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Madaferri v. Australia

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Court/Judicial body:Human Rights Council

Citation:Communication Nos. 1209, 1231/2003 and 1241/2004
Date:26 July 2001
Instrument(s) cited:International Covenant on CIvil and Political Rights, Article 10(1) (deprivation of liberty), Article 17(1) (arbitrary interference with privacy and family), Article 23 (protection of the family), Article 24(1) (protection of children)

Case summary

Mr Madafferi, an Italian national, and Mrs Madafferi, an Australian national, writing on their own behalf and on the behalf of their four children, all of whom are Australian nationals, brought a complaint with regards to deportation proceedings brought against Mr Madafferi. Mr Madafferi had been refused a spouse visa based on his previous criminal convictions in Italy. The complainants alleged that if he were deported, the family would be split-up in violation of the families rights under 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. The Committee found there had been a violation of art. 10(1) based on the conditions of Mr Madafferi’s detention, the ill-treatment he was subjected to and the State’s failure to address his deteriorating mental health. In relation to the order for his deportation, the Committee considered that if the father’s removal to Italy was carried out, the family would face a choice whether to lose him or relocate to Italy, and the state’s actions would amount to interference with family life and that interference was arbitrary as it would lead to “substantial changes to long-settled family life”. Therefore, if the removal were carried out, the State would be in breach of Article 17 (which protects against arbitrary interference with private life) in conjunction with Article 23 (protection of the family unit) in relation to all of the applicants. In addition, the state would breach the rights of all four children under Article 24(1) for failing to provide them with the necessary measures of protection as minors as, should the family decide to move to Italy in order to avoid separation, the children would have to live in a country whose language they did not speak and in an environment where they would need to take care of their father whose mental health has been troubled partly because of acts ascribed to the state. In her separate dissenting opinion, Committee member Mrs Wedgwood expressed her opinion that the family’s relocation to Italy would not pose any permanent hardship. She noted that “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”. She also questioned whether the test of substantial changes to long-settled family life always mean there has been an arbitrary interference with the Article 17 right in interpreting the Covenant.

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