Novak Djokovic was not given an assurance by the federal government that his exemption to enter Australia without being vaccinated would be accepted, government lawyers said in court filings ahead of a Monday hearing.
- The government's submission says the department's email was not an assurance Djokovic's "so-called 'medical exemption' would be accepted"
- The court filings also challenge Djokovic's claim for a medical exemption from Australia's vaccination requirements on the basis he recently had COVID-19
- Home Affairs lawyers lost their bid to delay Monday's court case
The tennis star is fighting to overturn a decision by the Department of Home Affairs to quash his visa because he had not received a COVID-19 vaccination.
Djokovic's legal team said the Serbian player had an assessment from the department that his responses on his travel declaration indicated he met the requirements for quarantine-free entry into the country.
But the government's submission, released late on Sunday night, said the department's email was not an assurance "that his so-called 'medical exemption' would be accepted", and his responses could be questioned and verified on his arrival.
"There is no such thing as an assurance of entry by a non-citizen into Australia. Rather, there are criteria and conditions for entry, and reasons for refusal or cancellation of a visa," the submission said.
"The email from the department stated that the applicant's responses to his Australian Traveller Declaration indicated that he met the requirements for 'quarantine free' travel into Australia.
For many it may well be a stretch that a rich tennis star is a martyr but Djokovic's father is on to something. This is about more than tennis. It is about more than COVID or public safety.
"But that says nothing about the power of the minister (or her delegate) to interrogate those responses, the evidence upon which they were based, and conclude that a cancellation power was enlivened under the Act upon his arrival into Australia."
It also challenged Djokovic's claim for a medical exemption from Australia's vaccination requirements on the basis he contracted COVID-19 in mid-December.
"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-19," the government submission said.
In its conclusion, the submission also made clear that even if Djokovic was successful in his appeal, the department retained the right to re-detain him.
Djokovic 'had exemption on grounds of recent COVID-19 infection' Novak Djokovic tested positive for COVID-19 on December 16, court documents said.(AAP: Dean Lewins)
The submission drew the ire of Djokovic's father, who addressed another small group of protesters in front of Serbia's parliament building in Belgrade on Sunday.
"The politicians are now saying that even if the court decided that he can play, they can detain him again under their laws," Srdjan Djokovic said.
"Are we animals? What are we? We're human beings. This is happening because we are just a small part of the world, but we are proud. They have no respect for him."
The Serbian's legal team filed his court documents the night before, claiming he was granted a visa to enter Australia on November 18, and on December 30, Tennis Australia granted him a "medical exemption from COVID vaccination" on the grounds that he had recently recovered from COVID-19.
The "exemption certificate" said the date of Djokovic’s positive COVID-19 PCR test was December 16, 2021, but that he had not had a fever or respiratory symptoms in the past 72 hours.
It also recorded that the conditions of the exemption were "consistent with the recommendations of the Australian Technical Advisory Group on Immunisation (ATAGI)".
Novak Djokovic awaits a court decision on his appeal against a visa rejection — but the Australian Open is also in limbo, and win or lose, the tournament could be in strife, writes Andrew McGarry.
The submission said Djokovic then received an automated email from the Department of Home Affairs on January 1, saying "[his] Australia Travel Declaration [had] been assessed", and that "[his] responses indicate[d] that [he met] the requirements for a quarantine-free arrival into Australia where permitted by the jurisdiction of your arrival".
However, the defending Australian Open champion was detained by Border Force officials after arriving on a plane from Dubai and was taken to an immigration detention hotel.
If he fails to have his visa cancellation overturned and is deported, Djokovic could be barred from re-entering Australia for up to three years.
His December COVID-19 infection also ignited controversy on social media over appearances that he had made at public, indoor events without wearing a mask around the time of his positive PCR test.
It was, however, unclear if Mr Djokovic was aware that his test results were positive before appearing at the events.
Djokovic is hoping to win his 21st Grand Slam at the Australian Open, starting in Melbourne on January 17.