Court of Final Appeal of Macau, case no. 21/2007

MACAU

Title:
Court of Final Appeal of Macau, case no. 21/2007

Court: 
Court of Final Appeal of Macau

Date:
14 May 2008

CRC Provisions: 
Article 2: Non-discrimination
Article 3: Best interests of the child
Article 9: Separation from parents

Other International Provisions:
International Covenant on Economic, Social and Cultural Rights (“ICESCR”), Article 10: Right to family life

Domestic Provisions:
Law of Macau No. 4/2003, Article 8, Provision 5
Basic Law of Macau

Case Summary:
Background:
The appellants were foreign guest workers in the Macau Special Administrative Region (“Macau”). Under the Law of Macau No. 4/2003, Article 8, Provision 5, only highly qualified guest workers in Macau whose employment is beneficial to Macau are entitled to apply for Stay Permits for their family members. Because the appellants were not highly qualified guest workers, the Public Security Police Force (“PSPF”) denied their application for a Stay Permit for their child. The appellants appealed to the highest court, alleging that the PSPF’s decision violated various provisions of the CRC with respect to their child.

Issue and resolution:
Separation from parents; whether non-residents of Macau have the right to live together with their children in Macau. The Court held that there is no such right under either the Basic Law of Macau (i.e. Constitution of Macau) or the CRC, and therefore no violation of the CRC.

Court reasoning:
As to Article 2 of the CRC, the government of Macau did not discriminate against the appellants’ child in any respect, because the government did not treat him differently from other non-residents on the basis of race, colour, gender, or religion.

As to Article 3 of the CRC, the government did not violate the principle of the best interests of the child. Given that Macau is a tiny region, neither the Basic Law of Macau nor other internal laws or international conventions to which Macau is subject requires Macau to admit the children of non-residents and grant them the right to stay in Macau, otherwise at a certain point it would be impossible to ensure the safety, education, health, housing, and communication of the people living in the region.

As to Article 9 of the CRC, this provision is not applicable here. Macau did not force the separation of the child from his parent; as long as the appellants are willing to give up their jobs in Macau and return to their country of origin, they would be able to live together with their child.

The Court also reaffirmed its decision in a 2006 case, in which it held that the right of the child to stay is not covered by the right to family life. Even though the Basic Law and other internal laws admit the rights of both residents and non-residents to establish families and to give birth, such rights do not give rise to the claim that each person has the right to live together with his or her children. As a general rule, the latter right does not exist, unless the law provides otherwise. Based on the decision in that case, the court held that Macau did not breach its duty under Article 10 of the ICESCR to accord protection and assistance to the family.

Excerpts citing CRC and other relevant human rights instruments:
as in full-text decision from Macau:

4.2. 那麼我們看，行政行為或被上訴之裁判是否違反了保護兒童的國際公約。

上訴人所提出的那些保護兒童的國際公約讓人相信其出發點是澳門特別行政區有義務去保護全世界的所有兒童，但(特區)沒有，也不可能有這一義務。要提醒的是上訴人是一位在澳門提供工作的非本地居民，因為他願意而不是澳門特別行政區強迫他的，其配偶也是如此，因為根據陳述，其配偶也是一位非本地居民，他的兒子，即案中之兒童，也是一位非本地居民。

我們將進一步詳細地分析所提出的規範。

所提出的於1990年1月26日在紐約簽署的《兒童權利公約》(下稱《公約》)的條文規定如下：

“第二條
1. 締約國應尊重本公約所載列的權利，並確保其管轄範圍內的每一兒童的均享受此種權利，不因兒童或其父母或法定監護人的種族、膚色、性別、語言、宗教、政治或其他見解、民族、族裔或社會出身、財產、傷殘、出生或其他身份而有任何差別。
2. 締約國應採取一切適當措施確保兒童得到保護，不受基於兒童父母、法定監護人或家庭成員的身份、活動、所表達的觀點或信仰而加諸的一切形式的歧視或懲罰。

第三條
1. 關於兒童的一切行動，不論是由公私社會福利機構、法院、行政當局或立法機構執行，均應以兒童的最大利益為一種首要考慮。
2. 締約國承擔確保兒童享有其幸福所必需的保護和照料，考慮到其
第 21/2007 號案 第 33 頁
父母、法定監護人、或任何對其負有法律責任的個人的權利和義務，並為此採取一切適當的立法和行政措施。
3. 締約國應確保負責照料或保護兒童的機構，服務部門及設施符合主管當局規定的標準，尤其是安全、衛生、工作人員數目和資格以及有效監督等方面的標準。

第九條
1. 締約國應確保不違背兒童父母的意願使兒童與父母分難，除非主管當局按照適用的法律和程序，經法院審查，判定這樣的分離符合兒童的最大利益而確有必要。在諸如由於父母的虐待或忽視、或父母分居而必須確定兒童居住地點的特殊情況下，這種裁決可能有必要。
2. 凡按本條第1款進行訴訟，均應給予所有有關方面以參加訴訟並閘明自己意見之機會。
3. 締約國應尊重與父母一方或雙方分離的兒童同父母經常保護個人關係及直接聯繫的權利，但違反兒童最大利益者除外。
4. 如果這種分離是因締約國對父母一方或雙方或對兒童所採取的任何行動，諸如拘留、監禁、流放、驅逐或死亡(包括該人在該國拘禁中因任何原因而死亡)所致，該締約國應按請求將該等家庭成員下落的基本情況告知父母、兒童或適當時告知另一家庭成員，除非提供這類情況會有損兒童的福祉，締約國還應確保有關人員不致因提出這類請求而承受不利後果＂。

