1. ) BALACHANDAR A/L RATHNAM 2. ) DAIVANAI A/P SUBRAMANIAM 3. ) NIROSSHA BALACHANDAR KETUA PENGARAH JABATAN PENDAFTARAN NEGARA

BA-25-78-10/2021 Kand. 47 28/08/2023 16:09:58 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-78-10/2021 Dalam perkara mengenai Aturan 53 Kaedah-Kaedah Mahkamah 2012 Dan Dalam perkara mengenai permohonan kebenaran untuk memohon suatu perintah certiorari (application for leave to apply for order certiorari) untuk membatalkan keputusan Jabatan Pendaftaran Negara yang mengeluarkan permohonan pemohon-pemohon daripada sistem Jabatan Pendaftaran Negara dengan tidak dikeluarkan kad pengenalan yang diketahui pemohon-pemohon pada 16.8.2021; Dan Dalam perkara mengenai permohonan kebenaran untuk memohon perintah Mandamus (application for leave to apply for order Mandamus) untuk mengarahkan responden-responden untuk mengeluarkan kad pengenalan MyKad Malaysia kepada pemohon Ketiga; Dan Dalam perkara Akta Pendaftaran Negara 1959 dan Peruntukan-Peruntukan Akta Pendaftaran Negara 1959; 1 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Dan Dalam Peraturan 3 dan 5 Peraturan- Peraturan Pendaftaran Negara 1990 (Pindaan 2007); Dan Dalam perkara Akta Spesifik Relif 1950. ANTARA 1. BALACHANDAR A/L RATHNAM (No. K/P: 640608-10-7443) 2. DAIVANAI A/P SUBRAMANIAM (No. K/P: 671223-10-5094) 3. NB [Seorang budak mendakwa melalui Balachandar a/l Ratnam dan Daivanai a/p Subramaniam, wakil-wakil litigasinya] …PEMOHON-PEMOHON DAN KETUA PENGARAH, JABATAN PENDAFTARAN NEGARA …RESPONDEN 2 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal GROUNDS OF JUDGMENT [1] This is an application for Judicial Review pursuant to Order 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 Order 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 16.8.2021; 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 3 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 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 24.4.2004. The third applicant is their daughter. [5] The third applicant was born on 7.4.2007 at Klinik Salina dan Rumah Bersalin, Klang. She had obtained her birth certificate and MyKid bearing the registration number 070407-10-1668. [6] On 10.4.2019, 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 13.5.2019, this case was registered “for an investigation” and Mohd Faiz bin Mohamed was the Investigating Officer (“IO”) to handle this case. On 3.9.2019, the IO recorded a statement from the applicants. During an investigation, the first and second 4 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 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 3.9.2019, the first and second applicant did not contact the respondent pertaining to the application for the identity card of the third application. [12] On 18.3.2020 the Movement Control Order was enforced throughout the country and JPN operated only 3 days in a week from 21.4.2020. [13] The application for the third applicant’s identity card has not been rejected and is currently pending investigation. [14] On 28.10.2021, this judicial review application was filed. [15] On 1.11.2021, JPN sent a letter to Klinik Salina where the second applicant gave birth to the third applicant. JPN informed the applicants on 22.11.2021 that JPN was still conducting an investigation/inquiry. [16] Based on letter dated 22.11.2021 to the applicants, JPN advised the first and second applicants to conduct a DNA Test. JPN did not 5 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal received any news from the applicants 14 days after delivery of that letter. [17] On 25.11.2021, JPN received a letter from Klinik Salina which stated that Klinik Salina cannot give a confirmation regarding the third applicant’s birth by the second applicant because the record is no longer in their possession. Klinik Salina was shut down since 2008. [18] On 22.2.2022, JPN showed that the status still pending process for investigation and waiting for DNA Test by the first and second applicants. [19] The first and second applicants realized that their application for an identity card of the third applicant was removed from the respondent’s website portal since 22.11.2021. Law Pertaining to Judicial Review [20] Order 53 of the Rules of Court 2012 provides for the procedures for an application for judicial review. [21] It is trite law that a decision in relation to the exercise of public duty or function may be reviewed on grounds of illegality, irrationality, procedural impropriety or disproportionality. [22] These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: 6 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility 7 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [23] On the grounds for judicial review, see also the cases of Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537; and R Rama Chandran v. Industrial Court Of Malaysia & Anor [1997] 1 CLJ 147. [24] Further, in the case of Syarikat Kenderaan Melayu Kelantan v. Transport Workers Union [1995] 2 CLJ 748; [1995] 2 MLJ 317, the error of law has been described as follows: “It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.” [25] Founded on the principles of judicial review, this court will proceed to consider the grounds raised by the applicant in this case. 8 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Applicant’s Submissions [26] The applicant submitted that the third applicant can be treated as a citizen by virtue Article 14(1)(b) Second Schedule Part II of the Federal Constitution. The third applicant was born on 07.04. 