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1.1 The authors of the
communication are Francesco Madafferi, an Italian national, born on 10
January 1961 and Anna Maria Madafferi, an Australian national, also writing
on behalf of their children Giovanni Madafferi, born 4 June 1991, Julia
Madafferi, born 26 May 1993, Giuseppina Madafferi, born 10 July 1996, and
Antonio Madafferi, born 17 July 2001. All four children are Australian
nationals. Francesco Madafferi is currently residing with his family in
Melbourne, Victoria, Australia. The authors claim to be victims of
violations by Australia of articles 2, 3, 5, 7, 9, 10, 12, 13, 14, 16, 17,
23, 24 and 26, of the International Covenant on Civil and Political Rights.
They are represented by counsel, Mr. Mauro Gagliardi and Mr.Acquaro.
1.2 An interim measures request to prevent the deportation of Mr. Madafferi,
which was submitted at the same time as the initial communication, was at
first denied by the Committee's Special Rapporteur on New Communications.
However, in light of the psychological report provided, the Special
Rapporteur, in the exercise of his mandate, decided to include the following
phrase in the note transmitting the communication to the State party with
the request for information on admissibility and merits, "The Committee
wishes to draw the attention of the State party to the psychological impact
of detention upon [Mr. Madafferi], and the possibility that a deportation,
if implemented while the communication is before the Committee, may violate
the State party's obligations under the Covenant". [FN1]
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[FN1] The authors had provided a psychological report, dated 4 July 2001, in
which the psychiatrist expressed his "serious concern about [Mr. Madafferi's]
psychological state under conditions of continued detention. One might
expect...... the dysfunctional symptoms of his stress disorder to be
exacerbated by further detention....there will be serious issues not only
about his being able to adequately instruct his legal advisers but also
whether or not he will be so damaged psychologically that he will be unable
to return to his previous capacity....."
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THE FACTS AS SUBMITTED BY THE AUTHORS
2.1 On 21 October 1989, Francesco Madafferi arrived in Australia on a
tourist visa, which was valid for six months from the date of entry. He came
from Italy, where he had served a two year prison term and was released in
1986. On entering Australia, Mr. Madafferi had no outstanding criminal
sentence or matters pending in Italy.
2.2 After April 1990, Mr. Madafferi became an unlawful non-citizen. On 26
August 1990, he married Anna Maria Madafferi, an Australian national. He
believed that his marriage had automatically granted him residence status.
The couple had four children together, all born in Australia. Mr.
Madafferi's extended family are all residents in Australia.
2.3 In 1996, having been brought to the attention of the Department of
Immigration and Multicultural Affairs (hereinafter "DIMIA"), Mr. Madafferi
filed an application for a spouse visa to remain permanently in Australia.
In this application, he disclosed his past convictions and included details
of sentences handed down, in absentia, in Italy which only became known to
him following his initial interview with the Immigration officers.
Extradition was never sought by the Italian authorities.
2.4 In May 1997, DIMIA refused the application for a spouse visa, as he was
considered to be of "bad character", as defined by the Migration Act, in
light of his previous convictions. This decision was appealed to the
Administrative Appeals Tribunal (hereinafter referred to as "AAT").
2.5 On 7 June 2000, and after a two-day hearing, the AAT set aside the
decision under review and remitted the matter to the Minister of DIMIA
(hereinafter "the Minister") for reconsideration in accordance with a
direction that Mr. Madafferi "not be refused a visa on character grounds
solely on the basis of the information presently available..." . [FN2] In
July 2000, rather than reconsidering the matter in accordance with the
direction of the AAT, the Minister gave notice of his intention under a
separate section of the Migration Act 1958 - subsection 501A - to refuse Mr.
Madafferi's request for a visa.
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[FN2] According to this decision, although the Deputy President initially
remarked that Mr. Madafferi is not of good character he went on to say that,
"There is no reliable evidence that he has committed any crime since the
mid-1980's. He was only 23 years old at the time of the second attempted
extortion and 24 years old at the time of the fight in prison. He is now 39
yeas old..........I think it would be inappropriate to judge him by the
crimes that he committed long ago in another country." The Tribunal also
pointed out that some of the convictions in Italy were conducted in absentia
and possibly subject to appeal and reversal should he choose to pursue such
remedies. In addition, it added that such convictions conducted in absentia
are intolerable under Australian law and accordingly should not be given
weight under Australian jurisprudence. Appropriate attention was also paid
to Mr. Madafferi' children who "....must be regarded as a primary
consideration." The weight attached to the interests of the children, is in
accordance with the High Court's decision in Minister for Immigration and
Ethnic Affairs v. Teoh (1995) 183 CLR 273. The presiding judge concluded
that, "......... the factors weighting in favour of the granting of a visa,
particularly the interests of the children, should predominate over the
factors weighting in favour of refusing one".
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2.6 In August 2000, the Italian authorities, on their own motion,
extinguished part of the outstanding sentences and declared that the
remainder of the outstanding sentences would be extinguished in May 2002.
[FN3] According to the authors, the Minister did not take these actions of
the Italian authorities into account.
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[FN3] On 22 June 2002 the Italian Authorities notified Mr. Madafferi that
they had extinguished his outstanding sentence and cancelled the outstanding
warrant for his arrest.
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2.7 On 18 October 2000, the Minister used his discretionary power, under
subsection 501A, to overrule the AAT decision and refused Mr. Madafferi a
permanent visa. On 21 December 2000, following an application by Mr.
Madafferi's lawyer, the Minister gave his reasons, claiming that since Mr.
Madafferi had prior convictions and an outstanding term of imprisonment in
Italy, he was of "bad character" and that therefore it would be in the
"national interest" to remove him from Australia. According to the authors,
the Minister failed to make proper enquiries with the Italian authorities
and relied incorrectly on the assumption that Mr. Madafferi had an
outstanding sentence of over 4 years. Further clarification was asked of the
Minister and provided by him in January 2001. On 16 March 2001, Mr.
Madafferi surrendered himself to the authorities and was placed in the
Maribyrnong Immigration Detention Centre in Melbourne for an indefinite
period.
2.8 On 18 May 2001, the Federal Court dismissed an application for judicial
review of the Minister's decision. On 5 June 2001, this decision was
appealed to the Full Court of the Federal Court. On 13 November 2001, the
Full Federal Court heard the appeal and reserved its decision. On 31 January
2002, Mr. Madafferi was advised that one of the three judges of the Full
Federal Court had fallen ill and would not be able to hand down his
judgment. Mr. Madafferi chose to have a reconstituted court decide the
appeal on the papers rather than the two remaining judges handing down their
decision. On 17 July 2002, the reconstituted Full Federal Court, dismissed
the appeal.
THE COMPLAINT
3.1 The authors claim that as Mrs. Madafferi does not intend to accompany
her husband to Italy if he is removed, the rights of all the authors,
particularly the children, will be violated as the family unit will be
split-up. It is claimed that such a separation would cause psychological and
financial problems for all concerned, but more particularly for the
children, considering their young ages.
3.2 The authors claim that the decision of the Minister was arbitrary in
overturning the decision of the AAT without any new information and without
due consideration of the information, facts and opinion of the presiding
judge. It is claimed that the Minister abused his discretion and failed to
afford procedural fairness to Mr. Madafferi's case. They claim that his
decision was politically driven by "the media's contempt for Mr. Madafferi
and other members of his family." In this regard, the authors also stress
that Mr. Madafferi has never been convicted of an offence in Australia.
