Explained: Why Novak Djokovic Could Still Be Deported From Australia

Despite winning his legal battle against the Australian government, Novak Djokovic still faces deportation if the government considers him a public health risk.

After a couple of dramatic days, Novak Djokovic won his legal battle against the Australian government after a federal court reversed the government's decision to revoke the 34-year-old tennis star's visa.

However, Djokovic is still not guaranteed to play at the upcoming Australian Open as the Immigration Minister Alex Hawke can still use his personal powers to reject Djokovic's visa, deport him from the country and possibly prevent him from applying for a visa for at least three years.

At the time on writing, Djokovic has been released from immigration detention and can play at the Australian Open. The Serbian World No 1 tweeted a photo of him at the Rod Laver Arena in Melbourne saying that he is focused on the tournament and won't comment on anything.

Here is what we know about the saga so far

What Did Djokovic's Lawyers Say At The Trial?

Djokovic's lawyers argued that he met the criteria set by Australia's advisory board on immunisation and was granted a medical exemption by Tennis Australia.

Djokovic, his lawyers said, tested positive for COVID-19 on December 16 which provided him medical grounds as mentioned in Australian Technical Advisory Group on Immunisation's guidelines to not take the COVID-19 vaccine. Djokovic's lawyers said that the Serb cooperated with the Australian Border Force with Judge Kelly noting that the ABF was unreasonable to cancel the visa when Djokovic had been told he had time to consult his team.

What Were The Government's Arguments?

The government's lawyers argued that the ATAGI guidelines Djokovic's team referred to state people can defer taking a COVID-19 vaccine for six months after an acute illness. However, going by his submission, nothing suggests Djokovic had an acute illness.

The lawyers also cited the ATAGI guidelines as saying, "People with laboratory confirmation of past infection can start their vaccination course...as soon as they have recovered from the symptomatic infection".

The lawyers also argued that given his unvaccinated status, it was reasonable enough for ABF officials to cancel his visa on grounds that he was a public health risk.

On What Grounds Was The Visa Rejection Reversed?

Federal Circuit Court judge Anthony Kelly reversed the Australian Minister for Home Affairs' decision to cancel Djokovic's visa on the grounds that the Serb was treated unfairly by the government. Judge Kelly noted that the government did not provide Djokovic adequate time to seek advice and respond to the intention to cancel the visa when he was detained at the Melbourne airport.

The court did not comment on Djokovic's vaccination status nor the medical exemption granted to Djokovic.

So Djokovic Could Still Be Deported From Australia?

After Judge Kelly passed his ruling, the government's lawyers stated that Immigration Minister Alex Hawke could still cancel Djokovic's visa using the powers granted under the Australian Migration Act. According to media reports, Hawke could make a decision by Tuesday morning.

Hawke can cancel Djokovic's visa if he believes that Djokovic poses a risk to the "health, safety or good order of the Australian community or a segment of the Australian community" or the "health or safety of an individual or individuals".

Australian media reports state that should Hawk cancel Djokovic's visa, the tennis star can still challenge the order but note that the Migration Act grants the government sweeping powers and would be difficult to argue against.

Professor Allan Cheng, a former head of ATAGI, told The Age that prior COVID-19 infection has never been a valid reason to enter Australia as an unvaccinated person. Prof Cheng said that the rule is in place only for people who live in Australia as it is difficult to verify the medical documentation provided by other countries.

"It wasn't because of tennis players that that rule came about. Having had infection for the purposes of crossing the border is not one of those [reasons for an exemption]," Prof Cheng told The Age.

What could also go against Djokovic is the fact that despite testing positive for COVID-19 on December 16, he was pictured interacting with people days after his positive test.

On the day of his positive test, Djokovic attended a public event where the Serbian Post Office released a stamp in his honour.

A day later, Djokovic attended a prize giving ceremony at his tennis academy where he was pictured mask-less around children and adults.

Given that Australians have had to endure one of the harshest lockdowns in the world, the move to allow a vaccine-sceptic millionaire tennis star to enter the country and play in a prestigious tournament while being unvaccinated will reflect poorly on a government which is being attacked by opponents for its mishandling of the entire fiasco.

What Did The Djokovics Say After The Judgement?

Beyond the tweet, Djokovic has said nothing of the whole ordeal. That, however, is not the case with his family who termed Djokovic's legal victory as a win bigger than any of his 20 Grand Slam wins.

"Over the past few days, it's been very, very difficult for everyone in the world who is free thinking. But he is mentally extremely, extremely strong. They took away all his rights his rights, as a human being," Djokovic's father Srdjan said

"He refused to revoke his visa. They gave him no right to prepare his defence for several hours, and they took away his phone. Fortunately they gave him back his phone. He contacted his legal team who mounted a fantastic defence, that they could not match," he added.

However, the family ended the press conference immediately after being asked how Djokovic attended public events on December 16 and 17 after he tested positive for COVID-19.

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