A correct decision, but both sides are losers in Djokovic wrangle

The Federal Court has upheld the decision to cancel Novak Djokovic’s visa – but there are no winners.

Sunday night was one of the few times Novak Djokovic has travelled to Melbourne without leaving with a trophy.

The decision against Djokovic included a court order he pay the Immigration Minister’s costs. The costs won’t worry Djokovic – not just because he has earned more than $200m in prizemoney alone, but also because it will be offset against the costs the federal government owes Djokovic for the first case he won before Judge Anthony Kelly last Monday.

On Sunday, the Full Court of the Federal Court constituted three of the court’s most experienced judges – Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan. The decision was unanimous – but the court has not released written reasons yet. That is likely to happen on Monday.

Even though written reasons haven’t been released, there is still a lot we can tell from the way the case was conducted and why the best and probably greatest-ever tennis player won’t be seen on Rod Laver Arena on Monday night – and possibly ever again.

The first thing to know is the proceeding was brought by Djokovic against Immigration Minister Alex Hawke. It wasn’t a case against Djokovic.

He wasn’t “appealing” the decision by the minister to cancel his visa. He was seeking what’s called a “judicial review”. His legal team was asking the court to review the minister’s decision for any errors.

Its judgment does not mean the judges agree with the minister – they may have thought it was a great idea to deport Djokovic but they may have thought the opposite. That was irrelevant. The judges were only looking at the decision made and whether it contained an error. They have obviously found it did not.

For the purpose of his decision, the minister accepted a number of propositions in Djokovic’s favour. They included that Djokovic had tested positive for Covid in December, he had a medical reason not to get vaccinated, the incorrect travel form was not a reason to cancel the visa and he was of good character.

The minister confined the reasons for visa cancellation to just one ground – allowing Djokovic to stay would stir up anti-vaccination sentiment and that was against the public interest on health and safety grounds. One of the key battlegrounds was Djokovic’s argument that the minister failed to take into account deporting him might also stir up anti-vaccination sentiment.

Ultimately, by confining the basis for cancelling the visa to just one very opinion-based ground, the minister gave Djokovic’s legal team less material in which to find error.

Djokovic’s loss was not down to his legal team – it was a product of, and demonstration of, just how wide the minister’s powers are, and how hard it is to challenge the decision.

Sadly, the decision – correct as it may have been – won’t do much for Australia’s reputation. We still look like clowns by inviting him here, telling him he was exempt, giving him a visa, and then cancelling it twice – unlawfully the first time. Having said that, Djokovic is the real clown for choosing not to be vaccinated to play at the Australian Open.

Justin Quill is a partner at major law firm Thomson Geer, which acts for The Australian.