Djokovic ordered to leave detention hotel by judge

The judge residing over Novak Djokovic’s court hearing has made a dramatic ruling midway through the morning session as the world No 1 looks to remain in the country. FOLLOW LIVE.

The judge presiding over Novak Djokovic’s legal case has order the star be taken from his detention hotel; to a location where he can watch the hearing and questioned “what more could this man have done”.

Judge Kelly told the court that Djokovic had a medical exemption from a professor and an eminently qualified physician.

“Further, that medical exemption and basis on which it has been given was separately given by an independent … panel established by the Victorian state government,: Judge Kelly said.

“That document was in the hands of the delegate (Home Affairs).

“What more could this man have done?”.

Judge Kelly said Djokovic had been “quite candid” in interviews with the delegate.

“In effect, (he) wouldn’t even have come here” if he didn’t have everything needed to get into the country, the judge said.

Judge Kelly said he was somewhat “agitated” by Djokovic’s situation regarding his medical exemption, as provided by independent medical panels for both Tennis Australia and the Victorian Government.

The highly anticipated court case between Djokovic and the Minister for Home Affairs, Karen Andrews, is being conducted by remote access technology.

There was a false start to proceedings with the website carrying the stream crashing and officials scrambling to find a fix.

FOLLOW THE HEARING LIVE BELOW (all times AEDT)

* This page will automatically update to show the latest entries

14:44pm DJOKOVIC PERMITTED TO LEAVE DETENTION

Djokovic appears to have been given permission to leave detention to appear with his lawyers for the hearing.

An order signed by Judge Kelly states that the Minister must “take all steps and do all things as may be necessary to bring the applicant to premises as specified by the applicant’s solicitors” on Monday and other dates that the matter is sitting.

Djokovic must be allowed to remain with his lawyers “until the conclusion of each hearing and to secure his safe return to detention upon the conclusion of each hearing”.

Orders have also been made to allow the affidavit’s of Djokovic, UNSW Associate Professor in The School of Medical Sciences Carolyn Ruth Broderick and lawyer Natalie Bannister to be redacted.

12:30pm TECH ISSUES

Again we find ourselves locked out of court as the opening arguments form camp Djokovic are made.

11:53am: MY SHIFT IS ENDING

Djokovic’s lawyers have alleged that the border security staff’s shift ending may have had an impact on the decision on the star’s status being rushed.

They say a comment was made at the airport by the officer in question that “his shift was about to end” and that had contributed to “reneging on the agreement” that he would be allowed time to speak with his team and Tennis Australia.

They said there was also a “spurious rationale” that it was in Djokovic’s interest “to have the decision made without getting the assistance of others”.

The court heard that a reading of the transcript of interview suggested that Border Force delegates told Djokovic, “look, getting in touch with your lawyers really isn’t going to help with any of this so let’s just get it done”.Djokovic has asked to postpone the interview until 8.30am “if possible” to speak with his lawyers and Tennis Australia but the delegate said, “no, that’s not on”.

11:45am WHAT MORE COULD HE HAVE DONE?

The judge has declared he is somewhat “agitated” by Djokovic’s situation regarding his medical exemption.

“A professor and an eminently qualified physician have produced a medical exemption (for Djokovic),” he said.

“Further, that medical exemption and basis on which it has been given was separately given by an independent … panel established by the Victorian state government.

“That document was in the hands of the delegate (Home Affairs).

“What more could this man have done?”.

Djokovic’s lawyers say the star received indication before he departed Dubai that his application for a visa with a medical exemption had been assessed and approved for arrival in Australia.“Any reasonable person would understand … that he had ticked every box,” Nick Wood SC said.

11:40am THE TYPO IN THE RULES

Lawyers for the Department of Home Affairs acknowledged in court filings on Sunday that a typo existed in the document but that it was insignificant.

They said the typo is “unfortunate but immaterial”.

But in court on Monday, Mr Wood said it mattered. “It is more than a typo. The notice was defective,” he said.

Wood also said Djokovic has tried his “level best” to provide the officer at Tullamarine what he wanted.

He said he did provide that evidence of a medical contraindication exemption before he boarded the plane and when he got to the airport.

