KUALA LUMPUR, Feb 15 — The Court of Appeal today unanimously decided not to recognise a 35-year-old woman — who was born in a Pahang refugee camp to parents who were Muslim refugees from Cambodia — as a Malaysian citizen.
The woman Azimah Hamzah is the only one in her family who is not yet a Malaysian. She had previously applied but failed at the High Court and then appealed to the Court of Appeal to be recognised as a Malaysian by arguing that she is a stateless person with no Cambodian citizenship.
While Azimah was born in Malaysia and her parents and all her siblings had became Malaysians, the Court of Appeal said that she had not fulfilled the requirements under the pathway of Article 14(1)(b) of the Federal Constitution and Section 1(e) of Part II of the Second Schedule of the Federal Constitution.
The Court of Appeal however said that Azimah still had the alternative option of pursuing Malaysian citizenship by way of naturalisation under Article 19 of the Federal Constitution.
In reading the brief grounds of a three-judge panel’s unanimous decision, Datuk Vazeer Alam Mydin Meera said the Court of Appeal agreed with the High Court’s March 2020 decision to dismiss Azimah’s bid for Malaysian citizenship.
Vazeer Alam said the Court of Appeal agreed with the High Court judge’s findings that concluded Azimah is not a stateless person, and also agreed that both Article 14(1)(b) and the Section 1(e) — two constitutional provisions which would enable a person to be recognised as a Malaysian citizen — do not apply to Azimah and that she is not a Malaysian citizen by operation of law.
Vazeer Alam said the Court of Appeal panel took note of the fact that Azimah’s parents and all her siblings have subsequently acquired Malaysian citizenship, and went on to highlight the other citizenship route that Azimah could still try.
“We empathise with her predicament. Nevertheless, the door is not closed. It is still open to her to apply for citizenship by naturalisation if the requirements are met.
“We find no merit in the appeal and the appeal is dismissed,” the judge said in dismissing Azimah’s appeal.
The three-member Court of Appeal panel was chaired by Datuk Seri Kamaludin Md Said. Datuk Gunalan Muniandy was the third judge.
Based on previous 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.
In reading the brief grounds of the decision, Vazeer Alam had examined the High Court’s decision in Azimah’s case, after having noted that her refugee parents were not Malaysian citizens at the time of her birth and that she has lived in Malaysia since birth.
The High Court’s decision was on two issues, namely whether the citizenship provisions of Section 1(e) and Article 14(1)(b) applied to Azimah’s case, and whether the burden of proof lies on Azimah to establish on a balance of probabilities that Azimah was not born a citizen of any country for purposes of Section 1(e).
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”.
Azimah argues that she is automatically a citizen of Malaysia once she has met the Section 1(e) requirement.
Noting that then High Court judge Datuk Seri Mariana Yahya had held that Azimah holds the burden of proof to establish on a balance of probabilities that she was not born a citizen of any country, Vazeer Alam said the Court of Appeal agreed with this.
“We agree that the appellant (Azimah) has to prove she was stateless at the time of her birth to avail herself of her right under Section 1(e). The facts showed the parents were refugees from Cambodia, thus there was evidence of parents’ country of origin.
“Though her birth certificate did not state the nationality of her parents, that does not mean her parents were stateless,” Vazeer Alam said, referring to Azimah’s June 1986 birth certificate.
Vazeer Alam referred to an entry permit issued by Malaysia’s immigration authorities in November 1986 to Azimah’s father which had stated his nationality to be Cambodian.
“If that is so, Azimah has to show why she is not entitled to acquire citizenship of Cambodia.”
“We agree with the High Court judge that it is incumbent on Azimah to demonstrate to the court why she is not entitled to acquire Cambodian citizenship at her birth,” he added.
The judge noted there was evidence of Azimah’s parents being Cambodian citizens at the time of her birth.
Vazeer Alam said the Court of Appeal found no error in the High Court judge’s findings that Azimah had failed to discharge the burden of proof of her not having being born a citizen of any country.
“As such, Azimah could not be categorised as a stateless person at birth for purposes of citizenship by operation of law under the Second Schedule read together with Article 14(1)(b),” the judge said.
The judge then concluded that the Court of Appeal agreed that Azimah is not a Malaysian citizen by operation of law — or entitled to automatically be a Malaysian citizen — as it agreed Article 14(1)(b) and Section 1(e) do not apply to her.
“We will appeal the decision,” Azimah’s lawyer N. Surendran told Malay Mail when contacted later.
Lawyer Shahid Adli Kamarudin also represented Azimah while senior federal counsel Nik Mohd Noor Nik Kar and federal counsel Arina Azmin Ahmad Marzuki represented the government and the two other respondents.
About Azimah’s case
Azimah’s June 1986 birth certificate records her as a non-citizen and her race as Cambodian, with her parents recorded with the same details and with “maklumat tidak diperolehi” (information not obtained) stated for the parents’ identification documents.
The November 25, 1986 entry permit into Malaysia issued to both Azimah’s parents states them to be of Cambodian nationality. On the same day in November 1986, both parents obtained the status of being permanent residents of Malaysia.
Azimah’s parents both obtained Malaysian citizenship in November 2008 via Article 19(1) of the Federal Constitution, or in other words became Malaysian citizens through naturalisation.
Under Article 19(1), the Malaysian government may grant a certificate of naturalisation to anyone aged 21 and above when applied by the person, if satisfied that the person is of good character, has adequate knowledge of the Malay language and has lived in Malaysia for the required period — not less than 10 years in the 12 years before application is made — and intends to live permanently in Malaysia if the certificate is granted.
Azimah’s older sister, who was not born in Malaysia but was also a refugee who came to Malaysia with their parents, was naturalised as a citizen in November 2008.
The naturalisation process was made under Article 15A of the Federal Constitution, where the government may register persons aged below 21 as citizens in special circumstances as it thinks fit.
All of Azimah’s four younger siblings — born in Malaysia before the parents became citizens — are Malaysians because of the parents’ status as permanent residents in Malaysia.
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 had asked the Cambodian embassy in an attempt to settle the question of whether she is a Cambodian citizen or otherwise by asking the Cambodian embassy, with the embassy confirming in a September 18, 2018 certified letter that Azimah “has never been holding Cambodian passport and identity documents”.
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 filed 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 and the decision today by the Court of Appeal.
Azimah will turn 36 this year. Like Azimah, her parents and all her siblings are also in Malaysia.
Azimah’s lawyer Surendran previously told the Court of Appeal that Azimah has never been to Cambodia and knows nothing about that country, and that Malaysia is the only country she knows of and which she has a genuine link to.
While Surendran had insisted that Azimah had proven she is stateless, the government argued in the Court of Appeal that her parents were Cambodians when she was born and that she is not stateless.
