A decision is expected as early as Tuesday, but the government faces internal division over whether to enforce Australia’s hardline border policies against Djokovic.
Liberal MPs from Hawke’s home state of New South Wales – including John Alexander and Dave Sharma – have argued Djokovic should now be allowed to stay.
But Julian Simmonds, the chair of parliament’s law enforcement committee, said the court loss on procedural grounds should not change the substantive decision to deport him.
The division underscores the difficulty of the momentous political decision before Hawke: let Djokovic stay and play for a record 21st grand slam singles title; or deport him, which could trigger a three-year ban from re-entering Australia.
Alexander, a retiring MP and former professional tennis player, told ABC Radio on Tuesday it would be a mistake to recancel the visa after the “very strong decision” from judge Anthony Kelly of the federal circuit court.
“There seems no reason to do so, the judge has been clear in his finding … saying what more could this man have done to meet the criteria,” Alexander said.
“I see it as something that should not become a political problem.”
Alexander argued Djokovic had “filled out all of the forms to meet the conditions of exemption in that he had tested positive to Covid-19 in December, one of the criteria, he met it and therefore the judges ruled in his favour”.
In court, the government argued that recently having Covid by itself did not justify an exemption, because Djokovic had recovered.
Alexander played down suggestions cancelling Djokovic’s visa could lead to Australia losing the grand slam tournament, but said it would “diminish” the case to retain it.
“If the Australian Open is making conditions that people seem to meet but then are not allowed to come … that would not help our status.”
Sharma told Guardian Australia that “whatever mistakes had been made” it was clear Djokovic was “not trying to subvert our immigration system”.
“For whatever reason, he was allowed to board a flight with the [vaccination exemption] paperwork as he had it,” Sharma said.
“He’s made a good faith attempt to comply with [the rules], he’s here now – it would be a shame if he wasn’t able to play.
“Given the saga that’s already gone here it would be better to let him play.
“He’s the defending Australian Open champion, the tournament would be less without his presence.”
Simmonds told the BBC Djokovic won on a “process issue” about being denied the time he had been promised to respond to an intention to cancel his visa. But there was “no indication” in court the tennis star had further information that the government was unaware of when it made the decision, he said.
“If the information is still the same, regardless of process issues, I suspect the answer should still be the same.”
Simmonds said the government is “trying to ensure one rule for all – whether you’re a celebrity or anyone else”.
Given even unvaccinated Australian citizens must go through quarantine, Simmonds said, “the idea an unvaccinated celebrity could come without quarantine rubs people the wrong way”.
“Certainly I would favour the visa being cancelled as a member of parliament, to ensure one rule for everyone, and there isn’t hypocrisy [about the way rules are applied], whether you’re a famous celebrity or sports person.”
Simmonds suggested the rule that ministerial revocation results in a three-year exclusion might not apply but was “something to consider”. The government did not intend to punish Djokovic, he said.
Labor’s home affairs spokeswoman, Kristina Keneally, described the situation as an “incredible mess”.
Keneally told Sunrise on Tuesday morning the government “[has] a lot of explaining to do because what we have seen from this is Australians now know they cannot trust the Morrison government to enforce the rules at the border and they have done incredible damage”.
Keneally raised the stakes for the government, arguing failing to cancel Djokovic’s visa “does incredible damage to our tough border laws”.
“The Morrison government looks like a pack of idiots that could not organise a meat raffle in a local RSL.
“These are extraordinary circumstances. The Morrison government issued Novak Djokovic a visa on 18 November.
“The Australian Open is not a secret event. The fact Novak Djokovic … wanted to come to Australia and play was not a state secret and yet Mr [Scott] Morrison, as he has done at every stage in this pandemic, failed to plan, failed to act.”