The world No. 1’s visa was cancelled upon arrival at Melbourne airport last week after Australian border officials ruled that he didn’t meet the criteria for an exemption to an entry requirement that all non-citizens be fully vaccinated for COVID-19. Djokovic has since spent four nights in an Australian immigration detention hotel and his lawyers have since filed papers claiming he has the all-clear because of a positive Covid-19 test in December.

The highly-publicised case is scheduled for an online hearing in a federal court on Monday (10 am Melbourne time, 4:30 am IST).

The court and the judge

Formed last September, the Federal Circuit and Family Court of Australia is the result of the merger of the Federal Circuit Court of Australia and the Family Court of Australia. Under the two divisions, the court has jurisdiction over family law matters — divorce applications, parenting disputes, property division — and over matters broadly relating to family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices.

After nearly 30 years at the Bar, Anthony Kelly was appointed a judge of the federal circuit court in 2017. His prior practice features high-profile cases such as oil and gas company Exxon-Mobil’s litigation from the Longford explosions (1998-2008) and the Bank of Melbourne case (1990 to 1993).

On Sunday, Kelly refused Home Affairs Minister Karen Andrews’s request for Djokovic’s hearing to be postponed till Wednesday. The delay would have ruled Djokovic out of the Australian Open as Tennis Australia’s lawyers have said it would need to know by Tuesday whether Djokovic could compete, for scheduling purposes.

On Thursday, Judge Kelly had ordered minister Andrews not to deport Djokovic while he fights his appeal. Kelly had also enquired about the tennis facilities at the immigration hotel where Djokovic is detained.

“I don’t think it’s unreasonable for the court to ask… whether the particular hotel at which the applicant is staying… might have available to him tennis practising facilities,” Kelly said. “I don’t expect you to answer that, but it just seems a realistic question to pose.”

Supporters of Serbia’s Novak Djokovic dance outside the Park Hotel, used as an immigration detention hotel where Djokovic is confined in Melbourne, Australia, Sunday, Jan. 9, 2022.

If Djokovic wins

If judge Kelly decides in favour of Djokovic, the latter’s visa would become valid again.

In a 35-page submission ahead of the hearing, the Serb’s legal team called for his “immediate release” from detention no later than 5:00 pm on Monday. They have also asked the judge to rule “at the earliest time possible”, without waiting to craft his legal reasoning that they say could be released later.

Arguing that Djokovic’s visa was wrongly cancelled and should be reinstated, allowing him to compete, his legal team claimed that he received a document from the Department of Home Affairs seemingly clearing his way into the country. The documents say he had received a visa on November 18, tested positive for Covid-19 on December 16, and was provided the “Medical exemption from COVID vaccination on the ground that he had recently recovered from COVID” on December 30.

Serbian fans are not stopping. Singing a patriotic song “Tamo daleko” in front of the hotel where #Djokovic is at. pic.twitter.com/tt3CQlkIXL

— Saša Ozmo (@ozmo_sasa) January 8, 2022

If the Australian government wins

Djokovic will likely be deported on the next available flight out of Melbourne. Judge Kelly’s order not to remove Djokovic while he fights his appeal expires at 4:00 pm on Monday. Australian border officials have already ruled that he didn’t meet the criteria for an exemption to an entry requirement that all non-citizens be fully vaccinated against COVID-19.

Serbia’s Novak Djokovic, left, stands with Australian Open tournament director Craig Tiley during the trophy presentation at the Australian Open tennis championships in Melbourne, Australia, Sunday, Feb 21, 2021. (AP)

“The government has always been clear about what is necessary in terms of the entry requirements into Australia,” Federal Finance Minister Simon Birmingham told Today on Friday. “We made that clear to Tennis Australia. It’s been publicly clear for a long time. You have got to be double-vaccinated if you are not an Australian citizen to enter Australia when we open the borders.”

Legal expert Christopher Levingston told AFP that the government’s case relied on a section of migration law that he believes “will ultimately see Mr Djokovic fail in his application”. He continued that the minister only has to show that the presence of the visa holder “may, would or might be” a risk to the health, safety or good order of Australians.

The appeals

According to legal experts, both parties are expected to appeal the ruling.

If the government appeals, “Mr Djokovic would remain in immigration detention”, Levingston, an accredited specialist in migration law with more than 20 years of experience, said.

Djokovic could also opt for a challenge if his case is dismissed, with his lawyers flagging some untested point of law, John Findley, a solicitor-director who focuses on migration, family, business and tax matters, told AFP.

According to Levingston, however, even if an appeal is lodged, Djokovic would not be able to walk free. The judge could not order the government to allow Djokovic to exit detention.

Other possibilities

Other experts believe that the tennis star could be granted a reprieve.

Partner at Thomson Geer Lawyers, Justin Quill, told Today on Friday: “I suspect what’s going to happen is – and I suspect not so much because he is going to win his case, but that it is going to be found that there needs (to be) more time, and he will be allowed to stay in the country, compete in the Australian Open, and then the lawyers will argue about this in the weeks and months to follow.

“The imposition on Djokovic not being allowed to compete is arguably greater than the imposition on the Minister for Home Affairs. So, I suspect the court is going to land there and say, ‘I’m going to allow you to stay in the country while we sort this out over the following weeks and months’,” Quill said.

Djokovic could also be barred from the country for up to three years, if he gets deported. In an emailed response to The Associated Press, the Australian Border Force said: “A person whose visa has been cancelled may be subject to a three-year exclusion period that prevents the grant of a further temporary visa. The exclusion period will be considered as part of any new visa application and can be waived in certain circumstances, noting each case is assessed on its own merits.”