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2023 MarsdenLR 3003
HIGH COURT MALAYA SHAH ALAM
BALACHANDAR RATHNAM & ORS – Appellant
Versus
KETUA PENGARAH JABATAN PENDAFTARAN NEGARA – Respondent
[Judicial Review Application No: BA-25-78-10-2021]
The court upheld that the discretion to issue identity cards lies with the respondent, and the applicants must provide necessary proof, such as DNA evidence, to support their claims.
Headnote:(A) Rules of Court 2012 - Order 53 - Judicial review - Application for issuance of National Identity Card - Applicants alleged refusal by respondent to issue identity card to third applicant based on appearance - Court found that the respondent's discretion to issue identity cards was not exercised unlawfully and that the application was pending due to lack of DNA evidence - No decision made by the respondent pending DNA results - Judicial review application dismissed. (Paras 20, 46, 50)
(B) Grounds for Judicial Review - Illegality, irrationality, procedural impropriety - Court affirmed that the applicants failed to discharge the burden of proof required for identity card issuance - Respondent's request for DNA test deemed reasonable and within statutory powers. (Paras 21, 44, 50)
Facts of the case:
The applicants sought judicial review against the respondent for the failure to issue a National Identity Card to their daughter, who was born in Malaysia. The application was postponed due to the child's appearance differing from the parents, leading to a request for a DNA test. (Paras 4-19)
Findings of Court:
The court concluded that the refusal to issue the identity card was justified as the application was still pending, and the applicants had not provided the requested DNA evidence. (Paras 46-50)
Issues: The main issues included whether the respondent's actions constituted a refusal of the application and the legitimacy of the DNA test request. (Paras 26-30)
Ratio Decidendi: The court ruled that the respondent acted within its discretion and authority under the relevant regulations, and the applicants failed to provide the necessary proof to support their claims. (Paras 44-50)
Result: Application for judicial review dismissed with no order as to costs.
| Table of Content |
|---|
| 1. judicial review application for identity card issuance. (Para 1 , 2) |
| 2. factual background of identity card application. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19) |
| 3. legal grounds for judicial review. (Para 20 , 21 , 22 , 23 , 24) |
| 4. arguments for the applicant's citizenship claim. (Para 26 , 27 , 28 , 29 , 30 , 31) |
| 5. respondent's defense regarding application status. (Para 32 , 33 , 34 , 35) |
| 6. court's analysis of discretion and burden of proof. (Para 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49) |
| 7. conclusion dismissing the judicial review application. (Para 50) |
[1] This is an application for Judicial Review pursuant to O 53 Rule 1 of the Rules of Court 2012. The crux of the case for the applicants revolves on the "alleged refusal and/or failure" of the respondent to issue a National Identity Card to the third applicant, when the third applicant turned 12 years old.
Reliefs Sought
[2] In this application for judicial review pursuant to O 53 of the Rules of Court 2012, the applicants are seeking the following reliefs:
a) that the applicants be given the permission to apply for an order of certiorari to cancel the respondents' action and decision to remove the applicants' application from the National Registration Department and to the failure to issue the identity card to the third applicant, although had knowledge of the application made in favour of the third application on 16 August 2021;
b) that the applicants be given the permission to apply for an order of mandamus to compel the respondents to issue a Malaysia citizenship certificate and Malaysian MyKad Identity Card to the third applicant;
c) a declaration that there is a legitimate expectation of the third applicant, to obtain Malaysian citizenship status and possess the rights of a Malaysian citizen; and
d) cost of this application.
Salient Facts
[3] The facts of this case as gleaned from the affidavits and written submissions filed by parties are as follows.
[4] The first and second applicants were legally married on 24 April 2004. The third applicant is their daughter.
[5] The third applicant was born on 7 April 2007 at Klinik Salina dan Rumah Bersalin, Klang. She had obtained her birth certificate and MyKid bearing the registration number 070407-10-1668.
[6] On 10 April 2019, the first and second applicants made an application at Jabatan Pendaftaran Negara ("JPN") branch in Port Klang, Selangor to obtain an identity card for the third applicant, as she has reached the age of 12 years old.
[7] However, due to the third applicant's perceived appearance and skin color which was different from the first and second applicant, the JPN had decided to postpone the said application.
[8] The third applicant's case was referred to the Bahagian Siasatan dan Penguatkuasaan JPN Negeri Selangor for investigation.
[9] On 13 May 2019, this case was registered "for an investigation" and Mohd Faiz bin Mohamed was the Investigating Officer ("IO") to handle this case. On 3 September 2019, the IO recorded a statement from the applicants. During an investigation, the first and second applicant agreed to conduct a DNA Test in order to determine the third applicant's paternity at their own cost.
[10] The first and second applicants provided the respondent, the relevant documents such as Birth Certificate, MyKid, immunization schedule, the picture of the third applicant from birth till to date, the enrolment of the third applicant to SK(P) Methodist Klang, and a copy of third applicant's passport as proof that the third applicant is and always has been the child of the first and second applicants.
[11] After the recording of statement of the first and second applicant on 3 September 2019, the first and second applicant did not contact the respondent pertaining to the application for the identity card of the third application.
[12] On 18 March 2020 the Movement Control Order was enforced throughout the country an
