovic conceded his agent made an “administrative mistake” when declaring he had not travelled in the two weeks before his flight to Australia and acknowledged an “error of judgment” by not isolating after he tested positive for Covid. Hawke said these were not significant factors in his decision to cancel Djokovic’s visa, and he accepted Djokovic’s explanations.
Djokovic is currently in immigration detention in Melbourne. His case will be heard before the federal court Sunday morning Australia time. If he loses, he faces removal from Australia.
The Australian Open begins on Monday.