3.3 In addition, the authors claim that the detention centre in which Mr.
Madafferi was held does not rise to the health standards and humane
environment even accorded to serious criminal offenders. It is also claimed
that Mr. Madafferi's rights have been violated by denying him other
alternative detention measures like home detention or alternate home arrest
which would allow him to continue to be with his family, particularly in
light of the birth of his last child, pending resolution of his immigration
status. In this regard it is claimed that Mr. Madafferi was not allowed to
attend the birth of his fourth child, born on 17 July 2001.
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND MERITS
4.1 By submission of March 2002, the State party commented on the
admissibility and merits of the communication. It submits that the entire
communication is inadmissible in so far as it purports to be lodged on
behalf of Mrs. Madafferi and the Madafferi children, as they have not given
their authority to do so. It submits that the entire communication is
inadmissible for failure to exhaust domestic remedies as, at the time of its
submission, the Full Court of the Federal Court had not yet handed down its
decision and the authors still had the option of appealing a negative
decision by this court to the High Court. In addition, it submitted that the
authors had not availed themselves of the remedy of habeas corpus, to review
the lawfulness of Mr. Madafferi's detention, nor did they lodge a complaint
with the Human Rights and Equal Opportunities Commission.
4.2 It submits that the entire communication is inadmissible for failure to
substantiate any of the allegations. With the exception of the allegations
that articles 9, paragraph 1 and 10, paragraph 1, have been violated in
relation to Mr. Madafferi, all of the allegations contained in the
communication are inadmissible on the basis of incompatibility with the
Covenant. A number of the allegations are inadmissible in relation to
certain members of the family as they cannot be considered victims of the
alleged violations.
4.3 On the merits, the State party submits that the authors failed to
provide sufficient pertinent evidence to permit an examination of the merits
of the alleged violations. As to a possible violation of article 7, the
State party submits that the treatment of Mr. Madafferi and its effects on
the other authors did not amount to severe physical or mental suffering of
the degree required to constitute torture, but was lawful treatment in
accordance with the State party's immigration laws. As to the psychological
assessments of the authors, it submits that whilst there is evidence that
Mr. Madafferi and the Madafferi children are suffering emotionally as a
result of his detention and proposed removal, they do not amount to evidence
of a violation of article 7, as they do not document suffering of a
sufficient severity caused by factors beyond the incidental effects of
detention and its inherent separation from the rest of the family. As
evidence, it submits a copy of a medical report, dated 20 August 2001, which
concludes that whilst Mr. Madafferi is suffering a range of stress-related
symptoms, these are in the mild to moderate range and consistent with what
would be expected given his detention and proposed removal.
4.4 With respect to the alleged violation of article 9, the State party
submits that Mr. Madafferi' s detention is lawful and in accordance with
procedures established by law, the Migration Act. As he does not hold a
visa, he is an unlawful non-citizen under the definition in section 14 of
the Migration Act. Under Section 189, such unlawful non-citizens in
Australia are detained mandatorily. The State party submits that the
Minister was entitled to use his discretionary power under the Migration Act
not to grant a visa to Mr. Madafferi. His actions in this regard have been
challenged throughout the court system and found to be lawful.
4.5 The State party denies that Mr. Madafferi's detention is arbitrary. It
submits that detention in the context of immigration is an exceptional
measure reserved for people who arrive or remain in Australia without
authorisation. The aim of immigration detention is to ensure that potential
immigrants do not enter Australia before their claims to do so have been
properly assessed and found to justify entry. It also provides Australian
officials with effective access to those persons for the purposes of
investigating and processing their claims without delay, and if those claims
are unwarranted, to remove such persons from Australia as soon as possible.
4.6 The State party submits that the detention of people who seek to remain
in Australia unlawfully is consistent with the fundamental right of
sovereignty, pursuant to which States may control the entry of non-citizens
into their territory. Australia has no system of identity cards, or other
national means of identification or system of registration which is required
for access to the labour market, education, social security, financial
services and other services. This makes it more difficult for Australia to
detect, monitor and apprehend illegal immigrants in the community, compared
to countries where such a system is in place.
4.7 On the basis of past experience, it may reasonably be assumed that if
individuals were not detained but released into the community, pending
finalisation of their status, there would be a strong incentive for them not
to adhere to the conditions of their release and to disappear into the
community and remain in Australia unlawfully, especially where such
individuals have a history of non-compliance with migration laws. The State
party's immigration detention policy must also be seen in the broader
context of the overall migration program. All applications to enter or
remain in Australia are thoroughly considered, on a case by case basis.
Although the exhaustion of all legal remedies means that the processing time
is extended in some cases, it also ensures that all claimants are assured of
a detailed consideration of all the factors relevant to their case. This has
occurred in Mr. Madafferi's case. The reasonableness of the State party's
mandatory detention provisions was considered by the High Court in Chu Kheng
Lim v. Minister for Immigration and Ethnic Affairs. [FN4]
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[FN4] (1992) 176 CLR 1.
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4.8 The State party submits that its migration laws are not arbitrary per
se, and that they were not enforced in an arbitrary manner in the case of
Mr. Madafferi. Several factors demonstrate that Mr. Madafferi was treated in
a reasonable, necessary, appropriate, predictable and proportional manner to
the ends sought, given the circumstances of his case. Firstly, he was always
treated in accordance with domestic laws. Secondly, the failure of the
character test established by section 501A [FN5] of the Migration Act due to
Mr. Madafferi's criminal record, the fact that he twice overstayed his
Australian entry permit and his dishonesty when dealing with migration
officials meant that it was reasonable and predictable that he would be
denied a visa, notwithstanding the fact that he had established a family in
Australia. Direction 17 provides directions on, inter alia, the application
of the character test. [FN6]
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[FN5] Section 501A(2) of the Migration Act provides that where the Minister:
reasonably suspects that a person does not pass the "character test"; and
the person does not satisfy the Minister that the person passes the
"character test", then the Minister can: set aside a decision of a delegate
or the AAT not to refuse to grant a visa to the person or to refuse to
cancel a visa already issued to the person; and refuse to grant a visa to
the person or cancel a visa that has been granted to the person, but only
where the Minister is satisfied that the refusal or cancellation is in the
national interest. Sub-section 501(6) provides that a person does not pass
the character test if: "(a) the person has a substantial criminal record (as
defined by subsection (7)); or (b) the person has or has had an association
with someone else, or with a group or organisation, whom the Minister
reasonably suspects has been or is involved in criminal conduct; or (c)
having regard to either or both of the following: (i) the person's past and
present criminal conduct; (ii) the person's past and present general
conduct; the person is not of good character; or (d) in the event the person
were allowed to enter or to remain in Australia, there is a significant risk
that the person would: (i) engage in criminal conduct in Australia; or (ii)
harass, molest, intimidate or stalk another person in Australia; or (iii)
vilify a segment of the Australian community; or (iv) incite discord in the
Australian community or in a segment of that community; or (v) represent a
danger to the Australian community or to a segment of that community,
whether by way of being liable to become involved in activities that are
disruptive to, or in violence threatening harm to, that community or
segment, or in any other way. Otherwise, the person passes the character
test."
"Substantial criminal record" is defined for the purposes of the character
test in sub-section 501(7) to mean where: "(a) the person has been sentenced
to death; or (b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or
more; or (d) the person has been sentenced to 2 or more terms of
imprisonment (whether on one or more occasions), where the total of those
terms is 2 years or more; or (e) the person has been acquitted of an offence
on the grounds of unsoundness of mind or insanity, and as a result the
person has been detained in a facility or institution."