2007 which is after 16.09.1963. Hence, it was argued that the third applicant is born within the Federation and not born a citizen of any other country. The conditions provided under Paragraph 17 Part III of the Second Schedule of Federal Constitution has been fulfilled. [27] The third applicant’s biological father is a citizen at the time of third applicant's birth. The third applicant has not acquired a citizenship of any other country and neither has her birth been registered elsewhere. [28] It was submitted that the third applicant is in fact a citizen by operation of law by virtue of Article 14(1)(b) Second Schedule Part II Federal Constitution and is therefore entitled to declaratory relief to this effect as sought for in the judicial review. [29] It was submitted by learned counsel for the applicants that it is unfair for the respondent to withhold the third applicant’s application to issue an identification card based on the fact that the third applicant looks different from the first and second applicants (her parents) and their skin complexion varies. [30] It was further submitted that imposing a burden of taking the DNA Test to prove to the authorities that the third applicant is indeed a child from the marriage between first and second applicants is unreasonable, time consuming and cost incurring. 9 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [31] The third applicant is aggrieved by the decision of the respondent to withhold her application for the identification card. Respondent’s Submissions [32] In response to the applicant’s submissions, learned Senior Federal Counsel for the respondent submitted that this application for judicial review relates to the conduct of the respondent in not issuing the third applicant an identity card. The respondent did not make any decision pertaining to the nationality of the third applicant. [33] It was further argued that the respondent had the authority to investigate or inquire pursuant to subsection 37B(1) of the Birth and Deaths Registration Act 1957 [Act 299]. The investigation on this case had yet to be completed as the respondent was awaiting the DNA results to determine the biological relationship between the first and second applicant with the third applicant. It was submitted that as there was no DNA result submitted by the applicants, the status of the identity card application was “permohonan sedang diproses”. [34] Moreover, the patient records at Klinik Salina is no longer available as the clinic ceased to operate in the year 2008. Therefore, there was no supporting evidence that the second applicant had given birth to the third applicant. [35] Pertaining to the doctrine of legitimate expectation, the respondent argued that this doctrine did not apply as there was no decision made by the respondent in relation to the third applicant’s application to obtain an identity card. 10 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Analysis and Findings [36] In considering this application for judicial review, this court first perused the relevant provisions of the law as reproduced below. In relation to the issuance of identity cards, regulation 5 of the National Registration Regulations 1990 (“P.U (A) 472/1990”) reads: “(1) The registration officer may at his discretion issue to the person giving the particulars referred to in regulation 4 an identity card as prescribed in subregulation (2) of this regulation containing a copy of such person's photograph, fingerprints impressions and such other particulars as may be necessary for his identification.” [Emphasis added] [37] From a reading of regulation 5 above, is clear that the power to issue an identity card under section 5(1) of the National Registration Regulations 1990 (“P.U.(A) 472/1990”) rests on the discretion of the respondent. [38] In exercising that discretion, the respondent is empowered under regulation 21(1)(a) and regulation 21(1)(b)(i) of P.U.(A) 472/1990 to: (i) direct the applicants to appear before him to answer any relevant questions; and (ii) require the applicants to ‘furnish further particulars or documents as may reasonably require’. 11 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [39] For purposes of completeness, regulation 21 of P.U.(A) 472/1990 is reproduced below: “(1) A registration officer may, for the purpose of carrying out provisions of these Regulations and any order made mnder: (a) call upon any person to appear before him to answer any question which he may consider it reasonable necessary to ask him for such purpose; (b) require – (i) any person applying for registration under the Regulations; or (ii) any person registered under these Regulations; (iii) any person exempted from registration under the Regulations; to make further declaration or furnish further particulars or documents as he may reasonal required; or (c) impound any document produced to him in connection with any application for registration or for a replacement identity card if he has reason to doubt its genuineness correctness or validity of the issue thereof. [Emphasis added] [40] It could therefore be argued, based on regulation 21(1)(a) and regulation 21(1)(b)(i) of P.U.(A) 472/1990 that the respondent (through his officers) had done what he was allowed by law: he had examined the applicants (and reduced their statements in writing), 12 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal and he had requested for the applicants to furnish a DNA report via DNA Test. [41] The respondent contends that without the DNA report, doubt continued to remain on the identity of the parents of the third applicant. As the third applicant had claimed citizenship by lineage, without the affirmative DNA report, there is no basis to satisfy the respondent of the citizenship status of the third applicant, as required under section 5(3) of P.U.