Everything you need to know about Novak Djokovic’s court case

Novak Djokovic’s court showdown with the federal government has arrived. Here is everything you need to know ahead of the legal battle.

Novak Djokovic’s legal battle to stay in Australia will play out in open court on Monday, January 10 at 10am local time.

The highly anticipated court case between Djokovic and the Minister for Home Affairs, Karen Andrews, will be conducted by remote access technology and can be observed by any member of the public.

Djokovic himself will not be in court for the hearing.

FOLLOW THE OUR LIVE COVERAGE OF THE VISA FIGHT

While deportation hearings can go on for days, weeks and months, it is widely expected this one will be resolved on Monday given the pressing need for a decision.

Under the current orders against Djokovic, a decision will be needed by 4pm AEDT Monday, as that is the deadline he has been given and he can be deported thereafter.

THERE ARE FOUR POSSIBLE OUTCOMES:

– Djokovic wins the case Monday, he can stay and play.

– Djokovic loses the case Monday, he leaves Australia.

– Case drawn out on Monday, he gets special permission to play while the matter is being determined.

– Case drawn out on Monday, he’s given no permission to play, he leaves Australia.

How Djokovic court drama will play out

WHAT EACH SIDE IS ARGUING

DJOKOVIC CAMP

• The notice given to Djokovic that the Minister (through Border Force) intended to cancel his visa did not set out valid grounds. This means the decision should be invalid.
• He was denied procedural fairness because he was not provided with enough rest, time and access to a lawyer before the Border Force decision was made.
• Border Force did not properly apply the ATAGI advice a recent infection is reason to not get vaccinated.
• He had correctly made an Australian Travel Declaration and otherwise satisfied all necessary requirements in order to lawfully enter Australia on his visa.

FEDERAL GOVERNMENT

• Djokovic had a valid visa, but quarantine-free entry to Australia required him to be fully vaccinated or have a medical certificate that met the requirements and showed vaccination was contraindicated.
• He failed to provide appropriate evidence to meet the requirements to enter Australia.
• ATAGI advice on temporary medical exemptions regarding vaccinations is for Australians and not foreign citizens.
• His exemption issued by Tennis Australia/Victorian government was only for him to play in the Open.
• The travel declaration is automatically computer generated and only indicated he may be able to travel quarantine-free.
• A player and official who also used the same Tennis Australia/Victorian exemption to enter the country has been deported. 

WHAT HAPPENS NEXT

• A hearing will be held at 10am on Monday to decide if Djokovic has a case.
• Parties can give oral submissions of no more than 90-120 minutes.
• The judge can either make a decision and give reasons for the decision, make a decision and say they will give reasons at a later stage or reserve the decision and give it at a later stage.

HOW it COULD PLAY OUT

• The application fails and the court rules the deportation decision was correct. This could be subject to Djokovic asking to stay and again trying to appeal. He would have to leave the country.
• The court finds the appeal legitimate and the application is successful. It could then go back to the decision maker, who is the Home Affairs Minister, to make a decision according to law.
• The judge could make his own decision.

HOW WE GOT HERE

The decision to allow Djokovic to stay until Monday came after Judge Anthony Kelly rejected calls by the tennis star’s lawyer to permit him to remain until the court case was over.

Judge Kelly pointed out that the case could be the subject of “cascading appeals”, which could draw it out.

“One needs to press for relief that’s reasonable in the circumstances and not to overreach,” he told Djokovic’s barrister Nick Wood SC.

Judge Kelly pointed out the need to have the matter resolved quickly, stating it was “less than 10 days out from a competition a person — your client — wishes to compete in”.

However, he also noted the court would be concerned if Djokovic was deported before he had his day in court.

FOLLOW THE OUR LIVE COVERAGE OF THE VISA FIGHT

“It would be of great concern to the court that a person with a valid cause of action was prevented from seeking trial and determination of it by being deported before that happened,” Judge Kelly told Mr Tran.

