Game, Set and Vax: Why Novak Djoković found himself served with a Deportation Order

Novak Djoković, heralded for his style of play and notable battles between fellow top-ranking stars Rafael Nadal and Roger Federer, could easily be considered as one of the tennis greats of the last century. But recently, that’s not all he’s been famous for. See, Mr Djoković  has found himself to be an example of what happens when different levels of government don’t see eye-to-eye. But don’t be fooled into thinking that this story is a simple one – it’s anything but. Before we even begin to attempt to unravel how Djoković found himself on the receiving end of a highly disputed deportation order, we need some background information. 

We can start by looking at the event that started the whole debacle - The Australian Open. A crucial date in a tennis player’s calendar, running annually over two weeks in January, Novak – the defending champion – was hopeful he would be able to return to the courts and win a record twenty-first grand slam title.[1] This was never promised to be an easy feat, but nobody expected that most of the difficulties facing Novak would come from the Australian government and not from one of his worthy opponents the opposite side of the net. 

Having had its borders closed since early on in the pandemic, Australia has been regarded as a country with some of the strictest Covid-19 regulations in the world. However, the easing of some of these restrictions over time has allowed for a partial re-opening of the borders for visitors from specified countries, with eligible visas. One such visa, the subclass 408, or a Temporary Activity Visa, would allow people to arrive in Australia if they have been invited to partake in a sporting event.[2] Anyone arriving into Australia with an eligible visa, like the Temporary Activity Visa, is required to declare their vaccination status under Australian federal law.[3] Visitors are required to be fully vaccinated with a vaccine recognised by the Australian Therapeutic Goods Administration (TGA).[4] However, there are a select number of exemptions from this requirement. For the state of Victoria, the state in which the Australian Open is being held, unvaccinated travellers must provide evidence of a medical exemption in the form of a medical certificate, granted by a medical practitioner who is recognised by an overseas government authority or recognised vaccine provider.[5] In the state of Victoria,  the Public Health and Wellbeing Act 2008[6] was amended to grant powers to the Health Minister to make ‘pandemic orders’.[7] One such ‘pandemic order’ is the requirement that workers in certain industries, including “professional sports, high-performance sports, or racing persons” be fully vaccinated.[8]

All of this is to say that any tennis player who wanted to partake in the Australian Open has to be vaccinated or at least be able to prove they have a valid medical exemption from the requirement. 

Despite having never officially made clear his stance on vaccination, Djoković has in the past made comments suggesting that he would not be prepared to be vaccinated against Covid-19.[9] However, just days before he travelled to Australia for the Open, in an Instagram post made by Djoković, he announced that he had received an ‘exemption permission’, thereby allowing him to compete.[10]

So, Novak Djoković arrives in Australia under a subclass 408 visa, armed with a medical exemption. Having been granted the visa on November 18th, 2021 by the Australian Department of Home Affairs, and the medical exemption being granted to him by Tennis Australia, the sport’s governing body, one could assume that everything should have gone smoothly from there. Not only had the Tennis Australia medical panel signed off on this medical exemption, but so had a second review panel, operating on behalf of the Victoria State Government.[11] He was following all the laws as set out, to the best of his knowledge, right? However, having landed in Australia, Djoković was subsequently denied entry to the country by Immigration Control and was sent to a nearby immigration detention hotel, where he would remain until a judge ruled on the status of his visa. So, what actually was the problem with his visa? Or was there even a problem at all? Well, that’s where it gets a bit complicated. 

See, in his medical certificate, it is stated that Djoković was exempted from the vaccine requirement on the basis that he had recently recovered from Covid-19.[12] Fair enough, he had recovered from Covid-19 more than fourteen days prior to landing on Australian soil which is grounds for an exemption. The medical certificate stated that Djoković had tested positive on December 16th, 2021, and Djoković’s lawyers had presented evidence of the test taken in court. However, there have been questions raised as to whether this test result is genuine at all, with some suggesting that the results may have been manipulated in order to allow Djoković to travel and compete in the Australian Open[13]. It should be noted, though, that this is mere speculation, and has not been confirmed nor denied by either Djoković or Serbian health authorities. 

