Novak Djokovic’s Legal Options Are Narrow

Betty Q. Hixson

Novak Djokovic’s lawyers went to court on Saturday morning to challenge the Australian immigration minister’s decision to cancel his visa again, but experts said that he would find it much more difficult than his first court challenge.

During a brief hearing Saturday, Justice David O’Callaghan of the Federal Court of Australia said a full hearing on Djokovic’s appeal would be held on Sunday at 9:30 a.m. He granted the Djokovic legal team’s request that a full panel of judges hear the case rather than a single judge, which means the court’s decision on the matter cannot be appealed. A lawyer for the immigration minister had opposed that request.

If Djokovic doesn’t want to simply comply with the cancellation and leave the country, he will need to apply for a court injunction to stop the Australian authorities from deporting him while his lawyers file a challenge, according to Mary Anne Kenny, an associate professor of law at Murdoch University.

That would allow him to stay in the country, but he would most likely be held in immigration detention, where he was kept for five days before his first court challenge and where he is being held until the hearing on Sunday.

He could, however, apply to the government for a bridging visa to let him stay out of immigration detention and continue to play tennis. But according to Daniel Estrin, an immigration lawyer, Djokovic is unlikely to be granted such a visa because he would have to abide by the condition that he cannot work. His participation in the Australian Open which begins on Monday, then, would disqualify him.

But because the discretionary powers of the immigration minister, Alex Hawke, are so broad, Estrin and Kenny said Djokovic would find it significantly more difficult than his first appeal.

The minister just needed to demonstrate that Djokovic might be a risk to the health, safety or good order of the Australian community, Estrin said. That is a very low threshold — “anyone might be a risk to the Australian community if you look at it very broadly” — making it extremely difficult for Djokovic to argue his case on substance, he added.

Instead, Djokovic would need to prove that Hawke made an “jurisdictional error,” or applied the law wrong, Estrin said — a much higher legal threshold.

Djokovic’s lawyers will not be allowed to replead his case or argue that he should have been allowed into Australia, Estrin said, meaning that, as in his first appeal, he would have to succeed on procedural grounds.

“The court doesn’t look at whether the minister made the right decision,” Estrin said. “The court will only look at whether the minister committed some error of law.”

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