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The No. 1 men’s tennis player and defending Australian Open champion won’t be appearing in this year’s Open, which will begin on Monday. Novak Djokovic, whose visa to enter Australia was twice canceled over an 11-day stretch, lost his appeal to the Federal Court on Sunday. He complied by flying to Dubai.
In a statement, Djokovic said he was “extremely disappointed” by the court’s ruling, which followed a hearing before three judges on Sunday. However, the Serbian star stressed that he “respects” the legal process. He also thanked Australian Open officials, fellow players and fans, adding he hopes “that we can now focus on the game and tournament we love.”
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Djokovic faced long odds in attempting to persuade a three-judge panel that Immigration Minister Alex Hawke’s decision to cancel the visa on grounds of “health and good order” was unlawful. Like in the United States, where those challenging an administrative agency must prove the agency acted arbitrarily or capriciously, Australian courts are highly deferential to agency decision-making. Chief Justice James Allsop emphasized that “it is no part of the function of the court to decide upon the merits or wisdom of the decision.”
During the hearing, Djokovic’s attorney, Nicholas Wood, recognized the court would apply a deferential standard in reviewing Hawke’s decision. He insisted that despite the low bar, Hawke failed to meet it.
Wood maintained that Hawke’s finding was arbitrary and offered scant reasoning and meager evidence in concluding that Djokovic playing in the Open would incite anti-vax sentiment. Hawke, Wood contended, never asked Djokovic about his views on vaccines and instead drew assumptions from a BBC article, published before vaccines became available, that referenced Djokovic. As Wood saw it, Djokovic being deported—rather than playing—would more likely stir anti-vax sentiment, given that those holding such a sentiment would have more reason to be upset.
Wood further noted that the government doesn’t claim Djokovic presents a meaningful health threat as a person unvaccinated from COVID-19. He added that Djokovic relied, to his eventual detriment, on an official exemption issued by Tennis Australia and certified by the state of Victoria.
During the hearing, however, both the judges and government attorneys emphasized that under applicable law, Hawke wasn’t bound by the evidentiary record. He can also rely on his common sense and expertise on matters involving public concern. This was a crucial point since it meant that even if evidence for his decision seemed deficient, Hawke, acting within his official capacity as a minister, is accorded deference.
Djokovic, who earned $33.4 million between May 2020 and May 2021, could in theory pursue legal action against Tennis Australia. He can logically argue that he wouldn’t have flown to Australia and spent much of his time in detention if he hadn’t relied on what appeared to be a valid, government-certified exemption. However, given Djokovic’s statement thanking tournament organizers, the prospect of a lawsuit seems unlikely. Plus, as Rich Hawkins, a partner at Bird & Bird in Sydney, told Sportico, “there is a strong long-term relationship between [Djokovic] and Tennis Australia” and “is more likely that he would consider that [Tennis Australia has done] their best to get him here and the Federal Government have blindsided them.”
Under Australian law, Djokovic can now be deemed ineligible for a visa over the next three years. The government, however, can waive that restriction.
There are a few points to track in the aftermath of Djokovic’s exile.
First is whether anti-vax sentiment surrounding the Open will become more pronounced with Djokovic missing. Will there be protests or will the reaction prove more subdued? That question was central to the hearing, with each side offering contrasting predictions.
Second is how Djokovic’s absence will impact fan and media interest in the Open. The best and most marketable player won’t be playing. This could diminish TV ratings and social media impressions.
Third is whether Djokovic will run into similar problems in other Grand Slam tournaments held this year. The French Open kicks off on May 22. France is currently debating legislation that would impose tighter restrictions on unvaccinated persons. Reflecting the worldwide attention paid to Djokovic’s situation in Australia, protesters in France have chanted “freedom for Djokovic” as part of their opposition to the legislation.
With assistance from Nick Peacock-Smith.
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