Lawyers for the world number one men’s tennis player have pointed to what they claim is a huge hole in the Immigration Minister’s defence.
Novak Djokovic’s lawyers say the Immigration Minister’s decision to cancel the world number one’s visa was “solely” reliant on a quote he gave about vaccinations at the beginning of the pandemic.
The Serbian tennis player, who is hoping to have a Federal Court case wrapped up before the Australian Open begins on Monday, is once again facing deportation after Alex Hawke overturned his visa on Friday.
Before a full panel in the Federal Court on Sunday, Djokovic’s lawyer Nicholas Wood said the federal government’s argument that Djokovic was anti-vaccination relied heavily on a quote the tennis player had given in April 2020, as reported in a BBC article published after he had arrived in Australia.
Djokovic had been approved for a visa on the grounds that he was exempt from vaccination due to having already had Covid-19, but when he arrived in Australia he was told that was not a valid excuse and had his visa cancelled.
The tennis star fought his deportation in the Federal Circuit Court last week, a case which he won. That decision was overturned by Mr Hawke on Friday on “health and good order grounds, on the basis that it was in the public interest to do so”.
Prime Minister Scott Morrison said on Friday that Australia’s “strong border protection policies have kept Australians safe, prior to Covid and now during the pandemic”.
The BBC article, titled ‘What has Novak Djokovic actually said about vaccines’, published on January 6 is the “sole actual … evidentiary foundation” of the minister’s case against the tennis star, Mr Wood told the court.
Mr Wood said the government had quoted from the article “selectively”.
In that article, a comment made by Djokovic in April 2020 is referenced, namely that at that time he said he was “opposed to vaccination”.
But Djokovic went on to say that he was “no expert” and would keep an “open mind” but wanted to have “an option to choose what’s best for my body”.
Mr Wood said the Minister had failed to acknowledge this part of Djokovic’s quote when making reference to the article as Attachment H in the government’s submissions.
Mr Wood said Mr Hawke’s argument relied heavily on the notion that allowing Djokovic to stay in the country would foster anti-vaccination sentiment.
In his submissions, Mr Hawke argued that it was “clearly open” to him to concede that Djokovic is personally opposed to vaccination, and that there was “ample evidence” that Djokovic’s presence may foster anti-vaccination sentiment.
Mr Wood said the only evidence tying Djokovic to anti-vaccination support was the BBC article, and that it was “inexplicable” that Mr Hawke hadn’t sought the present views of the Serbian tennis sensation on vaccinations.
“Those statements are from a long time ago,” Mr Wood said.
“Not a single line of evidence in the material before the Minister provided any specific, logical or probative foundation of the proposition that the mere presence of Djokovic himself – not the cancellation of his visa and expulsion – may somehow foster anti-vaccination sentiment.”
Barrister Stephen Lloyd, speaking on behalf of Mr Hawke, said the government did not just rely on the statement made by Djokovic.
“It’s not just the applicant’s public statements that he is opposed to vaccination, it is the fact of his ongoing non-vaccinated status… at this stage of the pandemic. It is open to infer that a person in the applicant’s position could have been vaccinated if he had wanted to be,” Mr Lloyd said.
Circling back to the BBC report, Mr Lloyd said those quotes had served to strengthen the government’s view that Djokovic was anti-vaccination.
“Even before vaccinations were available, his prima facie position was to be against them. Sure he left open the possibility that he might change his mind. But nevertheless his publicly stated position was that he was not in favour of taking vaccines,” Mr Lloyd said.
Mr Wood went on to argue that the Minister should have considered the consequences of deporting Djokovic on anti-vaccination sentiment.
He added that there had been no evidence that Djokovic’s presence could be linked to anti-vax protests.
“It was irrational, your honour, for the Minister to only contemplate the prospect of the fostering of anti-vax sentiment that might accrue from Mr Djokovic playing tennis, in other words being present, and yet not consider the binary alternative, which was the prospect of anti-vax sentiment being fostered by … coercive state action,” Mr Wood said.
More to come