Judge overturns government's cancelation of Djokovic's visa, orders release

NEWS 10.01.2022 08:09
Source: SAEED KHAN / AFP

Judge Anthony Kelly has quashed the government's decision to cancel his visa and ordered Djokovic to be released within 30 minutes of the decision.

The respondent — in this case, the Ministry of Home Affairs — must pay Djokovic's costs as agreed or assessed, the order added. All his belongings, including his passport, must be returned to him “as soon as reasonably practicable.”

The decision was officially made at 5:16 p.m. local time (1:16 a.m. ET), Kelly said.

After the judge handed down his ruling, Christopher Tran, the federal government's barrister, said the government would comply with the decision — but that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs would consider “whether to exercise a personal power of cancelation.”

In response, Judge Anthony Kelly made clear he wanted to be informed if the legal process was to drag on.

“I have completely dealt with the relief sought in this proceeding and this proceeding is over,” he said. “It is going to be extraordinarily difficult for anybody else between now and next Monday, putting it in my terms, to get up to speed (if there is another application).”

“Now if I am to be called on short notice to deal with another interim injunction to address conduct by another minister or threatened conduct including by a delegate, I think a model litigant even in a proceeding which is not yet on foot, this court is fully entitled to be informed.”

Kelly also confirmed that if Djokovic had been deported, he would not have been allowed back for the next 3 years.

To recap, here is what the judge's verdict included:

1. The government's decision to cancel his visa is quashed — meaning it has been voided or declared invalid.

2. The government must pay Djokovic's costs as agreed or assessed.

3. The government must “take all necessary steps” to immediately release Djokovic from detention, which must happen no more than 30 minutes after the decision was made.

4. Djokovic's passport and all other personal effects must be returned to him.

His reasoning: After announcing his decision, Judge Anthony Kelly explained that Djokovic had not been given sufficient notice of his visa cancelation, or enough time by the government to prepare materials.

“The applicant (Djokovic) was told at 5:20 a.m. on Thursday, 6th January 2022, that he could have until 8:30 a.m. to provide comment in response to a notice of intention to consider cancelation,” said Kelly.

“The applicant's comments were then sought at 6:14 a.m. instead. The delegate's (the Ministry of Home Affairs) decision was made at 7:42 a.m. The applicant was thus denied until 8:30 a.m. to make comments. If the applicant had had until 8:30 a.m, he could have consulted others and made submissions to the delegate about why his visa should not be canceled.”

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