The questions surrounding his medical exemption and the results of his Covid-19 test are not the only element of this debacle, nor are they even the most important. Questions have also arisen as to whether the tennis star had been truthful in filling out his Australia Travel Declaration (ATD), the equivalent of the Passenger Locator Form used by Irish authorities. Along with standard information like contact details, the ATD requires a declaration pertaining to your travel history fourteen days before arrival in Australia. On the form, which was presented to the court, when asked whether he had travelled or planned to travel fourteen days before his arrival, Djoković ticked the box that said no, when his social media presence suggested otherwise.[14] In his interview with Australian Border Control[15], Djoković later said that it was not he who completed the form, but rather his agent and that the wrong answer had been input through human error.

So, did Novak Djoković unlawfully enter Australia? 

According to Federal Circuit and Family Court Judge Anthony Kelly, he did not, as he quashed the visa cancellation order in a court hearing on January 10th.[16] However, following this order of the Court, legal counsel for the respondent, who was the Minister for Home Affairs, alerted the Court[17] that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was considering the exercise of personal powers to cancel Djoković’s visa, as delegated to them under the Migration Act.[18] On January 14th, these powers were subsequently exercised by the Minister, and Djoković’s visa was deemed invalid for a second time. The Minister had come to this decision on the grounds that Djoković could potentially pose a health risk to Australian citizens[19]. Furthermore, it was deemed that he could pose a risk to the ‘good order’ of the community[20] and it was in the public interest to terminate his visa.[21]

A second case[22] was taken by Djoković and his legal counsel, this time taken against the Minister following the exercise of those personal powers under the Migrant Act. The applicants cited that these powers were exercised through jurisdictional error, and therefore the decision to order his deportation a second time was not valid. Judge Kelly made an order to have the case transferred to the Australian Federal Court, as the Federal Circuit and Family Court had what he characterised as a ‘limited jurisdiction’[23] to grant relief.

In the Federal Court of Australia, an extensive review[24] of the Minister’s decision to exercise these personal powers and indeed the ten pages worth of reasoning that were offered to Djoković following the decision was carried out. Following this rather extensive examination, three fundamental conclusions were reached by the Court. 

Firstly, the Minister was entitled to find that Novak Djoković had not been vaccinated, and had no intention of being vaccinated, referring to statements previously made by him regarding his opinions on vaccination against Covid-19.[25]Secondly, it was reasonable for the Minister to be concerned about the potential rise in supporters of the ‘anti-vax’ movement in Australia given the fact that a well-known and well-respected sportsperson seemingly shared the same sentiments and it was equally reasonable for them to use this concern as reason to cancel the visa.[26] Finally, the Court held that the Minister had substantial grounds to determine that Djoković could pose a risk to the health and good order of Australian citizens.[27] Following this line of reasoning, the Court upheld the decision of the Minister, and Novak Djoković was deported from Australia on January 16th, facing a possible three-year ban from entering the territory. 

At first glance, it’s reasonable to assume that Novak Djoković is to blame for his deportation. However, when you look at the layers of red-tape and the number of boxes that had to be to be ticked in order for him to even be eligible to play in the Australian Open, it is clear he did everything in his power to make sure he was on the right side of that law. Given the fact that they approved both a medical exemption and his visa, it’s reasonable to presume that Tennis Australia and the State Government of Victoria did not believe that the presence of Novak Djoković on Australian soil posed a threat to the health of the people of Victoria. But, as evidenced from the actions of the Minister for Immigration, and also the verdict of the Australian Federal Court, at a federal level, he constituted a threat. 

This lack of joined-up thinking is genuinely baffling and would invoke questions as to how there could be such a disconnect between levels of government. In the same sense, this entire situation would cause one to consider how legislation implemented in the face of the pandemic has impacted existing laws, and the knock-on effects it will continue to have, even once it’s been repealed – if it ever is. 

