Neville Gafà took illicit payments for Libyan visas, court concludes

Neville Gafà received illicit cash payments for Libyan medical visas that in many cases were never issued, a civil court has found.

The court, however, refused a request to order Gafà to refund almost €40,000, saying it could not order a refund of money paid on the basis of an illegal agreement.

The court decision came in a case filed by Khaled Ibrahim Ben Nasam against Gafà, a former official at the Office of the Prime Minister who at the time was working within the health ministry’s secretariat.

Ben Nasam sought to recoup €36,675 he said he had paid while acting as a middleman between Libyan and Maltese authorities to facilitate the issuing of medical visas for Libyan patients to be brought to Malta for treatment.

Malta and Libya began collaborating on such medical evacuations in 2011, as Libya erupted into civil war. The agreement was initially informal but developed into a more regulated framework following the signing of a Memorandum of Understanding in February 2012.

Initially, Malta agreed to pay for all transfer, medical and accommodation expenses for evacuated patients. When the conflict escalated, and the number of evacuations rose, Malta began assessing requests on a case-by-case basis and charges for evacuated patients were billed to the Libyan government.

Ben Nasam was tasked by the Libyan government with collecting patients’ medical reports and sending them to the Maltese ambassador in Libya, and later on to Gafà.

Gafà acted as an intermediary between the Maltese health authorities and the Malta’s ambassador to Libya. He would also coordinate with the foreign affairs ministry and the Libyan authorities on arrangements related to assisting the victims and handle paperwork related to medical evaluations. When patients were approved, they would be issued a visa on arrival to Malta.

Patients were never asked to pay any expenses themselves.

Testimony about payments

However, Ben Nasam testified in court that he had paid Gafà large amounts in cash on several occasions. The amount, as demanded by Gafà, would be collected from prospective patients and paid in advance for each visa.

Ben Nasam kept a log of patients who had given him his passports and the amounts of money paid to Gafà. While the plaintiff issued three receipts – one to Gafà, one to the patient, and one for himself – Gafà issued none when receiving the money.

He testified that he had given Gafà €39,675 in total. Gafà eventually refunded him €3,000 in 2016.

In the proceedings, several witnesses took the stand.

A Libyan national testified that he had given passports and medical reports of 16 people who needed urgent medical help to Ben Nasam, and paid €8,900 for a total of 20 patients to get medical visas between September and October 2015.

However, none of the visas were issued. Some of the patients could not wait and several sought treatment in other countries. They then demanded their money back.

The witness and Ben Nasam went to Malta’s health ministry. An official gave them an envelope full of passports, including some of the passports provided by the witness, but no money was refunded and neither were the other documents returned.

Another witness explained that when he sought visas for relatives injured in the war, Ben Nasam referred him to Gafà. Gafà told him to pay €4,000 and provide various documents.

The witness insisted on handing everything in person to Gafà and came to Malta to do so January 2016.

When the visas were not issued, he returned to Malta and went to Gafà’s office together with Ben Nasam. After a three-hour wait, they were directed to meet Gafà at a hotel. He told them to pick up the documents from his office the next day but told them he was not in a position to refund the money paid.

The witness told the court that eventually, Ben Nassam refunded him €4,000 from his own pocket.

Another witness testified similarly, saying he paid €9,000 and Ben Nassam paid €11,000 for visas that were never issued. Passports were returned months later but the money was never refunded.

Gafà testifies

When Gafà testified in court, he insisted he received no money other than €66 for each visa application fee, saying he took that money because he was in charge of coordinating the issuance of medical visas and migration police.  

He testified that all passports had been returned, but the money was passed on to the immigration police.

Gafà testified that he was not responsible for issuing of visas and neither did he pass any visas to the patients.

He conceded that Ben Nasam had, on separate occasions, handed him several passports of injured individuals or people who needed medical treatment.

He testified that the home affairs minister at the time had then decided to halt the medical evacuation process for Libyan patients and that he had then sent for Ben Nasam, to return documents and the €66 fee for each visa.

According to Gafà, Ben Nasam refused to accept the news that applications would no longer be processed, and started calling him and threatening him.

Court: Gafà received 'illicit' money

The court said Ben Nasam was more credible in his testimony, and that Gafà had indeed received a number of passports from the plaintiff and application fees for each visa application.

It had been proven that the plaintiff collected substantial amounts of money from different individuals and their passports to come to Malta, and this was done on the basis of an agreement with Gafà. This not only emerged from Ben Nasam’s testimony but also from the receipts and the testimonies heard in court. For the court, it was proven that Gafà received the money and in amounts that exceeded the €66 Gafà claimed to have charged.

From the evidence, it did not emerge that Gafà was acting in his official capacity when receiving money, passports and other documents. As an intermediary, he was not authorised to take money in relation to the visa issuance or medical treatment.

The court noted that under the bilateral agreement, the bills were sent to the Libyan authorities, not the patients themselves.

A representative of the Foundation of Medical Services testified that the foundation never received money or had any link to Ben Nasam or his company. There was no evidence that the money paid to Gafà ended with the health ministry or the foundation, the court observed.

The court held that there was no doubt Gafà received money from Ben Nasam and third parties in connection with the issuing of visas for Libyan nationals that wanted to come to Malta. And that money was not received as part of his employment with the foundation. It also noted that the act of receiving original passports of third parties, which were then passed on to Gafà, constitutes a crime punishable by a jail term under the Passports Act.

The court said that Ben Nasam’s payments to Gafà were not done within a legal framework, with one witness saying he communicated with Gafà using his personal Gmail account instead of Gafà’s official government email address.

“Undoubtedly, the public administrative process is not so informal. Any payments due to the government are not done through oral requests which lack an official document or receipt,” the court said.

Gafà’s interventions were “evidently not made in an official manner and according to law,” the court said, adding that “Gafà received money from Ben Nasam that he had no right to, neither because of his employment or law.”

The court also found it hard to believe that Ben Nasam collected substantial amounts without having an official document in hand to justify the amounts. The people paying Ben Nasam money were not doing so as some sort of formal payment for visas, it said, and the transactions were based on an illicit deal between Ben Nasam and Gafà.

Had the deal been a legitimate one, Ben Nasam would not have paid money without receiving a receipt from Gafà, it noted.

Anyone complicit in an illegality could not petition a court to order the execution of something based on an illegal agreement, the court said as it dismissed Ben Nasam’s claim.

“Despite the court being convinced of the plaintiff’s version - that he handed a substantial amount of money to Gafà - the court is similarly convinced that the request for refund is based on illicit business,” Madam Justice Rachel Montebello said as she rejected the request for a refund.

Madam Justice Rachel Montebello presided over the First Hall of the Civil Court.