KUALA LUMPUR, Nov 3 — The Court of Appeal heard yesterday an appeal by a 35-year-old woman — born in a Pahang refugee camp to parents who were Muslim refugees from Cambodia — to be recognised as a citizen of Malaysia.

Azimah Hamzah’s lawyer, N. Surendran, told the court that his client is stateless as she is not a citizen of any country, while also highlighting that Azimah’s refugee parents have already been granted Malaysian citizenship and that all her siblings are Malaysians — leaving her as the only one in the family who is not a citizen.

Based on court documents including Azimah’s own affidavit, her parents and her elder sister were Muslim refugees from Cambodia who had been accepted for settlement in Malaysia since 1985, with the parents and elder sister placed in a refugee camp in Cherating, Pahang until they left the camp in 1987.

It was in June 1986 that Azimah’s refugee parents gave birth to her in the refugee camp in Pahang.

Azimah, her parents and all her siblings are all now in Malaysia. The parents were permanent residents since November 1986 and became naturalised Malaysian citizens in November 2008, while all Azimah’s four younger siblings — born in Malaysia before the parents became citizens — are Malaysians because of the parents’ status. Azimah’s elder sister became a Malaysian in November 2008 via the Federal Constitution’s Article 15A where the government may register persons aged below 21 as citizens in special circumstances as it thinks fit.

Azimah had in 1998 applied for a Malaysian identification card when she was 12, but the National Registration Department had in November 1999 said she was not entitled to Malaysian citizenship by operation of law.

She was then subsequently given a MyKas or a green identity card — introduced since 1990 by Malaysia for non-citizens who have temporary resident status — and allowed to renew it several times before being denied subsequently. Over the years, she had also made multiple attempts to obtain Malaysian citizenship status.

Azimah in October 2018 applied for Malaysian citizenship via Article 14(1)(b) of the Federal Constitution, but her application was rejected in March 2019.

On June 3, 2019, she then filed a lawsuit via a judicial review application against the NRD’s director-general, the home minister and the Malaysian government, to seek various court orders including a declaration to recognise her as a Malaysian citizen and one to compel the issuance of a MyKad or citizenship certificate.

The High Court on March 11, 2020 dismissed Azimah’s lawsuit, which then led to this appeal.

The key law at the heart of appeal

In the appeal hearing, Surendran said his client was mainly relying on Section 1(e) of Part II of the Second Schedule of the Federal Constitution, read together with the Constitution’s Article 14(1)(b).

Article 14(1)(b) states that those who are born after Malaysia was formed and who fulfill any of the conditions in Part II of the Second Schedule are citizens by operation of law or entitled to be Malaysians, with one of the conditions being Section 1(e) which is that a person born within Malaysia "who is not born a citizen of any country”.

Surendran said that Azimah’s court case is essentially not about seeking Malaysian citizenship to be granted to her, but an application for the court to make a declaration to confirm that she is entitled to Malaysian citizenship by law.

Surendran said his client has discharged her burden of proving that she falls under the Section 1(e) situation, noting that it was undisputed that she was born in the Cherating refugee camp in Kuantan, Pahang, Malaysia and that it was also undisputed that she has lived in Malaysia "all her life” since her birth 35 years ago.

The government in this case however holds the position that her parents were Cambodians when she was born, and insist that she is not stateless.

Were the refugee parents Cambodian when Azimah was born in Pahang?

The Court of Appeal judges focused on the status and nationality of Azimah’s parents at the time she was born.

The judges examined Azimah’s birth certificate issued in June 1986, where she was stated as being a non-citizen and with her race stated as Cambodian, and where her parents were recorded with the same details and with "maklumat tidak diperolehi” (information not obtained) stated for the parents’ identification documents.

Asked further by the judges, Surendran said it seems to be unclear what Azimah’s parents’ nationality was at the time of her birth and also indicated that there are no available additional documents — apart from a November 1986 entry permit issued to the parents — to show the parents’ nationality then.

Surendran further said Azimah had made an attempt to settle the question of whether she is a Cambodian citizen or otherwise by asking the Cambodian embassy, which confirmed in a September 18, 2018 certified letter that Azimah "has never been holding Cambodian passport and identity documents”.

Surendran said Azimah was definitely stateless without a doubt and fulfills the Section 1(e) condition, pointing out that this is clear from what the NRD had itself said in a court affidavit.

In the affidavit sworn on behalf of all three respondents, the NRD’s citizenship division director claimed that Azimah is not a stateless person that would qualify her to acquire Malaysian citizenship by operation of law, stating that Azimah should make efforts to obtain a passport or other documents to "return to Cambodia and obtain citizenship in Cambodia, since at her birth her parents were still of Cambodian nationality”.

"It’s quite clear from what the respondents are saying that she doesn’t have Cambodian nationality now, this is their own statement of oath,” Surendran said when asserting that this meant Azimah is stateless.

Asked by the judges whether the Malaysian government’s assertion that Azimah’s parents were Cambodian at her time of birth is backed by documents, Surendran said there was a November 1986 entry permit issued to the parents (where both were stated to be of Cambodian nationality) but also acknowledged that there seems to be some discrepancy with the information here and Azimah’s birth certificate.

But going beyond such questions over the parents’ nationality when she was born, Surendran argued that Section 1(e) only requires showing that one was born within Malaysia and not being a citizen of any country as it is a provision based only on the principle of jus soli or citizenship based on place of birth.

