Australian government DENIES it told Novak Djokovic he was medically exempt because he caught Covid after losing bid to delay deportation case by two days and warns he may be denied entry even if he WINS hearing
The Australian Government has denied telling Novak Djokovic that he was medically exempt after catching Covid following a failed bid by federal lawyers to delay his appeal against deportation.
The government attempted to postpone Djokovic’s hearing until Wednesday, but it will instead go ahead as planned tomorrow morning.
Djokovic was denied entry to Australia last week due to his unvaccinated status.
Yesterday, his lawyers submitted a 35-page dossier, arguing that he met the requirements for a vaccine exemption certificate due the fact he had suffered Covid last month.
But in a 13-page court filing made public today, Australian government lawyers stated that it was 'common ground' between both sides of the legal fight that Djokovic is 'unvaccinated', Sky News reports.
Lawyers for Home Affairs Minister Karen Andrews said the country's vaccination exemption form makes clear that a previous infection 'is not a contraindication to immunisation'.
The government stated: 'There is no suggestion that the applicant had "acute major medical illness" in December 2021.
'All he has said is that he tested positive for Covid... That is not the same. Thus the ATAGI Vaccination Advice uses different terms, such as mere "past infection" and also "symptomatic infection."'
The document adds that even if hearing is concluded in Djokovic's favour, it does not mean he could not be re-detained or have his visa cancelled again.
'If this Court were to make orders in the applicant's [Djokovic] favour, it would then be for the respondent [Australian government] to administer the Act in accordance with law,' federal lawyers stated.
Djokovic (pictured with wife Jelena) and his lawyers will appear before a Melbourne court on Monday, with the case likely to be resolved before the 4pm deadline needed to confirm his place in the Australian Open
Serbian priests hold a service for Novak Djokovic and his supporters outside the Park Hotel, used as an immigration detention hotel where Djokovic is confined in Melbourne, Australia
Supporters of Serbian tennis player Novak Djokovic pray for him during an Orthodox celebration of Saint Stephen's Day outside the Park Hotel
' That may involve the delegate deciding whether to make another cancellation decision, but there are also other powers in the Act, as the Court would be aware. Or, indeed, no power may be exercised.
'If the Court makes an additional orders for immediate release of the applicant, notwithstanding the above, the respondent submits that the Court should make it expressly clear that that order does not purport to (nor could it) prevent the respondent or any officer of the Commonwealth from exercising any power to detain that might be available to him or her despite the quashing of the delegate's cancellation decision.
'An order for immediate release does not prevent re-detention if there is power to detain.'
Djokovic, 34, is the world number one men's tennis player and has made no secret of his vaccine scepticism.
Today, Serbian priests held a service for Djokovic and his supporters outside the Park Hotel in Melbourne, where he is being held while his lawyers appeal against the Australian federal government’s decision to cancel his visa.
Supporters gathering outside the hotel also prayed for the tennis star during the Orthodox celebration of Saint Stephen's Day.
Novak Djokovic's legal team accused the Australian government of 'obviously scrambling' over its requested court delay.
Home Affairs Minister Karen Andrews asked the federal court on Saturday night to adjourn the case two days until Wednesday - barely five days from the start of the Australian Open.
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The Serbian tennis star's lawyers opposed Ms Andrews' application, and Judge Anthony Kelly ruled in the tennis star's favour.
Justin Quill, the top lawyer on Djokovic's team, said the request for an extra two days was a sign the government was on the 'back foot'.
'It appears they now think there is a lot more to this than they had previously thought,' he told the Herald Sun.
'The ball is now in the minister's court to respond with their legal written submissions.'
In yet another development in the baffling saga, leaked correspondence has revealed that Tennis Australia pleaded with the Department of Home Affairs to check the visa application of Djokovic before he travelled to Australia - but the request was denied.
After four nights in hotel detention Novak Djokovic will get his day in court on Monday in a controversial immigration case that has polarized opinions in the tennis world
Djokovic's case has also elicited heartfelt support for the star back home in his native Serbia, where he is lauded as a national hero
Home Affairs Minister Karen Andrews (pictured) pleaded with a federal court on Saturday night to adjourn the case two days until Wednesday - a submission that was dismissed
Tennis Australia wrote to the department expressing concerns about Djokovic and other players getting visa clearance going back months.
The sporting body offered to make copies of their medical exemption certificates available for review weeks before they boarded flights - which likely could have avoided the current debacle.
But the department wrote back that: 'Health and Home Affairs are unable to provide or review certificates. Certificates are reviewed at check in'.
Medical exemptions based on someone having contracted Covid within the last six months are allowed to bypass state quarantine.
Much of the confusion for Tennis Australia, Djokovic and other players appears to be around a different process for exemptions to enter the country - which is the responsibility of federal border officials - on a visa.
But in one letter to Tennis Australia, an advisor to the chief medical officer of Australia says that: 'Medical exemptions from vaccination will be at the discretion of the state or territory so it would probably be good to touch base with the state of arrival earlier rather than later'.
