MOHD ZAHIR KALITHASAN 1. ) KETUA PENGARAH JABATAN PENDAFTARAN NEGARA 2. ) Kementerian Dalam Negeri (KDN) 3. ) Kerajaan Malaysia

WA-25-15-01/2021 Kand. 32 14/10/2022 09:39:01 Pihak-pihak: Bagi Pihak Pemohon: M Manoharan & Puan Anis Salihah Binti Abdul Malek Bagi Pihak Responden: Puan Krishna Priya a/p Veenagopal FC DALAM MAHKAMAH TINGGI DI KUALA LUMPUR (BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO. WA-25-15-01/2021 Dalam perkara mengenai permohonan kebenaran untuk memohon suatu perintah certiorari (application for leave to apply for an order of certiorari) untuk membatalkan keputusan Ketua Pengarah Jabatan Pendaftaran Negara Malaysia yang bertarikh 13 Oktober 2020. DAN Dalam perkara mengenai permohonan kebenaran untuk memohon suatu perintah mandamus (application for leave to apply for an order of mandamus) untuk mengarahkan Responden- Responden untuk mengeluarkan 1 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal Sijil Kelahiran, Sijil Kewarganegaraan dan Kad Pengenalan (MyKad) kepada Pemohon. DAN Dalam Perkara 14(1)(b), Jadual Kedua, Perkara 15(2)(3), Perkara 15A, Perkara 18 dan Perkara 19(1) dan (2) Perlembagaan Persekutuan Malaysia. DAN Dalam perkara mengenai Seksyen 5 dan 8 Akta Pendaftaran Negara 1959 dan PeraturanPeraturan Pendaftaran Negara 1990. DAN Dalam perkara mengenai Aturan 53, Kaedah-Kaedah Mahkamah Tinggi 2012. DAN 2 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal Dalam perkara Akta Spesifik Relief 1950. ANTARA MOHD ZAHIR KALITHASAN (NO. K/P: 721110-08-5173/A3189681) …PEMOHON DAN 1. KETUA PENGARAH JABATAN PENDAFTARAN NEGARA, MALAYSIA 2. KETUA SETIAUSAHA, KEMENTERIAN DALAM NEGERI 3. KERAJAAN MALAYSIA …RESPONDEN JUDGMENT The Applicant’s Case [1] In 1988, when the applicant was 16 years of age, he was issued with a national identification card (“NRIC”) by the National Registration Department (“JPN”). [2] The NRIC issued to the applicant was in the name of Kalithasan a/l Krishnan (“KK”). According to the applicant, 3 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal the issuance of the NRIC was based on the birth certificate of KK handed by the applicant’s father to the JPN. [3] The applicant converted to Islam on 13.8.1990 and changed his name to “Mohd Zahir Kalithasan”. After the conversion, the applicant was issued an NRIC with the following details: Name: Mohd Zahir Kalithasan NRIC No: 721110-08-5173 Address: No. 76 Jalan Bahru, Off Jalan Tokong, 31660 Ipoh, PERAK. Status: Warganegara Religion: Islam [4] The applicant was also a holder of a Malaysian passport issued to him in 1992. It was renewed many times. The last renewal was in 2013. [5] According to the applicant, on 8.11.2012, when he appeared at the JPN Jalan Dutamas 1, Kuala Lumpur, his NRIC was impounded by the JPN under reg 21(c) of the National Registration Regulations 1990 (“the 1990 Regulations”). [6] Pursuant to the impoundment, the JPN issued the Surat Akuan Penahanan Dokumen JPNM (“Surat Akuan”) to the applicant. In the Surat Akuan, the applicant was also 4 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal required to return to JPN Jalan Dutamas 1 on 21.12.2012 with the applicant’s birth certificate and passport. Reg 21(c) of the 1990 Regulations provides that a registration officer may: (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 or correctness or validity of the issue thereof. [7] Unfortunately, the applicant could not be present at the JPN on 21.12.2012. According to the applicant, he was suffering from ischaemic heart disease. In para 9 of his affidavit in support in Encl 3 (“AIS-3”), the applicant affirmed as follows: [9] Saya dengan segala hormatnya menyatakan bahawa saya tidak dapat berbuat demikian atas alasan kesihatan yang tidak berapa sihat iaitu sakit jantung. The applicant received a letter dated 13.10.2020 from the JPN (“the impugned letter”) informing the applicant that his NRIC had been cancelled (“the impugned decision”). The impugned letter inter alia states as follows: 5 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal Adalah dimaklumkan bahawa Bahagian Siasatan dan Penguatkuasaan Jabatan Pendaftaran Negara Kuala Lumpur telah selesai menjalankan siasatan berkaitan kes penama di atas telah dibatalkan kerana kad pengenalan dikeluarkan secara tidak teratur. The Respondents’ response [8] In response to AIS-3, the respondents filed an affidavit in reply through the 1st respondent, Dato’ Ruslin bin Jusoh (“Dato’ Ruslin”) in Encl 16 (“AIR-16”). [9] The respondents’ narrative of the applicant’s case is this. [10] On 17.11.1987, the applicant presented himself at the JPN Perak to apply for the NRIC. The application was made by using the birth certificate No. C351286 belonging to one Kalithasan a/l Krishnan. The applicant affixed his thumbprint