This isn’t the first time that such a controversy has occurred, and is most definitely not the last. One thing is clear though – when it comes to implementing Covid-19 legislation, and by extension facilitating derogations from aforementioned legislation, there needs to be a single approach adopted by both state and federal governments. This was a complicated issue from the beginning, made more complicated with each day that passed, and whilst it wasn’t the outcome that many fans of Djoković had hoped for, it cannot be denied that his back-and-forth game against the Australian government made for great watching. 

[1] Statistics available at https://novakDjoković.com/en/stats/.

[2] Australian Government, Department of Home Affairs, Immigration and Citizenship, September 2021, available at https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-activity-408/invited-for-other-social-and-cultural-activity.

[3] Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2021, s 5 Australian Government Department of Home Affairs, ‘Vaccinated travellers’, in COVID-19 and the border, published 1 December 2021, available at https://covid19.homeaffairs.gov.au/vaccinated-travellers.

[4] International Covid-19 Vaccines recognised by Australia, January 2022, available at https://www.tga.gov.au/international-covid-19-vaccines-recognised-australia.

[5] Victoria State Government, Information for Overseas Travellers, available at https://www.coronavirus.vic.gov.au/information-overseas-travellers, 

[6] The Public Health and Wellbeing Act 2008, available at https://www.legislation.vic.gov.au/in-force/acts/public-health-and-wellbeing-act-2008/053.

[7] ibid, s.165AI.

[8] Guidance for the Pandemic Covid-19 Mandatory Vaccination (Specified Workers) Order 2021 (No.1), available at https://www.health.vic.gov.au/sites/default/files/2021-12/pandemic-covid-19-mandatory-vaccination-specified-workers-order-2021-no-1.pdf.

[9] Christopher Clarey, “Novak Djoković on Coronavirus, Vaccines and His Ill-fated Adria Tour”, The New York Times, August 20th, 2020, available at https://www.nytimes.com/2020/08/20/sports/tennis/Djoković-us-open.html – “…My issue here with vaccines is if someone is forcing me to put something in my body. That I don’t want. For me that’s unacceptable…”

[10] Instagram post of Novak Djoković (@djokernole), January 4th, 2022, https://www.instagram.com/p/CYTe9fer_1K/?hl=en. 

[11] Transcripts of Djoković’s interview with Australian Border Authorities, available at https://www.fedcourt.gov.au/__data/assets/pdf_file/0004/95053/Parties-jointly-agreed-Transcript-of-Interviews-conducted-by-the-ABF.pdf. 

[12] Certificate can be found on page 20 of Affidavit of Natalie Bannister, filed with the Federal Circuit and Family court of Australia on 8th January, 2022, available at https://www.fedcourt.gov.au/__data/assets/pdf_file/0009/95049/Affidavit-of-Natalie-Bannister-sworn-8-January-2022-redacted.pdf. 

[13] Max Hoppenstedt and Jörn Meyn, “Were the Results of a Positive PCR Test Manipulated?” Der Spiegel, January 11th, 2022, available at https://www.spiegel.de/international/world/novak-djokovic-were-the-results-of-his-positive-pcr-test-manipulated-a-cf3e7344-e98f-4fc3-8bb3-7727d4795e97. 

[14] ibid at n.12, page 35. 

[15] ibid at n.13. 

[16] Djokovic v Minister for Home Affairs [2022] FedCFamC MLG35/2022, available at https://www.fedcourt.gov.au/__data/assets/pdf_file/0009/95058/Order-Djokovic-v-Minister-MLG35-of-2022_10-January-2022-003.pdf. 

[17] ibid, at [C]. 

[18] The Migration Act 1958, subsection 133C(3), available at http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s133c.html. 

[19] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, VID 18 of 2022, available athttps://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0003, at [53].

[20] ibid at [63] and [64]. 

[21] ibid at n.19, at [65].

[22] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 7 MLG116/2022, available at https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/fcfcoa/djokovic/Judgment-2022-FedCFamC2G-7.pdf.

[23] ibid, at [66]. 

[24] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, VID 18 of 2022, available athttps://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0003. 

[25] ibid at [71] to [77].

[26] ibid at n.24, at [80] to [85]. 

[27] ibid at n.24, at [95] to [101].