Madafferi and Minister for Immigration and Multicultural Affairs
[2000] AATA 450
•7 June 2000
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2000] AATA 450
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1997/752
GENERAL ADMINISTRATIVE DIVISION ) Re FRANCESCO MADAFFERI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President A M Blow OAM QC., Date7 June 2000
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with a direction that Mr Madafferi is not to be refused a visa on character grounds solely on the basis of information presently available to the respondent.
[Sgd A M Blow]
Deputy President
CATCHWORDS
Migration - visa - refusal - character - past criminal conduct - general conduct -association with another person believed involved in criminal conduct - interests of children - discretion to grant visa.
Migration Act 1958 - s.501
REASONS FOR DECISION
7 June 2000 Deputy President A M Blow OAM QC., 1. This is an application for the review of a decision made by a delegate of the respondent on 19 May 1997 refusing Mr Madafferi a visa on character grounds pursuant to s.501 of the Migration Act 1958 (“the Act”). That section reads as follows:-
“( i) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person if:
(a) subsection (2) applies to the person; or
(b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(I) be likely to engage in criminal conduct in Australia; or
(ii) vilify a segment of the Australian community; or
(iii) incite discord in the Australian community or in a segment of that community; or
(iv)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 violence threatening harm to, that community or segment, or in any other way.
(2) This subsection applies to a person if the Minister:
(a) having regard to:
(I) the person’s past criminal conduct; or
(ii) the person’s general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person’s association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.”
2. Mr Madafferi was born in Italy on 10 January 1961. Between 1980 and 1984 he committed a series of very serious crimes involving violence and dishonesty, some of which resulted in sentences of imprisonment. He has lived in Australia since 21 October 1989. Since then he has been convicted of other crimes in absentia by Italian courts, those crimes having allegedly been committed in 1980 and 1985. Further, the respondent contends that Mr Madafferi’s conduct in relation to immigration matters over the years establishes that he is not of good character, and seeks to rely on criminal intelligence information as establishing that he is of not good character.
Convictions in Italy (not in absentia)
3. Copies of various official records of the Italian courts have been provided to the Tribunal, together with translations thereof. Mr Madafferi suggested that in some respects the findings made by the Italian courts were incorrect, and that he was innocent of some crimes of which he was convicted. In relation to those proceedings that were dealt with in his presence, I reject his claim of innocence. The court records give every indication of the allegations against him having been thoroughly and fairly investigated. I am therefore confident that justice was done in all of the hearings at which Mr Madafferi was present.
4. Mr Madafferi’s first relevant conviction was for a crime he committed on 27 May 1980. In the early hours of the morning of 15 May 1980 persons unknown exploded a bomb in the home of three brothers named Borgonovo. Subsequently they received a number of phone calls demanding payments of millions of lire. Arrangements were made for a parcel to be placed near a billboard beside a new superhighway. A bag containing 3,000,000 lire was placed near the appointed spot. Mr Madafferi and a companion were observed by members of Carabinieri to drive to the appointed spot and begin searching the area. They were arrested. They gave conflicting versions of what they were doing there. Mr Madafferi admitted that they had been promised 500,000 lire each for picking up a parcel. After spending seven days in custody, Mr Madafferi was given a suspended sentence of 22 months’ imprisonment, and fined 300,000 lire. A series of appeals was unsuccessful. There is nothing to suggest Mr Madafferi was involved in the bombing or the making of the phone calls. I accept for the purposes of this decision that he was no more than a bag man.
5. On the night of 5 October 1980 a man named Fabrizio was admitted to the local hospital at Seregno suffering from multiple stab wounds to his back and abdomen. Mr Madafferi was interviewed by the police and admitted that he had inflicted those wounds. Apparently a friend of Fabrizio named Amato had said something nasty in a nightclub about a man named Tomasello. Mr Madafferi heard what was said. He was a friend of Tomasello. He told Tomasello what he had heard. Tomasello demanded “clarifications” from Fabrizio, and asked where he could find Amato. Fabrizio declined to help him. The following night Mr Madafferi, Tomasello and two other men ambushed Fabrizio. Mr Madafferi stabbed him repeatedly with an illegal flick knife that had a blade seven centimetres long. Fabrizio fled, but Mr Madafferi chased him and stabbed him again. The Court accepted that Tomasello was the “strongman” within the group, and “the true organiser and enforcer of the aggression against Fabrizio”. Mr Madafferi was the youngest of the group. He was sentenced to 30 months’ imprisonment, but he was bailed on condition that he reside in his place of origin. His sentence was subsequently quashed by the Court of Appeal in Milan because of an amnesty.
