Francesco Madafferi et al. v. Australia

International Covenant on Civil and Political Rights: Articles 2, 3, 5, 7, 9, 10, 12, 13, 14, 16, 17, 23, 24 and 26

Optional Protocol to the International Covenant on Civil and Political Rights: Articles 2,3 and 5 paragraph 2 (b)

None

The authors are Francesco Madeferi an Italian national, born on 10 January 1961, and Anna Maria Madaferrri, an Australian national, they submitted the communication on their own behalf and 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.

On 21 October 1989, Mr. Madafferi, moved to Australia on a tourist visa and married an Australian national, Ms. Anna Madafferi on 26 August 1990. They subsequently had four children, all of whom were born in Australia. Complications with previous convictions in Italy resulted in the rejection of Mr. Madafferi’s spousal visa in Australia in May 1997. The decision was set aside under review on 7 June 2000 by the Administrative Appeals Tribunal (AAT) and remitted for reconsideration by the Minister of Immigration and Multicultural affairs. In July 2000, Mr. Madafferri was refused the visa. On 18 October 2000, the Minister overruled 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. On 16 March 2001 Mr. Madeferri surrendered himself to authorities and was detained for an indefinite period. He was subsequently released into home detention while waiting on judicial review of his visa. He subsequently attempted to appeal the decisions rejecting his permanent residency visa, but this was ultimately dismissed by a Full Federal Court. To this end, Mr Madafferi faced deportation to Italy by virtue that his visa was rejected, and he was considered an unlawful non-citizen in Australia.

The authors claim to be victims of violations by Australia of Articles 2 (non-discrimination), 3 (equality), 5 (non-derogation), 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment), 9 (liberty and security of person), 10 (treatment of persons deprived of liberty), 12 (freedom of movement), 13 (treatment of aliens), 14 (right to justice and fair trial), 16 (right to recognition before the law), 17 (protection against arbitrary or unlawful interference with privacy and family), 23 (protection of the family), 24 (rights of the child) and 26 (equality before the law).

Among others, the authors claimed that as Ms. Madafferi did not intend to accompany her husband to Italy if he were removed, the rights of all the authors and the children in particular, would be violated as the family unit would be split-up. The authors claimed that such a separation would cause psychological and financial problems for all concerned, but more particularly for the children, considering their young ages. The authors further claimed that the decision to reject the permanent residency visa -taken by the Minister of the Department of Immigration and Multicultural Affairs- was arbitrary, did not consider new information presented in favour of the spousal visa application, and failed to afford procedural fairness to Mr. Madafferi’s case.

In addition, the authors claimed that the detention centre in which Mr. Madafferi was held did not even rise to the health standards and humane environment accorded to serious criminal offenders. It was also claimed that Mr. Madafferi’s rights were violated since he was denied other alternative detention measures like home detention or alternate home arrest which would have allowed 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 was claimed that Mr. Madafferi was not allowed to attend the birth of his fourth child, born on 17 July 2001.

In March 2002, the State party submitted its observations on admissibility and the merits of the communication. Regarding admissibility, the State party submitted that the entire communication was inadmissible in so far as it purported to be lodged on behalf of Ms. Madafferi and the Madafferi children, as they had not been given their authority to do so. Additionally, the State party submitted that the inadmissibility was based on the 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 to the High Court. The State party also 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. It further submitted that the entire communication was inadmissible for failure to substantiate any of the allegations. With the exception of the allegations that Article 9 paragraph 1 (liberty and security of person; protection against arbitrary arrest and or detention) and Article 10 paragraph 1 (dignity of persons deprived of liberty) were violated in relation to Mr. Madafferi, all of the allegations contained in the communication were inadmissible on the basis of incompatibility with the Covenant. The State party also claimed that a number of the allegations were inadmissible in relation to certain members of the family, as they could not have been considered victims of the alleged violations.

On the merits, the State party submitted that the authors had 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 submitted 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 submitted that whilst there was evidence that Mr. Madafferi and the Madafferi children were suffering emotionally as a result of his detention and proposed removal, this did not amount to evidence of a violation of Article 7, as they did 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. With respect to the alleged violation of Article 9, the State party submitted that Mr. Madafferi’s detention was lawful and in accordance with procedures established by law, the Migration Act. As he did not hold a visa, he was an unlawful non-citizen under the definition in section 14 of the Migration Act. The State party denied that Mr. Madafferi’s detention was arbitrary. It submitted that detention in the context of immigration was an exceptional measure reserved for people who arrived or remained in Australia without authorisation. It also provided Australian officials with effective access to those persons for the purposes of investigating and processing their claims without delay, and if those claims were unwarranted, to remove such persons from Australia as soon as possible. To this end, the State party contested the claim that it had violated Article 10 with respect to the conditions of detention. In relation to the allegation that Mr. Madafferi was not able to be present at the birth of Antonio Madafferi, it was stated that permission was granted for Mr. Madafferi to be present at the birth as long as he was supervised. The State party claimed that it was Ms. Madafferi who did not want Mr. Madafferi to be present at the birth under such circumstances.

