Novak Djokovic’s visa has been cancelled. Can he appeal? What does it mean for tennis?

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Immigration Minister Alex Hawke has used rare personal powers to cancel Novak Djokovic’s visa in the interest of “public health and good order”, just days after the tennis star won his court bid to stay in the country to compete for his 10th Australian Open title.

It’s the latest twist in a bizarre and bruising saga that has taken the world number one into detention alongside asylum seekers at Melbourne’s notorious immigration hotel, sparked street protests, investigations, and calls between world leaders (and, briefly, crashed the Federal Circuit Court’s livestream feeds). This time, the minister’s intervention means Djokovic could be forced out of the country before the Open begins on Monday– and he faces a three-year ban on coming back. But he’s expected to again take the fight to court.

Is this really the end of the road for the defending champion? And what does this mean for the Australian Open and the rest of the tennis season?

Novak Djokovic has very little ground left for appeal.Credit:The Age/The Sydney Morning Herald

How did we get here again?

Strap in, it’s quite a ride. Djokovic is the most high-profile vaccine sceptic in tennis but for months he had refused to clear up intense speculation about his vaccination status – until January 4 when he revealed on Instagram that he was jetting off to Australia to play in the Open thanks to a “special exemption”. It brought to a head a long-running row between the state and federal governments, as well as Open organiser Tennis Australia, over unvaccinated players.

Victoria initially said no exceptions would be made, despite Tennis Australia’s concerns that vaccine mandates would turn off big names. Two blind expert panels set up by the state and Tennis Australia ended up granting a “handful” of tennis professionals and staff medical exemptions from vaccination to participate in the Open, without knowing their identities or countries, out of 26 applications.

One of them, we now know, was Djokovic. He’d also been approved for a visa by the Commonwealth but, as he landed in Melbourne on a wave of public backlash, Border Force rejected his exemption.

Tennis Australia, which helped coordinate his application, had previously been warned by the federal government that a recent COVID infection (as Djokovic had in December) was not considered a valid reason to delay vaccination and so obtain an exemption as an international arrival. But it seemed players (and the state government) didn’t know that when he was granted an exemption on those grounds.

As it emerged that other tennis players and staff had already made it through international customs using the same reason, Border Force scrambled to investigate – and promptly deported Czech player Renata Voracova (who is now chasing compensation from Tennis Australia for cancelled flights and other expenses).

But then Djokovic pulled off a surprise win in court (after filing a hasty court injunction against deportation), arguing that he wasn’t given enough chance to respond at the border during an interrogation that went into the early hours of the morning and cut him off from his support entourage.

Not long after Djokovic was released and made his triumphant return to Melbourne Park, the plot thickened yet again – fresh inconsistencies had been picked up in his paperwork, including prior travel to his adopted home of Spain not declared on arrival in Australia, which Spanish authorities say they are now investigating, and a breach of isolation rules in his native Serbia in December while infected (one at a children’s tennis tournament when Djokovic says he had not yet heard of his positive result, and one when he knowingly attended a media interview wearing a mask).

If Djokovic won, why did the minister get involved?

Even as the court ruling came down on Monday, the department warned it could still cancel Djokovic’s visa again. He had won on grounds of procedural fairness – he hadn’t proved his exemption was valid. Minister Hawke said he would consider using his own sweeping powers as minister to cancel his visa – a move notoriously difficult to overturn.

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“That’s big,” explains immigration lawyer Karyn Anderson. Because a visa cancellation by a minister’s “personal power” does not involve the same right of reply or appeal route as a regular department cancellation, the minister must believe it is in the national interest to intervene and that there are grounds allowed by the law.

In this case, the minister considered whether Djokovic might pose a threat to “the health, safety and good order” of Australia or whether he gave false information on his paperwork. The minister will also sometimes revoke a visa on character grounds, say in cases involving criminal history, though experts stress the powers are designed for extreme cases and should not be used lightly.

What did the minister decide?

When the decision did come on Friday evening, Minister Hawke said he had cancelled Djokovic’s visa on health and good order grounds because it was in the public interest. “I carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic,” he said. “The Morrison Government is firmly committed to protecting Australia’s borders, particularly in relation to the COVID-19 pandemic.”

The decision came after a tense four-day wait. Djokovic had continued to train at Melbourne Park as helicopters hovered overhead. The Australian Open draw was briefly postponed on Thursday in the hopes of a decision but went ahead shortly after with its reigning champion Djokovic in his world number-one slot. (That spot will now be replaced by a wildcard entry.)

By Friday evening, Djokovic had been asked to present for an interview with immigration officials the following day, and The Department of Home Affairs are talking with his lawyers. He will stay where he is overnight, though sources say immigration officials plan to move him back into detention. It’s not clear when.

Can he appeal again?

