Novak Djokovic appeals in court against cancellation of Australian visa – live updates

And the court is back temporarily. Djokovic’s lawyers confirm that he is there in the room with them.

The court has provided an update that the hearing is still temporarily adjourned, and they do intend to come back at some point today. But we do not know when that will be, exactly.

We are still waiting on the court to resume. Apologies, this live blog has been like a Samuel Beckett play for much of the day.

A protester at the Park Hotel. Make of it what you will.

The hearing is back under way. Christopher Tran, counsel for the federal government, flags that the injunction keeping Novak Djokovic in Australia is due to expire at 4pm, and he is minded to extend it to 4.30pm at least.

Judge Anthony Kelly extends it to 8pm.

That means it’ll be hopefully finalised today.

And we’ve temporarily adjourned again.

There are now about 14,000 people watching the YouTube livestream as we wait for the hearing to recommence.

My bad, the case is now resuming at 3.45pm. So it’s another 20 minutes.

We are still waiting for the court to resume.

In the meantime you can read Paul Karp’s wrap of the first half of the day below.

Nigel Farage is expressing a lot of sympathy towards Djokovic’s plight, but Andy Murray has a response.

The rest of today’s hearing will now be streamed on YouTube from 3.15pm AEST.

Novak Djokovic is allowed out of the Park Hotel, where he has been held since his visa was cancelled, for the duration of his court case. Most of that will be spent with his lawyers watching the stream.

And the court has been adjourned until 3.15pm AEST, which is an hour and 15 minutes away for those of you in different time zones.

Tran is outlining how he will respond on behalf of the government to Djokovic’s arguments after the lunch break.

First he says he will go through how a response was given from Djokovic after the notice to cancel his visa.

Then he will explain how procedural fairness was not denied because the decision on when to commence the interview is dealt with in statutory code.

He will then go to the argument about unreasonableness.

He says much of the oral submission will be about the process the delegate followed in making the decision to cancel Djokovic’s visa.

Tran has otherwise just been going through case law he will be referring to, including this amusing bit:

I think it will be useful for your honour to consider two cases – both of them are going to be losses of mine, so I’ll be revisiting happy memories.

Tran argues that Judge Anthony Kelly cannot find that Border Force officials pressured Djokovic during the interview process.

Kelly responds that he would be “most reluctant on the available evidence” to suggest an actual intention to pressure, but it doesn’t “kill the point” that Djokovic felt pressured.

He says over a period of about eight hours, delegates were “darting in and out” of the interview room, which was being recorded, so Djokovic did feel pressured.

Djokovic’s lawyers have finished their oral submissions, and have proposed orders including Djokovic’s release from detention if they are successful.

We are now onto Christopher Tran, the counsel for the federal government, who will speak for about half an hour before we go to a break.

We are now going through the transcript of the interview between Djokovic and Border Force officers.

The visa was cancelled at 7.29am, and Djokovic was informed at 7.42am. He had been asking for until 8.30am to respond to the cancellation notice, and needed to speak to people.

The government made the decision on the basis of what he had provided up to that point.

The government suggests “a response” made from Djokovic counts as responding to the notice to cancel the visa, while Djokovic’s counsel argues that reading would change it from someone having a right to a response, to the delegate for the minister having discretion over how much or little of a response from someone counts in responding to the notice.

In submissions, the government has argued that to allow such extensions of time would amount to filibustering.

Now we are onto Djokovic’s counsel going through why there should have been discretion against the cancelling of his visa.

Wood says Djokovic was calling on the delegate to the minister not to cancel his visa, based on all the advice he was provided from Tennis Australia and the federal government prior to arriving in Australia that he was eligible for exemption.

“Nowhere does the delegate in the reasons that are given engage with that at all,” Wood says.

All that is mentioned is that if the cancellation is made, then Djokovic won’t be able to come back to Australia for three years.

Wood says the delegate for the minister making the decision to cancel Djokovic’s visa has not provided evidence that previous infection from Covid-19 is not a valid reason for medical exemption from being vaccinated against Covid-19 prior to entering Australia.

And in that case, the only evidence that can be relied upon is the Atagi guidelines, which did say vaccination can be deferred for up to six months from infection as a valid reason for a medical exemption.

Wood says Djokovic isn’t trying to argue he is fully vaccinated against Covid-19, and that’s not sought as part of this case.

Djokovic’s counsel, Nicholas Wood, is now going through the process medical practitioners go through to register someone on the Australian Immunisation Register for people who register as not being able to get vaccinated against Covid-19 on medical grounds.

Under “temporary vaccine exemption”, it allows people to tick a box for “acute major medical illness”, and then the guidelines refer to the Atagi advice document on major medical illnesses that mention having a PCR-confirmed Covid-19 infection in the past six months.

“This is the critical Atagi document … it is an eminently clear expression by Atagi … that a valid reason for a temporary exemption for an acute major medical condition … [includes a] PCR confirmed infection,” Wood says.

He says this advice is unremarkable; someone who has recently had Covid-19 has some level of natural immunity from having had Covid-19. He said vaccination “is not advisable” and would have limited utility for someone who has recently had Covid-19, combined with the risk of an adverse effect.

Those are his words.

And I am back in. It appears they had a bit of an adjournment but should be back underway shortly.

And we are still trying to get back into the livestream. Apologies.

I regret to inform you the feed has died again.

Wood says the Department of Home Affairs, before [Djokovic] left, said Djokovic met the requirements for quarantine-free travel.

“He’s made the declaration, provided the evidence even though it was not required, and then he received [notice] from the Department of Home Affairs … saying the application has been assessed and meets the required for quarantine-free travel.”