As to Article 17, the State party submitted that requiring one member of a family to leave Australia while the other members were permitted to remain, did not necessarily involve “an interference” with the family life of the person removed or the people who remained. It submitted that Article 17 was aimed at the protection of individual privacy and the interpersonal relationships within a family that derive from this right to privacy. In turn, it therefore claimed that the detention and proposed removal of Mr. Madafferi did not interfere with the privacy of the Madafferi family as individuals nor with the relationships among each other, nor did it have that aim. The detention and proposed removal of Mr. Madafferi was solely aimed at ensuring the integrity of the State party’s immigration system. It pointed out that only Mr. Madafferi was subject to removal and that the Madafferi children could remain in Australia with their mother. Considering the young ages of the children and the fact that both of their parents were of Italian ancestry, the State party claimed that they would be able to successfully integrate into Italian society, if Mr. Madafferi was joined by other members of his family. If the Committee was of the view that the State party’s conduct in relation to Mr. Madafferi constituted an “interference” with the Madafferi family, such interference would be neither “unlawful” nor “arbitrary”. Reference was made to the fact that the Covenant recognised the right of States to undertake immigration control.

The State party contested the claim of a violation of Article 23 and argued that its obligation to protect the family did not mean that it was unable to remove an unlawful non-citizen just because that person had established a family with Australian nationals. In essence, it submitted 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. The State party noted that the allegation that Article 24 was violated appeared to be solely based on the fact that it proposed to remove Mr. Madafferi from Australia. It submitted that the action would not have amounted to a failure to provide protection measures that were 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. The State party therefore indicated that any long-term separation of Mr. Madafferi from the Madafferi children would be a result of decisions made by Mr. and Ms. Madafferi, not the result of the State’s actions.

The State party indicated that the alleged violation of Article 26 appeared to relate to the guarantee of equality before the law by the Minister in denying Mr. Madafferi a visa. The State party refuted this claim and referred to its arguments on Article 9; that the Minister’s decision was necessary, appropriate, predictable and proportional and argued that the decision was lawful, that Mr. Madafferi had 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. In relation to the alleged violations of Articles 2, 3, 5, 14 paragraphs 2 to 7, and 16, the State party provided detailed arguments dismissing these claims on grounds of inadmissibility and lack of merit.

On 30 September 2003, the authors provided comments on the State party’s submission. The authors claimed that they had been under duress to accept the financial conditions of the home detention which had been granted from March 2002 to June 2003, as the only way in which they could be reunited. They also claimed that the obligation to procure home detention as an alternative form of immigration detention was a matter incumbent on the State Party given the deteriorating health of Mr. Madafferi and not for the authors to pay as a method of stabilising his medical condition. With regards to their claim of rights been violated under Article 9, they submitted that this claim only related to Mr. Madafferi. They argued that, although the decision to detain him was lawful, it was arbitrary, being neither “reasonable” nor “necessary” in all the circumstances of the case. The authors clarified that the allegation of a violation of Article 10 paragraph 1 of the Covenant also related only to Mr. Madafferi. Prolonged detention of Mr. Madafferi at Maribyrnong was not appropriate as this facility was considered a short-term facility only. The authors contended that Article 12 paragraph 1 (freedom of movement), did apply to the circumstances of the case and that nothing in paragraph 3 of the Article (non-restriction of freedom of movement) ought to have restricted the application of paragraph 1 to the facts of the case. On Article 13, the authors argued that by refusing Mr. Madafferi a spousal visa, the Minister in part relied on the fact that an outstanding warrant for Mr. Madafferi’s arrest existed in Italy. The warrant for his arrest was however recalled following the extinguishment of the outstanding sentences in Italy. The authors claimed 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.

As to the alleged violations of Articles 17, 23 and 24, (relating to all the authors), it was submitted that if Mr. Madafferi was removed from Australia, Ms. Madafferi and the children would in any case remain in Australia. They asserted that such a physical separation would be forced on them by the State party thus constituting an interference with the family life and unit of the family. They argued that if the family remained in Australia without Mr. Madafferi, Ms. Madafferi would be unable to cope with the children.

By submission of 6 April 2004, the State party indicated that new counsel in the case had not been authorised by the authors and that therefore the communication was inadmissible ratione personae. It submitted that it had 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 was only permitted in exceptional circumstances. As to the costs of home detention, it was argued that Mr. Madafferi had accepted the costs of such detention and that, at all stages, the State party had taken reasonable steps to provide him with appropriate care.

None

None

It was requested to the State party not to deport Mr. Madafferi until the conclusion of the communication. In addition, it was also requested for 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.

Consideration of admissibility

The Committee found that the communication was admissible in part. On the question of standing and the State party’s argument that the authors’counsel had no authorisation to represent them, the Committee noted that it had received written confirmation of one representative’s authority to act on the authors’ behalf. Therefore, the Committee concluded that both of the authors’ representatives had standing to act on their behalf and the communication was not considered inadmissible for this reason.

