Government threatens to ‘re-detain’ Djokovic if star wins visa fight

The federal government has hit back at Novak Djokovic, with a threat that could further derail his hopes of playing in the Australian Open – even if he wins today.

Lawyers for Novak Djokovic and the federal government will face off in the Federal Court Picture: AFP

The federal government has hit back at Novak Djokovic in a pre-court showdown submission, saying it could simply cancel his visa again if the cancellation is found to be invalid.

Lawyers representing the government and Djokovic will face off in the Federal Court from 10am Monday in a case that will be watched around the globe.

On Sunday night, the government filed a 13-page submission defending its decision to deport the world No. 1.

In the document, lawyers argued the visa cancellation was not “illogical”, and defended Djokovic’s processing at the airport and its interpretation of the vaccination exemption requirements.

It also purported that being unvaccinated, Djokovic posed a “greater health risk” of spreading the virus to others and further “burdening the health system”.

Lawyers for the minister said even if the court ruled in Djokovic’s favour, it would be “inappropriate” for it to make any further orders, including releasing the tennis star or remitting his visa application.

They argued that even if he won the case, the government could decide “whether to make another cancellation decision” and had “other powers” available to it.

The government is threatening to re-detain Novak Djokovic. Picture: AFP

If the court ordered he be immediately released, that order couldn’t stop the government from “exercising any power to detain that might be available … despite the quashing of the delegate’s cancellation decision”, documents state.

“An order for immediate release does not prevent re-detention if there is power to detain”.

The Herald Sun revealed online on Sunday that Home Affairs Minister Karen Andrews had made an application on Saturday night to have the hearing adjourned until Wednesday – just five days before the tournament begins.

But Djokovic’s team, which includes two top QCs, opposed the application and the adjournment was then refused by Judge Anthony Kelly.

Leading lawyer Justin Quill said the Serbian star was in the box seat, after Djokovic’s legal team argued in their submissions to the court that the visa cancellation would have an “extremely damaging effect” on him, personally and professionally.

Mr Quill, a media lawyer from major law firm Thomson Geer, said the government was “obviously scrambling” and on the “back foot”.

“It appears they now think there is a lot more to this than they had previously thought,” Mr Quill said.

The government’s bid to delay the case followed Djokovic’s detailed legal submission presented on Saturday night. It spent Sunday racing to submit its own arguments before an 8pm deadline.

Djokovic’s legal team had argued that an Australian Travel Declaration assessment sent to him on January 1, before boarding his plane, indicated he had met the requirements for quarantine-free arrival in Australia.

Minister for Home Affairs Karen Andrews. Picture: Gary Ramage

But the government maintains the assessments, which are computer-generated in 60 seconds, only give travellers an indication of their eligibility and do not validate their documents.

Djokovic’s team also said he was denied procedural fairness as he was not given enough rest or time to speak to his lawyer, after 25 hours in transit and several hours of questioning.

He is reported to have expressed “confusion” as he thought he had done everything required to enter.

The Djokovic case also stated the minister either misapplied ATAGI “advice” that a recent Covid infection was a valid medical reason not to have the vaccine or didn’t consider the advice and should have.

And his lawyers argued the Australian Border Force delegate was wrong in proceeding on the basis Djokovic had to prove his medical reason for not being vaccinated, as opposed to just declaring he had the evidence – and then deciding he was in breach of a requirement.

The case further asserted that notice, given to Djokovic, that the minister intended to cancel his visa, did not set out valid grounds as it conflated two separate grounds in the Migration Act and effectively made up one new one.

This made the decision invalid because the minister never formed the required view that he was a risk to Australia’s health and safety – and therefore didn’t have power to cancel the visa.

Mr Quill said the case was not expected to result in a simple stay or go.

“The most likely outcome is it gets sent back to the minister to make a decision according to law,” he said.

If he loses, there are fears Djokovic could be banned from re-entering the country for up to three years under tough migration laws, meaning he would not be able to compete at the Australian Open until 2025.

It comes as images emerged of Djokovic attending public events, just a day after he is claimed to have returned a positive Covid test.

Court documents allege the result was received on December 16, but social media posts from the following two days show him at events celebrating a stamp made in his honour and hugging children at an award ceremony.