The full quote from Kelly there:
In the waking hours of Thursday morning, at 4am a person is instructed to and complies with instruction to turn off his phone, is effectively incommunicado for the entire or vast majority of the period from midnight to 7:42am from when the cancellation is effected. [Djokovic] is putting to the delegate…’if you would let me have enough time so when Tennis Australia is awake, when my agent is awake and I’m able to communicate with them by telephone we can effectively take up the opportunity embodied in this invitation to provide you anything further you might want’.
‘What more could this man have done?’: Judge Kelly
And we are back.
Judge Kelly has noted that in his interview Djokovic said words to the effect of “if you let me talk to people I will try and get what you want”.
Nicholas Wood replied that he was “doing his level best to provide everything” he could and “did indeed provide that evidence from medical practitioners, before he boarded the aircraft”.
Wood again argues it is “manifestly incorrect” that the biosecurity determination requires both a declaration of an exemption and evidence of the exemption – only the former is required, Djokovic’s team argues.
Any conclusion that Djokovic breached the determination is “clearly erroneous”, Wood says.
Mr Djokovic did provide evidence both before boarding and upon arriving of the matter.
Djokovic’s counsel, Nicholas Wood, has accused the Australian government’s delegate of an “utter paucity of evidence” in the section of the notice in which they were required to explain why grounds to cancel the visa exist.
Wood said the description that “all and only” earlier evidence set out above was the basis for the decision means that ANY problem in the earlier evidence can invalidate the ultimate decision.
Judge Anthony Kelly has noted that the ONLY ground the delegate relied on when deciding to cancel Djokovic’s visa is that:”the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community”.
Nicholas Wood argued this was “more than a typo” in the decision, but a “confusing blend of two grounds”, including a separate ground that the applicant had not been immigration cleared.
He argued that the “only expression of satisfaction” of the test was a mash-up of two grounds so there “wasn’t the requisite state of satisfaction to enliven the power” and the decision was invalid.
Kelly doubts that – he notes that all the grounds in section 116(1) are “disjunctive”, the delegate decides on one ground, or another, or another, not some combination of them.
The Federal Circuit Court has begun hearing Novak Djokovic’s case seeking his Australian visa to be reinstated.
After a 45-minute delay in which the live stream was not operative, I’m now getting both audio and video of the hearing.
Judge Anthony Kelly is quizzing Djokovic’s legal team about the notices given to him about the intention to cancel his visa, and asking them to go through the timeline of Djokovic’s interview with Border Force. Djokovic’s team is arguing the notices were pre-printed.
It’s absurd to think the delegate arrived at 4am and gave to the applicant a copy of part C before there’d been any interview.
Djokovic’s lawyers replied that he received a notice of intention to cancel his visa at 3:55am. Judge Kelly warned him not to refer to this as a “Noic” because he “hates acronyms”.