Madafferi v Australia (2004)

What happened?

• An Italian tourist was touring Australia and overstayed his visa, which expired in April 1990. This made him an illegal non-citizen of Australia.

• In the same year, he married an Australian citizen.• In 1996, Mr Madafferi was sent to an immigration

detention centre in Melbourne, because he wished to become an Australian citizen and in his application he had said that he had served prison time in Italy.

• The UN requested that Mr Madafferi’s detention sentence be transferred to a home detention, in response to the deterioration of his mental health. A few months later, he was sent to a psychiatric hospital.

• Mr Madafferi was, once again, sent to the detention centre, as requested by the UNHRC.

• The UNHRC found that if Mr Madafferi was forced to return to Italy, then it would cause difficulties, since his family in Australia could not speak Italian and the family would need to care for the mentally ill man in a foreign country.

• The other option was to split up the family, with his wife and children remaining in Australia and Mr Madafferi returning to Italy.

• Mr Madafferi was still in immigration home detention in 2005.

Which human rights had been violated?

• Article 10(1)“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”This right had been breached, because even though Australia knew of Mr Madafferi’s mental health issue, he was still sent to the detention centre.

• Article 17(1)

“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.”

This is a violation of this right, because if the UNHRC deported Mr Madafferi, it would be interfering with his family affairs.

• Article 23(1)

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

This case breached the rights of Mr Madafferi and his family, because they were not adequately protected. The UNHRC suggested that the family split up in order to send Mr Madafferi to Italy.

• Article 24(1)

“Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

The rights of Mr Madafferi’s children failed to be protected.

What could have been done?

• The Australian Immigration Minister could not have been so discriminative against Mr Madafferi. His application should not have been declined, because he was a “bad character”.

• The UNHRC could have responded better to Mr Madafferi’s declining mental health.

• The UNHRC should not have suggested splitting the family up.

How effective was the legal system?

• The legal system was very ineffective in this case.

• The rights of Mr Madaferri and his family failed to be protected, especially since he was suffering a mental illness.