to the application form and declared: Bahawa dengan sesungguh dan ikhlasnya mengaku keterangan yang tersebut di atas semuanya benar belaka sepanjang pengetahuan dan pendapat saya. Saya ada membawa Penjaga saya untuk menjamin saya dan mengesahkan pengakuan saya itu. 6 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal [11] The applicant brought along his sponsor, one Ramiah a/l Arumugam, at the JPN Perak. Ramiah signed the applicant’s NRIC application form as his sponsor. [12] On 14.12.1987, an NRIC bearing number A3189681 which was then known as the plastic NRIC, in the name of Kalithasan a/l Krishnan, was issued by JPN Perak and given to the applicant. [13] On 14.9.1990, the applicant made a replacement of the NRIC by amending the name details to “Mohd Zahir Kalithasan”. The JPN issued a new NRIC to the applicant in the name of “Mohd Zahir Kalithasan bin Abdullah”. [14] The problem arose when the applicant presented himself at the JPN UTC Pudu, Kuala Lumpur, to make a replacement for the applicant’s NRIC. A system check discovered that JPN Perak had blacklisted the applicant’s NRIC. [15] The applicant was present at the JPN Kuala Lumpur on 30.1.2014 and had his statement recorded by the JPN. According to the recorded statement, the applicant asserted he did know who his sponsor was when he submitted the NRIC application form in 1987. When asked where did he get the birth certificate No. C351286 to support his application for the NRIC in 1987, the applicant’s answer was: 7 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal S26: Apakah pembuktian yang boleh kamu kemukakan untuk menyatakan Sijil Lahir C351286 adalah hak milik kamu? J: Saya tidak tahu Kader Rowther Kuppaimasthan Kader Mohideen serahkan sijil lahir ini kepada saya. [16] Subsequent to the recorded statement, a police report was lodged against the applicant by the JPN’s registration officer, Zaidil Amar bin Ramli on 30.1.2014. The real Kalithasan a/l Krishnan [17] According to Dato’ Ruslin, the investigation conducted by the JPN revealed that the real Kalithasan a/l Krishnan was born on 15.11.1972 at the General Hospital, Ipoh. [18] Further particulars of the real Kalithasan a/l Krishnan (“KK”) are as follows: (a) KK was issued with the birth certificate bearing No C351286. (b) KK is a person of disability and most of the time he was bedridden. (c) According to KK’s sister, Vasanthi a/p Krishnan, KK could not present himself at the JPN Perak to apply for his NRIC due to his disability. 8 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal (d) The remaining family members of KK, including his mother, Vally a/p Kumjamall, are unaware of the existence of “Mohd Zahir Kalithasan”. (e) On 25.4.2016, the mobile unit of JPN went to KK’s house to assist him in making a late application for his NRIC. A new NRIC in the name of Kalithasan a/l Krishnan bearing no. 721110-08-6969 was issued to the real Kalithasan. [19] It was for the aforesaid reasons that the JPN blacklisted the applicant’s name and NRIC. [20] The applicant’s NRIC was then impounded and the Surat Akuan was issued to the applicant The Judicial Review [21] Aggrieved, the applicant commenced this application for judicial review for an order of certiorari to quash the impugned decision. The applicant also seeks an order of mandamus to compel the 1st respondent to issue the birth certificate and NRIC to him. [22] As alluded to earlier, the application is supported by the applicant’s affidavit in AIS-3. 9 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal [23] The grounds of the application can be summarised as follows: (a) In impounding and cancelling the applicant’s NRIC, the 1st respondent had breached the constitutional rights of the applicant, which are reflected in arts 14(1)(b), 15(2)(3), 15A, 19(1) and 19(2) of the Federal Constitution. In short, the respondents had deprived the applicant of his Malaysian citizenship without taking the necessary steps under the Federal Constitution. (b) The 1st respondent was acting unreasonably in arriving at the impugned decision in that the 1st respondent had failed to take into account the alleged error in the applicant’s birth certificate. In any event, there was a delay on the part of the 1st respondent in making the impugned decision. (c) The applicant was not given the right to be heard prior to the cancellation of his NRIC. [24] Before me, learned counsel for the applicant submitted that under art 27 of the Federal Constitution, the applicant has the right to have his case referred to a committee of inquiry. Art 27(1) states as follows: 10 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal Before making an order under Article 24, 25 or 26, the Federal Government shall give to the person against whom