Mr Hawke’s announcement at just before 9pm on Monday night that he would not make a decision until Tuesday meant Djokovic was free to leave immigration detention. But Mr Hawke can still decide at any time whether to cancel Djokovic’s visa and order him to be deported.

Djokovic had been in detention in a Melbourne hotel since last week after being held at Melbourne Airport on Thursday morning. He arrived in Melbourne with a medical exemption from Tennis Australia to play in the Australian Open but aftera series of overnight interviews with authorities at the airport,was told his visa was cancelled. He launched a legal challenge soon after.

Judge Kelly found it was unreasonable for an Australian Border Force official to cancel the visa when the tennis star had believed he had more time to consult lawyers.

Djokovic’s lawyers said the official “reneged” on the agreement with the player to delay any cancellation decision. Judge Kelly said the delegate’s decision to cancel the visa at 7.42am on January 6 had denied Djokovic the chance to speak to his lawyers and press his case to officials.

“If the applicant had had until 8.30am he could have consulted others and made submissions to the delegate about why his visa should not be cancelled,” the judge said.

The decision wascelebrated by about 100 Serbian flag-waving Djokovic fans gathered outside the court,and Djokovic’s youngest brother Djordje told Serbian TV Prva the tennis star “fought the fight not just for himself but for the whole world”.

“This was a great defeat for Australian authorities and they are taking this badly,” he said.

The minister’s discretion allows him to cancel a visa if he believes the person poses a risk to “health,safety or good order of the Australian community or a segment of the Australian community” or the “health or safety of an individual or individuals”.

The Migration Act provides that a person whose visa has been cancelled may be subject to a three-year exclusion period that prevents the grant of a further temporary visa. This exclusion can also be waived.

If Mr Hawke uses the power,Djokovic could contest the cancellation. However,the minister’s power is extremely broad and discretionary and it would be more difficult to argue against it.

Judge Kelly said Mr Tran’s indication meant it would be “extraordinarily difficult” for another judge to hear the case given the time constraints,and called on the lawyers to keep the court informed of Mr Hawke’s considerations.

The Open starts next week.

Monday’s decision came after Judge Kelly questioned what more Djokovic could have done to be granted legal entry into the country.

The court’s live stream of the hearing repeatedly crashed as people in Australia and Serbia and tennis fans across the world tried to watch.

Adding to the confusion,some people who could access the hearing posted unauthorised links on YouTube. The court’s IT staff fixed the problem in the afternoon and provided anauthorised YouTube channel.

Judge Kelly commented on the interference several times during the hearing,and at one point said the interruptions were “utterly unacceptable”.

Media outlets includingThe Age were unable to report on some submissions that weren’t heard because the livestream had dropped out.

During the hearing,Judge Kelly ordered Djokovic could be moved to a location where he could watch the hearing,and for authorities to “take all steps” and “do all things as may be necessary” to allow the tennis champion to take part in the proceedings. He attended his lawyers’ Collins Street offices but could not be seen on camera during the hearing.

Djokovic’s barrister,Nicholas Wood,SC,argued the tennis player met the criteria set by Australia’s advisory board on immunisation,received a travel declaration from the federal government,was granted a medical exemption by Tennis Australia,and also provided Border Force officials with evidence of the exemption.

Judge Kelly acknowledged the steps Djokovic took during his barrister’s submissions.

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

Mr Wood replied:To[Djokovic’s] understanding,uncontradicted,he had done absolutely everything that he understood was required in order for him to enter Australia.

“He did understand he had ticked every box.”

Mr Wood also argued Djokovic was denied procedural fairness in the hours after arriving at Melbourne Airport last Wednesday night,as he wasn’t given enough time to contact his lawyers and was pressured to continue an interview with Border Force officials while jet-lagged.

Mr Wood said authorities had an agreement with Djokovic to cease discussing his entry into Australia and resume after the tennis player rested,but that officials “reneged” and ruled against him earlier. This was a “spurious” decision which indicated the official had a closed mind,Mr Wood said.

Djokovic’s lawyers say he was granted the medical exemption by Tennis Australia because he contracted COVID-19 in December. Djokovic tested positive on December 16 and his lawyers argue a recent bout of COVID-19 gave him grounds for “medical contraindication”,to not have a vaccine treatment. Documents before the court show he returned a negative test six days later,on December 22.

In his signed affidavit released after the court ruling,the Serbian star said he was tired,upset and confused when an Australian Border Force official advised him he could be refused entry into the country.

Djokovic wrote that the officials he dealt with at the airport frequently left him alone,so they could speak to their superiors.

“This all gave me the impression or idea that the decision about my visa was not completely up to the people that were talking to me,and instead it was up to someone else above them,” he wrote.
Djokovic’s affidavit includes paperwork from Border Force officials,but the world No.1 refused to sign a document acknowledging his visa was cancelled.

Meanwhile,the former chair of Australia’s top vaccination body,Professor Allan Cheng – whose advice was crucial in Djokovic’s case – toldThe Age prior COVID-19 infection has never been a valid reason to enter Australia as an unvaccinated person.

Professor Cheng,who remains a member of ATAGI after serving as chair,said the exemption for prior infection never applied to overseas travellers. This is because it was difficult to prove the veracity of medical documentation from overseas and because different countries had different policies on prior infection exemptions.

In written submissions to the court,thegovernment argued the visa cancellation was valid and that a recent case of COVID-19 didn’t constitute a reason not to be vaccinated. It argued that if Djokovic recovered a fortnight after his positive test,then he had had time to start a vaccination course.

In the government’s written submissions,lawyers argued the visa cancellation wasn’t unreasonable,Djokovic had nothing to add when his interview ended,and there was no evidence his lawyers could or would have done anything if contacted.

It was also reasonable for Border Force officials to conclude the unvaccinated Djokovic posed a risk to public health,the documents state.

Djokovic has won the Australian Open nine times and a 10th tournament win would elevate him to a 21st career grand slam title,and put him ahead of his rivals Roger Federer and Rafael Nadal.

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