In a ruling that increases the odds, though doesn’t guarantee, Novak Djokovic will play in the 2022 Australian Open, an Australian judge on Monday ordered Djokovic be released from immigration detention, holding that the government had flubbed on procedure.
Judge Anthony Kelly of Australia’s Federal Circuit Court stressed that government officials erred in making a final decision to cancel Djokovic’s visa before the 34-year-old tennis star had a credible opportunity to contest the initial notice of cancellation. Like immigration laws in the U.S. and other countries, Australia’s Migration Act requires numerous steps before a person can be deemed inadmissible or removable. Judge Kelly is quoted as saying: “We all play by the same rules . . . . Those rules were not observed [with Djokovic].”
Although the policy context of Djokovic’s situation is about which persons ought to receive exemptions from COVID-19 vaccination requirements—and about suspicions of preferential treatment for the reigning Open champ—the legal proceedings have focused more on application of procedure.
Attorneys for Djokovic maintain that their client, a 20-time Grand Slam winner who earned $33.4 million between May 2020 and May 2021, detrimentally relied on a vaccine exemption before agreeing to travel. The exemption, Djokovic’s attorneys contend, was meritoriously granted because the Serbian star had recently been infected (and thus is producing antibodies). Tennis Australia, the country’s governing body for tennis, exempted Djokovic after consultation with medical boards.
Yet attorneys for the federal government question the process that led to Djokovic’s exemption. They maintain a recent infection didn’t merit an exemption and thus the visa cancellation was appropriate. There is separate, but factually relevant, jurisdictional debate as to federal and state (Victorian) authority over the granting of exemptions.
Judge Kelly’s ruling doesn’t guarantee that Djokovic will appear in the Open, which starts on Jan. 17. The government insists that Immigration Minister Alex Hawke preserves an opportunity to cancel Djokovic’s visa once again. Should that occur, Djokovic’s attorneys could return to court and raise arguments in his defense, including that their client should not be punished for relying on official assurances.