Lawyers for Djokovic presented a detailed legal submission to the court on Saturday night, which prompted the response from Home Affairs.
On Sunday afternoon, the bid to delay the hearing was denied by Federal Circuit Court Judge Anthony Kelly.
Serbian fans pack the streets outside the Park Hotel in Melbourne where Djokovic is currently being held to show support for the world no.1
Djokovic's team argue he met the requirements of the Australian Travel Declaration assessment for quarantine-free travel.
The submission also claims the process on deciding that his visa would be cancelled was not handled properly.
Djokovic and his lawyers will appear before a Melbourne court at 10am on Monday, with the case hoped to be resolved before the 4pm deadline needed to confirm his place in the Australian Open.
If successful, he could compete for a record 10th title in the grand slam and his 20th overall.
He could be given special permission to play in the tournament if the case is not resolved, but if he loses he will be deported back to Serbia.
Images have since emerged appearing to show Djokovic mingling with Serbian officials and embracing children at two different events after allegedly testing positive for Covid.
On December 16, Djokovic (pictured centre at the back) posed with dozens of children at a PR event with the Tennis Association of Belgrade, the day of the purported positive PCR test
On December 16, the day his lawyers claim he produced a positive PCR result, a maskless Djokovic shared a picture of himself speaking at a panel for the Novak Djokovic Foundation at the Novak Tennis Centre in Dorćol, Serbia.
The following day Djokovic posted images shaking hands with a representative from the Serbian National Postal Service as he was awarded his own stamp.
It is unclear whether he was aware he was infected with the virus at the time.
In a further blow to the tennis star's claims, a positive PCR test result on December 16 would have been too late to register with Tennis Australia's exemption process deadline - which expired on December 10.
On December 16, a maskless Novak Djokovic shared a picture of himself speaking at a panel for the Novak Djokovic Foundation at the Novak Tennis Centre in Dorćol, Serbia. HIs lawyers now claim he received his positive PCR result that same day
In leaked emails, Djokovic received a letter from Tennis Australia on December 7 informing him of what he needed to produce to receive a vaccine medical exemption to travel into the country.
Players had a cut off of December 10 to lodge their appropriate documentation, but Djokovic was given until much later, in a sign of preferential treatment.
He claims to have contracted the virus six days after the final deadline Tennis Australia gave athletes, a fact he used to justify his claim.
Polarising Australian tennis star Nick Kyrgios, who previously has stated he 'isn't a fan' of Djokovic for a host of reasons, believes the situation involving the world number one has been handled woefully.
'I'm feeling for him now,' Kyrgios said. 'It's not really humane, is it, what's going on?
Nick Kyrgios, who previously has stated he 'isn't a fan' of Djokovic for a host of reasons, believes the situation involving the world number one has been handled woefully
'If this was a normal person they wouldn't have to deal with all this sort of media side of bulls**t. His life's probably hard enough as it is, and I know what that's like. I just hope it all gets sorted soon.'
Kyrgios, who has been vocally pro-vaccine, said while he disagrees with Djokovic's stance on the jab he feels his situation has been poorly handled.
'Obviously it's a bit of a mess with what's going on, and I just don't think we have gone about it the right way. That's just my opinion,' he said.
'Honestly, I hope it all gets sorted as soon as possible. For the sport we need him here, it's that simple. He's one of the most influential sports people probably of all time.
'If he's ready to play and he's allowed to play, I think, in a way it's good for our sport with all this attention because probably the Australian Open won't have as many views as it's ever probably had.'
Kyrgios, who has been vocally pro-vaccine, said while he disagrees with Djokovic's stance on the jab he feels his situation has been poorly handled (pictured with girlfriend Costeen Hatzi
Court documents show Djokovic believed his 'exemption certificate' was 'consistent with the recommendations of the Australian Technical Advisory Group on Immunisation'.
The Serbian, according to documents lodged in court, was told at the beginning of the interview at 12.12am that a previous infection did not mean he had vaccinated status in Australia.
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'I said that that's not true,' Djokovic said in a transcript in the documents.
'I explained that I had been recently infected with Covid in December 2021 and on this basis I was entitled to a medical exemption in accordance with Australian Government rules and guidance.'
Djokovic, who according to his lawyers felt 'shock', 'surprise' and 'confusion' at the decision, believed he had fully complied with Australian law.
He spent the next six hours co-operating with officials before at 5.20am he asked if he could sleep and continue the interview at 8.30am.
Djokovic's family held a rally of support for a third day running. Standing in front of the Serbian parliament building in Belgrade his father Srdjan Djokovic said he was 'disgusted' at the way his son was being treated
Hoping to speak with his lawyers and Tennis Australia officials in the morning, court documents claimed Djokovic was waiting for a bed to be prepared at 6.07am and told representatives he wanted to sleep until 8.30am.
He was woken 'well before' that time, according to the documents, and pressured by two agents to make a decision, before his visa was cancelled at 7.42am.
'Mr Djokovic, having formed the view that '[they were] going to cancel [his] visa, it's obvious' relented, feeling he had no choice, and on the basis of an understanding based on what they had said to him that it was better for him if the interview was done right away,' his lawyers wrote in his submission.