Wood says any reasonable person would have considered he ticked every box.

He says Djokovic, in the transcript of the interview with Border Force at the border, said that he was confused, he had done everything right, and if he hasn’t then he would like time to contact lawyers for advice.

Judge Kelly then replies that the transcript shows, rather than being denied time to speak to lawyers in the morning before his visa was cancelled, it was then “reneged” upon by the government.

We are now going through Djokovic’s travel declaration before he arrived in Australia. It was filled out by his agent. His counsel Nicholas Wood notes in the request for declaration of vaccination, Djokovic has claimed he cannot be vaccinated on medical grounds.

When prompted to provide proof, Djokovic uploaded the medical exemption document from the CMO at Tennis Australia.

Kelly says a “matter that has really preoccupied me” is the status attached to the Tennis Australia document, and questions why it was not accepted by the delegate making the decision on the visa:

Here, a professor and an eminently qualified physician have produced and provided to the applicant a medical exemption. Further to that, that medical exemption and the basis on which it was given was separately given by a further independent expert specialist panel established by the Victorian state government and that document was in the hands of the delegate.

The point I am agitated about is ‘what more could this man have done?’

The court has temporarily adjourned. I think dealing with more technical issues.

Justice Anthony Kelly notes the requirement to provide evidence would have been required by the parliament – either by regulation or legislation – if that was intended, and he notes that there are 30 penalty units under the Biosecurity Act for contravention – i.e. misleading on declarations, which would act as a deterrent.

30 penalty units is about $5,500.

Incidentally, Kelly also tells Djokovic’s counsel they won’t need to ask for more time for oral submissions until about 1.45pm AEST. Which is about three hours after they have been talking. We’d need to hear from the government counsel after that. The oral submissions from both parties was originally scheduled to go to 3pm.

Wood says under the requirements on the visa application, Djokovic made a declaration of the medical exemption from vaccination as he was required to, and was not required to provide the evidence for that medical exemption. He said it was patently false to suggest the medical evidence was required.

But he notes that Djokovic ultimately did provide that evidence.

Djokovic’s lawyers are arguing to the court that on the first ground of the cancellation of his visa, the notice of the intention to cancel his visa was “defective”, in part because it was relied on a “mash-up” of grounds required to cancel the visa.

I have a live stream up and running now. Updates coming soon.

A spokesperson for the court says the hearing is going ahead, but the live stream is still down:

I am now advised the hearing has started. The court is working to rectify the situation. Apologies.

Still waiting on the live broadcast. I received a service error a short time ago. I am hoping this means they are fixing it.

My colleague Cait Kelly on the ground outside the Park Hotel where Novak Djokovic is being held, along with over 30 asylum seekers who have been there for much longer.

And we are struggling to get the live feed to work. Standby.

The hearing will be getting underway in about five minutes. I am eagerly refreshing the live feed and hoping it holds out.

At the moment, the 34-year-old tennis number one is being held at a quarantine hotel called Park Hotel in Melbourne’s north.

In that hotel are over 30 asylum seekers who were transferred to Australia from our offshore detention system for medical treatment a few years ago. The men have been held in Australia’s immigration detention system for around nine years.

Protesters in support of the asylum seekers have been holding vigils outside of the hotel in the past few days hoping to bring attention to the plight of the asylum seekers, given the massive global focus on Djokovic.

The ABC showed footage earlier this morning of some of the protesters being arrested by police, but it is unclear what for.

My colleague Cait Kelly is on the ground outside the hotel, so we will hopefully have some updates soon.

You can find the submissions for the various parties online here.

Here’s a summary of what Novak Djokovic is claiming in court about why he believes the government made an error in cancelling his visa:

• The Institute of Public Health in Serbia recorded Djokovic was Covid-19 positive on 16 December, and this positive test result formed the basis of the medical exemption he received from Tennis Australia and the Victorian government on 30 December.
• Djokovic argues he relies on the advice of the Australian Technical Advisory Group on Immunisations, which said vaccination can be deferred for up to six months due to a Covid-19 infection.
• He argues, therefore, it is illogical that the government now argues that recent Covid-19 infection is not a grounds for medical exemption from vaccination.
• He is also arguing he was denied procedural fairness in not being given more time between given the notice of the intent to cancel his visa at 4am on 6 January, and when it was cancelled at 7.42am. He wanted to wait until he could speak to his lawyers at 8am.

The government has argued:

• That granting such a wait would amount to a procedural filibuster given Djokovic had given a response about his application during the interviews in the morning.
• The Atagi advice on vaccination exemption needs to be read with a December guide on vaccination put out by Atagi which states that people are able to be vaccinated against Covid-19 after recovering from acute major medical illness from Covid-19, and says “the evidence is that the applicant has recovered”.
• If the court grants Djokovic a win, the government could once again cancel his visa and detain him.

Good morning from Melbourne, and welcome to our live blog of tennis number one Novak Djokovic’s appeal in court against the cancellation of his Australian visa ahead of the Australian Open.

I’m Josh Taylor and I will be bringing you all the updates from the court live stream.

The hearing will kick off at 10am AEST in Melbourne, which is 11pm GMT or 6pm EST.

You can read our most recent stories on the submissions to the court from Djokovic’s lawyers and the federal government while you are waiting, but I will be going through those in more detail in a minute.

If you want to watch the live stream yourself, you will be able to view it here, but a reminder that recording, photography or broadcasting of the hearing is not permitted.

Late on Sunday the court issued a new link, meaning it will be view-only for the public, thereby avoiding the mess of every participant being able to use their camera and microphone, which would have made the hearing a disaster.