When he arrived at Tullamarine, Mr Wood said Djokovic was “never notified” he failed to produce evidence of his contraindication to the vaccine.

Judge Kelly said the transcript of Djokovic’s early morning interview with the Border Force officer was “replete” with showed that Djokovic was trying to provide officers with what they needed.

“If you will let me talk to people even though you have taken my phone from me, I will try and get you what you want,” Judge Kelly noted the transcript suggested.

Throughout this saga the ABF has maintained Djokovic had access to his phone.

11:25am WHO IS IN THIS HEARING?

Besides those of us lucky enough to have the link work, we have the judge and five others on the hearing. Djokovic is not expected to appear at any stage. All five lawyers are wearing black robes.

– Judge Anthony Kelly, or Judge Kelly on a second mention

– Lawyers for Djokovic are Nick Wood SC and Paul Holdenson QC.

– Lawyer for Home Affairs minister Karen Andrews is Christopher Tran

11:14am ‘DJOKER WENT ABOVE AND BEYOND’

Djokovic’s lawyers are now arguing that the biosecurity rules for entry to Australia didn’t actually require the Serbian to provide evidence of his medical contraindication to vaccination.

Nick Wood SC says Djokovic only had to make a declaration of whether he was vaccinated against Covid, unvaccinated or had a medical contraindication. If the latter – which he did – he said rules state that the travelled “can provide evidence”, not that they must.

“That declaration was made that he had a medical contraindication,” Wood said.

“He was not required to provide evidence, even though as a matter of fact, he did.”

11:08am CONFUSING AND MUDDLED

Djokovic’s lawyers are trying to argue that the cancellation documents are defective because the reasons for refusal are a “confusing blend of grounds”.

“The power to cancel simply does not arise,” Djokovic’s lawyers have declared.

They say that the minister can’t cancel a visa based on the “muddled” or “mash-up” of varying grounds.

10:54am HEARING IS LIVE FOR ALL

Update: The tech issues appear resolved we are now underway in open court. Currently hearing opening arguments now from Djokovic’s lawyer, who is focusing on fairness.

Djokovic’s lawyers are detailing the Notice of Intention to Cancel (NOIC) his visa. They say he was given “pre-printed” forms at the airport at around 3.55am on Wednesday, and that the Serbian star was a victim of a “mash-up” of what they say are not grounds for visa refusal.

But there’ll be no acronyms, here, folks. “You’re going to have to drag yourself into the last century,” Judge Kelly has declared.

“I hate acronyms. There’ll be no NOICs, there’ll be no OINKS, or anything else of that nature.”

10:37 HEARING UNDERWAY IN PRIVATE

Novak Djokovic’s case against Home Affairs Minister Karen Andrews has begun. However, the online link to view the court hearing is still not working. The court has advised it is still “working to the rectify the situation”.

Courts by their nature should allow the public to be present in some capacity. This is a bad look for open justice. It’s effectively being heard in a closed court.

Meanwhile an old link streaming the court case is instead showing pornographic content.

10:21am DJOKER’S BROTHER HITS OUT (AGAIN)

Djordje Djokovic, Novak’s brother, has taken to Serbian national television. He has claimed that the superstar would never have travelled to Australia had he known he didn’t have adequate paperwork to get past border authorities, and has accused them of a show of strength in his detention.

“He is in a room that is facing another wall,” he is reported to have said.

“Probably to prove him that they’re stronger”.

He also said that Tennis Australia boss Craig Tiley should not be the target of any angst.

“I think Tennis Australia did a good job,” Djordje is reported by Serbian media to have said.

“People should not go after Craig Tiley, because he made an effort and tried, although it’s a big mistake if there were holes in the communication.”

10am LINK HAS CRASHED

Novak Djokovic’s court hearing has been slightly delayed due to a temporary disruption.

The Federal Circuit and Family Court hearing – which is being broadcast around the globe online – was due to start at 10am, but issues with the stream have delayed its start.

Officials are aware of the issue and say they are working to fix it.

The site has been overwhelmed with interest from across the world as the world No. 1’s Australian Open fate hangs in the balance.

