Novak Djokovic has accused the Australian immigration minister of failing to ask him his views on vaccination and to consider the impact of deporting him on anti-vaccination sentiment.
Djokovic made the claims in further written submissions, published on Sunday, as the full federal court began hearing his case which will finally determine whether to restore his visa, cancelled by the minister, Alex Hawke, on Friday.
Hawke concluded that Djokovic’s presence in Australia might risk “civil unrest” because he is a “talisman of anti-vaccination sentiment” because of his earlier statements and public perception of his views on vaccination.
In amended submissions lodged overnight, Djokovic’s lawyers have added a counter-argument that cancelling the visa will also have the effect of inciting anti-vaxx sentiment.
They cited the fact the original decision by a home affairs delegate to cancel Djokovic’s visa had done so, citing a BBC World story about backlash in the wake of that decision, later overturned by the federal circuit court.
“It was irrational, illogical or unreasonable for the minister to fail to consider the influence of Mr Djokovic’s removal on anti-vaccination sentiment,” they submitted.
Djokovic’s lawyers also disputed claims the tennis star is an anti-vaxxer, arguing this was based on one statement in April 2020 “well before Covid vaccines were available”.
Djokovic later clarified his view when he said he was “no expert”, would keep an “open mind” but wanted to have “an option to choose what’s best for my body”, they said.
“There was no evidence before the minister that Mr Djokovic has ever urged any others not to be vaccinated. Indeed, if anything, Mr Djokovic’s conduct over time reveals a zealous protection of his own privacy rather than any advocacy.”
In submissions also released on Sunday morning, Hawke said that Djokovic had failed to prove the counterargument and there was “insufficient basis for the court to make this finding”. Djokovic had the onus of proof on this point, Hawke’s lawyers submitted.
They submitted that in his decision the minister noted support in Australia and abroad for Djokovic to stay, the risk to Australia’s global reputation, the risk to hosting the Australian Open and “the appearance of politically motivated decision-making”.
This showed the minister had adequately considered the consequences of removing Djokovic, they submitted.
Even if Hawke didn’t consider the risk of anti-vaxx sentiment if Djokovic was deported, the minister argued that didn’t make his decision illogical, irrational or unreasonable, and it was not a material error.
Djokovic’s amended submissions criticised Hawke for not making “the obvious, critical and easy inquiry of Mr Djokovic as to what his sentiment [about vaccination] in fact was”.
Hawke responded that this exercise would have made no difference, questioning “what Mr Djokovic could have said to the minister in response”. It argued this “would not have altered the fact of his previous public statements and the views of those in the Australian community as to what his views on vaccination were”.
Sunday’s hearing began with a statement from Chief Justice James Allsop explaining while appeal is possible from a single judge, no appeal will be possible from the full court.
The hearing continues, with arguments expected to conclude by early afternoon Australian time and a result to follow on Sunday or Monday.