[FN6] The State party explains that in addition to legislative provisions, a
number of directions were made under section 499 of the Migration Act to
ensure that the powers under that Act are exercised in a proper and
consistent manner. The Minister tables such directions in Parliament. These
directions do not limit the discretion of a decision maker or authorise
improper decision making. At the time of the decision to deny Mr. Madafferi
a visa, Direction 17 dealt with visa refusal and cancellation under section
501. It provided directions on, inter alia, the application of the character
test in the Act.
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4.9 Thirdly, the decision of the Minister was based on a full consideration
of all relevant issues as evidenced by the extensive reasons and
supplementary reasons provided by the Minister for his decision. These
issues included: the interests of Mrs. Madafferi and her children;
Australia's international obligations; Mr. Madafferi's criminal history ;
Mr. Madafferi's conduct since arriving in Australia; the interests of
maintaining the integrity of the Australian immigration system and
protecting the Australian community; the expectations of the Australian
community and the deterrent effect of a decision to deny Mr. Madafferi a
visa.
4.10 Fourthly, Mr. Madafferi unsuccessfully sought to challenge the
Minister's decision in the Federal Court, which found that the Minister's
decision did not involve an error of law, improper exercise of power or
bias, was carried out in accordance with the Migration Act and was not based
on any lack of evidence. Fifthly, he was detained in order to facilitate his
removal from the State party and has remained there only whilst he has
challenged that removal order. Sixthly, his detention was the subject of
review by the Federal Court and was not overturned. It has recently been
agreed that Mr. Madafferi be approved for home detention, subject to
approval of the practical aspects of such detention.
4.11 The State party contests that it has violated article 10 with respect
to the conditions of detention. It provides a statement from the Detention
Services Manager for Victoria (Where the detention centre Mr. Madafferi was
detained is located) to demonstrate that Mr. Madafferi was treated humanely
whilst detained, with the level of services provided more than adequate to
satisfy his basic needs.
4.12 In relation to the allegation that Mr. Madafferi was not able to be
present at the birth of Antonio Madafferi, it is stated that permission was
granted for Mr. Madafferi to be present at the birth as long as he was
supervised. It was Mrs. Madafferi who stated that she did not want Mr.
Madafferi to be present at the birth under such circumstances. The State
party acknowledges that there was a delay in permitting Mr. Madafferi to
visit the hospital, but that this was rectified speedily and an extra visit
allowed as a result. The State party submits that requiring Mr. Madafferi to
be supervised in such circumstances was prudent to ensure that he did not
abscond.
4.13 The State party submits that Mr. Madafferi is not lawfully in its
territory and this fact negates any allegation that he has been the victim
of a violation of article 12, paragraph 1, of the Covenant. The operation of
article 12, paragraph 3, which establishes a number of exceptions to the
rights established by article 12, paragraph 1 means that Mr. Madafferi's
detention does not amount to a denial of the right to liberty of movement or
freedom to chose his residence, in contravention of article 12, paragraph 1.
4.14 As to a possible violation of article 12, paragraph 4, the State party
submits that Mr. Madafferi's link with Australia is insufficient to assert
that it is his own country for the purposes of this provision. None of the
situations that were identified by the Committee in Stewart v. Canada, [FN7]
as giving rise to special ties and claims in relation to a country so that a
non-citizen cannot be considered to be a mere alien, exist in relation to
Mr. Madafferi and his relationship with Australia. He has not been stripped
of his nationality in violation of international law. Mr. Madafferi did not
seek to acquire a right to stay in the State party in accordance with
Australia's immigration laws, despite the fact that the State party has well
established mechanisms for applying for Australian nationality and does not
place unreasonable impediments on the acquisition of Australian citizenship.
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[FN7] Case No. 538/1993.
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4.15 On article 13, the State party submits that Mr. Madafferi is not
lawfully in Australia, that the decision to expel him is in accordance with
Australian law, and that he had numerous opportunities to have this decision
reviewed.
4.16 As to the claim of a violation of article 14, paragraph 1, the State
party refers to the Committee's decision in Y.L. v. Canada, FN8 where the
Committee considered the definition of a "suit at law", and adopted a
two-pronged interpretation, examining the nature of the right in question
and the forum in which the question must be adjudicated. In relation to the
nature of the right in question, the State party refers to decisions of the
European Court of Human Rights ("ECHR") to demonstrate that the right to a
residence permit does not fall within the rights established by article 6,
of the ECHR, which is very similar to article 14 of the Covenant. [FN9] An
administrative decision at first instance to deny a visa does not amount to
a "suit at law" for the purposes of this provision. Such a decision cannot
be characterised as a determination of rights and obligations in a "suit at
law", as it does not involve legal proceedings brought by one person to
determine their rights as against another, but rather an administrative
decision where one person determines the rights of another person pursuant
to a statute. A decision on whether to allow a person to enter and/or remain
in its territory is a matter for the State concerned. As to the forum in
which the right is adjudicated upon, the State party reaffirms that an
administrative decision at first instance to deny a visa does not amount to
a "suit at law".
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[FN8] Case No. 112/81.
[FN9] In relation to the nature of the rights in question the State party
refers to the following cases of the ECHR to demonstrate that deportation
proceedings are not "suits at law". Agee v. United Kingdom, 7729/76, DR 7,
164, which related to the right to reside in a country and the removal of an
alien; X v. United Kingdom, 7902/77, DR 9, 224, which concerned the
termination of a residence permit granted to an alien and a decision to
deport the alien; Appal et al v. United Kingdom, 8244/78 DR 17, 149, which
concerned a request for a residence permit.
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4.17 As to article 17, the State party submits that requiring one member of
a family to leave Australia while the other members are permitted to remain,
does not necessarily involve "an interference" with the family life of the
person removed or the people who remain. [FN10] It submits that article 17
is aimed at the protection of individual privacy and the interpersonal
relationships within a family that derive from this right to privacy. The
detention and proposed removal of Mr. Madafferi does not interfere with the
privacy of the Madafferi family as individuals or their relationships with
each other. The proposed removal is not aimed at affecting any of the
relations between any members of the family and the State party will not
obstruct the maintenance and development of the relationships between the
members of the family. The detention and proposed removal of Mr. Madafferi
is solely aimed at ensuring the integrity of the State party's immigration
system. In its view, decisions about whether the other family members will
continue their lives in Australia or travel with Mr. Madafferi to Italy or
any other country are for the family to make. It points out that only Mr.
Madafferi is subject to removal; the Madafferi children can remain in
Australia with Mrs. Madafferi. Considering the young ages of the children
and the fact that both of their parents are of Italian ancestry, they would
be able to successfully integrate into Italian society, if Mr. Madafferi is
joined by other members of his family. In this context, the State party
notes the advice of the authors that Mr. Madafferi is not required to serve
his outstanding Italian prison sentences when he returns to Italy. Once he
is removed from Australia, it is submitted that he will be able to make an
offshore application for a visa permitting him to return.
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[FN10] In this regard it refers to Winata v. Australia, Case No. 930/2000,
in which the Committee decided that "the mere fact that one member of a
family is entitled to remain in the territory of a State party does not
necessarily mean that requiring other members of the family to leave
involves ... interference." It also refers to several cases of the ECHR to
support its argument that there is no legitimate expectation of continuing
life in a State territory where a member of a family has been residing in a
country unlawfully.
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4.18 If the Committee is of the view that the State party's conduct in
relation to Mr. Madafferi constitutes an "interference" with the Madafferi
family, such interference would be neither "unlawful" nor "arbitrary".
Reference is made to the fact that the Covenant recognises the right of
States to undertake immigration control.
