A judge who will decide tennis world No.1 Novak Djokovic’s chance to play in the Australian Open has questioned what more he could have done to enter Australia.
The 34-year-old Serbian entered Australia late on Wednesday after declaring he had a medical reason not to get vaccinated against COVID-19.
But he has been in immigration detention after having his visa cancelled early the following morning.
A Federal Circuit Court hearing before Judge Anthony Kelly got underway half an hour late on Monday.
Technical issues forced the hearing to begin despite a live stream link provided by the court crashing because of the overwhelming number of people trying to view proceedings.
Nick Wood SC says Djokovic declared before boarding his flight to Australia from Dubai that he had a medical contraindication and was able to provide evidence of that.
That evidence was a medical exemption provided to him by Tennis Australia, he said.
Judge Kelly asked: “What more could this man have done?”
“Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption,” he said.
“Further to that, that medical exemption and the basis on which it was given, was separately given by a further independent expert specialist panel established by the Victorian state government.”
The judge said those documents were in the hands of the immigration department delegate who made the decision to cancel his visa on behalf of Home Affairs Minister Karen Andrews.
Mr Wood said Djokovic was “utterly confused” by the situation because he had done everything that was asked of him.
Documents released by the Federal Court on Saturday show Djokovic contracted COVID-19 on December 16 and was free from symptoms before he arrived in Australia.
His lawyers will argue that he met the criteria for a temporary exemption under Australian Technical Advisory Group on Immunisation (ATAGI) guidelines and that he was denied procedural fairness during the decision to revoke his visa.
Documents cite the ATAGI advice, including: “COVID-19 vaccination in people who have had PCR-confirmed SARS-CoV-2 infection can be deferred for a maximum of six months after the acute illness, as a temporary exemption due to acute major medical illness”.
Djokovic was questioned by authorities through the night, between his arrival just before midnight Wednesday and the visa cancellation at 7.42am Thursday.
A partial transcript records Djokovic telling authorities he wasn’t vaccinated against COVID-19. He has previously declined to confirm his vaccination status.
Government submissions say Djokovic is wrong to challenge the claim that previous infection is grounds for an exemption.
They say the ATAGI advice is clear that past infection is not a contraindication for infection and instead a person can defer vaccination for six months after acute illness.
“There is no suggestion that the applicant had ‘acute major medical illness’ in December 2021,” the documents say.
“All he has said is that he tested positive for COVID-19. That is not the same.”
The ATAGI advice also says a person who tests positive can receive a first or second dose of a COVID-19 vaccination once they are asymptomatic.
Australian government lawyers have asked the judge to reject Djokovic’s legal challenge and order he pay costs.
But should he win and the court order his immediate release, they want the judge to make it clear there’s nothing stopping them detaining him again.
“An order for immediate release does not prevent re-detention if there is power to detain,” submissions on behalf of Home Affairs Minister Karen Andrews said.
The hearing is continuing.
ScottD
Roar Guru
Actually Winston, 1. firstly I am not an Australian so your attempt to undermine the validity of my point by attacking me personally just failed; 2. secondly he didn't qualify for a medical exemption from the "Australian state medical board" because there is no such body that goes by that name. 3. He obtained a visa by making a false declaration which has now been clearly and unambiguously admitted by him. 4. He obtained approval to enter the state of Victoria which was subject to his obtaining a legal visa from the Australian government for his arrival into Australia, a visa he obtained illegally and which has now been cancelled. There's nothing "obstinate or pig headed" about people on this forum stating the facts or government officials acting to cancel a visa that was obtained via false declaration in contravention of the law.
ScottD
Roar Guru
If only that were true
jameswm
Roar Guru
Wrong, the vaccine is not redundant. Studies have shown clearly that past infection + vaccination is multiple times more effective than past infection alone. So still good reason to get vaccinated, even from a health standpoint.
Chris Love
Roar Guru
You know full well that when someone says natural immunity they’re taking about having an elevated immune response from naturally having caught the virus as opposed to a synthetic immune response from a vaccine.
Chris Love
Roar Guru
Well maybe that If you can show that you have antibodies at a certain level through an antibody test, then a little nuance in not requiring a vaccine is to play tennis is not to unreasonable to ask. Health bureaucrats throughout this pandemic have shown almost zero ability for nuance and now that we are over 90% vaccinated, then maybe it’s time.
Chris Love
Roar Guru
James, we’re now deep into semantics. If anyone is asymptomatic a second time around after being mildly ill the first time. It’s reasonable enough to deduce that in most cases an increased level of antibodies are responsible for the reduced ‘infection’ as you’d expect from a vaccine. Sure it could be omicron but the point is he has antibodies. Making the vaccine essentially redundant. Synthetic immunity through vaccines isn’t having a real good time of stopping infection either is it? As long as you have antibodies, you’re a far lower threat to others. That’s the point.
Tim Carter
Roar Pro
I don't think Shifty understood your point when he clicked 'like.' Either that, or he stopped watching Sky News.
WINSTON
Roar Rookie
That's just patently not true Scott. He qualified for a medical exemption, as provided by the Australian state medical board. So this what I mean, you Australians sure are pig headed about your own comedy of errors
ScottD
Roar Guru
Yep, it is totally pig headed for the border control to apply the same rules to a tennis super star as they apply to the average person. Also totally obstinate for them to insist on it.
ScottD
Roar Guru
I don't know how you came to that view as that is NOT what is reported as being said by the judge said in his summary.
ScottD
Roar Guru
yep
jameswm
Roar Guru
The natural immunity didn't work too well in stopping reinfection now, did it? Another simple explanation is he caught omicron the 2nd time, which is not as severs a delta - though I think his first positive was pre-delta. Of course, the simplest explanation of all is that he didn't actually have Covid the 2nd time, and squeezed a BS positive test in during the only window he could find, then messed up by socialising with children. Bow we get another BS excuse - if you do a PCR test, you isolate while you are waiting for the result,. You don't go and hang out with kids. Caught out by another lie.
jameswm
Roar Guru
Esp if you're boostered.
jameswm
Roar Guru
Good question. No doubt he was holding a visa, hence why it has to be cancelled. What questions did he have to answer to get it and how did he answer them?
ScottD
Roar Guru
Actually, it is a fair question. From personal experience I can confirm that you can't get on the plane without proof of a right to get into the country at the end of the flight. This means he had to prove he had a visa before he got on the flight. So in short, all evidence is that he was issued a visa in the first instance. next question is how did he get it?
ScottD
Roar Guru
Wrong. It doesn't show he has "natural immunity" as there is no such thing. it simply means (at most) that he has a residual elevated level of activity due to his previous infection and so his body reacts faster to getting the virus the next time.
ScottD
Roar Guru
Wrong. That only shows he has no response on the exact second its taken. It doesn't show he doesn't have covid. Something that people seem to miss.
ScottD
Roar Guru
News out today shows he has significant discrepancies in his application and statements
ScottD
Roar Guru
What could he have done? Well lets see; 1. He could have got vaccinated; 2. He could have made sure he understood that Australia, Victoria and Tennis Australia are different and that he needed three exemptions/ permits or visas; 3. He could have filled in his paperwork correctly (or at least his 'advisors or managers could have done so" ) (see todays announcement). 4. He could have turned up at border control with physical or electronic evidence of all of the requirements of his visa like everyone else currently has to do. There's four pretty simple things.
Tim Carter
Roar Pro
And as for the Chicken Little reference, millions have died around the world as a result of the pandemic.