Those whose visas are cancelled personally by the minister usually find out when Border Force arrives at their door to take them into detention for deportation, says immigration lawyer David Prince. Djokovic has had some notice, as the minister announced he was considering the matter, giving the player’s legal team time to streamline any appeal and send through more documentation. As of 6.30pm, Djokovic’s legal team were still considering their options, having been served documents at 6.03pm. The minister announced his decision at 5.53pm. (Djokovic’s lawyers were told verbally about 20 minutes beforehand).

Earlier on Thursday, a source close to the champion had described plans to immediately file for another court hearing, hoping the matter will be heard in court over the weekend and finalised by Sunday. If they win a second time, that could allow Djokovic to play his first match early next week.

As Prince notes, a judge will be on duty overnight, and the government had flagged it didn’t plan to put Djokovic on a plane immediately. But whether Djokovic’s legal team can subpoena and collect all the necessary documents they need to make their case over the weekend is unclear. The player could also apply to the minister directly for revocation, but he would only be able to argue on the grounds for cancellation, not whether the minister’s intervention was in the public interest.

But experts say Djokovic’s legal options are limited, given the broad scope of the minister’s powers.

Djokovic could argue that cancelling his visa in this way, without natural justice, was not in the national interest. But exactly what that public interest means in these cases is “incredibly vague”, Anderson says – and courts are generally reluctant to overturn the view of an elected official on it. The wording of the law was also loosened considerably in recent years, says Sanmati Verma, lawyer and deputy chair of the Visa Cancellations Working Group. Now it does not just apply to someone found to pose a risk to public health, safety or good order but those who might pose one, she says, as the government also expanded the minister’s power to overturn court decisions favourable to applicants.

Djokovic could argue that the minister missed a crucial point or considered an irrelevant one, or failed to apply the law properly in making his decision.But in such cases “it’s not about ‘would a reasonable person make the same decision’,” Anderson explains. “It’s about the point of law and the law is very wide.” There’s room enough too, for the minister to send a message of deterrence when cancelling a visa, say, if Djokovic is thought unlikely to follow COVID-safe rules and the minister wants to warn others that filling out the travel declaration accurately is a serious matter.

If Hawke had cancelled Djokovic’s visa on the grounds he gave incorrect information on his visa or passenger card, the case would have been more straightforward, Prince says, though the question of whether mistakes on Djokovic’s travel declaration form, a new pandemic-era document itself, would count might have come into play.

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”But either way this will be a completely different case to the one we heard [based around procedure] on Monday.”

Djokovic already holds a diplomatic passport through the Serbian government, as well as his regular passport, and some have speculated that may allow him a loophole to stay in the country. But Djokovic is not a registered diplomat and arrived in Australia on a different, temporary visa. As Prince explains it, he would still need a diplomatic visa as well, and that would take time to arrange, even if Australia agreed to it. “The Serbian government would need to make a formal request to our Foreign Minister.”

Other experts have suggested Djokovic could be released from detention on a bridging visa while the appeal proceeds, but Prince says that too would take time to apply for.

Is he banned from Australia?

A visa cancellation under the minister’s personal power comes with an automatic three-year ban on entering Australia. That can be waived if someone applies early for a visa (say for next year’s tournament), but only if it’s accepted there are compelling or compassionate reasons to be let in early, Prince says. Those reasons can apply to the individual, but also Australia’s interests.

“You could certainly make a case there, on the commercial impact of the Open alone,” he says. “He’s not coming in to snorkel up at the Great Barrier Reef. He’s a world number-one tennis player.”

Djokovic has already apologised for failing to disclose that he had been in Spain in the 14 days before making his travel declaration to enter Australia during the pandemic, saying that his agent had completed the form for him and made a mistake. The Australian government lists travel declarations as statutory documents, which means giving false or misleading information on them is considered an offence, attracting up to 12 months jail. And our Migration Act puts responsibility for all paperwork on the applicant, even if others fill it in on their behalf. Still, any criminal case against Djokovic would have to clear the high bar of criminal intent, “beyond reasonable doubt”, making it unlikely.

Is there a problem with the border system?

Immigration lawyers say the case has highlighted Australia’s complex and restrictive border apparatus, where visas can be granted automatically and paperwork checked only at arrival gates. Anderson, who calls Australia’s immigration law “overly complex”, says the system should have been ironed out by now to allow for assessment of vaccine exemptions before people board planes. “They’ve been checking people trying to leave Australia during the pandemic and churning out decisions in about 48 hours, and the amount applying to visit with exemptions would be much smaller [than that].”

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Labor leader Anthony Albanese agrees, calling the Djokovic saga “diabolical”. “Australia has a policy of not allowing unvaccinated people into Australia. The government is yet to explain how that occurred,” he said on Thursday ahead of the decision, though he stopped short of calling on them to deport Djokovic. “This is an international embarrassment for Australia. Everyone knew about Novak Djokovic and the Australian Open. It’s not like we didn’t know when the date was.”