Surendran also noted that the High Court had dismissed his client’s case by saying it was bound by a previous Court of Appeal case — which had decided that both jus soli and jus sanguinis (citizenship by lineage or based on parents’ nationality) had to be fulfilled in order to fulfill the Section 1(e) condition.

But Surendran argued it was an error for the Court of Appeal to say that the parents’ nationality would also be relevant when deciding if someone fulfills the Section 1(e) condition, arguing that the legislative history of the Federal Constitution instead shows that Section 1(e) was intended to only require the jus soli concept.

Government argues parents were Cambodians, parents’ nationality relevant to prove statelessness

Responding to the argument that Azimah’s parents’ nationality was uncertain at her time of birth, senior federal counsel Nik Mohd Noor Nik Kar who represented the Malaysian government then argued it was not disputed at the High Court that her parents’ citizenship was Cambodian.

Nik Mohd Noor noted that it was said that Azimah’s parents were "refugees from Cambodia” and that both were not Malaysian citizens when she was born.

Court of Appeal judge Datuk Vazeer Alam Mydin Meera then asked how "refugees from Cambodia” could be equated to having Cambodian citizenship, and Nik Mohd Noor again said the parents could not be said to have had uncertain nationality at Azimah’s birth since it was previously undisputed that they were Cambodians then.

As for whether Azimah was stateless when she was born, Nik Mohd Noor cited Article 4 of Cambodia’s citizenship laws to say that a legitimate child — regardless of where they are born — would follow their Cambodian parents’ nationality and obtain Cambodian citizenship.

Court of Appeal judge Datuk Seri Kamaludin Md Said then highlighted that would be the case under ordinary situations, but noted that Azimah’s case relates to refugees coming to Malaysia who definitely could not return to their home country and who were given protection by the Malaysian government.

As Nik Mohd Noor agreed that this was why the Malaysian government gave protection to Azimah’s parents and siblings, judge Kamaludin further asked: "Logically speaking, now the parents have no more connection with Cambodia, because (they are) refugees, how do you expect this applicant to go back to Cambodia and acquire citizenship there?”

Court of Appeal judge Datuk Gunalan Muniandy also suggested that a child would become stateless if born to parents who are Cambodian nationals who are refugees, as they would not be able to go back and acquire Cambodian citizenship.

Nik Mohd Noor however argued that being refugees does not mean they would lose their Cambodian citizenship status.

Nik Mohd Noor cited the 1986 entry permit as documentation to show that Azimah’s father’s nationality was Cambodian at that time, arguing that the burden has now shifted on Azimah to show that her parents were not Cambodians and to show that she and her parents were stateless.

Nik Mohd Noor agreed that the entry permit was issued in November 1986 which was after Azimah’s June 1986 birth, and also agreed that there were no other documents available to show her father’s nationality to be Cambodian.

He also argued that fulfilling Section 1(e) should be based on both a person’s birth place and a person’s lineage or parents’ nationality, citing the Court of Appeal decision referred by the High Court judge in dismissing Azimah’s case.

He argued Azimah had not shown she was stateless by relying on the birth certificate and the Cambodian embassy’s letter, noting that the embassy letter did not say that Azimah never applied for Cambodian citizenship and also did not say that her parents were not Cambodian citizens.

Judge Vazeer also said it cannot be assumed that Azimah’s parents were Cambodians because they left Cambodia, noting that Myanmar for example does not recognise Rohingyas who left the country as being its citizens.

Nik Mohd Noor also suggested that Azimah’s acquiring of Malaysian citizenship should be through the right channels or correct legal provision such as Azimah’s elder sister who became a Malaysian after applying under the different constitutional provision of Article 15A, noting that there is also the alternative provision of applying to be a naturalised Malaysian citizen via Article 19.

Judge Kamaludin and judge Gunalan suggested that advice should have been given on what provision Azimah should have used to apply for citizenship, instead of just rejecting her citizenship application.

Nik Mohd Noor also argued that Azimah’s citizenship application via Article 14(1)(b) was rejected as she was allegedly not stateless.

In response to the government’s argument that Azimah had applied for citizenship under the wrong law, Surendran pointed out that Azimah’s elder sister had applied under Article 15A as she was born outside of Malaysia, while Azimah herself was born in Malaysia and there would then be no necessity to apply under Article 15A.

Surendran reiterated that it is correct for Azimah to apply under Article 14(1)(b) via Section 1(e) as she is stateless and not a citizen of any country, noting that there was no certainty that Azimah would be recognised as a Malaysian citizen even if an application was to be made under Article 15A as it would be entirely at the government’s discretion.

While saying there was no doubt that Azimah’s parents came from the land of Cambodia, he said they were refugees when they came to Malaysia and the contradictions in the government’s own documents — Azimah’s birth certificate and the entry permit — meant the documents should be interpreted to Azimah’s benefit.

In concluding, Surendran said: "She said clearly she never set foot in Cambodia, this is the only country which she has got a genuine link, this is the only country she knows of, no other country. She has never been to Cambodia, she knows nothing about it.”

Kamaludin, who was chairing the Court of Appeal’s three-judge panel, said the panel would deliver its decision on February 15, 2022.

Lawyer Shahid Adli Kamarudin also represented Azimah, while federal counsel Arina Azmin also represented the government and the two other respondents.