6. On 10 September 1982 Mr Madafferi was involved in a fight with a man named Caccamo, during which he stabbed that man’s younger brother. He was arrested by the Carabinieri, with blood still on his clothes. They found he had drugs in his possession - apparently a cocktail comprising 321.8 mg of heroin, 45.5 mg of monoacetylmorphene, and 107.7 mg of cocaine. He was convicted of causing malicious personal injuries with aggravating circumstances and sentenced to 8 months’ imprisonment, “two months’ arrest”, and a fine of 100,000 lire. On the drug charges he was sentenced to a 40 months’ imprisonment and fined a further 5,000,000 lire.
7. In April 1984, while the charges in relation to the previous incident were still pending, Mr Madafferi was involved in an extortion attempt aimed at a man named Vezzosi. Mr Madafferi and a companion named Longo were responsible for a series of phone calls demanding money and making threats. They were unsuccessful. Mr Madafferi was convicted of attempted extortion and sentenced to 30 months’ imprisonment and a fine of 1,500,000 lire. In 1992 the Court of Appeal of Bologna reduced the sentence to two years’ imprisonment and 1,000,000 lire.
Convictions in Italy in Absentia.
8. On 1 December 1986 Mr Madafferi was convicted by the Civil and Criminal Tribunale of Monza of having received stolen property on 15 May 1980. The Trubunale was satisfied that he had acquired from his co-accused a car with a stolen chassis and stolen engine (from different stolen vehicles), knowing those parts to have been stolen. He was sentenced to 16 months’ imprisonment and fined 800,000 lire. He claims he was innocent.
9. On 30 June 1993 he was convicted by the Civil and Criminal Tribunale of Reggio Emilia of having assaulted a fellow prisoner in the local prison on 17 October 1985. The Court found that he had conspired with another prisoner to attack the alleged victim, who had suffered facial injuries including the loss of a tooth and the dislocation of two other teeth. He was sentenced three years and 10 days’ imprisonment. He now claims that he was not the aggressor. According to the Court record, the incident in question began when the alleged victim accidentally dropped a hammer while cleaning some windows. If Mr Madafferi had defended himself in the criminal proceedings, I think there is a chance the Court might have found that the hammer was not dropped accidentally, or at least have been left in doubt as to whether Mr Madafferi had been the initial aggressor.
10. I am most reluctant to attach any weight to findings made by criminal courts in absentia. Conducting criminal trials in absentia is repugnant to Australia’s system of justice, except in very rare cases (e.g. when a prisoner absconds during his trial and the trial is continued in his absence). I am not in position to make findings of fact as to whether Mr Madafferi knew the car he had in 1980 was composed of parts from a number of stolen cars, nor as to what went on in the fight in the prison in 1985. But I do not think that matters. In the early 1980’s Mr Madafferi stabbed two men and was involved in two extortion attempts. I do not think it would make any difference to my opinion of his character at that time of his life if I knew whether he knew whether his car was stolen, or if I knew to what extent (if any) he had acted aggressively in the fight in the prison.
Conduct in Relation to Immigration Matters
11. Mr Madafferi first entered Australia on 17 November 1977. He was 16 years old. He had a visitor entry permit that was valid for a stay of three months. He stayed for twelve months. He left on 30 November 1978. I do not think I should give any weight to the fact that he overstayed because he was so young.
12. As I have said, Mr Madafferi entered Australia again on 21 October 1989. His incoming passenger card showed that he was visiting relatives and having a holiday. He was granted a visitor entry permit which was valid for six months. He overstayed. He married an Australian citizen on 26 August 1990. He says he thought that his marriage entitled him to stay. Many of his friends and relatives in Australia would probably have been sufficiently well-informed to know better, but I get the impression that Mr Madafferi is by no means an intelligent man. I am not satisfied that he knew any better. A prudent man in his position would have made enquiries and found out that marrying an Australian citizen did not automatically entitle him to stay here. At best he was imprudent.
