Thread by @karenlsweeney

Morning! Who doesn't love spending a Sunday in the federal Court with Chief Justice James Allsop, Justice Anthony Besanko and Justice David O’Callaghan. #NovakDjokovic

Here's where you can watch:

Some introductory remarks from CJ Allsop - he's suggeted given the quality of the written submissions, the hearing itself could be done by lunchtime. But he's not putting a time on it.

Submissions are available here:
fedcourt.gov.au/services/acces…

Nick Wood SC is on his feet, beginning the submissions for Novak Djokovic. He says he wants to focus on the satement of reasons for decision by Immigration Minister Alex Hawke. He'll later deal with the grounds for review.

Meanwhile, how good is this photo by @Jamesros @AAPNewswire. Djokovic was pictured on his way from the Park Hotel to his lawyer's offices ahead of this morning's hearing.

https://twitter.com/aap_photos/status/1482466570597453825

Wood says, in large part, all of what Djokovic told Mr Hawke in between the first visa cancellation and the minister's decision went by the by.

He said the misister went with an entirely different rationale for his decision, compared with the first decision.

He's pointing now to the media reports included in the reasons for decision - there's a BBC article on what Djokovic has said about vaccinations, as well as reports of anti-vaccination "civil unrest".

He says the minsiter noted he hadn't read the medical information provided by Djokovic. (Mr Hawke noted that he wasn't a doctor.) But he noted that he relied on medical information saying Djokovic was "negligible risk" of transmitting COVID-19 to others.

There's nearly 70,000 people watching the court's live stream of the hearing.

Wood is reading now from media reports, saying Djokovic said he was opposed to vaccinations but he later clarified he was no expert, kept an open mind and wanted to choose what was best for his body. He says it's inexplicable that part wasn't quoted by the minister.

He also acknowledged those comments were made well before a COVID-19 vaccination was available.

Mr Hawke said he hadn't sought the present views of Djokovic on vaccinations. He said Djokovic's presence may foster anti-vaccination sentiment that could potentially lead to circumstancs where unvaxxed won't vax or people won't complete their doses.

He said the minister says there were reports some who are opposed to vaccinations are supportive of Djokovic remainign in Australiabecause of his unvaccinated status.

Wood says that's not true - the media reports don't say that and some were from before Djokovic even arrived in Australia. He says that's an error by the minister.

He said the only evidence tying Djokovic to anti-vaccination supporters was the BBC article (attachment H) on what Novak Djokovic has said about vaccines.

Wood says there's a subheading in that about "anti-vaccine activitsts". He says the article was published this year, afer the first visa cancellation but before the Federal Circuit Court order quashing the decision.

It said while Djokovic had been suporterd by fans, the visa debate had galvanised anti-vaccination activists even though Djokovic had never come out with an extreme position.

Wood says if there was any foundation for thinking Djokovic's particiption in a tennis tournament would lead to this sortof thinking, it would be supoorted y evidence of rallies at tennis events. "There's nothing of any kind like that identified by the minister," Wood says.

Wood says action by activits has been against the state over coercion or "very strong nudges" to get vaccinated - vaccination mandates.

He's now onto Djokovic's Instagram statement - the one where he admitted the interview and photoshoot with L'Equipe knowing he was positive for COVID-19.

Wood says there's one central concern throughout the minister's reasons - the avoidance of minimisation of that which might foster anti-vaccine sentiments.

He says binary option one was Djokovic be allowe to remain and "hoping he might win some games". The minister went with binary option two - his visa is cancelled and he's expelled from Austraia subjet to a three-year band which might be waived in future.

He says it was "irrational" for the minister to consider that anti-vaccine sentiment might flow from Djokovic being allowed to stay, but not that it might also flow from "coercive state action", being Djokovic's visa cancellation and deportation.

"There was only one single item of eidence, not acknowledged by the minister in any part of the reasons, that actually bore on this quesiton and that item of evience was the BBC report that only suggeted anti-vaxx sentiment (was) aggravated by the cancellation option," Wood says.

"I think the clearest and most attractive window in which to view the error is the public interest lens," Wood says.

(Personally I always preferred the arch window.)

Wood says he'll be quicker on grounds two and three than he's being on ground one. Great news for everyone.

And he's got 15 minutes to go.

I'm loving the replies from people who are watchign their first ever Federal Court hearing. My favourite started "if one mutes the sound..."

As Nick Wood gets toward the end of his submissions, just a little reminder of what the grounds for review are -

Ground One: Failure to consider the consequences of cancellation.

Ground Two: Not open to the minister to be satisfied the presence of Mr Djokovic “is or may be” a relevant risk.

Ground Three: Unreasonableness and/or irrationality in regard to finding concerning Mr Djokovic’s “stance on vaccination”.

