The unvaccinated World No.1 tennis star Novak Djokovic is "extremely disappointed" after losingan appeal against his second visa cancellation but says he will co-operate with the Australian Border Force over his deportation.
The 20-time grand slam champion will soon leave the country, unable to defend his Australian Open title in Melbourne. Djokovic was seeking to win a record 10th Australian Open crown, which would have taken him one grand slam clear or great rivals Roger Federer and Rafael Nadal. The trio are currently tied on 20 majors each.
The full bench of the Federal Court made its sensational decision in an unusual hearing on Sunday after Immigration Minister Alex Hawke used his discretionary powers late Friday to cancel the 34-year-old Serbian's visa on health and good order grounds.
It's a significant ruling with international ramifications and domestic political implications. The Australian government had taken on a wealthy, powerful and influential sportsman as well as, by proxy, the anti-COVID vaccination movement.
Djokovic is a renowned vaccine sceptic who had COVID-19 twice, including a recent positive test on December 16. He had been coy on whether he was vaccinated before a transcript of his initial interview with ABF officials confirmed he was unvaccinated.
The Federal Court's full bench ruled on Sunday to uphold Mr Hawke's decision. Reasons for the decision are expected to be made public on Monday.
Chief Justice James Allsop ruled it was not up to the court to decide the merits of the minister's earlier decision.
Djokovic was also ordered the pay the government's court costs, Chief Justice Allsop added.
"It is no part of the function of the court to decide upon the merits or wisdom of the decision," he said.
"The orders of the court are, one, the amended application be dismissed with costs, such cost to be agreed, or failing agreement, assessed."
Djokovic is expected to spend another night in immigration hotel detention and may also face a three-year ban on re-entering Australia.
The Serbian sportsman said he was disappointed by the court's ruling and would take some time rest and recuperate after his departure from Australia.
"I am extremely disappointed with the court ruling to dismiss my application for judicial review of the minister's decision to cancel my visa, which means I cannot stay in Australia and participate in the Australian Open," he said in a statement on Sunday.
"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.
"I would like to wish the players, tournament officials, staff, volunteers and fans all the best for the tournament."
Mr Hawke and Prime Minister Scott Morrison both welcomed the ruling, adding Australians had made "great sacrifices" to achieve high vaccination rates and Djokovic's visa cancellation was in the "public interest".
"To date around 43 million vaccination doses have been administered in Australia and more than 91.6 per cent of Australians aged 16 years and over are fully vaccinated," Mr Hawke said.
"Accordingly, Australia has been able to commence a step-by-step, safe reopening of its international border as a result of this successful vaccination program."
In making his visa cancellation decision on Friday, the minister concluded allowing Djokovic to stay in Australia could foster anti-vaccination sentiment, creating risks for public health and good order in the Australian community.
The Federal Circuit and Family Court had earlier quashed a prior visa cancellation decision on procedural fairness grounds.
The opposition has criticised the government's handling of the tennis star's case, warning it could become a "a lightning rod for the anti-vaccination movement".
Labor's home affairs spokesperson Senator Kristina Keneally said the Australian government was now a laughing stock on the world stage.
"This mess is not a failure of our laws. It is a failure of the Morrison government's competence and leadership," she said.
The court's decision is not regarded as subject to appeal. With Monday's start to the first grand slam of the year bearing down, the decision was made by the Federal Court's full bench, comprising Chief Justice Allsop, Justice David O'Callaghan and Justice Anthony Besanko, so it would only go back to the full bench in special circumstances.
Djokovic had been drawn to face Serbian compatriot Miomir Kecmanovic in the first round. The legal proceedings have significantly overshadowed the build-up to the tournament. High-profile players such as Nadal and Australia's Alex de Minaur had spoken of their frustration, while Djokovic found an unlikely source of support in Canberra's Nick Kyrgios.
Djokovic's counsel, Nicholas Wood SC, accused the minister of "grasping at straws" and argued Mr Hawke had overstated media reports on the tennis star's views and public support on vaccines while not considering the consequences of deporting Djokovic on anti-vaccination sentiment. This, he argued, made the minister's decision "illogical", "irrational" or "unreasonable".
Mr Wood argued "no evidence at all" was obtained by the minister about the impact on anti-vaccination sentiment posed by Djokovic remaining in Australia and rejected that the tennis star has become an anti-vaccination figurehead.
He rejected the assessment that Djokovic was a "risk to good order" in Australia by being a "high-profile unvaccinated individual."
The Immigration Minister's lawyer, Stephen Lloyd SC, said the player was a celebrity and "rightly or wrongly" he was perceived to endorse an anti-vaccination view and had become an icon, particularly in his home country of Serbia, for anti-vaxxers. He rejected that Mr Hawke solely relied on media reports.
"It's open to infer that a person in the applicant's position could have been vaccinated if he wanted to be," Mr Lloyd told the court.
"That choice makes a broader inference as to his views on COVID vaccination."
Mr Lloyd also denied that the minister failed to consider the consequences of deporting Djokovic. He said the minister "obviously" considered both.
"The concern is that he's a high-profile person who is in many respects a role model, certainly for many people, so that his presence in Australia would present more strongly and more currently to Australians his anti-vaccination views," he said.
Djokovic's lawyers also denied the player had strong anti-vaccination views, arguing this reputation was based on one statement early in the pandemic before vaccines were available.
"There was no evidence before the minister that Mr Djokovic has ever urged any others not to be vaccinated. Indeed, if anything, Mr Djokovic's conduct over time reveals a zealous protection of his own privacy rather than any advocacy," Mr Wood said.
The extraordinary saga began just over a week ago when Djokovic announced he was heading to Melbourne with a medical exemption from COVID-19 vaccination requirements.
The player arrived in Australia on January 5, but ABF officials cancelled his visa and he was placed in immigration detention alongside long-term asylum seekers.
It was later discovered the player incorrectly stated on his travel declaration form he hadn't travelled to other countries in the two-week period before his flight to Australia, when he had, in fact, flown to Spain.
Djokovic said this was an administrative mistake and human error by his agent.
He also admitted he attended a face-to-face interview and photoshoot with French newspaper L'Équipe after testing positive to COVID-19 on December 16.
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