'When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. Within statutory constraints, the Delegate was required to adopt a procedure that was reasonable in the circumstances to afford an opportunity to be heard to Mr Djokovic.
'If the procedure adopted so constrained Mr Djokovic's opportunity to propound his case as to amount to practical injustice, that would amount to a denial of procedural fairness.
In leaked emails, Djokovic had received a letter from Tennis Australia on December 7 informing him of what he needed to produce in order to receive a vaccine exemption to travel into the country
'In an analogous way, Mr Djokovic sought until 08:30 to rest and to speak with his advisors.
'The delegate represented to Mr Djokovic that he could have that time. There was no cogent reason for the Delegate to depart from that representation - there was no prejudice to the Respondent in delay for a further few hours.
'Mr Djokovic's request was reasonable and based on cogent reasons, and the consequences of a possible cancellation decision were very serious.
'Yet the Delegate did depart from that representation.'
Images from Djokovic's social media from the day he says he tested positive for Covid show the 20-time grand slam winner mingling with people and even children across two different events.
He was seen hugging children at his tennis centre in Dorcol, Serbia and spoke at event for his foundation on December 16, the same day he produced a positive result on a PCR test from the Institute of Public Health of Serbia.
December 16: The maskless tennis World No. 1 posed for pictures with the children in Serbia at the public PR event
The next day he appeared maskless at a presentation accepting a stamp with his face emblazoned on it.
Meanwhile underfire Tennis Australia boss Craig Tiley has finally broken his silence over the Novak Djokovic visa debacle, claiming his staff have done an 'unbelievable job' despite the governing body coming under fire for giving the unvaxxed star wrong health advice.
Tiley also called out numerous instances of 'finger pointing' that have followed in the ugly saga the past few days - while Serbian superstar and anti-vaxxer Djokovic remains stranded in immigration detention in Melbourne, a far cry from his usual luxurious lifestyle.
In a leaked video, Tiley acknowledged TA staff's professionalism and diligence in what he firmly believes has been a thorough job in the lead up to the annual grand slam tournament.
'There's a lot of finger pointing going on and a lot of blaming going on, but I can assure you our team has done an unbelievable job and have done everything they possibly could according to all the instructions that they have been provided,' he said in the clip.
'We empathise with the situation we currently have. We are a player first event...we are working closely with Novak and his team.'
Tennis Australia CEO Craig Tiley informed the nation's advisory body on immunisation in November last year the viability of the tournament hinged on 'allowing' overseas players to compete in Melbourne who were not double-vaccinated
Tiley, who has been widely criticised for seemingly failing to communicate to the Serbian world no.1 the proper protocols for seeking a vaccination exemption to enter Australia, sent the clip to internally to employees explaining the current situation.
'I want to assure you that we are in a position where we would like to share with you all the information, and we will,' he said.
'We've chosen at this point not to be very public with it and simply because there is a pending lawsuit related to entry into Australia. Once that has run its course, we'll be able to share more with you.
'There's a lot of finger pointing going on and a lot of blaming going on, but I can assure you our team has done an unbelievable job and have done everything they possibly could according to all the instructions that they have been provided.'
The development comes as months out from the Australian Open, Tiley informed the nation's advisory body on immunisation the viability of the tournament hinged on 'allowing' overseas players to compete in Melbourne who were not double-vaccinated.
Mr Tiley wrote to the Australian Technical Advisory Group on Immunisation (ATAGI) in November, questioning whether tennis stars who were either recently infected with Covid-19 or only had one vaccine dose would be granted exemptions from immigration rules on medical grounds.
'The treatment of players who fall within one of these categories goes to the heart of the viability of the Australian Open,' Tiley told ATAGI.
Earlier this week, Tennis Australia CEO Craig Tiley confirmed world number one Novak Djokovic (pictured) will play at the Australian Open in Melbourne this month
Health Minister Greg Hunt as well as a Health Department representative responded to Mr Tiley's request, stating exemptions would not be granted to players who were single-vaxxed or had recently contracted Covid.
Earlier reports this week suggested Mr Tiley did not pass on that information.
Djokovic has been holed up in a hotel in Melbourne's inner-city since arriving late on Wednesday night.
Djokovic was deemed to have not met outlined Australian government visa requirements to enter the country after flying in from Dubai.
Tiley was also informed by Department of Health First Assistant Secretary Lisa Schofield on November 18 last year that individuals who have 'previously had Covid-19 and not received a vaccine dose are not considered fully vaccinated'.
And as a result would 'not be approved for quarantine-free entry, regardless of whether they have received foreign vaccination exemptions'.
Tennis Australia on Friday also strongly rejected reports they 'knowingly misled' players in regards to medical exemptions being approved.
Legal sources believe Djokovic's quest to see his deportation is strong based on administrative and migration law.
Djokovic took to Instagram on Friday night, thanking fans for their ongoing support.
'Thank you to people around the world for your continuous support. I can feel it and it is greatly appreciated,' he wrote.
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