Novak Djokovic could still be deported despite winning his battle against the Home Affairs Minister

Legal experts believe the federal government threw in the towel on the Novak Djokovic court case — and it could have huge ramifications for the tennis superstar.

Legal experts believe the federal government threw in the towel on the Novak Djokovic court case to ensure it kept it options open to deport him using another power.

The world No. 1 tennis star won his Federal Circuit Court hearing against Home Affairs Minister Karen Andrews over his cancelled visa on Monday, but only because her counsel accepted defeat.

Top lawyers now say the “deliberate” capitulation was a tactical move by the government to try to go after the Serbian by using a personal power held by Immigration Minister Alex Hawke.

Leading legal mind David Galbally AM QC said by giving up the government prevented the judge “from making any commentary that would reflect adversely on them”.

“If (Judge Anthony Kelly) had gone a bit longer he may have made some adverse findings against the conduct of the government,” the principal lawyer of Coulter Legal said.

Media lawyer Justin Quill said the government “could see the writing on the wall”.

“I think the government ­capitulated in the case when they did so that the only findings against them were about the process and not the actual decision to cancel his visa,” said Mr Quill, of Thomson Geer. “This left the government with the option of making the same decision to cancel his visa again.”

Mr Galbally said it would be “reprehensible now” for the government to try again to remove Djokovic from the country and stop him from playing in the Australian Open.

“It’s not a very good reflection on our government,” he said. “They’re more than bad sports.” He said if Mr Hawke returned to court for round two against Djokovic, the tennis star “could argue this is coming to be an anti-Djokovic piece of legislation and it’s ­unconscionable”.

Mr Quill agreed. He said that if Mr Hawke tried to go after Djokovic again, the judge would serve the tennis ace a temporary injunction, allowing him to play and “effectively handing him another win against the government”.

Scott Morrison has spoken with Serbian Prime Minister Ana Brnabić about the Djokovic saga.

The Prime Minister’s Office said the pair had a “constructive call” on Tuesday morning.

Mr Morrison is understood to have explained Australia’s border policy was non-discriminatory and had a role in protecting Australia during the Covid-19 pandemic. “They both agreed to stay in contact on the issue, and to further strengthen the bilateral relationship,” a statement read.

Serbia's Novak Djokovic remains in Australia despite the visa saga

Deputy Prime Minister Barnaby Joyce has admitted that he “got it wrong” when he assumed that Djokovic would have been asked to leave the country, because he was not fully vaccinated.

“I’m not going to pretend to be a solicitor again,” Mr Joyce said.

Federal Labor leader Anthony Albanese has blasted the government as “incompetent” saying they have had a grand slam of pandemic failures.

“How is it that Novak Djokovic was given a visa in the first place if he wasn’t eligible?” Mr Albanese said.

“I’m not governing from opposition. The fact is that this has been botched completely by the Australian government.”

Mr Albanese demanded the government accept responsibility for the situation which has caused “a great international embarrassment” that could have been avoided.

He also said Djokovic was a much better tennis player and athlete than he was a health advisor.

“Novak Djokovic has not made a good decision by not being vaccinated,” he said.

“It is good that role models like Rafael Nadal have been out there promoting appropriate health outcomes for people.”

Victorian Premier Daniel Andrews also fielded questions about the case on Tuesday, saying the state government had not sought to get Djokovic and other unvaccinated players into the country.

Mr Andrews stressed that Victoria had not asked the commonwealth to let people in, rather “quite the opposite”.

“Whether it is in the court or on the court, this tournament is bigger than any one person,” he said.

DECISION PENDING: DJOKOVIC COULD STILL BE DEPORTED

Novak Djokovic’s bid to win a record-breaking 21st grand slam remains under a cloud despite the Serbian winning his sensational court battle against the Home Affairs Minister.

But in a grand twist, the government could yet enact further action to re-detain and deport the world No. 1.

At 9pm AEDT on Monday night, a spokesman for Immigation Minister Alex Hawke said he was still considering the matter and the process remained “ongoing”.

“Following today’s Federal Circuit and Family Court determination on a procedural ground, it remains within Immigration Minister Hawke’s discretion to consider cancelling Mr Djokovic’s visa under his personal power of cancellation within section 133C (3) of the Migration Act,” the spokesman said in a statement.

It is understood the four-hour period for a decision was only relevant if Mr Djokovic was reinterviewed. This has not occurred.

Alex Hawke MP, Minister for Immigration, has final say on whether Novak Djokovic will remain in Australia. Picture: NCA Newswire

Earlier, Djokovic had the decision to cancel his visa quashed.

Tennis Australia had claimed that it had been receiving conflicting information in regards to incoming arrivals to Australia and potential exemption status of unvaccinated players and officials, while the federal government has threatened it could yet cancel Djokovic’s visa again.

Judge Kelly confirmed that counsel for Minister for Home Affairs informed the court that despite the making of his order, Immigration Minister Alex Hawke “has reserved a question whether to exercise a personal power to cancel the applicant’s visa”.

He asked Mr Tran to maintain “close dialogue” with Djokovic’s lawyers and let them know if he proceeded with making that power.

RECAP HOW THE MASSIVE DECISION PLAYED OUT

Novak Djokovic has won his court case. Picture: Paul Crock/AFP Images

Judge Kelly said he received “no notice” of the government’s intention to continue fighting the case.

He reminded lawyers for the Minister that if they were going to exercise a personal power, that Djokovic’s personal and professional reputation and his economic interests “may be affected by the government’s conduct”.

“If this man is to be summarily removed upon a personal exercise of cancellation power he cannot return to this country for three years,” he said.

Judge Kelly said it would be “extraordinarily difficult” for anyone to hear a renewed application from another Minister between now and next Monday.

HOW DJOKOVIC FOUND OUT HE WAS FREE

Djokovic was with his lawyers on the court link for the sensational judgment.

“Mr Djokovic there with you?” Judge Kelly asked.

“Yes,” Djokovic replied off screen.

Judge Kelly, at 5.16pm, ordered that:

– The Border Force delegate’s decision to cancel Djokovic’s visa be quashed.

– The government pay Djokovic’s costs and any reserve costs

– The Minister must release him “immediately” from immigration detention. This must occur within 30 minutes from 5.16pm, so 5.46pm.

– Djokovic’s passport and all other personal effects be returned to him “as soon as reasonably practicable” after the order is made

Novak Djokovic has won his court case. Picture: Getty Images

– The Minister must concede that the Border Force delegate’s decision to proceed with interviewing Djokovic and cancelling his visa was “unreasonable”

– That was because Djokovic was told at 5.20am on Thursday, 6 January that he could have until 8.30am to respond to the notice of intention to cancel his visa, but his comments were sought at 6.14am, the delegate made a decision at 7.42am and he was denied the chance to make comments until 8.30am

– If Djokovic was given until 8.30am, he could have made submissions after consulting lawyers and Tennis Australia