9:52am FED GOVT ARGUMENT

* Djokovic had a valid visa, but quarantine-free entry to Australia required him to be fully vaccinated or have a medical certificate that met the requirements and showed vaccination was contraindicated.

* He failed to provide appropriate evidence to meet the requirements to enter Australia.

ATAGI advice on temporary medical exemptions regarding vaccinations is for Australians and not foreign citizens.

* His exemption issued by Tennis Australia/Victorian government was only for him to play in the Open.

* The travel declaration is automatically computer generated and only indicated he may be able to travel quarantine-free.

* A player and official who also used the same Tennis Australia/Victorian exemption to enter the country has been deported.

9:37am THE DJOKOVIC ARGUMENT

* The notice given to Djokovic that the Minister (through Border Force) intended to cancel his visa did not set out valid grounds. This means the decision should be invalid.

* He was denied procedural fairness because he was not provided with enough rest, time and access to a lawyer before the Border Force decision was made.

* Border Force did not properly apply the ATAGI advice a recent infection is reason to not get vaccinated.

* He had correctly made an Australian Travel Declaration and otherwise satisfied all necessary requirements in order to lawfully enter Australia on his visa.

9:17am WHO IS SAYING WHAT IN SERBIA?

Dijana Djokovic (mother): “Novak only has lunch and dinner, no breakfast. He told me that himself. Conditions are not humane, he only has a wall to stare at, can’t even see the park because there aren’t regular windows.”

Siniša Mihajlović, famous football player turned coach: “For me, Djokovic is the victim here, he is not the main responsible for this mess. It’s ridiculous for No 1 to be detained in an immigration centre. I’ve known Djokovic since he was a kid, he would’ve never boarded a plane in Malaga without all the necessary documents. I am personally attached to Malaga, and I can vouch that there isn’t a 1% chance that they would let him board the plane without the needed papers.”

8:52am WHO IS INVOLVED IN THE HEARING?

Djokovic will not be appearing. Here’s the players you’ll be seeing today:

– Judge Anthony Kelly, or Judge Kelly on a second mention

– Lawyers for Djokovic are Nick Wood SC and Paul Holdenson QC.

– Lawyer for Home Affairs minister Karen Andrews is Christopher Tran

8:32AM 4 POSSIBLE OUTCOMES

Under the current orders against Djokovic, a decision will be needed by 4pm AEDT Monday, as that is the deadline he has been given and he can be deported thereafter.

There are four possible outcomes:

– Djokovic wins the case Monday, he can stay and play.

– Djokovic loses the case Monday, he leaves Australia.

– Case drawn out on Monday, he gets special permission to play while the matter is being determined.

– Case drawn out on Monday, he’s given no permission to play, he leaves Australia.

THE QUESTIONS WE NEED ANSWERS TO

Was Djokovic planning to skip the Australian Open until he tested positive to Covid on December 16?

Players have known for months that they had to be double vaccinated to enter Australia unless they gained a medical exemption.

The cut-off for applications was December 10 and court documents have revealed Djokovic tested positive to Covid — the basis for his exemption — on December 16.

The world No.1 had been noncommittal about taking part in the tournament and did not play the ATP Cup with Serbia but revealed in an Instagram post last week he was “heading Down Under with an exemption permission”.

Coming from a player who has consistently refused to disclose his vaccination status but made several public comments about his opposition to mandatory jabs, his social media post was poking the bear and immediately raised red flags.

When was Djokovic advised of his positive Covid result?

This has become a burning question. A filing to the court by Djokovic’s lawyers over the weekend supporting his medical exemption for entry states: “The date of the first positive Covid PCR test was recorded on 16 December 2021.”

But pictures, including some from Djokovic’s own social media accounts, have emerged of the player mingling with members of the public, including children, without a mask as he goes about his business.

He attended a Serbia Post ceremony on December 17 to receive a postage stamp in his honour and took part in an award ceremony at the Novak Tennis Centre in Belgrade where he posed indoors with children not wearing a mask.

Was it simple carelessness or cavalier behaviour? How many other people were put at risk?

If you believe the conspiracy theorists out there, many are casting doubt on whther he had Covid at all.