Yes there has been a lot of repetition - but there are three grounds for review and there's overlap in the evidence Wood says supports those grounds. He has to explain how the evience specifically relates to the ground.

"We otherwise rely on our written submissions."

Wood is done.

There'll be a lunch break for an hour or so at 12.30pm AEDT.

Stephen Lloyd SC for the minister has been invited to take the next 45 minutes to an hour to outline his submissions.

Lloyd says they've put as much as he can in written submission to save time. Hallelujah.

"We will contend that none of those findings should be made," he says of Djokovic's legal arguments.

The minister's lawyers have set out the reasons for decision in a handy table, identifying the most important bits and where to find them. The full table in the submission can be found here: fedcourt.gov.au/services/acces…

"At this stage of the pandemic ... he could have been vaccinated if he wanted to be. That he is still unvaccinated indicates a choice on his part to remain unvaccinated ... the minister's entitled to assume that it was his choice," Lloyd says.

Lloyd says Djokovic's medical reason for not being vaccinated was that he was infected with COVID-19 in mid-December. He notes Djokovic coud have been vaccinated before then.

Lloyd says it doesn't weaken their case that Djokovic made comments about not wanting to get vaccinated before they were even available, as Wood had argued.

"Even before vaccines were available he was against it - his prima facie position was to be against them," he said.

He's now talking about whether Djokovic has galvanised anti-vaccination activitsts.

Shoutout to my boyfriend who made me coffee, cooked me bacon and eggs for breakfast and is watching the NFL on mute so I can watch this in relative peace.

Back to Stephen Lloyd - he says Mr Hawke did "broadly" consider the consequences of his decision (ie the anti-vaccine sentiment if Djokovic was deported).

He says there's been unrest from supporters of Djokovic, particluarly after the first cancellation decision. Mr Hawke noted in his decision that unrest had already occurred.

He says there was vocal support for Djokovic to remain and play in the #AustralianOpen, and there was concern that could materiaise into discord, unrest or resentment.

Lloyd says Djokovic's presence in Australia would present more strongly to Australians given his hig profile and position as a role model for many people. He says Djokovic has some recent history of "ignoring COVID safety measures".

"Even when he knew he was infected and had received a positive test he undertook an interview and a photoshoot which included taking his mask off."

Just backtracking slightly to a point made by Chief Justice Allsop that "it would be clear to anyone with common sense" that cancelling Djokovic's visa would cause overwhelming discord. Mr Hawke's point was that letting him stay would do that.

Lloyd made the point that it woud be "surprising" if that was a reason to allow Djokovic to stay and talked about a risk to sovereignty.

(Puppy got a bit excited so there was a brief interruption while I pried him off my computer.)

Lloyd says Mr Hawke did consider the consequences of both cancelling and not cancelling Djokovic's visa.

"He's done his best to consier the matters, alive to the fact (Djokovic's) views weren't sought. That suggests the minister tried to look at things broadly."

"The miniser is aware there are consequences for his decision, we say, both ways."

Basically Lloyd is saying Mr Hawke didn't have to go into detail in his reasons about potential for discord if Djokovic was allowed to stay. He says it's clear from the wording of the reaons that he did consider it and nothing can be inferred from what the didn't say about it.

He says there were protests in the days after the initial decision was overturned, and it's "impossible" to imagine Mr Hawke didn't know.

"That's pretty self evident, but it seems to be contested - that somehow the miniser missed that."

Mr Lloyd has suggested we break for lunch.

CJ Allsop: Without intending to put pressure on you, how long do you think you'll be?
Lloyd: Slightly less than as long as I've already been.
CJ Allsop: So about an hour then.

Based on this timeline, Mr Lloyd should be done by 2.30pm. Then we'll have a reply by Djokovic's lawyers - probably looking at around 3-3.30pm for the judges to retire for a decision. Then we wait and see if they come back today or tomorrow.

It's possible, given they've gone straight to a full bench, that we might get a decsion today and full reasons later.

We're back for Stephen Lloyd's second hour of submissions.

There's a few people talking about the privilege of Novak Djokovic getting a hearing so quicky and on a Sunday.

Realistically, anyone would likely get a hearing this fast if they had the same tight timeline as applies here with the #AustralianOpen. It's just a rare situaiton.

There's precedent for speedy hearings:

https://twitter.com/juliakretz/status/1482531215702097921

In August 2019 there was an urgent late night injunction heard and granted to stop the deportation of the Priya and Nades Murugappan and their daughters (the Biloela family).

In that case an injunction was granted at 10.40pm on a Thursday night - the family was already on a plane headed to Sri Lanka when it was granted and the plane was forced to land in Darwin.