4.19 The State party contests the claim of a violation of article 23, and
argues that its obligation to protect the family does not mean that it is
unable to remove an unlawful non-citizen just because that person has
established a family with Australian nationals. Article 23 must be read in
light of the State party's right, under international law, to control the
entry, residence and expulsion of aliens. [FN11] In accordance with this
right, the Covenant allows the State party to take reasonable measures to
control migration into Australia, even where such measures may involve
removal of a parent. The situation whereby Mr. Madafferi can only be with
his family if they travel to Italy would be brought about by Mr. Madafferi's
conduct rather than by the State party's failure to take steps to protect
the family unit. These submissions show that the decision to deny Mr.
Madafferi a visa was made in accordance with Australian law and after a
consideration of the impact of the decision on, among other things, the
Madafferi family.
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[FN11] It refers to the ECHR case of Moustaquim v Belgium (1991) 13 EHRR
802, at page 814.
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4.20 The State party notes that the allegation that article 24 was violated
appears to be solely based on the fact that it is proposed to remove Mr.
Madafferi from Australia. It submits that this action would not amount to a
failure to provide protection measures that are required by the Madafferi
childrens' status as minors. One of the factors considered by the Minister
in making the decision to deny Mr. Madafferi a visa was the "best interest"
of the Madafferi children. Any long term separation of Mr. Madafferi from
the Madafferi children will occur as a result of decisions made by Mr. and
Mrs. Madafferi, not the result of State party actions. The authors have not
provided any evidence that the children cannot be adequately protected by
Ms. Madafferi, should they remain in Australia or that there are any
obstacles to the children continuing a normal life in Italy.
4.21 The State party indicates that the alleged violation of article 26
appears to relate to the guarantee of equality before the law by the
Minister in denying Mr. Madafferi a visa. The State party refutes this claim
and refers to its arguments on article 9; it submits that the Minister's
decision was necessary, appropriate, predictable and proportional and argues
that: the decision was lawful; that Mr. Madafferi failed the character test;
that he was permitted to make submissions to the Minister prior to him
making his decision; that the Minister provided reasons for his decision;
and that his decision was judicially reviewed and found not to involve any
error of law, improper exercise of power or bias, that it was in accordance
with the Migration Act and not based on any lack of evidence.
4.22 As to violations of articles 2, 3, 5, 14, paragraph 2 to 7, and 16, the
State party provides detailed arguments dismissing these claims on grounds
of inadmissibility and lack of merit.
INTERIM MEASURE REQUEST
5.1 On 16 September 2003, the authors informed the Secretariat that the
State party intended to deport Mr. Madafferi on 21 September 2003, requested
interim measures of protection to prevent his deportation. They further
requested a direction from the Committee that he be transferred to home
detention.
5.2 The authors provide an update on the factual situation. On 7 February
2002, on the basis of Mr. Madafferi's deteriorating psychological state and
the effect the separation was having on the other members of the family, the
Minister directed that Mr. Madafferi be released into home detention. This
was done on 14 March 2002. In home detention, he continued to suffer mental
ill health and was visited by doctors, psychiatrists and counsellors, at his
own expense. The symptoms that had developed by the time he was released
into home detention did abate, but he continued to suffer from symptoms of
mental ill health during the home detention arrangement.
5.3 On 20 June 2003, special leave to the High Court to review the
Minister's ability to intervene and to set aside the decision of the AAT was
denied. On 25 June 2003, DIMIA terminated the home detention agreement due
to the increased risk that Mr. Madafferi would abscond following the High
Court decision five days earlier, which meant that domestic remedies were
exhausted. On the same day, Mr. Madafferi was returned to immigration
detention at Maribyrnong. A constitutional writ issued by the author was
dismissed by the High Court on 25 June 2003.
5.4 Mr. Madafferi's return to detention is described as comparable to an
"army style raid", during which 17 armed Australian Federal Police arrived
unannounced in an escort van accompanied by 2 other vehicles of the
Australian Federal Police. Mr. Madafferi surrendered himself without a
struggle. Mrs. Madafferi was terrified for the safety of her husband, as she
thought he was being removed from Australia. The 2 younger children who also
witnessed the event suffered from eating disorders for weeks thereafter. The
authors claim that this action by the authorities was unwarranted and
disproportionate to the circumstances of the case, particularly in the light
of Mr. Madafferi's compliance with all the conditions of home detention over
a 15 month period.
5.5 Prior to the termination of home detention, medical evidence was
presented to DIMIA, at its request, in support of the contention that home
detention ought to continue, since the medical grounds for which the
Minister had originally directed detention continued to exist or would
likely reappear if the author were to be returned to Immigration Detention
at Maribrynong. Thus, the authors argue, the State party acted against its
own medical and psychiatric advice in terminating home detention. [FN12]
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[FN12] According to the authors, the Migration Agent, John Young, submitted
a number of medical reports to DIMIA, including one by a Dr. Arduca, in
which he stated that "In my opinion, this state of severe mental conflict
puts Mr. Madafferi at significant risk of self harm. Removing him from his
home and family and placing him in detention would profoundly compound this
risk."
-------------------------------------------------------------------------------------------------------------------------------
5.6 On 22 June 2002, the Italian authorities notified Mr. Madafferi that
they had extinguished his outstanding sentences and cancelled his arrest
warrant. In June 2003, Mr. Madafferi requested the Minister to re-visit his
decision to refuse Mr. Madafferi a spouse visa in light of this information.
The Minister advised that he had no legal basis to re-visit the decision;
this was confirmed by the Federal Court on 19 August 2003; that decision is
currently on appeal to the Full Court.
5.7 On 18 September 2003, in light of the materials provided, the fact that
deportation was scheduled for 21 September 2003, and that consideration of
the communication was scheduled for the Committee's 79th session (October
2003), the Special Rapporteur, acting under Rule 86 of the Committee's Rules
of Procedure, requested the State party not to deport Mr. Madafferi until
the conclusion of this session. He also requested the State party to provide
at its earliest convenience information on transferral to home detention or
other measures taken to alleviate the risk of serious injury, including
serious self-harm, that had been identified to exist, including by the State
party's authorities, in the event of Mr. Madafferi's continued immigration
detention.
5.8 By submission of 17 October 2003, the State party submitted that it
would accede to the Special Rapporteur's request not to deport Mr. Madafferi
until its consideration at the Committee's 79th session. It set out the
facts of the case as submitted by the authors and added that Mr. Madafferi
was removed from home detention having exhausted domestic remedies, in
accordance with section 198 of the Migration Act, which requires that
unlawful non-citizens should be removed as soon as practicable.
5.9 As to the measures taken to alleviate the risk of further injury, the
State party refers to a medical report, dated 26 September 2003, in which
the treatment received by Mr. Madafferi since returning to the detention
centre is summarised. This includes daily consultations with the Centre
Nurse and Counsellor and regular consultations with the South West Mental
Health Services. Mr. Madafferi's mental state continued to decline, however,
to the extent that he was admitted to a psychiatric hospital on 18 September
2003, and declared unfit to travel abroad. [FN13]
-------------------------------------------------------------------------------------------------------------------------------
[FN13] Mr. Madafferi remained an involuntary patient for approximately six
months. Since then he has been residing with his family and receiving
psychiatric treatment. Apparently, he is still unfit to travel.
-------------------------------------------------------------------------------------------------------------------------------
5.10 On 7 November 2003, the Special Rapporteur, acting under Rule 86 of the
Committee's Rules of Procedure, extended the rule 86 request to the State
party until the 80th session, in light of further comments received from the
authors and a request from the State party to comment thereon.
THE AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSION
6.1 By submission of 30 September 2003, the authors provide an update on the
facts of the communication and comments on the admissibility and merits. Mr.