13. On 5 July 1996 Mr Madafferi was arrested by an officer of the department, having come to the attention of the department some eight months previously. He was interviewed on the day of his arrest through an interpreter. The interview followed a standard form, with standard questions being asked and the answers being recorded in handwriting on a written form. That form contains the following:
“Q30. Have you committed any offences against the laws of Australia or another country before or after your arrival in Australia?
A30. Details: Not in Australia. Fight trouble.
Q31. Have you been convicted of a criminal offence in Australia or overseas?
A31. Details: No.”14. Apart from his disclosure of “fight trouble”, Mr Madafferi remained silent as to his criminal history. He did not mention that he had been convicted of extortion and attempted extortion. He did not mention that he had been to prison. He did not mention how many times he had been in trouble for fighting. He did not mention that two fights had involved him stabbing people. He was no doubt trying to deceive the interviewer for the purpose of remaining in Australia with his wife and children. Many people in his situation, without the benefit of time to think, he would have responded in the same way.
15. Mr Madafferi was released from custody following payment of a $10,000 surety. He engaged a migration agent, who was also a solicitor. That migration agent completed an “Application to Remain Permanently in Australia” which Mr Madafferi signed on 11 July 1996. The application form contained a series of questions. Question 40 asked “Have you or any of your children or dependants included in this form ... been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” The migration agent ticked a box indicating the answer was “Yes”. The form contained an instruction at the end of Question 40 as follows:
“If you answered “Yes” to any of the above questions, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention.
Give the required details on a separate sheet.”No details of Mr Madafferi’s convictions were provided when the application was lodged. Mr Madafferi speaks very little English. He no doubt relied on his migration agent to complete the form and satisfy the requirements of the department. His wife also signed the form, but, after having seen her give evidence, I am sure she would not have had sufficient education or experience with official forms to realise what the form required. I do not think it would be fair to take into account against Mr Madafferi the failure on the part of the migration agent to do what the form asked for. Public servants sometimes develop relaxed practices, known to those who deal with them regularly, in relation to the requirements set out in official forms. I do not know whether or not there was any such relaxed practice applicable to the requirement imposed by the instruction at end of Question 40, but that remains a possibility.
16. Mr Madafferi was interviewed by a departmental officer about his criminal history, through an interpreter, on 16 April 1997. In relation to the extortion in May 1980, he said he was arrested for something he did not do. In relation to the stabbing of Fabrizio he agreed that he had been carrying the knife and had used it, but asserted that it was just a normal pocket knife. He claimed he had had nothing to do with the second case of attempted extortion. In relation to the drug offence, he admitted only to having had a little cocaine on his person. He said there had been a commotion on that occasion that had nothing to do with him. He said he had slapped a prisoner across the face without disclosing the injuries that that prisoner had suffered. I am satisfied that in saying these things Mr Madafferi was deliberately lying and attempting to mislead his interviewer. The interviewer had a record of Mr Madafferi’s criminal history - apparently a short summary listing convictions and penalties - both in Italian and in an English translation. He had shown this to Mr Madafferi. Mr Madafferi apparently was not clever enough to think that he would be caught out if he did not tell the truth. Obviously he was trying to avoid deportation by deliberately understating the extent of his past criminal activities.
17. To a lesser extent, he did the same thing again by making false claims of innocence during the hearing before me.
Criminal Intelligence Information
18. Counsel for the respondent tendered a statement by a Sgt Bastin of the Victoria Police. At the time of the hearing he was on a peacekeeping mission in Rwanda. He was available for cross-examination by telephone, but Mr Madafferi did not wish to ask him any questions. Sgt Bastin had been the senior intelligence manager of the Organised Crime Squad. His statement was a lengthy one. It set out details as to a number of unsolved murders and other serious crimes, apparently involving members of Melbourne’s Italian community. It set out information supplied to police officers by six informers, none of whom were named. Some of the informers had provided information to the police that implicated a relative of Mr Madafferi in some very serious crimes. The only paragraphs implicating him in any way read as follows:
“In late November, 1995 I spoke to the informer (Informer A). A informed me that once [Mr Madafferi] was out of the country he would come forward with information relating to [Mr Madafferi’s] involvement in two unsolved murders that have been committed in the state of Victoria.”
“In a statement to the homicide Squad Informer “C” stated that he was informed that: ‘a nephew of [the relative], a [Mr Madafferi] was coming in from overseas. He didn’t know why he was coming in from overseas. He didn’t know why he was coming but it was believed that he was a standover man and capable of killing people `.”
