Novak Djokovic is scheduled for a virtual hearing to appeal the cancellation of his visa for entry into Australia. The proceeding will take place Monday January 10 at 10:00 am local time in the Federal Circuit and Family Court of Australia.
The hearing could determine if Djokovic will be allowed to compete in the 2022 Australian Open, where he is a 9-time champion. Because of the significance, we gathered legal context from an immigration lawyer with expertise in court hearings such as this. It should be noted that the lawyer is not involved in the Djokovic case, and their comments are purely informational. Comments are edited for clarity.
Q: What is the biggest key for Djokovic at the hearing?
A: The most important takeaway is that the government has to say that the decision was about rules or legal requirements. The fastest way for Djokovic to win his legal case is if the government admits it was a political decision to deny his entry at the border.
Q: Who has the burden of proof in this case?
A: The most basic principle of immigration law is that a country controls its borders and a foreign national has no right to enter or stay in the country unless allowed by the government. The burden is on the foreign national to justify their entry, not the government.
Q: If the issue is about rules and requirements, can’t Djokovic easily prove his case by showing that he was granted a visa before he got on a plane?
A: A foreign national interviewed by an immigration officer (including at a border by a border officer) needs to provide sufficient evidence to justify their entry to the country. Most of the time it goes smoothly as they review one’s paperwork, but the officer can dig deeper if the initial information does not satisfy them. If the officer remains unsatisfied that the foreign national is eligible to enter, they may deny entry at the border even if the visa was granted before flying there. The officer has quite a bit of discretion in making their decision, but it is not unlimited, and their decision can be legally challenged via an application for judicial review in the courts.
Q: What does Djokovic need to do to prove his case?
A: Djokovic’s lawyers have applied for judicial review of the officer’s decision. They have to show that the officer’s decision was unreasonable. Or they can show it was procedurally unfair (unlikely in this case as there isn’t too much procedural fairness owed at the border) or that it was biased. The key question is, based on the information that was before the officer at the border, was the officer’s decision reasonable? Courts are typically deferential to an immigration officer’s decision so it will not be easy to show that the officer’s decision was unreasonable.
Q: What about the fact that others who were also unvaccinated were let into the country based on the same medical exemption?
A: The government lawyers defending the decision do not have to refer to the examples of other tennis players coming in or justify those other decisions to let in other tennis players. Djokovic’s lawyers will likely refer to that, of course, but those decisions involve private information of other individuals and are not relevant to the officer’s decision in this case.
Q: Are there other scenarios for how this might end, other than the judge deciding for or against Djokovic?
A: What the government (in this case the Minister responsible for this legal area) could have done is, despite the officer’s decision, formally grant a special exception to let Djokovic come in anyway (and they can still do that now).
Q: Why would the government suddenly help Djokovic to grant him entry?
A: If the public opinion changes on this issue or for some other reason (perhaps bowing to pressure from the Serbian government) and/or if Djokovic does provide further evidence to the government lawyers that does improve his case. He wouldn’t have the right to use that information in the present Court hearing, but it might be enough for the government lawyers to decide to allow this option.
Q: What about the option of letting Djokovic play the Australian Open while this case is still ongoing?
A: It appears his lawyers already tried this, and it hasn’t worked so far, but what they may still try to do is allow Djokovic to remain in the country (and compete) while this whole legal challenge is going on. Then even if they lose the challenge later it won’t matter because the tournament will be over. The Court seems to have resisted the idea so far (which is why the hearing is being held so quickly) and it seems unlikely Djokovic would convince a court on this point.