Madafferi's transfer to home detention, which lasted from 14 March 2002 to
25 June 2003, was "on an actual cost recovery basis to the department". The
estimated cost was $16,800 per month which was paid in advance and after the
placement of a $50,000 bond, the author was released into home detention on
14 March 2002. The authors paid the initial instalment payment of $16,800
and a further $16,800. Since then, no further payments have been made as the
family have been unable to raise any more funds. The authors claim that they
were under duress to accept the financial conditions of home detention,
against the advice of their lawyers, as the only way in which they could be
reunited. They also claim that the obligation to procure home detention as
an alternative form of immigration detention was a matter incumbent on the
State Party to procure given the deteriorating health of Mr. Madafferi and
not for the authors to pay as a method of stabilising his medical condition.
6.2 The authors continue to allege violations of all the original articles
claimed (as per para. 1) and provide clarification on the claims of articles
9, 10, 12, 13, 17, 23 and 24. As to article 9, they submit that this claim
only relates to Mr. Madafferi. They argue that although the decision to
detain him is lawful, it was arbitrary, being neither "reasonable" nor
"necessary" in all the circumstances of this case. There is no evidence of
flight risk, since the very nature of the application was that Mr. Madafferi
sought to remain with his family in Australia. Neither was there evidence
that he had committed an offence since arriving in Australia. He has no
remaining attachments to Italy but has lived in Australia for 15 years where
he has a family, business (retail fruit shop), a mortgage and a tax number.
He was the sole bread winner of his family; should he be returned to Italy,
there is no likelihood of him gaining any meaningful employment sufficient
to maintain and support his family. In these circumstances, his detention is
disproportionate and unwarranted. By reason of his detention, Mrs. Madafferi
is denied social security benefits as a single mother, as the domestic law
does not consider the parties legally separated. Neither is she eligible for
an invalid or carer's pension, on the basis of his inability to work.
6.3 Alternative forms of detention, prior to his detention at the
Maribyrnong Immigration Detention Centre were not considered by the State
party. Home detention was only implemented following the emotional distress
to Mr. Madafferi and only for a limited period. No reasons have been
provided by the State party on why home detention or a similar form report
style of detention was not considered or implemented at any other period.
When home detention was finally directed by the Minister the DIMIA took in
excess of 8 weeks to implement the direction.
6.4 As to the State party's argument that Mr. Madafferi overstayed his visa
on 2 occasions, the authors argue that he was 15 years old the first time
subject to the care and guidance of his father, and thus had no control over
his departure. The second overstay resulted from his incorrect belief that
by marrying an Australian citizen, he would be entitled automatically to
remain in Australia. The authors highlight that his entry into Australia
occurred prior to the introduction of the character strengthening provision
(Direction 17) of domestic legislation. [FN14]
-------------------------------------------------------------------------------------------------------------------------------
[FN14] They state that Direction 17 has been the subject matter of judicial
review and has subsequently been replaced by Direction 21.
-------------------------------------------------------------------------------------------------------------------------------
6.5 According to the authors, procedural fairness was not afforded to Mr.
Madafferi, since he had a reasonable expectation that on the determination
of his application for a spouse visa before the AAT, that the AAT would
finally determine his application for a spouse visa. The Minister did not
appeal the decision of the AAT nor did DIMIA reconsider the decision in
accordance with the directions of the AAT. In setting aside the AAT decision
and re-commencing the process of review Mr. Madafferi was not afforded
procedural fairness. It is submitted that but for the Minister's further
intervention and decision of 18 October 2000, it was reasonable to expect
that Mr. Madafferi's application for a spouse visa would be granted on
reconsideration by the DIMIA.
6.6 The authors clarify that the allegation of a violation of article 10,
paragraph 1, of the Covenant relates only to Mr. Madafferi. Prolonged
detention of Mr. Madafferi at Maribyrnong was not appropriate as this
facility is considered a short term facility only. The facilities have been
overstretched and overcrowding has been frequent. The anxiety and stress of
confinement of detention is claimed to be a strain on the habits, religious
practices and customs of detainees. The authors submit that conditions of
detention centres in Australia are well documented.
6.7 The authors point to the following episodes which are not exhaustive but
are illustrative of the violation of the author's rights under this
provision. Firstly, the failure to allow the author to attend the birth of
his fourth child since a detention officer stated that a taxi could not be
organised in time despite the fact that 4 hours prior notice was given to
DIMIA. Following the birth, the attendance of security guards at the labour
ward intimidated Mrs. Madafferi and resulted in the visit being terminated.
Secondly, the failure of DIMIA to allow the author more than one visit of
his wife and child at the hospital and on the arrival of the child at home.
The author concedes that the State party allowed a further visit at the
hospital however this was under heavy escort of guards by the State party.
6.8 Thirdly, the failure of the DIMIA to consent to a more liberal
arrangement of home detention to allow the family to participate and
interact as a family unit for the benefit of the children. Mr. Madafferi was
either prevented from attending family functions or escorted by guards,
attracting public attention. This only served to further highlight the
public humiliation of the author and his family in a public place. Fourthly,
the manner in which home detention was terminated by DIMIA on 25 June 2003
by the use of unnecessary and disproportionate force. Fifthly, the neglect
and/or refusal to act on medical advice and warnings of the State party's
own medical and psychological doctors that the continued immigration
detention of Mr. Madafferi had a severe impact on his mental health. He was
not treated for mental health problems for a prolonged period. His admission
as an involuntary patient in a psychiatric hospital could have been avoided
if the warnings were acceded to.
6.9 The authors contend that article 12, paragraph 1, does apply to the
circumstances of this case and nothing in paragraph 3 of the article ought
to restrict the application of paragraph 1 to the facts of this case. [FN15]
The authors submit the following facts to demonstrate that Mr. Madafferi has
created links to Australia which possess the characteristics necessary to
call Australia "his own country" within the meaning of article 12, paragraph
4: both of his parents in Italy have passed away; his grandfather arrived
and settled in Australia in 1923 and remained there until he passed away;
his father arrived in Australia in the 1950's and re-settled back in Italy
on retirement, with an Australia pension; he has not returned to Italy; he
holds an Australian driver's licence, a taxation file number, a national
Medicare health card, and operates a retail business employing staff and
paying taxes relevant to the business; he held an Italian passport which he
allowed to expire, renounced his residency within his town of birth and is
no longer registered as domiciled in Italy; the Italian authorities are
aware and have noted that he is a resident of Australia; and Mr. Madafferi's
brothers and sister have all formally renounced their Italian citizenship.
In addition, the authors submit that Mr. Madafferi has committed no crimes
in Australia. As to the allegation of "non-disclosure of offences imposed in
absentia in Italy", the authors submit "were initially unbeknown to Mr.
Madafferi at the time of the first interview with immigration officers who
raised the issue."
-------------------------------------------------------------------------------------------------------------------------------
[FN15] No further argumentation is provided by the authors.
-------------------------------------------------------------------------------------------------------------------------------
6.10 On article 13, the authors argue that by refusing Mr. Madafferi a
spouse visa, the Minister in part relied on the fact that an outstanding
warrant for Mr. Madafferi's arrest existed in Italy. In June 2002, the
warrant for his arrest was recalled following the extinguishment of the
outstanding sentences in Italy. The authors claim a violation of article 13,
as the Minister refused to reconsider his decision in light of the changed
circumstances, stating that he had no legal basis to do so.
6.11 As to alleged violations of articles l7, 23 and 24, (relating to all
the authors), it is submitted that if Mr. Madafferi is removed from
Australia, Mrs. Madafferi and the children will remain in Australia. Such a
forced physical separation would be forced on them by the State party thus
constituting an interference with the family life and/or unit of the family
by the State party. There is no suggestion that the marriage and the family
bond is not genuine and strong, and there is medical evidence demonstrating
that all family members would be affected and saddened by separation.
