Federal Court reveals why it upheld decision to send Novak Djokovic home

The Federal Court has found Immigration Minister Alex Hawke was within his rights to decide Novak Djokovic should be removed from the country because Djokovic is a high-profile unvaccinated tennis player who could adversely influence Australians.

A full bench of the court upheld on Sunday Mr Hawke’s decision to cancel the Serbian star’s visa but only released its reasons for judgment on Thursday afternoon. The three judges unanimously backed the minister on each of the three grounds in contest, saying Mr Hawke had not been “irrational or illogical” when deciding to cancel the visa.

Novak Djokovic arrives back in Belgrade after being deported from Australia.Credit: AP

The court said that under the Migration Act Mr Hawke only needed to be satisfied that the presence of Djokovic in Australia “may be, or might be, a risk to the health, safety or good order of the Australian community”.

Djokovic’s lawyers had argued on Sunday that the minister could not definitively say Djokovic was anti-vaccination, and that Mr Hawke had relied on “selective” comments from a single BBC article to make that judgment.

They said it could not be proved that his presence in Australia was a threat to social cohesion, as argued by the government. And they also argued Mr Hawke had not properly considered the possibility that cancelling the tennis star’s visa would galvanise anti-vax sentiment more strongly than simply his presence in the country.

But Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan ruled that Djokovic’s views canvassed in the BBC article were “expressed and publicly known even before there was a COVID-19 vaccine”.

“It was plainly open to the minister to infer that Mr Djokovic had for over a year chosen not to be vaccinated since vaccines became available,” the court said.

All the arguments about whether or not Djokovic had been infected with COVID-19 in December last year were irrelevant, they said, since vaccines had been available for many months before that.

“It was plainly open to the minister to infer that Mr Djokovic had chosen not to be vaccinated because he was opposed to vaccination or did not wish to be vaccinated.”

The federal government initially cancelled the player’s visa on the basis that a prior COVID-19 infection was not a valid medical exemption from vaccination requirements. However, the government revoked his visa for a second time on different grounds: that his vaccine scepticism posed a risk to public health and good order of Australian society.

Djokovic’s legal team argued on Sunday that Mr Hawke lacked any evidence to show that the tennis star’s presence may “foster anti-vaccination sentiment”.

However, the court ruled that it was open for Mr Hawke to conclude that if the tennis star was seen to be against vaccination, his presence in Australia may cause others to emulate him.

Not only those who were anti-vaccination, but those who were unsure could be influenced by his presence in Australia, it said.

“The possible influence on the second group comes from common sense and human experience: An iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him,” the court said.

“This is not fanciful; it does not need evidence. It is the recognition of human behaviour from a modest familiarity with human experience.”

Djokovic’s presence might also be taken up by anti-vaccination groups in future to support their views, the court said.

It also referred to Djokovic disregarding public health measures overseas as he attended activities unmasked while COVID positive to his knowledge. The tennis player admitted to going to an interview with a French magazine after his December COVID diagnosis.

This “may encourage an attitude of breach of public health regulations,” the court found.

The third and final ground advanced by Djokovic’s lawyers – that Mr Hawke did not properly consider that cancelling the tennis star’s visa could galvanise anti-vax sentiment – was also rejected by the court.

Djokovic’s lawyers said on Sunday that Mr Hawke had made a jurisdictional error because he was illogical, irrational or unreasonable in not considering whether cancelling the visa may itself foster anti-vaccination sentiment in Australia.

But the court said the minister did not need to consider this. His only job was to consider what would happen if Djokovic remained in the country, not if he was expelled from it.

“No statutory obligation arose to consider what risks may arise if the holder were removed from, or not present in, Australia,” it said.

Following reports on Thursday that Djokovic was intending to sue the Australian government, John Jeremic, a friend of the Djokovic family, and the acting president of the Serbian Orthodox Youth Association in Melbourne, said he had not heard about any legal proceedings.

“It is not the nature of Novak to undertake any decisions in a rushed ... manner. Given that the family still don’t exactly understand the outcome of the recent Federal Court case, they would definitely take some time to review everything prior to making or rushing any decisions on next steps.

“Further you would find that if in the instance any legal proceedings being undertaken, a majority of any gains after legal fees would be donated to charity causes in Australia and overseas. [Djokovic] and the family have a deep love for Australia and despite the recent adverse outcome they look forward to coming back in 2023.”

With Michael Koziol

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