Judge Kelly warned lawyers for Djokovic that the “tail won’t be wagging the dog” as they urged the court to decide his fate before the Australian Open draw.

Novak Djokovic and Craig Tiley after last year’s Australian Open. Picture: AFP Images

HE COULD PLAY

While the world No. 1 is currently holed up in a detention hotel awaiting his hearing there’s a “good chance” he will be granted permission to play the Australian Open, according to News Corp lawyer Justin Quill.

“My guess is that there is a pretty good chance he will be playing at the Australian Open,” Quill said.

“I suspect not so much because he is going to win his case, but that he is going to be found that there needs more time, and he will be allowed to stay in the country, compete in the Australian Open.

“Then the lawyers will argue about this in the weeks and months to follow.

“The imposition on Djokovic not being allowed to compete is arguably greater than the imposition on the Minister for Home Affairs. So, I suspect the court is going to land there and say, ‘I’m going to allow you to stay in the country while we sort this out over the following weeks and months’.”

Asked whether the Djokovic party had a case, Quill added: “Ultimately what the case is about is the decision taken by Border Force, the Minister for Home Affairs decision via Border Force, to deport Djokovic was wrong.

“Now, that’s going to turn on the evidence. Was there enough evidence to justify him being given this exemption or not?

“We have never seen the world’s best tennis player, possibly the world’s greatest ever tennis player, in this situation. So, it is going to be case-by-case. We don’t know exactly what they are going to be arguing, but we do know they will be saying the decision to deport him was wrong at law.”

Novak Djokovic will front court today. Picture: AFP Images

VISA NOT THE ISSUE

It seems there has been a widespread misunderstanding about why Djokovic is being held up with Minister Home Affairs Karen Andrews reiterating on Friday morning that this is not a visa issue. Amid widespread debate as to whether authorities acted correctly, whether the world No 1 should have even been allowed to board a flight and whether other players with exemptions were being reassessed, Andrews moved to clarify some things.

“He hasn’t met the entry requirements,” Andrews told Channel 9. “I know that is there lot of chatter about the visa. The visa on my understanding is not the issue it is the entry requirement.

“The Border Force has been very clear, that he was not able to meet the requirements to provide the evidence he needed for entry.

“Every single person who comes into Australia has to prove that they have been vaccinated or prove that they cannot be vaccinated for medical reasons. That is one of the entry requirements here.”

Djokovic is not the only player to have had their visa rejected.

Doubles player Renata Voracova was sent to the same detention hotel as the Serb and has since decided to leave the country and not contest the decision.

ANDREWS PLEADED FOR EXTRA TIME AHEAD OF NOVAK CASE

Home Affairs Minister Karen Andrews sensationally pleaded for extra time to prepare for the Novak Djokovic visa case at the weekend, but was refused.

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

And a leading lawyer said the world No.1 was in the box seat, after Djokovic’s lawyers argued in their submissions to the court that the visa cancellation would have an “extremely damaging effect” on him, personally and professionally.

News Corp revealed online on Sunday that Ms Andrews had made an application on Saturday night to have the hearing adjourned for two days 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.

Novak Djokovic will have his hearing on Monday. Picture: AFP Images

Justin Quill, a media lawyer with major law firm Thomson Geer, said the federal 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 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 argued that an Australian Travel Declaration assessment sent to him on January 1, before he boarded his plane, indicated he had met the requirements for quarantine-free arrival in Australia.

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.

Djokovic will not be short of supporters

“No sensible decision-maker acting with due appreciation of his responsibilities would have decided to make the … decision rather than wait until 08.30 to enable Mr Djokovic to rest and consult with his representatives, as he had been told he could,” the court documents stated.

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 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.

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

Home Affairs Minster Karen Andrews made an application to have the hearing delayed.

“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 on Saturday 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 two days after show him at events celebrating a stamp made in his honour and hugging children at an award ceremony.