19. The statement contains no information that would enable me to make a proper assessment of the reliability either informer A or informer C. What informer C said might have been based entirely on guesswork. I do not think I should give the information attributed to the informers any weight. Even if Sgt Bastin had been cross-examined, been unshaken, and given his evidence impressively, I would still not give that information any weight. Sgt Bastin has reproduced two hearsay statements, one of them likely to have been the product of guesswork, from two individuals of doubtful reliability, either of whom may have had good reason for lying. I am conscious of the fact that s.501(2)(b) empowers decision-makers to assess the character of a visa applicant by reference to that person’s associates. Even if I were to form the view that Mr Madafferi’s relative has been or is involved in criminal conduct, I do not think the two paragraphs I have referred to form a sufficient basis for me to infer, because of Mr Madafferi’s association with that relative, that he must be someone who is of not good character. All other things being equal, such an inference should less readily be drawn when a person associates with a relative said to be involved in criminal conduct, as distinct from a person who is not a relative and is said to be involved in criminal conduct.
20. Sgt Bastin’s statement also reveals that in May 1991 Mr Madafferi supplied false information when applying for a Victorian shooter’s licence. A question on the relevant application form asked, “In Victoria or elsewhere, have you ever been charged by Police or appeared before any court charged with an offence?” He answered “No”. A licence was issued to him for a shotgun. He was not charged after his incorrect answer came to light, apparently because he did not understand the questions on the application form, and had got someone else to complete it. It seems a prosecutor thought it was unlikely that it could be proven beyond reasonable doubt that Mr Madafferi had knowingly been a party to the giving of a false answer.
21. In cross-examination, Mr Madafferi was asked if he had gone hunting after obtaining his shooter’s licence, but replied, “Where could I go?” He subsequently said that he had never bought a gun. He did not offer an explanation as to why he had obtained a shooter’s licence in the first place. However, whatever his motives were for obtaining that licence, I do not think the evidence about it, even in conjunction with the hearsay statements of Informers A and C, should lead to a conclusion that Mr Madafferi has been involved in some sort of criminal activity. If it had been his intention to use a gun for criminal purposes, I hardly think he would have let the police know he had a gun, or was intending to get a gun, by applying for a shooter’s licence.
History of These Proceedings
22. The course taken by Mr Madafferi and his legal representatives in these proceedings was so extraordinary that it was submitted on behalf of the respondent that the way in which the proceedings were conducted should be taken into account as evidence indicating that Mr Madafferi was of bad character.
23. Mr Madafferi’s application to this Tribunal was dated 11 June 1997 and was received in the registry on 20 June 1997. There was a series of directions hearings. At a directions hearing before Deputy President Forrest on 15 May 1998 there was a debate about Sgt Bastin’s statement. Deputy President Forrest refused to order that the statement be removed from the Tribunal’s documents, taking the view that what use was to be made of it should be decided at the hearing, and directed that the matter be listed for hearing on 24 and 25 August 1998. The hearing commenced on 24 August 1998. Deputy President Forrest indicated at the outset that he had read Sgt Bastin’s statement. Mr Madafferi’s then counsel, Mr. Rose, asked Deputy President Forrest to disqualify himself on the ground that having read that statement gave rise to a reasonable apprehension of bias. Deputy President Forrest quite properly refused to disqualify himself, but at counsel’s request adjourned the hearing to enable an appeal to be brought to the Federal Court. Mr Madafferi appealed against Deputy President Forrest’s refusal to disqualify himself. For reasons that I do not understand, that appeal was not brought on for hearing until 11 February 2000. This no doubt this suited Mr Madafferi, who remained in Australia and at liberty. Heerey J dismissed the appeal without needing to hear submissions on behalf of the respondent.
24. The hearing was relisted for 4 and 5 May 2000 before me. On the afternoon of 2 May 2000, Mr Madafferi’s then solicitor, Mr. Clothier, made an urgent request for a directions hearing to be held so that an application could be made to adjourn the hearing. I conducted a directions hearing as requested on 3 May 2000. Mr. Holdensen QC applied for an adjournment on the grounds that Mr Madafferi’s case was not ready. He said a brief had been delivered to him at 9.45 am the previous day, but that he had returned the brief, considering that it was proper to do so because the case was not properly prepared. He said Mr. Clothier had been informed that Mr Madafferi had taken the decision of Heerey J extremely badly, and had gone into a bad psychological state. Mr. Clothier told me that he had been informed that his client was thoroughly depressed, had given up, and was in an uncooperative mood, but that his relatives had deposited funds in his trust account for the hearing on the previous Friday, which was 28 April. Mr. Holdensen also submitted that the hearing should wait until Sgt Bastin could be cross-examined in the witness box, and that he needed to get another psychologist as an expert to replace a Mr. Watson Munro, who had suffered some unfortunate adverse publicity.
