Novak Djokovic’s legal challenge against being deported from Australia could go either way, according to immigration experts, but it’s too soon to judge exactly how long the saga will drag out.
The dispute comes down to whether the Australian Border Force can cancel Djokovic’s visa at the last minute, former senior Department of Immigration official Abul Rizvi told The New Daily.
He said if the government was serious about enforcing vaccine requirements, the tennis champ wouldn’t have been able to board the plane in the first place.
“To a degree, there is fault on both sides,” Mr Rizvi said.
“But in my view, the greater fault rests with the Commonwealth for designing such a poor process.”
Although Scott Morrison claimed that all visitors to Australia must be fully vaccinated, immigration lawyer Carina Ford from Melbourne-based firm CFIL said the reality is a bit more complicated.
“There are two ways to come in if you’re unvaccinated,” Ms Ford told TND.
“One is to have a travel exemption where you disclose that you’re unvaccinated, and that would normally mean that you’re subject to quarantine requirements.
“And then the second way is if you have medical exemption, which is what he obviously thought he had.”
The document Djokovic showed border officials was an exemption from Tennis Australia, which has no say in who can and cannot enter the country.
But the process of obtaining a medical exemption – valid or otherwise – is separate from applying for a visa.
“There’s no question in the forum that says, ‘Have you been vaccinated?’,” Ms Ford said.
On Thursday, Judge Anthony Kelly adjourned the case until a hearing at 10am on Monday.
One of Djokovic’s lawyers stressed that the deadline for Australian Open scheduling is on Tuesday.
To this, Judge Kelly replied: “I’m sorry, if I can say with the respect necessary, the tail won’t be wagging the dog here.”
But due to the high-profile nature of the case, things are progressing faster than usual.
“The judge is giving it as much priority as possible, and I think he’ll make a decision pretty quickly,” Ms Ford said.
Mr Rizvi said Djokovic’s camp will likely make the argument that by being granted a visa and being allowed to board a plane, Australian authorities had already deemed the tennis champ fit to enter the country.
However, the judge could also rule that Djokovic knew he had to provide an exemption to enter the country without sharing his vaccination status, and that his exemption was not valid.
Mr Rizvi said the judge would have to “decide between two wrongs”.
Amid all this, Djokovic remains free to leave Australia at any time.
Will Novak play?
Some commentators have argued that the dragged-out legal proceedings mean that Djokovic will be able to remain on Australian soil and ultimately play in the Australian Open.
“The judge would have the power to direct to release Mr Djokovic from detention, subject to conditions,” Mr Rizvi said.
“He could play, pending the ruling – that’s possible.”
Ms Ford said Home Affairs Minister Karen Andrews could also grant an alternative option.
“But that would be really contradictory, if they’re going to take the stance they’ve taken to continue the legal action on the minister’s behalf,” she added.
“If you’re going to allow that person to be detained via another method and also compete in the Australian Open, you might as well just grant him a favour.”
Such a move would also be a very public snub of more than 40 asylum seekers who have been detained in the Park Hotel for years.
These people were taken to the Australian mainland from the offshore detention centres on Nauru and Manus Island in order to receive critical medical treatment, but they are now stuck in limbo.
The asylum seekers have long slammed the conditions inside the facility, with some even finding maggots and mould in the food given to them.
Smoke and mirrors?
TND‘s Michael Pascoe has accused the government of escalating Djokovic’s border troubles at the last minute in order to act as a smokescreen for skyrocketing Omicron cases, an overwhelmed health system, and the refusal to follow other countries and provide universal free rapid antigen tests.
Experts have also questioned the unusual way in which the case has been handled.
Mr Rizvi believes the Department of Home Affairs should have been better prepared for this kind of situation, preventing Djokovic from boarding his flight in the first place if he really was ineligible to enter Australia.
Ms Ford also said the case “could have been handled in a more conciliatory matter”.
She pointed to alternatives like quarantine opportunities to balance public health with the desire to allow people into Australia.