Novak Djokovic’s wait to learn his Australian Open fate went on as three judges retired to consider their verdict in his appeal against the cancellation of his visa at the Federal Circuit and Family Court of Australia.
Lawyers for the world number one and Immigration Minister Alex Hawke put their cases before the judicial triumvirate following Hawke’s decision on Friday to re-cancel Djokovic’s visa.
As more than 80,000 people watched on YouTube, Chief Justice James Allsop told the court he expected to be in a position to announce a decision by late afternoon or early evening, but the case could yet drag on into Monday morning.
Djokovic, who spent another night at the Park detention hotel on Saturday, is due to face compatriot Miomir Kecmanovic in the first round at Melbourne Park on Monday.
Djokovic was freed from detention six days ago after an initial decision to cancel his visa his last week was quashed, but Hawke used his personal power to reimpose the sanction.
The nine-time Australian Open champion immediately mounted another legal challenge and the parties were back in court on Sunday morning.
Hawke’s decision on Friday was unexpectedly based not on the validity or otherwise of Djokovic’s exemption from Covid-19 vaccination but on the notion his presence in the country could stoke anti-vaccination sentiment, making him a danger to public health, as well as civil unrest.
To succeed in an appeal, Djokovic’s legal team had to prove that Hawke had either acted outside his powers or that his decision was irrational.
Nick Wood, acting for the Serbian, focused on three aspects – that there was no evidence his presence would stoke anti-vaccination sentiment, that evidence was also lacking for the idea Djokovic opposes vaccination and that Hawke had not considered whether deporting the nine-time Australian Open champion would lead to increased support for the anti-vaccination cause.
Wood said: “Not a single line of evidence in the material provided any specific or logical foundation whatsoever that the mere presence of Mr Djokovic in Australia in itself may somehow foster anti-vaccination sentiment.”
Djokovic created global headlines early in the pandemic for being quoted as saying he was “opposed to vaccination”, although he later clarified that he was against being forced to take a vaccine to travel to tournaments and would keep an open mind on the issue.
Wood criticised Hawke for not referencing that clarification, while he argued the response to the overturning of the initial visa cancellation, which included police pepper spraying Djokovic supporters on the street, demonstrated that deporting him could have a negative impact on public health and public order rather than the other way around.
“The clearest and most attractive window through which to view the error is the public interest lens,” he said. “It is irrational or unreasonable to look at only one side of the coin.”
Hawke’s lawyer Stephen Lloyd spent a considerable amount of time countering that argument.
“The minister was aware his decision to cancel would result in some level of further unrest but the minister was principally concerned that Mr Djokovic’s presence would encourage people to emulate his position and that would put the health of Australians at risk,” said Lloyd.
On the issue of whether it was fair to present Djokovic as taking an anti-vaccination stance, Lloyd said: “His ongoing non-vaccination status is open to infer that a person in the applicant’s position could have been vaccinated if he wanted to be.
“Even before vaccines were available he was against it – his prima facie position was to be against them.”
He made reference to anti-vaccination groups “treating the applicant as a hero” as he moved on to Hawke’s central claim of Djokovic’s presence having the potential to negatively impact public health.
Lloyd said: “He’s a high-profile person who is in many respects a role model for many people. His presence in Australia would present more strongly to Australians his anti-vaccination views.
“People use high-level athletes to promote ideas and causes all the time. His connection to a cause, whether he wants it or not, is still present.”
He concluded: “We would say each of the grounds should be dismissed and there should be an order that the applicant pay the minister’s costs.”
Wood said Djokovic’s legal team would seek the Serbian’s release from detention within half an hour should the appeal succeed.