25. I refused the adjournment. Mr. Holdensen QC., who had returned his brief in relation to the hearing, had no further involvement in the matter. Almost immediately after the directions hearing, Mr. Clothier’s firm ceased to act for Mr Madafferi. Mr Madafferi engaged a new solicitor, Mr. Acquaro. Mr. Acquaro briefed Mr. Shepperd of counsel at about 2.05 pm. The directions hearing had ended at 1.43 pm. Mr. Shepperd worked on Mr Madafferi’s case, preparing it for hearing, until about 6.15 pm., but without ever speaking to Mr Madafferi, who apparently remained at his shop in Coburg. He runs a fruit shop.
26. Doing the afternoon of 3 May a notice of appeal was filed in the Federal Court of Australia challenging my decision to refuse the adjournment. An appointment for a directions hearing in relation to that appeal (or purported appeal) was obtained for a date later in June 2000.
27. On the morning of 4 May 2000, the hearing began with an application by counsel for the relative mentioned in Sgt Bastin’s statement, who obtained a confidentiality order under s.35 of the Administrative Appeals Tribunal Act 1975 and sought leave to participate further in the proceedings, which I refused. Then Mr. Shepperd applied for an adjournment of the hearing, principally on the grounds that Mr Madafferi’s case was not ready for hearing and Sgt Bastin could not be present. He applied for an adjournment of his adjournment application so that Mr Madafferi could be examined by Mr. Watson Munro, who had not seen him for over a year, with a view to Mr. Watson Munro giving evidence in support of the adjournment application as to Mr Madafferi’s mental state. Mr. Shepperd also relied on the fact that an appeal was pending in the Federal Court in relation to my first refusal of an adjournment. I again refused an adjournment. Mr. Shepperd sought leave for him and his instructing solicitor to withdraw, which I granted.
28. Mr Madafferi then began to conduct his own case. I invited counsel for the respondent to make an opening address. I usually take that course as a matter of fairness when applicants are unrepresented. Mr Madafferi, through his interpreter, interrupted that opening address repeatedly. He said he did not want to give evidence, but eventually gave evidence the next day. On the first day I got as far as taking evidence from Mr Madafferi’s wife, her sister, and an Italian lawyer.
29. On the morning of the second day of the hearing a Mr. Mueller appeared for Mr Madafferi and made a third application for adjournment. He quite properly did not revisit any of the arguments that I had previously rejected, but submitted that Mr Madafferi needed an adjournment because he had little in way of formal education, spoke little English, was of low intelligence, and was disadvantaged in conducting a case that involved complex questions of law and fact. I refused that adjournment on the basis that, although Mr Madafferi was no doubt having difficulty, I considered that his case was being adequately presented. Mr. Mueller politely withdrew, having been engaged only to apply for an adjournment.
30. This saga of adjournment applications is all the more extraordinary because, in my view, this is not a complicated case. I have already summarised the evidence against Mr Madafferi. His case is that he has been in no trouble since coming to Australia, and is a simple shopkeeper with a wife and children who will be severely disadvantaged if he is deported.
31. I think it is open to me to infer that there has been an unusual campaign of obfuscation in this case, designed to delay the hearing by this Tribunal, or, if it were not delayed, to provide some basis for an appeal to the Federal Court, whether meritorious or not, during which Mr Madafferi could remain in Australia. However I am not prepared to infer that Mr Madafferi is personally responsible for this extraordinary series of events, nor am I prepared to infer that the various adjournment strategies that have been attempted reflect adversely on Mr Madafferi’s character. Having seen him over two days, with him conducting his own case for most of that time, I have the impression that the strategic thinking in relation to adjournments must have been done by one or more other people. It may be that someone is desperate to prevent Mr Madafferi from being sent back to Italy, but I do not think I should see Mr Madafferi’s character in any worse a light as a result.