《經濟、社會與文化權利國際公約》(下稱《公約》)第10條規定如下：

“第十條
本公約締約各國承認：
一、對作為社會的自然和基本的單元的家庭，特別是對於它的建立和當它負責照顧和教育未獨立的兒童時，應給以儘可能廣泛的保護和協助。締婚必須經男女雙方自由同意。
二、對母親，在產前和產後的合理期間，應給以特別保護。在此期間，對有工作的母親應給以給薪休假或有適當社會保障福利金的休假。
三、應為一切兒童和少年採取特殊的保護和協助措施，不得因出身或其他條件而有任何歧視。兒童和少年應予保護免受經濟和社會的剝削。僱用他們做對他們的道德或健康有害或對生命有危險的工作或做足以妨害他們正常發育的工作，依法應受懲罰。各國亦應規定限定的年齡，凡僱用這個年齡以下的童工，應予禁止和依法應受懲罰。

4.3. 關於《公約》第2條，根據該條，締約國承諾尊重本《公約》所載列的權利，並確保其管轄範圍內的每一兒童均享受此種權利，不因其種族、膚色、性別、宗教等而有差別。看不到澳門特別行政區在哪些方面歧視上訴人的兒子，因為他也沒有提出澳門特別行政區對其他種族、膚色、性別、宗教的非本地居民的子女採取不同的做法。

關於《公約》第3條，根據該條，關於兒童的一切行為，不論是由公私社會福利機構、法院、行政當局或立法機構執行，均應以兒童的最大利益為一種首要考慮，也看不出有違反之處。

澳門特別行政區是一個有約28平方公里的細小地區，超過500,000人在此長期居住，因此是一個人口密度最高的地區之一，再加上每日數以萬計的遊客──澳門不可或缺的。基於此一條件，無論是根本法律，即《基本法》，還是其他內部法或特區要遵守的國際公約，都不要求澳門特別行政區必須接受本身在澳門沒有居留權的居民的子女在澳門居留，因為地方如此有限，到一定程度開始，就不可能確保人們的安全、教育、衛生、住房和交通了，尤其是涉及內部安全問題。

如果對本地居民的子女是如此的話，那麼非常易明的是，來澳門為了工作的非本地居民更不具有與其未成年子女共同居住的權利。逗留取決於澳門機構的批准與否，而肯定的是屬自由裁量之決定，也如前述，必須考慮到非本地居民的工作對澳門特別行政區所帶來的利益。

《公約》第9條確保不違反兒童父母的意願使兒童與父母分離，這並非明顯適用。澳門特別行政區並沒有強迫上訴人與其兒子分離，只是其兒子在澳門沒有居留權，只要上訴人放棄在澳門的工作，返回其原居住國，就可以繼續與其兒子生活了。
關於《公約》第10條，締約國有義務保護家庭方面，在此，前面轉錄的在2007年1月10日合議庭裁判內所作的見解有效。

結論是沒有顯示出違反了所提出的法規。

CRIN English translation:

4.2 Now let’s see whether the administrative acts or the appealed decision violated the international conventions protecting children.

We believe the appellants raised those international conventions protecting the rights of children based on the belief that the Macau SAR is obligated to protect all children throughout the world. The SAR, however, does not, and could not, have such a duty.  It is worth noticing here that the appellant, his wife and child are all non-residents of Macau.

We will take a further look at the relevant conventions.

The Convention on the Rights of the Child (the “Convention”) adopted on January 26, 1990 in New York provides:

Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

Article 10 of the ICESCR ( the “Covenant”) provides that:

The States Parties to the present Covenant recognise that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.

3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

4.3 As to Article 2 of the CRC, under which the States Parties undertake to respect and ensure the rights set forth therein to each child within their jurisdiction without discrimination of any kind, irrespective of the child's race, colour, sex, religion, etc., we couldn’t see discrimination in any respect by the SAR against the son of the appellants’ child, as they’ve failed to prove that the SAR treated the children of other non-residents differently based on their race, colour, sex, or religion.

As to Article 3 of the CRC, which provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary concern, we don’t see any violation thereof as well.

The Macau SAR is a tiny little region of only about 28 km2 with more than 500,000 residents, not to mention the tens of thousands of tourists visiting here per day. This is a place with one of the highest population densities in the world.

In light of that, neither the Basic Law of Macau, other internal laws, nor the international conventions to which the SAR is subject to, requires the SAR to admit children whose parents themselves don’t have residence rights to stay in Macau; otherwise in this limited space it would be impossible to ensure the safety, education, health, housing and communication of the people at certain point, especially the internal safety.

It is therefore apparent that non-residents who came to Macau for work are not entitled to the right to live together with their children. Whether their children could stay is at the sole discretion of the relevant authority, whose decision-making process must take into consideration the benefits that the employment of non-residents would bring to Macau, as mentioned earlier.

Article 9 of the CRC, which ensures that a child shall not be separated from his parents against his will, is not apparently applicable here. The SAR did not force the appellants to be separated from their son; it only held that the son didn’t have the right to stay. As long as the appellants are willing to give up their jobs in Macau and return to their country of origin, they would be able to live together with their son.

As to Article 10 of the ICESCR, under which the States Parties undertake to provide protection to the family, the aforementioned decision rendered on January 10, 2007 is upheld.

The court holds that there is no violation of the CRC or the ICESCR.

CRIN Comments: 
CRIN believes this decision is not consistent with the CRC. Under Article 9, a child must not be separated from their parents unless this is deemed to be necessary for the child's best interests. Article 2 requires States Parties to respect and ensure the rights under the CRC, including Article 9, to each child within their jurisdiction without discrimination of any kind on the basis of the child’s or their parents’ status. The law in question accords differing treatment to children whose parents are highly skilled guest workers and children whose parents are not highly skilled guest workers, and discriminates against the latter category by preventing them from staying in the region with their parents.

Link to Full Judgment:
Available on request

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