How Djokovic court drama will play out

WHAT EACH SIDE IS ARGUING

DJOKOVIC CAMP

  • The notice given to Djokovic that the Minister (through Border Force) intended to cancel his visa did not set out valid grounds. This means the decision should be invalid.
  • He was denied procedural fairness because he was not provided with enough rest, time and access to a lawyer before the Border Force decision was made.
  • Border Force did not properly apply the ATAGI advice a recent infection is reason to not get vaccinated.
  • He had correctly made an Australian Travel Declaration and otherwise satisfied all necessary requirements in order to lawfully enter Australia on his visa.

FEDERAL GOVERNMENT

  • Djokovic had a valid visa, but quarantine-free entry to Australia required him to be fully vaccinated or have a medical certificate that met the requirements and showed vaccination was contraindicated.
  • He failed to provide appropriate evidence to meet the requirements to enter Australia.
  • ATAGI advice on temporary medical exemptions regarding vaccinations is for Australians and not foreign citizens.
  • His exemption issued by Tennis Australia/Victorian government was only for him to play in the Open.
  • The travel declaration is automatically computer generated and only indicated he may be able to travel quarantine-free.
  • A player and official who also used the same Tennis Australia/Victorian exemption to enter the country has been deported. 

WHAT HAPPENS NEXT

  • A hearing will be held at 10am on Monday to decide if Djokovic has a case.
  • Parties can give oral submissions of no more than 90-120 minutes.
  • The judge can either make a decision and give reasons for the decision, make a decision and say they will give reasons at a later stage or reserve the decision and give it at a later stage.

HOW it COULD PLAY OUT

  • The application fails and the court rules the deportation decision was correct. This could be subject to Djokovic asking to stay and again trying to appeal. He would have to leave the country.
  • The court finds the appeal legitimate and the application is successful. It could then go back to the decision maker, who is the Home Affairs Minister, to make a decision according to law.
  • The judge could make his own decision.

Why did Djokovic gloat about getting an exemption but not reveal his positive diagnosis, as he did in 2020?

Having been diagnosed with Covid within the past six months was grounds for gaining a medical exemption once the application passed through a two-stage panel process.

Djokovic has long argued he should not be forced to revel his vaccination status. It’s an argument being made by many around the world — most notably those opposed to becoming vaccinated.

But he can’t have it both ways. If Djokovic doesn’t want to have his personal information revealed, why trumpet exemption status on social media.

He may be able to goad opponents on the court but by revealing his exemption status to his almost 10 million Instagram followers, the world no.1 only made sure he drew the attention of the Home Affairs Minister.

When did Tennis Australia receive Djokovic’s exemption request and why did they accept it after the original deadline?

Tennis Australia’s now discredited fact sheet outlining medical exemptions to vaccination, says any application and supporting documentation needs to be received by Tennis Australia “urgently and no later than Friday 10 December 2021” to be reviewed by the independent panel.

Djokovic reportedly tested positive to Covid on December 16, almost a week after the deadline.

But was Tennis Australia so desperate to have the world no.1 compete at an event already without Roger Federer and with the recently Covid-stricken Rafael Nadal compete that he received special consideration?

Why did Tennis Australia ignore the advice in emails and letters from the Federal Government that recent Covid infection would not override the need to be fully vaccinated to enter the country?

Tennis Australia reportedly pleaded with the Department of Home Affairs to review paperwork of players before they boarded planes to Australia.

While this would have avoided what has now become an ugly diplomatic incident headed to court, information provided by the Department of Health makes it clear that “people who contracted Covid-19 within the past six months and seek to enter Australia from overseas, and have not received two doses of a Therapeutic Goods Administration (TGA)-approved, or TGA-recognised vaccine (or one dose of the Johnson and Johnson COVID-19 vaccination), are not considered fully vaccinated”.

Instead, Tennis Australia emailed the Association of Tennis Professionals (ATP) an information sheet early last month informing them an exemption could be received after review in a two-step panel process if they could prove they had contracted the virus in the past six months.

This was after opposing advice from the Heath Department. Why?

Originally published as Novak Djokovic court hearing live updates: Will world No 1 be able to play the Australian Open

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