Novak Djokovic may have won release from detention, but his stay in Australia and a chance at tennis history could still be undone if the Immigration Minister decides to personally intervene.
The world No.1 men’s player was still smiling, despite the legal threat, as he rushed to Melbourne’s Rod Laver Arena soon after being cleared to officially enter Australia.
Djokovic said he was “pleased and grateful” Federal Court Judge Anthony Kelly had overturned his visa cancellation.
“Despite all that has happened, I want to stay and try to compete [in the Australian Open],” he wrote on Twitter.
“I remain focused on that. I flew here to play at one of the most important events we have in front of the amazing fans.”
The Serb was granted late night access to the court to loosen his limbs and reacquaint himself with his tennis racquets after spending nearly a week under guard at the Park Hotel.
While Djokovic was savouring his freedom, his mother appeared at a press conference in the Serbian capital to tell the world her son “was subjected to torture” and “denied his human rights” in detention.
It appeared Djokovic had complained to his family about conditions in the hotel – where refugees have spent years of their lives – after his mother Dijana Djokovic reported on Monday that he had not been provided breakfast and had no view from the hotel room.
Breakfast will be served in more luxurious settings on Tuesday before the 34-year-old resumes training. But his free time may not last long.
Immigration Minister Alex Hawke could still intervene in the visa decision, meaning Djokovic risks being banned from entering the country for another three years.
On Monday night, a spokesman for Mr Hawke said “the minister is currently considering the matter and the process remains ongoing”.
The uncertainty comes as Australia’s Nick Kyrgios is also in huge doubt for the Open after contracting COVID-19 just a week out from the year-opening major.
Kyrgios pulled out of the Sydney Tennis Classic on Monday just hours before his match against Italian firebrand Fabio Fognini.
‘The stakes have now risen’
Djokovic’s Twitter post reveals a man determined and positive about his chances of winning a 21st grand slam singles match and 10th Australian Open title – a victory that would mean the star would eclipse Rafael Nadal and Roger Federer.
But off-court court dramas are undoubtedly playing on his mind.
On Monday, Justice Kelly overturned the federal government’s decision to cancel Djokovic’s visa and ordered he be paid costs after lawyers for Home Affairs Minister Karen Andrews conceded the decision to proceed with an early morning Border Force interview and cancel his visa last week was unreasonable in the circumstances.
“The stakes have now risen, rather than receded,” said Justice Kelly after the government’s lawyer Christopher Tran told the court Mr Hawke would consider whether to exercise a personal power of cancellation over Djokovic’s visa.
“And I’m very concerned – I cannot, of course, in any way purport to encroach upon a valid exercise of a minister of executive power – but these parties need to get down to tin tacks.”
According to legal experts, there’s a real possibility of Djokovic being deported in the near future, but it would be bad publicity at home and further escalate Australia’s diplomatic row with Serbia.
Djokovic’s tentative victory
At the end of Monday’s protracted and at times chaotic hearing, Justice Kelly quashed the Australian Border Force’s decision to cancel Djokovic’s visa on the morning of January 6.
He said the move was “unreasonable” because Djokovic wasn’t given enough time to consult lawyers and authorities to make his case, as is required under the Migration Act.
Djokovic fans cheered outside the Federal Court building after the decision. Photo: Getty
Djokovic had been given a medical exemption for COVID-19 vaccination, as well as a document with an Australian government letterhead stating he was allowed into the country.
He had told the Australian Border Force he was unvaccinated.
The court heard a transcript of Djokovic’s interview with an ABF official on the night of his detention at Melbourne Airport.
“So you’re giving me legally 20 minutes to try to provide additional information that I don’t have? At four o’clock in the morning?” he said at the time.
“I mean, you kind of put me in a very awkward position where at four in the morning I can’t call [the] director of Tennis Australia, I can’t engage with anybody from the Victorian state government through Tennis Australia.
“I just […] you put me in a very uncomfortable position.”
At noon, Djokovic was allowed to leave the Park Hotel, where he had been held alongside 40 detained asylum seekers, in order to be present with his lawyers for the ruling, which had been mired by technical difficulties and trolls.
Justice Kelly said the court had “bent over backwards” to accommodate Djokovic and the government, including making sure the tennis player was able to meet his lawyers in person on Monday.
High-profile barristers Paul Holdenson, QC, and Nick Wood, SC, confirmed that Djokovic was with them.
Novak Djokovic was allowed to leave the Park Hotel to be with his legal team. Photo: Getty
Another minister enters the ring
The ruling was a loss for Home Affairs Minister Karen Andrews, but there are still other avenues for the government to deny Djokovic entry into Australia.
Left unresolved was the question of whether Djokovic was entitled to rely upon a medical exemption from Tennis Australia to enter the country and compete in the tournament without being vaccinated against COVID-19.
If Djokovic were to be deported, he could potentially be banned from entering Australia for the next three years, dashing his chances of competing in the Australian Open in future.
Former Department of Immigration official and border expert Abul Rizvi told The New Daily it would look “really, really bad” for the minister to send Djokovic packing after the star won his legal battle.
“I feel they’re making these statements in anger rather than considered thought,” Mr Rizvi said.
“Frankly, the better thing to do now would be to ring Mr Djokovic, talk him through the issues and say, ‘Look, can we come to an agreement that you will do A, B and C to protect the public health in Australia, and in exchange for that we’ll allow you to play in the Aussie Open – we hope you lose’.”
Kyrgios withdrew from the Melbourne Summer Set last week due to a mystery illness that sparked his asthma.
The 26-year-old was cleared of COVID-19 at the time, but on Monday confirmed he had contracted the virus.
“I just want to be open and transparent with everyone, the reason I have had to pull out of Sydney is because I tested positive for COVID,” Kyrgios posted on his Instagram story.
“I am feeling healthy at the moment with no symptoms.
“I wish everyone all the best and to stay safe where you can. If all goes well I will see you all at the Australian Open.”
The Australian Open begins on January 17, giving Kyrgios just a week to recover and be cleared to return.
Monday’s COVID-19 diagnosis came as a shock after Kyrgios had undergone numerous tests last week after being hit by a mystery illness.