Regarding the exhaustion of domestic remedies, as the administrative remedy of submitting a complaint to the Human Rights and Equal Opportunity Commission was not pursued by the authors, the Committee invoked its prior jurisprudence that any decision handed down by this body would only have recommendatory, rather than binding, effect, and could not be described as a remedy which would be effective within the meaning of Article 5 paragraph 2 (b) of the Optional Protocol. In relation to the claim that Mr. Madafferi had 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 noted however that, at the time of consideration of the communication, these remedies had been exhausted by the authors.

As to the claims under Articles 2, 3 12, paragraphs 1 to 3, 14 paragraphs 2 to 7, and 16, the Committee found that the authors had failed to substantiate, for the purposes of admissibility, how any of their rights had in fact been violated under these provisions. In this respect, the Committee concluded that these claims were therefore inadmissible. Furthermore, it also found that given that Article 5 of the Covenant did not give rise to any separate individual right, the claim made under that provision was incompatible with the Covenant and hence inadmissible. For these reasons the Committee considered that any issues which could have arisen under the Covenant with respect to the matter of contractual terms on home detention, as indicated by the authors, was inadmissible for failure to exhaust domestic remedies. With regard to the matter of procedural unfairness as claimed by the authors against the Minister’s decision to reject the spousal visa application, the Committee was of the view that the application of the Minister’s discretionary power raised an issue under Article 26 and was therefore admissible under that Article.

The Committee considered that the authors' remaining claims under Articles 9, 12 paragraph 4 (arbitrary deprivation to enter one’s country), 10 paragraph 1, and 7, as they related to Mr. Madafferi only; and Articles 17, 23 and 24, relating to all the authors, were admissible.

Consideration of the merits

The Committee was of the view that the State party had violated the rights of Mr. Francesco Madafferi under Article 10 paragraph 1 (dignity of persons deprived of liberty) of the Covenant. Moreover, the Committee considered 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 (protection of the family), of the Covenant in respect of all of the authors, and additionally, a violation of Article 24 paragraph 1 (protection of child), in relation to the four children due to a failure to provide them with the necessary measures of protection.

The Committee recalled its jurisprudence that, although the detention of unauthorised arrivals was not per se arbitrary, remand in custody could be considered arbitrary if it was not necessary in all the circumstances of the case: namely, the element of proportionality becomes relevant. The Committee indicated that it could not find the State party’s decision to detain Mr. Madafferi from 16 March 2001 onwards, as arbitrary within the meaning of Article 9 paragraph 1 (liberty and security of person) of the Covenant. However, the Committee found that the return to a detention facility was not based on appropriate considerations, and that that decision as well as the resulting detention were a disproportionate action by the State party resulting in violation of Article 10 paragraph 1 of the Covenant. In the light of the finding with respect to Article 10, the Committee found it unnecessary to separately consider the claims arising under Article 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment). With regard to the allegations surrounding the conditions of Mr. Madafferi’s detention or the events surrounding the birth of his child or return into detention, the Committee found no violation of any of the provisions of the Covenant beyond the finding already made with respect to the violation of Article 10 paragraph 1.

As to a violation of Article 17, the Committee noted the State party’s arguments that there was no “interference” with the family and reiterated its jurisprudence that there could 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 was entitled to remain in the territory of a State party did not necessarily mean that requiring other members of the family to leave involved such interference. In the present case, the Committee considered that a decision by the State party to deport the father of a family with four young children and to compel the family to choose whether they should accompany him or stay in the State party was to be considered “interference” with the family, at least in circumstances where, as here, substantial changes to long-settled family life would have followed in either case. The issue as framed by the Committee was thus whether or not such interference would be arbitrary and thus contrary to Article 17 of the Covenant.

In the very specific circumstances presented, the Committee considered that the reasons advanced by the State party to remove Mr. Madafferi from Australia were not pressing enough to justify, in the interference to this extent with the family and infringement of the right of the children to such measures of protection as required by their status as minors. Thus, the Committee considered that the removal of Mr. Madafferi would have constituted 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 children due to a failure to provide them with the necessary measures of protection as minors.

The State party was obligated to provide the author with an effective and appropriate remedy, including refraining from removing Mr. Madafferi from Australia before he had the opportunity to have his spousal visa examined with due consideration given to the protection required by the children’s status. It also noted that the State party was under an obligation to avoid similar violations in the future.

In an individual opinion, one Committee member indicated that while he was not opposed to the adoption of the Committee’s views, he had perceived irregularities in the procedure leading to its adoption and did not participate in the consensus by adoption.

Another individual opinion rejected the Views of the Committee and considered that the invocation of Article 17 in the case presented did not preclude a State from taking legitimate reasonable steps in disallowing a visa. In her view, and bearing in mind that Australia followed the principle of jus solis, the birth of a child on its territory should not shield a parent from the consequences of illegal entry. Citing differences pointed out in case law, she concluded that substantial changes to long-settled family life could not be considered arbitrary unlawful interference with family life.