6.12 As to the argument that Mrs. Madafferi and the children should follow
Mr. Madafferi, the author's argue that this is an emotive argument, not a
legal one. They are Australian nationals and are entitled to remain in
Australia; their residency is protected by other articles of the Covenant.
If they were to follow Mr. Madafferi to Italy, they would find it difficult
to integrate. The children are already experiencing emotional and speech
difficulties given their involvement in the present case. Such problems
which will be compounded in Italy, where their ability to communicate is
restricted. Mrs. Madafferi and the Madafferi children have never been to
Italy; only Mrs. Madafferi speaks a little Italian. They have no extended
family members in Italy.
6.13 It is argued that if the family remain in Australia without Mr.
Madafferi, Mrs. Madafferi will be unable to cope with the children. In
autumn 2003, she suffered an acute nervous breakdown and was admitted to
Rosehill Hospital Essendon (Victoria) for five days. The pressure of the
present case and the difficulties in raising and attending to 4 young
children on her own has been and continues to be overwhelming.
6.14 The authors argue that Mr. Madafferi's removal to Italy would be for an
indefinite period with no real prospect of return to Australia, even on a
temporary visit. They argue that the "character" issue is an essential
criterion to any spouse visa application whether made on or off shore.
Inability to meet this criterion will result, in practical terms, in Mr.
Madafferi being unsuccessful in every visa application to re enter
Australia. It is submitted that no delegate will have the authority to
overrule the Minister's personal ruling made in this case and that it may
also be a factor dissuading the AAT from exercising its discretion, should
an application be refused at first instance and the decision be appealed.
STATE PARTY'S SUPPLEMENTARY COMMENTS
7.1 By submission of 6 April 2004, the State party submits that new counsel
in the case has not been authorised by the authors and that therefore the
communication is inadmissible ratione personae. It submits that it has no
obligation, as argued by the authors, to procure home detention as an
alternative form of detention, given Mr. Madafferi's medical condition and
that alternative detention is only permitted in exceptional circumstances.
As to the costs of home detention, it is argued that Mr. Madafferi accepted
the costs of such detention and at all stages the State party took
reasonable steps to provide him with appropriate care.
7.2 It submits that it has not received any evidence that any sentences or
convictions have been extinguished or expunged from Mr. Madafferi's criminal
record, and the fact that he had incurred criminal convictions and sentences
would be relevant to any decision relating to the granting of a visa.
7.3 As to the author's claim under article 9 that Mr. Madafferi is a low
flight risk, the State party refers to correspondence from DIMIA to Mr.
Madafferi's migration agent, dated 25 June 2003 regarding the termination of
home detention, in which it is stated that now domestic remedies have been
exhausted the risk of flight is high. As to the claim that the Minister
decided the matter afresh rather than to reconsider it as directed by the
AAT in its decision of 7 June 2000, the State party acknowledges that the
Minister was prima facie under an obligation to so reconsider. However, it
reiterates that some decisions of the AAT may be set aside by the Minister
under section 501A of the Migration Act 1958 (footnote 11), and that the
decision of 18 October 2000 was valid.
7.4 As to the claim that Mr. Madafferi could have reasonably expected that
the AAT would determine his application for a spouse visa, the State party
submits that it is not within the jurisdiction of the AAT to determine his
eligibility for such a visa, as its consideration was limited to the refusal
of the spouse visa on character grounds and its direction on remittal
related solely to character.
7.5 The State party denies that the Maribyrnong Immigration Detention Centre
is classified as a short term facility. It was considered an appropriate
facility in this case as it allowed easy access by Mr. Madafferi's family
and lawyer. As to the claim that the State party should have consented to a
more liberal form of home detention, the State party submits that Mr.
Madafferi was free to receive any visitors in his family home, and special
arrangements were made for him to attend a number of family functions
including a wedding, the confirmation receptions for two of his children and
a family engagement. As to the allegation that home detention was terminated
with unreasonable force, it submits that an officer from DIMIA attended Mr.
Madafferi's house with 8 Australian Federal Police Officers and 2
Australasian Corrections Management Officers. The visit was reported to have
lasted eight minutes. Meeting Mr. Madafferi in the driveway, the DIMIA
officer informed him that he was now in DIMIA's custody and required to
return to the Maribyrnong Immigration Detention Centre Melbourne. Mr.
Madafferi was escorted to a vehicle parked in the street. It is the
recollection of the DIMIA officer that the AFP officers did not display
arms. On 19 January 2004, the Deputy Director of Clinical Services at the
Weeribee Mercy Mental Health Program reported that Mr. Madafferi is still
not fit to be discharged from hospital.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
8.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
8.2 The Committee has ascertained, in accordance with article 5, paragraph
(a), of the Optional Protocol, that the same matter is not being examined
under another international procedure of international investigation or
settlement.
8.3 On the question of standing and the State party's argument that the
authors' counsel have no authorisation to represent them, the Committee
notes that it has received written confirmation of one representative's
authority to act on the authors' behalf, who in turn submitted further
submissions prepared by the authors' domestic legal representatives. Thus,
the Committee concludes that both of the authors' representatives have
standing to act on their behalf and the communication is not considered
inadmissible for this reason.
8.4 As to the State party's argument that domestic remedies have not been
exhausted, as the administrative remedy of submitting a complaint to the
Human Rights and Equal Opportunity Commission was not pursued by the
authors, the Committee invokes its prior jurisprudence [FN16] that any
decision handed down by this body would only have recommendatory, rather
than binding, effect, and thus cannot be described as a remedy which would
be effective within the meaning of article 5, paragraph 2 (b), of the
Optional Protocol.
-------------------------------------------------------------------------------------------------------------------------------
[FN16] C V. Australia, Case No. 900/1999.
-------------------------------------------------------------------------------------------------------------------------------
8.5 As to the claim that domestic remedies have not been exhausted, as Mr.
Madafferi failed to apply for habeas corpus and that the appeals of the Full
Federal Court and High Court on the lawfulness of the Minister's decision
remained to be considered, the Committee notes that at the time of
consideration of this communication, these remedies had been exhausted by
the authors.
8.6 As to the claims under articles 2, 3, 12, paragraphs 1 to 3, 14,
paragraphs 2 to 7, and 16, the Committee finds that the authors have failed
to substantiate, for the purposes of admissibility, how any of their rights
have in fact been violated under these provisions. These claims are
therefore inadmissible under article 2 of the Optional Protocol.
Furthermore, as article 5 of the Covenant does not give rise to any separate
individual right, the claim made under that provision is incompatible with
the Covenant and hence inadmissible under article 3 of the Optional
Protocol.
8.7 As to the claims that the Minister did not afford Mr. Madafferi
procedural fairness either in the application of his discretionary power or
in his refusal to reconsider Mr. Madafferi's visa request, the Committee
notes that the authors did not link these issues to any specific articles of
the Covenant. In addition, the Committee notes that the lawfulness of the
Minister's decision to invoke his discretionary powers was reviewed
judicially both by the Federal Court and Full Federal Court, and that the
issue of whether the Minister could revisit such a decision was similarly
reviewed by the Federal Court. Thus, although the Committee is of the view
that the application of this procedure may raise issues under articles 14,
paragraph 1 and 13 of the Covenant, it finds that the authors have not
sufficiently substantiated any such claims for the purposes of
admissibility. Accordingly, the Committee finds this claim inadmissible,
under article 2 of the Optional Protocol. However, the Committee does find
that the claim of procedural unfairness in the application of the Minister's
discretionary power does raise an issue under article 26 which has been
sufficiently substantiated for the purposes of admissibility. The Committee
concludes, therefore, that this claim is admissible in respect of article 26
of the Covenant.