But those watching the case might have noticed something else about Australia’s immigration law too. As refugee law expert Sangeetha Pillai writes, “even those with little love for Djokovic may find it harsh and surprising that the government”, after losing the fight on procedure, “simply gets another go”. This is common in Australia’s migration law, where immigration ministers wield more personal discretionary power than any other in government (often called God Powers), and rules are even sometimes rewritten to fit decisions.

“We’re an island and tough borders play well,” Anderson says. “I think the government is reading the public outcry on this ahead of the election. It’s become a Tampa-like moment to prove how tough they are.” (In 2001, the then Howard government’s decision to turn away and then detain a large boatload of asylum seekers rescued at sea by a Norwegian freighter sparked a row with Norway and gave birth to Australia’s hard border policies).

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But the main intention of the God Powers, lawyers say, was to intervene to help, rather than deport, allowing people to stay in Australia on compassionate grounds. The same minister also has another high-profile case before his desk for consideration: that of the Murugappan family of Tamil asylum seekers, who had been part of the Queensland community Biloela until 2018 when their visas expired and they were taken to Christmas Island. After years in detention centres (and public backlash over the mounting health problems of their two Australian-born daughters), the minister used his powers to let the family move into community detention late last year. But he can yet intervene to keep the family in Australia, Anderson says, just as he can for the dozens of refugees and asylum seekers still held in the very hotel where Djokovic was detained.

Protesters gathering again outside the Park Hotel in Carlton are now urging Djokovic to speak up in support of refugees. And advocacy groups are calling for an urgent review of the minister’s powers as well as the broader system, noting visa cancellations have ramped up in recent years. The Visa Cancellations Working Group, Asylum Seeker Resource Centre and Refugee Advice and Casework Centre say Djokovic’s ability to even properly challenge his first cancellation – let alone successfully – was “the absolute exception”. Verma says most detainees are denied procedural fairness, cut off from their lawyers, and denied time to properly respond to a cancellation.

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“Many are turned around at the border quickly while in immigration clearance with little or no recourse … even if they face serious harm in their home country.” Under the current laws, people are automatically detained until they are granted a visa or deported, she said, meaning “many people being detained for years, even indefinitely”.

Now, Djokovic’s visa cancellation shows how political such decisions about borders and migration really are in Australia, says barrister Greg Barns, SC, of Australian Law Alliance. “The broad discretion given to the Minister means that political considerations drive decisions that can seriously impact people’s lives. It is astonishing that we have allowed one person to have this level of unchecked control and extraordinary power.”

What does it mean for the tennis world?

This summer’s Open is the first major of the international season – and the first time tennis stars have faced mandatory COVID-19 vaccination. As the saga unfolds, France has already said Djokovic will be allowed on court at the French Open “because the protocols, the health bubble, allows it”. But how the rest of Djokovic’s season plays out without the jab remains unclear.

The Open, which has so far been overshadowed by the Djokovic mess, must now move forward without its greatest ever champion. The next big tournaments on the horizon are the Miami Open and Indian Wells in the United States. But, like Australia, the US also requires visitors to be vaccinated to travel, with limited medical exemptions possible. (Even if Djokovic does make it through, officials for the US Open coming up in August have suggested that when unvaccinated players can play might depend on the weather – if play is forced to move under enclosed roofs, they’ll be out.)

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Djokovic’s situation has inspired both sympathy and criticism from his fellow tennis players.

Andre Agassi’s former coach Brad Gilbert says he had thought Djokovic was on course to break the men’s record for grand slam titles (which Djokovic currently holds with rivals Roger Federer and Rafael Nadal). But his aversion to receiving the COVID-19 vaccine could now jeopardise his career. “It’s going to be a very difficult proposition to be a full-time player being unvaccinated.”

There’s been some disquiet about the new vaccine travel mandates, including from the World Health Organisation , and those who argue more general exemptions for elite athletes may be needed or less-restrictive quarantine arrangements similar to the health bubbles set up for the Olympics.

Still, vaccination rates among ATP and WTA players have shot up in recent months, and stars such as Nadal and Andy Murray have strongly encouraged players to follow the mandate to stop more disastrous COVID outbreaks at sporting events. Last month, Australian Open boss Craig Tiley said he expected the vaccine take-up among players to hit 95 per cent by January.

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Former American player Pam Shriver says that if Djokovic is ultimately deported from Australia, it will be a “big blow” to the Serbian star’s legacy, already at times controversial given his preference for alternative therapies over conventional medicine and that infamous default from the 2020 US Open (when he inadvertently hit a line judge in the throat with a ball he struck in anger).

But many experts say the stakes are higher than Djokovic. “It will clearly have significant implications for our international reputation, including as the hosts of major events,” says Anderson.

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