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2022 MarsdenLR 974
HIGH COURT MALAYA KUALA LUMPUR
SIOW CHEW LIAN & ORS – Appellant
Versus
PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN MALAYSIA – Respondent
[Judicial Review Application No: WA-25-271-09/2020]
The citizenship of an adopted child under Malaysian law depends on the citizenship of the biological parents, not the adoptive parents.
Headnote:(A) Federal Constitution – Article 14(1)(b) – Registration of Adoptions Act 1952 – Acquisition of citizenship by operation of law; 3rd Applicant denied citizenship as biological parents' nationality not established – Applicants contended the 3rd Applicant is a citizen by operation of law, but evidence failed to show nationality of biological parents – The review court stated its supervisory role focuses on decision-making legality rather than merits directly (Paras 14, 15, 22, 23).
(B)
Jus soli and jus sanguinis – Citizenship requirements detail the necessity of biological parent citizenship for the 3rd Applicant - The court concluded the Applicants' arguments were ungrounded in law given the legal definitions and regulations pertaining to citizenship (Paras 18, 26, 40).
(C)
Legitimate expectation – Court clarified that the principle of legitimate expectation does not confer citizenship; prior adoption registration does not result in a presumption of citizenship – The court dismissed the application as no unambiguous promise was established from the Respondent (Paras 46, 48).
Findings of Court:
The law mandates that citizenship under the Federal Constitution demands proof of lineage in the case of an adopted child (Para 51).
Result:
Application dismissed.
JUDGMENT
[1] This is an application for judicial review by the Applicants seeking for inter alia a declaration that the 3rd Applicant is a citizen of Malaysia by operation of law.
Background Facts
[2] The 1st and 2nd Applicants are citizens of Malaysia and were legally married since 18 March 1994 ("the Applicants").
[3] On 19 January 2000, the 3rd Applicant was born in Kuala Lumpur. The 3rd Applicant was given to the Applicants.
[4] On 27 June 2012, the Respondent issued a birth certificate registering the 3rd Applicant's birth as Late Registration of Birth. The particulars of the 3rd Applicant's parents were registered as "Maklumat Tidak Diperoleh The birth certificate also registered the 3rd Applicant's status of citizenship as "BELUM DITENTUKAN".
[5] The Applicants made an application to adopt the 3rd Applicant through the National Registration Department ("NRD") of Negeri Sembilan under the Registration of Adoptions Act 1952 .
[6] On 17 January 2013, the NRD had accepted and approved the Applicants' application with Adoption Register Entry No: 0318/2013.
[7] No application for a new registration or change of the birth certificate of the 3rd Applicant was made by the Applicants after the approval of the adoption application.
[8] In 2013, the Applicants made an application for Malaysian citizenship for the 3rd Applicant under art 15A of the Federal Constitution (" FC ").
[9] On 26 May 2014, the Applicants were informed that the application was unsuccessful.
[10] On 29 June 2016, the Applicants made a second application for Malaysian citizenship for the 3rd Applicant under art 15A of the FC . On 24 June 2020, the Applicants were informed that the application was still in process.
[11] On 14 July 2020, the Applicants wanted to collect a new birth certificate for the 3rd Applicant. However, the NRD only allowed the Applicants to extract the birth certificate with the endorsement of "DIANAKANGKATKAN". The status of citizenship of the Applicant is still the same ie"BELUM DITENTUKAN". The Respondent did not issue a new birth certificate which registers the 3rd Applicant as a citizen of Malaysia ("the decision"). Hence the instant application.
The Applicants' Contention
[12] It is the Applicants' contention that the 3rd Applicant is a Malaysian citizen by operation of law under art 14(1)(b) of the FC read together with s 1(a) Part II, Second Schedule of the and the refusal by the Respondent to register the 3rd Applicant as a Malaysian citizen is illegal. The Respondent's decision is said to be irrational and unreasonable when it failed to appreciate that the Applicants have a legitimate expectation that the Respondent will issue a birth certificate which registers the 3rd Applicant as a Malaysian citizen.
Summary Of The Respondent's Contentions
[13] Summarily the Respondent contends that the decision is made in accordance with law and that the 3rd Applicant is not a citizen of Malaysia by operation of law under art 14(1)(b) of the FC .
Findings
[14] It is trite law that in reviewing decisions of the Public Authorities the High Court is sitting in its supervisory and not in its appellate jurisdiction. In exercising its supervisory jurisdiction, the High Court may scrutinise a decision on its merits but only in the most appropriate of cases. Otherwise, the High Courts are more concerned with the decision-making process and not the decision itself. The High Courts will have to determine whether the decision making process is tainted with any illegality, irrationality and procedural impropriety (see: Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers, ; Michael Lee Fook Wah v. Menteri Sumber Tenaga Manusia, Malaysia & Anor; [1997] 2 MLRA 91; [1998] 1 MLJ 305; [1998] 1 CLJ 227; [1997] 4 AMR 4258; R Rama Chandran v. The Industrial Court of Malaysia & Anor; [1996] 1 MLRA 725; [1997] 1 MLJ 145; [1997] 1 CLJ 147; [1997] 1 AMR 433 ; Council Of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374; Petroli
