Djokovicâ€™s counsel, Nicholas Wood is arguing that â€œthe only evidenceâ€ connecting Djokovic to anti-vaccination demonstrations is a BBC article about anti-vax groupsâ€™ anger â€œin response to action by the state to cancel his visaâ€.
Not a single line of evidence in the material before the minister provided any specific, logical or probative foundation for the proposition that the mere presence of Djokovic himself â€“ not the cancellation of his visa and expulsion â€“ may somehow foster anti-vaccination sentiment.
Wood said it is conceivable that his presence could have that effect, but that is not enough.
Minister failed to seek clarification on Djokovic’s current vaccination views, court hears
The hearing has started with an explanation from Chief Justice James Allsop about why he considered the case significant enough to have a full court (three judges) hear the case to finalise it today or tomorrow.
Allsop says that they needed to go to a higher level right away, because the right of appeal by Djokovic from a single judge to three judges wouldâ€™ve been â€œinutileâ€ because of the looming Australian Open.
Basically â€“ we need a result, pronto.
In submissions just released the immigration minister, Alex Hawke, has argued that:
- It was â€œclearly openâ€ to him to conclude that Djokovic is personally opposed to vaccination.
- There is â€œample evidenceâ€ that Djokovicâ€™s presence may foster anti-vaccination sentiment.
- Djokovic has failed to show that the minister didnâ€™t consider the impact of cancellation on anti-vaxx sentiment.
Hawkeâ€™s submissions note the â€œcounter-argumentâ€ that he didnâ€™t consider the impact of Djokovicâ€™s removal and says basically … prove it. â€œThere is insufficient basis for the court to make this finding,â€ he said.
Even if Hawke didnâ€™t consider this, the minister argued that didnâ€™t make his decision illogical, irrational or unreasonable, and it was not a material error.
Hawke has responded to Djokovicâ€™s argument he should have ASKED his view by asking:
What Mr Djokovic could have said to the minister in response to a question about his stance on vaccination would not have altered the fact of his previous public statements and the views of those in the Australian community as to what his views on vaccination were.
Novak Djokovicâ€™s amended submissions are now public, arguing that immigration minister Alex Hawke:
- Failed to consider the consequences of cancellation
- Could not be satisfied that Djokovicâ€™s presence â€œis or may beâ€ a risk; and
- Was unreasonable in his conclusion about Djokovicâ€™s stance on vaccination.
Djokovicâ€™s lawyers have argued that what really galvanised anti-vaccination sentiment was the first decision to cancel Djokovicâ€™s visa, citing a BBC report about widespread backlash in the wake of that decision, which was later overturned by the federal circuit court.
It was irrational, illogical or unreasonable for the minister to fail to consider the influence of Mr Djokovicâ€™s removal on anti-vaccination sentiment.
Djokovicâ€™s lawyers also dispute claims Djokovic is an anti-vaxxer, arguing this was based on one statement in March 2020 that had since been qualified.
There was no evidence before the minister that Mr Djokovic has ever urged any others not to be vaccinated. Indeed, if anything, Mr Djokovicâ€™s conduct over time reveals a zealous protection of his own privacy rather than any advocacy.
They criticise Hawke for not making â€œthe obvious, critical, and easy inquiry of Djokovic as to what his sentiment in fact wasâ€.