8.8 As to any issues that may arise with respect to the period Mr. Madafferi
was in home detention, including his obligation to pay for the security
services provided by the State party and the State party's alleged failure
to monitor his mental health during this period, it appears from the
documentation provided that the terms of Mr. Madafferi's home detention were
contractually based and approved by the authors. From a review of this
agreement, it appears that the conditions included the authors' obligation
to pay for medical costs, and that this was not a term of the agreement that
was challenged in the domestic courts. In fact, the only issue arising from
this contract that was challenged in the domestic courts related to the
amount owed by the authors. The legality per se of the contract was not
challenged. For this reason, any issues that may arise under the Covenant
with respect to the matter of contractual terms on home detention are
inadmissible, for failure to exhaust domestic remedies, under article 5,
paragraph 2 (b), of the Optional Protocol.
8.9 The Committee considers that the authors' remaining claims under
articles 9, 12, paragraph 4, 10, paragraph 1 and 7, as they relate to Mr.
Madafferi only; and articles 17, 23 and 24, relating to all the authors, are
admissible and proceeds to their examination on the merits.
CONSIDERATION OF MERITS
9.1 The Human Rights Committee has considered the present communication in
light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
9.2 As to the claim of a violation of article 9, relating to the author's
detention, the Committee notes that the author has been detained since 16
March 2001, albeit for part of the period at home. It recalls its
jurisprudence that, although the detention of unauthorised arrivals is not
per se arbitrary, remand in custody could be considered arbitrary if it is
not necessary in all the circumstances of the case: the element of
proportionality becomes relevant. It notes the reasons behind the State
party's decision to detain Mr. Madafferi and cannot find that his detention
was disproportionate to these reasons. It also notes that although Mr.
Madafferi did begin to suffer from psychological difficulties while detained
at the Maribynong Immigration Centre until March 2002, at which point and on
the advice of doctors, the State party removed him to home detention, he had
not displayed any signs of such psychological problems on arrival at the
detention centre one year earlier. Thus, although it is a matter of concern
to the Committee now, after the events, that the detention of Mr. Madafferi
apparently greatly contributed to the deterioration of his mental health, it
cannot expect the State party to have anticipated such an outcome.
Accordingly, the Committee cannot find that the State party's decision to
detain Mr. Madafferi from 16 March 2001 onwards, was arbitrary within the
meaning of article 9, paragraph 1, of the Covenant.
9.3 As to Mr. Madafferi's return to Maribyrnong Immigration Detention Centre
on 25 June 2003, where he was detained until his committal to a psychiatric
hospital on 18 September 2003, the Committee notes the State party's
argument that as Mr. Madafferi had by then exhausted domestic remedies, his
detention would facilitate his removal, and that the flight risk had
increased. It also observes the author's arguments, which remain uncontested
by the State party, that this form of detention was contrary to the advice
of various doctors and psychiatrists, consulted by the State party, who all
advised that a further period of placement in an immigration detention
centre would risk further deterioration of Mr. Madafferi's mental health.
Against the backdrop of such advice and given the eventual involuntary
admission of Mr. Madafferi to a psychiatric hospital, the Committee finds
that the State party's decision to return Mr. Madafferi to Maribyrnong and
the manner in which that transfer was affected was not based on a proper
assessment of the circumstances of the case but was, as such,
disproportionate. Consequently, the Committee finds that this decision and
the resulting detention was in violation of article 10, paragraph 1, of the
Covenant. In the light of this finding in respect of article 10, a provision
of the Covenant dealing specifically with the situation of persons deprived
of their liberty and encompassing for such persons the elements set out
generally in article 7, it is not necessary to separately consider the
claims arising under article 7.
9.4 The Committee notes the authors' claim that Mr. Madafferi's rights were
violated under articles 10, paragraph 1, and 7 also, on the grounds of his
conditions of detention, while detained in the detention centre; his alleged
ill-treatment including the events surrounding the birth of his child; and,
in particular, the State party's failure to address the deterioration of his
mental health and to take appropriate action. The Committee recalls that Mr.
Madafferi spent a first period in the detention centre between 16 March 2001
and March 2002, and was released into home detention after a decision of the
Minister in February 2002, on the basis of medical evidence. Although the
Committee considers it unfortunate that the State party did not react more
expeditiously in implementing the Minister's decision, which the State party
has acknowledged took six weeks, it does not conclude that such delay in
itself violated any of the provisions of the Covenant. Equally, the
Committee does not find that the conditions of Mr. Madafferi's detention or
the events surrounding the birth of his child or return into detention,
amount to a violation of any of the provisions of the Covenant beyond the
finding already made in the previous paragraph.
9.6 As to whether Mr. Madafferi's rights under article 12, paragraph 4, of
the Covenant were violated by being arbitrarily deprived of his right to
leave his own country, the Committee must first consider whether Australia
is indeed Mr. Madafferi's "own country" for the purposes of this provision.
The Committee recalls its jurisprudence in the case of Stewart v. Canada,
that a person who enters a State under the State's immigration laws, and
subject to the conditions of those laws, cannot normally regard that State
as his "own country", when he has not acquired its nationality and continues
to retain the nationality of his country of origin. An exception might only
arise in limited circumstances, such as where unreasonable impediments are
placed on the acquisition of nationality. No such circumstances arise in the
present case, and neither are the other arguments advanced by the authors
sufficient to trigger the exception. In the circumstances, the Committee
concludes that Mr. Madafferi cannot claim that Australia is his "own
country", for purposes of article 12, paragraph 4, of the Covenant.
Consequently, there cannot be a violation of this provision in the current
case.
9.7 As to a violation of article 17, the Committee notes the State party's
arguments that there is no "interference", as the decision of whether other
members of the Madafferi family will accompany Mr. Madafferi to Italy or
remain in Australia, is an issue for the family and is not influenced by the
State party's actions. The Committee reiterates its jurisprudence that there
may be cases in which a State party's refusal to allow one member of a
family to remain in its territory would involve interference in that
person's family life. However, the mere fact that one member of the family
is entitled to remain in the territory of a State party does not necessarily
mean that requiring other members of the family to leave involves such
interference. [FN17]
-------------------------------------------------------------------------------------------------------------------------------
[FN17] Winata v. Australia, Case No. 930/2000.
-------------------------------------------------------------------------------------------------------------------------------
9.8 In the present case, the Committee considers that a decision by the
State party to deport the father of a family with four minor children and to
compel the family to choose whether they should accompany him or stay in the
State party is to be considered "interference" with the family, at least in
circumstances where, as here, substantial changes to long-settled family
life would follow in either case. The issue thus arises whether or not such
interference would be arbitrary and thus contrary to article 17 of the
Covenant. The Committee observes that in cases of imminent deportation the
material point in time for assessing this issue must be that of its
consideration of the case. It further observes that in cases where one part
of a family must leave the territory of the State party while the other part
would be entitled to remain, the relevant criteria for assessing whether or
not the specific interference with family life can be objectively justified
must be considered, on the one hand, in light of the significance of the
State party's reasons for the removal of the person concerned and, on the
other, the degree of hardship the family and its members would encounter as
a consequence of such removal. In the present case, the Committee notes that
the State party justifies the removal of Mr. Madafferi by his illegal
presence in Australia, his alleged dishonesty in his relations with the
Department of Immigration and Multicultural Affairs, and his "bad character"
stemming from criminal acts committed in Italy twenty years ago. The
Committee also notes that Mr. Madafferi's outstanding sentences in Italy
have been extinguished and that there is no outstanding warrant for his
arrest. At the same time, it notes the considerable hardship that would be
imposed on a family that has been in existence for14 years. If Mrs.