There's a few people enjoying the frequent references to "my friend" and "my learned friend".

It's just a traditional and polite way for lawyers to refer to their opponent.

CJ Allsop says Mr Wood is asking "where's the evidence" of people following Djokovic's lead in not getting vaccinated.

He says he understands Lloyd's submission is that one can use common sense and human intuition about people's behaviour.

Lloyd: "Our point is we don't have to show what happens in Serbia or America or wherever else he plays tennis. More importantly ... inevitabley because of more recent events, (Djokovic's) widely understood views about vaccination have come to the fore..."

He says the minister has to consider if Djokovic has now become an icon for the anti-vaccination groups, and what role him staying here would have in people not wanting to get vaccinated.

Lloyd: "Rightly or wrongly he is perceived to endorse an anti-vaccination view and his presence here is perceived to contribute to that."

We're back now to Nick Wood SC for his reply - he's answering questions raised by the judges before lunch.

"I'm at least halfway through the reply, don't be too concerned," says Nick Wood, in what I like to think was a little shoutout to the 80,000 people somehow still watching this on YouTube.

Wood is recapping his earlier argument that the minister didn't acknowledge the part of the BBC article (which referred to Djokovic's early anti-vaxx sentiments) that there had been anti-vaxx sentiments shared in Melbourne this week in response to Djokovic's visa cancellation.

Stephen Lloyd has asked to say something in response to Mr Wood's reply.

"In a minute," the judges tell him.

Mr Wood says if the judges are in favour of Djokovic they'd want the same order as Judge Kelly gave the other day - that the decision be quashed and Djokovic be released from immigration detention within 30 minutes.

He's also supportive of an order being made today with reasons to follow later, given the time.

Lloyd is also supportive of reasons being given later, but says the minister would want to know, if they're unsuccessful, on what grounds.

Chief Justice Allsop says they want to spend the afternoon thinking things over, and hope to make a decision later today.

CJ Allsop: "We will make some form of announcement on the court website if the matter is to be relisted and when it will be relisted."

And now we wait.

I don't think 15 minutes will be enough, but it's a start

"The Court will deliver its orders at 5.45pm (Melbourne time). Full reasons will be published at a later date."

youtube.com/user/FederalCo…

My poor dog. We'd just headed out the front door for a nice long walk. Didn't even make the end of the driveaway before I saw the email and turned around.

I'll leave the guessing to people who a) actually studied migraiton law and b) did better at administrative law than me (not a high bar, it's really hard!).

Also I'm saving myself the trouble of having to delete the tweet if my guess is wrong. I genuinely have no idea.

The livestream has just gone up here:

Chief Justice Allsop will be the one making the orders on behalf of the court.

The orders will be either:

a) The decision of the minister is upheld and Djokovic is able to be deported; or
b) The decision of the minister is quashed and there's an order for Djokovic to be released.

Djokovic's lawyers want the order, if they're successful, to be the same as Judge Kelly's in the Federal Circuit Court - that Djokovic be released within 30 minutes of the orders.

They also want costs.

We're slighty late starting and the stream has just ticked over 30,00 viewers.

Chief Justice Allsop is making clear that this application is not an appeal against the decision of the executive government. It is a review of the decision for the lawfulness or legality of the decision.

#Breaking Novak Djokovic has LOST his Federal Court Case. The decision was unanimous.

Written reasons to follow in the coming days.

Justice Allsop says he doens't believe any further orders are necessary. He's just checking - but will allow them up to 30 minutes.

Mr Woods says they want a minute to reflect.

There's 60,000 people watching the stream on YouTube. Justice Allsop also took the unusual step of allowing media to stream it live and record the proceedings.

What happens next? Well there's almost zero prospect that a High Court special leave application (or hearing) could be heard and determined before Djokovic was scheduled to play tomorrow.

News from the court is that there's no further orders. We're all done here.

Djokovic has to pay costs and will be subject to a three year ban on being granted a visa for Australia.

There are exceptions to the ban, including "compelling circumstances" which affect the interests of an Australian citizen, permanent resident or eligible Kiwi.

Update on the dog walk - he chewed through his lead during the hearing 🤦‍♀️🐶

Statement from Novak Djokovic.

"I will now be taking some time to rest and to recuperate, before making any further comments beyond this. I am extremely disappointed with the ruling."

"I am uncomfortable that the focus of the past weeks has been on me and I hope that we can all now focus on the game and tournament I love. I would like to wish the players, tournament officials, staff, volunteers and fans all the best for the tournament."

"Finally, I would like to thank my family, friends, team, supporters, fans and my fellow Serbians for your continued support. You have all been a great source of strength to me."

Djokovic says he respects the court’s ruling and will cooperate with the Australian Border Force in relation to his “departure” from Australia.