Novak Djokovic Can Remain in Australia, Judge Rules

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SYDNEY, Australia — Novak Djokovic, the Serbian tennis star, moved one step closer to competing for his record 21st Grand Slam title after an Australian judge ordered his release from immigration detention on Monday, the latest turn in a five-day saga over his refusal to be vaccinated for Covid-19.

The judge, Anthony Kelly, found that Djokovic had been treated unfairly after his arrival at a Melbourne airport for the Australian Open, where he had been cleared to play with a vaccination exemption. After detaining Djokovic, the border authorities promised to let him speak with tournament organizers and his lawyers early Thursday morning, only to cancel his visa before he was given a chance.

Restoring the visa does not, however, guarantee that Djokovic will be able to vie for his 10th Open title when the tournament begins next Monday. In court, the government’s lawyers warned that the immigration minister could still cancel his visa, which would lead to an automatic three-year ban on his entering the country.

Whatever happens next, the drawn-out conflict over the world’s top men’s tennis player seems to have crystallized a moment as the pandemic approaches its third year and the coronavirus is circulating more widely than ever. Hosting international sports events now involves navigating ever-evolving public health and border security rules, including the management of vaccine mandates on athletes who see themselves as high priests of their own bodies and their sports.

Djokovic, 34, has won many times on the tennis court when he appeared to have little chance, as all great players must. He has also experienced humiliating defeats, once because he was disqualified after inadvertently hitting a ball in anger into the throat of a line judge.

But the victory on Monday was unlike anything he had ever experienced. Instead of a rival attempting to snuff out his shot at a championship, it was an overnight crew of border officials, supported by an Australian prime minister attempting to enforce the will of millions of citizens who generally loathe “queue jumpers” trying to skirt the rules.

Australians have rushed to meet vaccine mandates, and endured lockdowns and closed borders. Many have little tolerance for a star who is notorious for preaching junk science and who, in the view of some, gained special treatment by receiving a vaccination exemption in the middle of Australia’s worst bout with the virus.

Djokovic’s refusal to back down in difficult situations has served him well during a career in which he has made himself the equal of two contemporary tennis legends, Roger Federer and Rafael Nadal. In this case, it led him to keep fighting after officials told him to leave a country with some of the world’s strictest border enforcement policies, and with an election just months away.

The move initially backfired, sending him into days of isolation in an immigration detention hotel, and figures to become part of the complicated legacy of one of the game’s greatest champions, a player far more feared than admired.

On multiple occasions, Djokovic has stated his opposition to vaccine mandates, saying that vaccination is a private and personal decision. His initial approval for arrival in Australia was based on what his lawyers said was an infection he suffered in mid-December, which led to his vaccination exemption.

In court on Monday, they argued that the Australian government had erred in canceling Djokovic’s visa over the vaccine requirement, and had denied him a reasonable right to counter its claims.

Kelly, the no-nonsense judge overseeing Djokovic’s appeal, sounded sympathetic from the start of Monday’s hearing. At one point, he scrutinized a transcript of the tennis player’s interaction with border officials at the airport, pointing out that he was “incommunicado” from 4 a.m., when he complied with an order to turn off his cellphone.

According to the judge, the authorities promised to let Djokovic speak to his team and Tennis Australia at 8:30 a.m., only to cancel his visa at 7:42 a.m.

The judge noted that Djokovic’s visa application had included the medical exemption from a physician, supported by an independent panel convened by the state government in Victoria, which includes Melbourne.

“The point I’m somewhat agitated about is, what more could this man have done?” Kelly said.

The federal government’s lawyers countered at the hearing that Djokovic could be denied entry if he presented a risk to public health. No visitors to Australia are guaranteed admittance upon arrival, and all are subject to further checks at the border, the government argued in court filings, adding that past Covid-19 infections were no longer a valid reason to defer immunization against the virus.

Under vaccine guidelines issued in December by the country’s chief medical body, travelers arriving in Australia are expected to be vaccinated against Covid-19 after recovering from “acute major medical illness.” The government argued that “the evidence is that the applicant has recovered.”

None of that was debated before the public — the court adjourned for most of the afternoon, before returning with an agreement.

But it is still not clear if or when Djokovic was actually ill. On Dec. 16, the day he said he tested positive, he appeared at a live-streamed public event. The following day, he appeared at an awards ceremony for junior players, where photographs showed that he was not wearing a mask.

What is clear, even to many Australians who say that the rules should be applied equally to everyone, is that they are embarrassed by the whole affair. Australia’s entry process for the tournament, and international travel generally during the pandemic, has been marred by confusion, dysfunction and political point-scoring that add up to a blend of incompetence and Covid-era messiness.

“It’s a dog’s breakfast,” said Mary Crock, a law professor at the University of Sydney. “The rules are changing all the time, no one knows which rules apply, that’s the essence of this. You’ve got a massive conflict between the migration law, the biosecurity law, state decision makers and the federal government, and everything is in conflict.”

Communications between national health officials and Tennis Australia, and between Tennis Australia and players, have revealed contradictory messages spanning months and left as unresolved as a schoolyard spat.

Federal officials wrote to Craig Tiley, the chief executive of Tennis Australia, in November to indicate that testing positive for the virus during the past six months would not be sufficient to gain automatic entry into the country without vaccination.

But letters leaked to Australian news outlets showed that an adviser to Australia’s federal chief health officer had also told Tennis Australia that the state of Victoria was responsible for assessing exemptions.

On Dec. 2, Brett Sutton, the chief health officer in Victoria, wrote to Tennis Australia: “Anyone with a history of recent Covid-19 infection (defined as within 6 months) and who can provide appropriate evidence of this medical history, is exempt from quarantine obligations upon arrival in Victoria from overseas.”

Five days later, Tennis Australia passed on the message to players.

Djokovic landed at Tullamarine Airport in Melbourne around 11:30 p.m. on Wednesday. After a nearly 10-hour standoff at the airport, border officials said he would have to leave the country. His team filed a legal challenge to the ruling on Thursday. Djokovic was allowed to remain in Australia at a hotel that houses refugees.

By that point, his detention had already become political. Australian leaders have a long history of winning elections with tough talk on border enforcement, despite the country’s harsh treatment of asylum seekers, and Prime Minister Scott Morrison has followed a predictable script.

Facing a tough re-election campaign as the economy starts to seize up from a surge of work absences caused by an Omicron outbreak and a shortage of testing capacity, he pounced on the decision to cancel Djokovic’s visa, trying to frame it as a clear-cut case of law and order.

“Rules are rules,” he said, adding, “Our government has strong form when it comes to securing our borders.”

Critics of Australia’s immigration policies said they were dismayed, but not surprised. The hotel where Djokovic is staying holds dozens of refugees, including some who have been detained for nearly a decade.

“As a country, we have been shown over time to be very aggressive in enforcing immigration policy,” said Steven Hamilton, a former Australian Treasury official who teaches economics at George Washington University. “People overseas should view this through that prism rather than as a health measure. It has nothing to do with health.”

The prime minister’s office did not immediately respond to requests for comment, nor did Tennis Australia. Djokovic was off camera throughout the hearing, but Judge Kelly insisted that he be released within 30 minutes of the ruling at 5:16 p.m.

He warned the government’s lawyers that another attempt to cancel Djokovic’s visa could be costly, for Djokovic and for others.

“The stakes have now risen rather than receded,” he said. “I am very concerned.”

Yan Zhuang contributed reporting from Melbourne.