Madafferi and the children were to decide to emigrate to Italy in order to
avoid separation of the family, they would not only have to live in a
country they do not know and whose language the children (two of whom are
already 13 and 11 years old) do not speak, but would also have to take care,
in an environment alien to them, of a husband and father whose mental health
has been seriously troubled, in part by acts that can be ascribed to the
State party. In these very specific circumstances, the Committee considers
that the reasons advanced by the State party for the decision of the
Minister overruling the Administrative Appeals Tribunal, to remove Mr.
Madafferi from Australia are not pressing enough to justify, in the present
case, interference to this extent with the family and infringement of the
right of the children to such measures of protection as are required by
their status as minors. Thus, the Committee considers that the removal by
the State party of Mr. Madafferi would, if implemented, constitute arbitrary
interference with the family, contrary to article 17, paragraph 1, in
conjunction with article 23, of the Covenant in respect of all of the
authors, and additionally, a violation of article 24, paragraph 1, in
relation to the four minor children due to a failure to provide them with
the necessary measures of protection as minors.
9.9 In the light of the Committee's finding of a violation of article 17 in
conjunction with articles 23 and 24 of the Covenant, partly related to the
Minister's decision to overrule the AAT, the Committee considers that it
need not address separately the claim that the same decision was arbitrary,
in violation of article 26 of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the State party has violated the rights of Mr.
Francesco Madafferi under articles 10, paragraph 1, of the Covenant.
Moreover, the Committee considers that the removal by the State party of Mr.
Madafferi would, if implemented, constitute arbitrary interference with the
family, contrary to article 17, paragraph 1, in conjunction with article 23,
of the Covenant in respect of all of the authors, and additionally, a
violation of article 24, paragraph 1, in relation to the four minor children
due to a failure to provide them with the necessary measures of protection
as minors.
11. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
and appropriate remedy, including refraining from removing Mr. Madafferi
from Australia before he has had the opportunity to have his spouse visa
examined with due consideration given to the protection required by the
children's status as minors. The State party is under an obligation to avoid
similar violations in the future.
12. Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2, of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to its Views. The State party is also requested to
publish the Committee's Views.
__________________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
The texts of two separate individual opinions signed by Committee members,
Mr. Nisuke Ando and Ms. Ruth Wedgwood are appended to the present document.
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBER MR. NISUKE ANDO
I am not opposed to the adoption of the Committee's Views in this case.
However, because of the irregularities I perceive in the procedure leading
to its adoption, I do not participate in the consensus by which the
Committee adopted the Views.
[Signed] Nisuke Ando
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION OF COMMITTEE MEMBER, MRS. RUTH WEDGWOOD
In Australia, visa applications are judged against a statutory standard of
"public interest". In this assessment, "the person's past criminal conduct"
and "the person's general conduct" may be considered as evidence of a lack
of "good character". Any visa denial by a lower-level official can be
reviewed by an administrative appeals tribunal of the Department of
Immigration and Multicultural Affairs.
Ultimately, however, the administrative appeals process is not dispositive.
The Minister of Immigration retains independent statutory authority to set
aside a favorable decision of a lower-level official or the tribunal. The
Minister may do so when he "reasonably suspects that the person does not
pass the character test", he is not satisfied to the contrary by the
applicant, and he finds that the refusal of a visa is "in the national
interest". This set-aside is not so subjective as it sounds, for a
"substantial criminal record" is a statutory basis for finding a lack of
good character, and any "term of imprisonment of 12 months or more"
constitutes a "substantial criminal record".
The co-author of this communication, Mr. Francesco Madafferi, was subject to
such visa disapproval by the Australian Minister of Immigration, based on
his extensive criminal record. The Australian administrative appeals
tribunal was inclined to accord him more leniency than did the Minister, but
the appeals tribunal also reported a criminal record that goes well beyond
what is noted by the Committee in its Views, see footnote 2 supra. (see
note)
Invoking Article 17 of the Covenant on Civil and Political Rights, the
Committee now seeks to preclude the Minister's decision to deport Francesco
Madafferi. Article 17 forbids "arbitrary or unlawful interference" with
family life. But the state party's ultimate decision in regard to Mr.
Madafferi is neither arbitrary or unlawful. The human sympathy that may be
felt for a visa applicant and his family does not create a license to
disregard reasonable criteria for the grant or denial of visas. States are
entitled to exclude persons who have a serious history of criminal conduct.
Mr. Madafferi's prior convictions and jail sentences amply fulfill the
statutory requirement for a "substantial criminal record" as a basis for the
Australian Minister's decision.
The Committee has no evident warrant to assign its own chosen weight to the
relative importance of protecting against recidivist criminal conduct versus
minimizing family burdens. There are millions of immigration decisions each
year, and we are not entitled to "reverse" state governments simply because
we might weigh the balance differently. Nor does the record show any
permanent hardship in Mr. Madafferi's return to Italy. Italy was his home
country until the age of 18. His family is entitled to reside in Italy with
him. He has three sisters in Italy, according to the findings of the
Australian administrative tribunal, and his relatively young children
understand the Italian language, as used in the family home, although they
speak English. Mr. Madafferi has the capacity to run a small business, as he
did in Australia. Upon his return to Italy, Mr. Madafferi does not face
incarceration or detention. Obviously, the state party could not deport him
unless he is medically fit to travel at the time.
Australia follows the principle of jus solis, awarding citizenship to every
child born on its territory. But the birth of a child does not, by itself,
shield a parent from the consequences of his illegal entry, and a rule to
the contrary would provide a significant challenge to the enforcement of
immigration laws. Here there is no inevitable separation between members of
a family, nor any demonstrated difficulty in sustaining Australian
citizenship for the children. As noted by the several dissenters in Winata
v. Australia, No. 930/2000, Article 17 of the Covenant is not identical to
the European Convention on Human Rights, and the test of "substantial
changes to long-settled family life" may not be suitable to a universal
covenant that speaks of "arbitrary or unlawful interference" with family
life.
[Signed] Ruth Wedgwood
(Note) In 1980, according to the appeals tribunal, Mr. Madafferi took part
as a "bag man" in a violent extortion scheme -- unknown persons exploded a
bomb in the home of three brothers and demanded payment, Mr. Madafferi went
on their behalf to pick up the extortion payment of 3 million lire at a
pre-arranged spot, and was promised 500,000 lire for his trouble. He
received a suspended sentence of 22 months' imprisonment. In another
incident in 1980, he was found to have inflicted multiple stab wounds to the
back and abdomen of a victim in Seregno, Italy, and was sentenced to 30
months' imprisonment, though his sentence was later quashed as part of an
amnesty. In 1982, he stabbed a man during a fight with the man's older
brother, and was convicted of causing malicious personal injuries with
aggravating circumstances, with a sentence of eight months. In the same
incident, he was found to have in his possession 321 milligrams of heroin,
45 milligrams of monoacetylmorphene, and 107 milligrams of cocaine, and he
was sentenced to 40 months in jail, with a 5 million lire fine. In 1984,
while the latter charges were pending, he again took part in an extortion
scheme, demanding money and making threats by telephone against another
victim. He was sentenced to 30 months' imprisonment and a fine of 1.5
million lire. The sentence was later reduced to two years' imprisonment and
1 million lire. All of these convictions were entered in Italy, in the
presence of the defendant. In addition, he had two convictions for receipt
of stolen property and assault of a fellow prisoner which were reached in
absentia, which have since been set aside by Italian authorities.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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