(A) 472/1990, for the purpose of issuance of an identity card. [42] In this case, the respondent had conceded that if the applicants can produce an affirmative DNA report, the respondent would issue the identity card to the third applicant. A DNA report is most cogent and in the circumstances of this case was ‘reasonably required’. [43] The fact that it is incumbent on the applicants to produce a DNA report is governed by regulation 24(1) of P.U.(A) 472/1990 which provides that ‘the burden of proving the truth of the contents of any written application for registration under these Regulations, or the contents of an identity card, shall be on the applicant, or on the person to whom such identity has been issued, or on any other person alleging the truth of such contents. [44] Given the mandatory duty imposed by regulation 24(1) of P.U.(A) 472/1990 on the applicants herein to prove ‘the truth’ of their assertions of the relationship of biological parents and child, the insistence on the part of the applicants not to furnish a DNA report not only mean that they had failed to discharge the statutory burden of proof, refusal on their part to do so would likewise attract adverse inference. 13 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [45] In the view of this court, the respondent was statutorily empowered to inquire into the doubt and in the process to request for a DNA Test report. All these actions were carried out by the respondent in the proper discharge of the statutory powers which also conferred to them under P.U.(A) 472/1990. Therefore, it is the considered view of this court that by virtue of section 37B (1) Act 299, JPN is given a duty to hold an inquiry for the purpose of satisfying themselves before issuing the third applicant’s identity card. [46] This court is satisfied, the refusal by the respondent to issue an identity card to the third applicant did not fall any established grounds to found a judicial review for the following reasons: (i) the discretion to issue an identity card is for the respondent to exercise; (ii) the applicants were aware of the doubt raised by the respondent; (iii) the applicants were notified and were aware of the respondent’s request for a DNA Test report; and (iv) until a DNA report is produced, the respondent had not made any decision to issue an identity card. [47] Moreover, the facts before this court allude that there has get to be any decision made by the respondent. The respondent is still awaiting the DNA Test report from the first and second respondent. The application for the issuance of the third applicant’s identity card is still pending. It is awaiting the DNA Test report from the first and 14 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal second respondent. The first and second respondent had on 3.9.2019 agreed to conduct a DNA Test. There is no information before this court why this DNA Test has yet to be conducted. The first and second applicants merely state costs or financial burden as a factor in not conducting the DNA Test on their part. There is nothing before this court to indicate the financial costs of a DNA Test. [48] In that way, it could be argued that there is no decision before this court to be reviewed as there was no decision made by the respondent. The matter is still pending the receipt of the DNA Result from the first and second applicant. [49] In the case of Chan Wan Yaw & Anor v. Mohd Khairulhisham Selamat & Anor [2022] 1 LNS 305, the High Court held: “[20] I am in agreement with the Respondents that this application by the Applicants is misconceived and premature. [22] … As avered in the Respondents’ affidavit in reply, no decision had been made pending the receipt of further information requested by the Respondents’ in their letter requesting for further information. [23] This is not the end of the road for the child Chan Chiew Kuan. The Respondents have taken the position that they have not made a decision on the application for issuance of an IC for Miss Chan. All the Applicants should do is provide all details and information requested by the Respondents and allow a reasonable time for them to make a decision. Thereafter, if the 15 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal application is rejected, they may still have a chance to challenge the decision by way of a fresh application for judicial review. The time to file a fresh judicial review application would only commence after a decision is made and communicated to them.” [Emphasis added] Conclusion [50] In conclusion, this court finds that the applicants have failed to discharge the requisite burden of proof under sub regulation 24(1) of P.U.(A) 472/1990 and that the issuance of an identity card is at the sole discretion of the respondent whose exercise in this case has not been shown to be infested with any public law errors. There can be no legitimate expectation to support a mandamus to compel the issuance of an identity card to the third applicant. [51] This court is satisfied there is no illegality, irrationality or procedural impropriety which would enable this court to allow this application for judicial review. This court is satisfied that this judicial review application ought to be dismissed with no order as to costs. Date: 28 August 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam 16 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: For The Applicant: Selvam a/l Shanmugam, Selvamary a/p Muniandy Tetuan Selvam Shanmugam, Advocates & Solicitors, No. 568-10-11, Office Suite, 10th Floor, Kompleks Mutiara, Batu 3 ½ Jalan Ipoh, 51200 Kuala Lumpur. selvamshanmugam_daniel@yahoo.com +6 03 6251 1742 For the Respondent: Nur Aifaa Binti Che Abdullah Jabatan Peguam Negara Malaysia, Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. pro@agc.gov.my +6 03 8872 2000 17 S/NBA-25-78-10/2021 cafzP8210aiXsZr0FUChQ **Note : Serial number will be used to verify the originality of this document via eFILING portal