In a shocking twist to Australia’s summer of sport, the eyes of the world will not descend on Rod Laver Arena’s Centre Court, but rather on the Federal Circuit and Family Court as Novak Djokovic fights to play in the Australian Open.
The Serb, who has won the Australian Open a record nine times, was a strong favourite to add another title to his resume before having his visa cancelled upon arrival in Melbourne.
Djokovic’s campaign to solidify himself as the greatest to ever play the game has now been sidetracked by hotel detention, an impending court battle and the possibility he may never get the chance to win his 10th Australian Open.
The timeline of Djokovic’s detention
On November 18, Djokovic was granted a temporary activity (subclass 408) visa.
On November 29, Federal Health Minister Greg Hunt wrote to Tennis Australia chief executive Craig Tiley, saying players wishing to enter Australia quarantine-free had to be fully vaccinated and could not count a previous infection as a reason for exemption.
On December 16, Djokovic tested positive for COVID-19.
On December 30, Djokovic received a letter from the Chief Medical Officer of Tennis Australia stating he had been granted a “medical exemption from COVID vaccination” on the grounds that he had recently recovered from COVID-19.
On January 1, Djokovic received an automated online confirmation via the Australian Travel Declaration website/app that he met the requirements for a “quarantine-free arrival into Australia where permitted by the jurisdiction of your arrival”.
Just before midnight on January 5, Djokovic arrived in Melbourne on a flight from Dubai.
He was interviewed for half an hour from 12:12am to 12:52am on January 6, before asking if he could rest and wait until 8am so he could receive legal advice before another interview.
He was woken by two border officials just before 6am and, according to court documents, “one of the supervisors pressured him to agree to a decision being made immediately”.
Djokovic, “feeling he had no choice”, agreed to an interview which concluded at 6:14am.
At about 7:42am, he was notified his visa had been cancelled.
After eight hours in immigration clearance, Djokovic was taken to the Park Hotel, where he has remained while waiting for Monday’s court hearing.
It is currently scheduled for 10am Melbourne time, and the public will be able to see his virtual appearance.
Djokovic’s legal team prepares to attack visa cancellation
Djokovic’s lawyers have prepared a barrage of arguments against his visa cancellation and detention in the hope of securing an expedited release for the tennis star.
In documents submitted to the court, Djokovic’s legal team argues that denying the star’s ability to rest and consult with his representatives constitutes “procedural” unfairness.
The lawyers also call attention to what they dub “jurisdictional errors”, and say Djokovic’s COVID-19 infection in December puts him clearly in line with ATAGI’s advice on medical contraindications for coronavirus vaccination.
While Mr Hunt may have notified Tennis Australia that COVID-19 infection is not a valid medical exemption, Djokovic’s lawyers argue that as “Tennis Australia facilitated [Djokovic’s] medical exemption from COVID-19 vaccination requirement and completed the Australian Travel Declaration on his behalf”, the circumstances were beyond Djokovic’s control.
That, in tandem with the online message Djokovic received on January 1, suggested Djokovic could argue he was misled by authorities before coming to Australia, Melbourne lawyer David Galbally QC said.
“I think there are difficulties with his arguments, but the court will look that he was led to believe that he was entitled to come here,” he said.
Mr Galbally said the court might be cautious in using its discretion, with the possibility that a decision might “open the floodgates” to other applicants in the event Djokovic was successful.
Djokovic ‘didn’t have guaranteed entry’
Government lawyers made their own submission late on Sunday night, saying the automated online email Djokovic received was not an assurance “his so-called ‘medical exemption’ would be accepted”, and his responses could be questioned and verified on his arrival.
“There is no such thing as an assurance of entry by a non-citizen into Australia. Rather, there are criteria and conditions for entry, and reasons for refusal or cancellation of a visa,” the submission said.
“The email from the department stated that the applicant’s responses to his Australian Traveller Declaration indicated that he met the requirements for ‘quarantine free’ travel into Australia.
“But that says nothing about the power of the minister (or her delegate) to interrogate those responses, the evidence upon which they were based, and conclude that a cancellation power was enlivened under the Act upon his arrival into Australia.”
It also challenged Djokovic’s claim for a medical exemption from Australia’s vaccination requirements on the basis he contracted COVID-19 in mid-December.
“There is no suggestion that the applicant had ‘acute major medical illness’ in December 2021. All he has said is that he tested positive for COVID-19,” the government submission said.
Czech player deported
Djokovic has not been the only player caught up in a border entry drama.
Over the weekend, Czech player Renata Voracova was deported from Melbourne following her own visa cancellation, while Australian Border Force (ABF) confirmed it was now investing another tennis player and an official who were also granted medical exemptions.
However Home Affairs Minister Karen Andrews said it was Djokovic’s vaccination status and not his visa status that was the issue.
“The border force has been very clear that he was not able to meet the requirements to provide the evidence he needed for entry,” Ms Andrews said.
Djokovic fights for his legacy
The federal government has been quick to point out that at no point during the visa saga has Djokovic been forcibly detained.
Ms Andrews said Djokovic was “free to leave any time” by getting a flight home.
Djokovic’s insistence on staying and fighting in court suggests the 34-year-old still intends to compete in the 2022 Australian Open.
But the window for Djokovic to play is rapidly closing.
The Open begins on January 17, and lawyers for Djokovic say they have been advised Tennis Australia will need a definitive answer by Tuesday for scheduling purposes.
While Djokovic might not be deported immediately should Monday’s court hearing not go his way, the additional time it would take to launch an appeal would make it all but impossible for him to compete.
An appeal from the government to adjourn the hearing to January 12 was refused on Saturday evening.
In court documents, Djokovic’s lawyers drew attention to the tight timeframes, saying the Minister for Home Affairs should take appropriate steps to ensure the world number one was released immediately, as soon as 5pm on Monday.
Given his dominant form and three grand slam wins in 2021, Djokovic’s victory in court would see him become a strong favourite to win the tournament regardless of his weekend spent in detention.
But the consequences of a failed appeal would be dire for Djokovic, and all but end his reign as king of the Australian Open.
Should Djokovic be forcibly removed from Australia, he could be banned from re-entry for three years.
Under a ban of that length, the Serb would be 37 by the time he could compete again at Rod Laver Arena.
Only Australian Ken Rosewall in 1972 has ever won a grand slam at that age.
In a sign of the times, perhaps the most crucial clash of the tennis season will come between Home Affairs Minister Karen Andrews and Novak Djokovic over a video conference at 10am on Monday.