Why Australia faces a tough call on Djokovic
When Australian immigration officials rejected tennis star Novak Djokovic’s medical exemption from a COVID-19 vaccination requirement and canceled his Australian visa, they set off a storm of ramifications — bureaucratic, political and legal.
The world’s top male tennis player spent four days in a dowdy Melbourne immigration detention hotel among asylum seekers and undocumented migrants before Federal Circuit Court Judge Anthony Kelly upheld his appeal and ordered him released and his visa reinstated.
Australian Immigration Minister Alex Hawke now must make the politically charged decision of whether to use his authority to overturn the judge’s ruling.
First, a better class of accommodation. When the judge ruled in his favor on Monday, Djokovic was immediately released from Melbourne’s Park Hotel to join his team at an up-market apartment for the rest of his Australian stay.
Djokovic quickly headed to the Australian Open venue, Melbourne Park, for a late-night training session. He also trained on Tuesday, suggesting his sights are still firmly set on his bid for a 21st Grand Slam singles title.
He’s not in the clear yet. Immigration Minister Hawke has put off until Wednesday his decision on whether to revoke the unvaccinated tennis star's visa on public health grounds under Australia’s Migration Act.
A spokesperson for Hawke said “in line with due process, Minister Hawke will thoroughly consider the matter. As the issue is ongoing, for legal reasons it is inappropriate to comment further.”
Another issue under scrutiny is whether Djokovic might have incorrectly filled out his travel entry form when he ticked a box to indicate he hadn’t traveled in the 14 days prior to his arrival in Australia on Jan. 6. In fact, Djokovic did travel to Serbia and Spain to train in that period.
WHAT DID THE COURT SAY?
Perhaps the key to the whole affair and the hardest question to answer is whether Djokovic has a valid claim to a medical exemption to enter Australia while unvaccinated.
Tennis Australia, the Victoria state government and the federal government have differing views.
Before leaving for Australia, Djokovic had been coy on his vaccination status. When interviewed at Melbourne Airport by border officers early Thursday morning he admitted he was not.
His application for a medical exemption to the rule that all non-Australian arrivals must be vaccinated was based on his claim that he tested positive to COVID-19 on Dec. 16.
Medical panels established by Tennis Australia and the Victoria government granted Djokovic exemption from vaccination to play at the Australian Open on that basis. Djokovic’s lawyers argued that he had every reason to believe the same standard applied at the border.
The Australian Border Force wasn’t satisfied with the documents provided by Djokovic at Melbourne Airport and canceled his visa. Judge Kelly found the Border Force should have given Djokovic more time to get his documents in order before proceeding with the interview which resulted in his visa being annulled.
“The decision to proceed with the interview and cancel that visa ... was unreasonable,” he said.
WHAT ABOUT DJOKOVIC’S COVID-19 CASE?
Djokovic was quick to welcome the court’s decision. During his four days in immigration detention he tweeted only once, to thank his fans for their support.
Early Tuesday morning he tweeted again to express gratitude that the court had upheld his case.
"I’m pleased and grateful that the Judge overturned my visa cancellation,” Djokovic said. “Despite all that has happened, I want to stay and try to compete (at the Australian Open). 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.”
Questions still remain about Djokovic’s recent positive test. He had a PCR test on Dec. 16 and received his positive result that night.
Photographs and videos since then have shown a maskless Djokovic attending public events, including a junior tennis prize ceremony in Belgrade after his positive test. Serbia’s COVID-19 protocols should have required him to isolate for 11 days.
Lawyers for the Australian government have also said an infection in the previous six months was only grounds for an exemption in cases in which the coronavirus caused severe illness.
It’s not clear why Djokovic was ever granted a visa if that’s the case.
WHAT ROLE DOES POLITICS PLAY?
Djokovic arrived in Melbourne as it faced record daily numbers of COVID-19 cases. Numbers also were increasing across Australia because of the omicron variant.
Prime Minister Scott Morrison's government was facing criticism for relaxing some virus restrictions as omicron cases began to spike and for not making rapid antigen tests readily available.
Morrison had little to say when Tennis Australia and the Victoria government upheld Djokovic’s application for a medical exemption. But when Djokovic’s visa was canceled he was quick to own the decision, sensing public approval.
He tweeted “rules are rules” and repeated that in interviews on subsequent days. At first it seemed a certain political win.
Australia’s strict border controls during most of the pandemic separated families by preventing Australians living overseas from returning home. The possibility that one of the world’s most feted athletes and prominent vaccine skeptics might receive special treatment at the border was one Morrison couldn’t countenance.
Residents of Melbourne also have cause to reject special treatment for Djokovic. Melbourne has been one of the most locked-down cities in the world as residents spent 256 days under strict restrictions during various COVID-19 waves.
But as Djokovic languished among asylum seekers in Melbourne, attitudes may have softened. And since the judge ruled against the government’s lawyers, there has been anger that the poor handling of Djokovic's case has painted Australia in a bad light.