Mr Madafferi’s Family
32. Mr Madafferi met his wife in 1989. As I have said, they were married on 26 August 1990. They have a son who has just turned 9 years old, a daughter who is 7, and another daughter who will soon be 4. Mr Madafferi has three sisters in Italy, and two brothers and a sister in Australia. He speaks Italian at home because he speaks very little English. His wife gave evidence that the children only speak English, but that they understand him when he speaks to them in Italian. Apart from this language difficulty, the family seems to be a happy, well-bonded Italian-Australian household.
Conclusion
33. I think that I should regard Mr Madafferi as a person who is not of good character. There is no reliable evidence that 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 the prison. He is now 39 years old. I have the impression that he would probably have been caught and convicted if he had committed any crimes in Australia, because he seems not to be sufficiently intelligent or cunning to avoid getting caught. I think it would be inappropriate to judge him by the crimes that he committed long ago in another country. But I believe that his conduct in relation to migration matters, particularly in trying to mislead the interviewer and myself as to the extent of his crimes in Italy, shows that he is willing to resort to dishonesty when it suits him. I am therefore satisfied that he is not of good character having regard to his general conduct, pursuant s.501(2)(a)(ii) of the Act.
34. The Italian authorities have issued a warrant for Mr Madafferi’s arrest. Sgt Bastin has made enquiries and found out that the warrant will not be executed so long as Mr Madafferi remains in Australia, but that it would be executed if he were to return to Europe. The warrant requires Mr Madafferi to serve a consolidated sentence of 4 years, 8 months and 6 days’ imprisonment in respect of various unserved and previously suspended sentences. There is some chance that Mr Madafferi might be able to appeal in relation to some sentences. There is some chance that he might be able to obtain new trials on the charges dealt with in absentia, on the basis of fresh evidence. However these are only possibilities, and it is also possible that Mr Madafferi might have to serve some years in prison if no application or appeal is successful. I think it would be oppressive to require him to leave Australia given that the warrant results from proceedings dealt with in absentia, and given that the Italian authorities have known he was in Australia for over two years, possibly for several years, and have not been interested in extraditing him.
35. In the light of the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, the interests of Mr Madafferi’s children must be regarded as a primary consideration. Their mother has decided that she will stay in Australia if Mr Madafferi is refused a visa. Although she comes from an Italian family and speaks Italian, she has never lived in Italy. The children have never been there. Mr Madafferi would probably be arrested and imprisoned if he returned there. The only sensible course is for her and the children to remain in Australia. The children would effectively lose their father if he were refused a visa. No doubt their mother would be saddened by the loss of her husband, probably for a very long time. This would also be likely to have an adverse impact on the children.
36. I think I should also take into account the interests Mr Madafferi’s wife, without giving her interests the same weight as those of the children. The interests of adults count for less than the interests of children. More significantly, Mr Madafferi’s wife has deliberately refrained from finding out about his criminal activities in Italy. If it were necessary for him to leave Australia, she would have only herself to blame for not making reasonable enquiries about the man she decided to marry.
37. It seems Mr Madafferi decided in or about early 1990 that he wanted to stay permanently in Australia. He should have made the appropriate application then, and it should have been refused then because of his Italian convictions. As a general rule visa applicants should not be allowed to benefit from delays for which they are responsible. But for the need to consider the interests of Mr Madafferi’s children, these factors would have weighed very heavily in favour of refusing him a visa.
38. It is true that Mr Madafferi committed some serious crimes between 15 and 20 years ago, and as a result should never have been allowed to take up residence in Australia. It is also true that he is still prepared to resort to dishonesty when it suits him. But I see little risk to the Australian community in permitting him to continue to live here. I therefore think that the factors weighing in favour of the granting of a visa, particularly the interests of his children, should predominate over the factors weighing in favour of refusing one. I have therefore decided to set aside the decision under review and to remit the matter to the respondent for reconsideration. I do not think that a visa should be refused on character grounds unless significant fresh information associating Mr Madafferi with criminal activity in Australia happens to come to light. I have therefore decided to give a direction that he is not to be refused a visa on character grounds on the basis of any information presently available.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President A M Blow OAM QC.,
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 4 and 5 May 2000
Date of Decision 7 June 2000
Solicitor for the Applicant Applicant appeared in person
Counsel for the Respondent Ms H SymonSolicitor for the Respondent Miss S Adamson, Department of Immigration and Multicultural Affairs
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