Australia live news update: ‘irrational’ not to weigh anti-vax impact of Djokovic deportation, lawyer says; 33 Covid deaths in Victoria and NSW | Australia news

The court takes an adjournment until 1.30pm. Lloyd says he has another hour of submissions to make, so the hearing should be concluded by mid-afternoon.

On the same issue (whether the government properly considered the impact of deporting Djokovic), Lloyd points to the unrest that occurred after the first decision to revoke the cancellation of Djokovic’s visa. There were protests in Melbourne directly connected to the issue. The minister was clearly aware of those protests.

So the minister, he says, clearly would have considered that another decision cancel Djokovic’s visa and deport him would create further unrest.

So it’s impossible to imagine that wasn’t within the minister’s understanding.

The Australian Capital Territory has recorded two deaths and 1,316 new Covid cases.

Stephen Lloyd is flatly denying that the minister failed to consider the consequences of deporting Djokovic. He says it is obvious from the material that he turned his mind to the possibility of unrest, whether Djokovic was present in Australia or deported.

We separately have an argument that [the minister] didn’t need to consider it.

In the federal court, the chief justice James Allsop has just asked the minister to explain the government’s position on the “counter-factual”. Here, the counter-factual means the risks posed by deporting Djokovic, rather than allowing him to remain in Australia.

Interestingly, Allsop says:

One could see a situation in which it was plain to anyone with common sense that cancelling the visa would cause overwhelming public discord and risks of transmission through very large public gatherings. One could see in the sense the counter-factual overwhelming the mere focus only on … the consequence of presence.

Djokovic’s lawyers have accused the government of failing to consider the risks posed by deportation.

Stephen Lloyd, speaking for the minister, says the minister was “obviously” aware of the risks posed by the deportation of Djokovic, but believed that his presence would “encourage others to emulate his position, and that would put Australians at risk”.

The concern is that he’s a high profile person who is in many respects a role model, certainly for many people, so that his presence in Australia would present more strongly and more currently to Australians his anti-vaccination views.

Lloyd also said “the starting point is that [the minister’s power to cancel the visa] doesn’t call for counterfactual at all” and the decision deals with the “presence of the. person in Australia”.

He said:

The idea of asking for a counterfactual raises the surprising notion that Australia when deciding whether or not to cancel a visa, might have to avoid cancelling a visa of someone who is actually presenting a risk when they are here, that Australia’s sovereignty is held at risk because the cancellation might lead to adverse consequences.

Lloyd submitted the counterfactual wasn’t a “mandatory consideration” – it was relevant, but the minister didn’t have to take it into account.

We’re back to the BBC report, in which Djokovic expressed opposition to vaccines. That report was published well before the Covid vaccine was available. But Lloyd says that only strengthens the government’s view that he was opposed to vaccinations:

Even before vaccinations were available, his prima facie position was to be against them. Sure, he left open the possibility that he might change his mind. But nevertheless his publicly stated position was that he was not in favour of taking vaccines.

Lloyd says the minister is not just relying on Djokovic’s public statements to assume an opposition to vaccination.

It’s not just the applicant’s public statements that he is opposed to vaccination, it is the fact of his ongoing non-vaccinated status … at this stage of the pandemic. It is open to infer that a person in the applicant’s position could have been vaccinated if he had wanted to be.

He continues:

We say that that choice makes an important inference about his views about Covid-19 vaccination.

Barrister Stephen Lloyd is now making submissions on behalf of the immigration minister, Alex Hawke.

He quickly picks up on a point just made by Chief Justice Allsop, saying the minister is entitled to rely on his common sense when deciding whether to cancel a visa, not just material evidence later placed before a court.

Lloyd:

We certainly embrace the view that it is not limited to evidence before a court, administrative decision-makers usually inform themselves by a much broader range of materials.