the order is proposed to be made notice in writing informing him of the ground on which the order is proposed to be made and of his right to have the case referred to a committee of inquiry under this Article. The applicant contends that there was no notice given to the applicant that his NRIC and birth certificate might be impounded, revoked or otherwise cancelled. [25] My attention was then drawn to the judgment of the Supreme Court in John Peter Berthelsen v Director General of Immigration, Malaysia [1986] 2 CLJ 409 CC. In that case, the appellant, a citizen of the United States of America, was granted an employment pass on 2.11.1984 for a period of two years - valid until 2.11.1986 - for his employment as a staff correspondent attached to the Kuala Lumpur office of the Asian Wall Street Journal. About 2 months prior to the expiry of the employment pass, the appellant was served with a notice of cancellation of the same by the Director General of Immigration, the 1st respondent. The cancellation of the employment pass was purportedly made under reg.19 of the Immigration Regulations 1963. The appellant then commenced proceedings for judicial review for an order of certiorari to quash the said decision. 11 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal [26] The Supreme Court held that the appellant clearly had a legitimate expectation of being entitled to remain in the country at least until the expiry of the prescribed duration. According to the Supreme Court, any action to curtail that expectation would, in law, attract the application of the rules of natural justice, requiring that he be given an opportunity of making whatever representations he thought necessary in the circumstances. [27] Based on the aforesaid proposition, learned counsel for the applicant submitted that the applicant ought to be given the right to be heard as enshrined in art 27 of the Federal Constitution. Learned counsel then contended that by issuing the impugned letter, the 1st respondent had deprived the applicant of the opportunity to defend himself before the committee of inquiry. [28] Secondly, learned counsel referred me to art 26B(2) of the Federal Constitution, which provides that no person shall be deprived of citizenship under art 25, 26 or 26A unless the Federal Government, the 3rd respondent herein, is satisfied that it is not conducive to the public good that he should continue to be a citizen. Further, no person shall be deprived of citizenship under art 25, para (b) of Clause (1) of art 26, or art 26A if the Federal Government is satisfied that as a result of the deprivation, he would not be a citizen of any country. [29] Learned counsel then submitted that by revoking the applicant’s NRIC, the respondents had deprived the applicant 12 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal of any citizenship whereby he would not be a citizen of Malaysia, a citizen of India or any other country. [30] In any event, according to learned counsel, even if the applicant’s NRIC was not registered properly, the revocation of his NRIC does not mean that the applicant was never registered as a Malaysian citizen. The analysis [31] I have gone through the applicant’s affidavits in AIS-3 and his further affidavit in Encl 18 (“AIS-18”). The details in both affidavits, in my considered view, have raised a lot more questions than answers: (a) The applicant did not state where he was born. Was he born in Perak? Was he born in any other parts of Malaysia? (b) If he was born in Malaysia, why was the delay in applying for the NRIC? Which primary school did he go to? (c) In his letter to Ketua Cawangan UMNO Bukit Bintang dated 29.7.2013, which is in Eksh MZ-9 in AIS-3, the applicant said that he was born in India and came to Malaysia in 1984 using an Indian passport. What was the name reflected in 13 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal that Indian passport? Was it Kalithasan a/l Krishnan? (d) In para 6.2 of AIS-18, the applicant affirmed that the application for his NRIC was made through his father. In para 20 of his AIS-3, the applicant said his father was Kader Rowther Kuppaimashtan Kader Mohideen (“Kader Rowther”), who died on 14.4.2007. If this is true, why, in the application form for the NRIC in 1987, the applicant’s sponsor was one Ramiah a/l Arumugam and not Kader Rowther? (e) What religion was Kader Rowther? If he had been a Muslim all his life, why the necessity for the applicant to embrace Islam on 13.8.1990 and change his name to “Mohd Zahir Kalithasan”? [32] In para 6.3 of his AIS-18, the applicant affirmed that his “father” had mistakenly given the copy of Kalithasan a/l Krishnan’s birth certificate at the JPN’s office in 1987. The applicant claimed he was unaware of the mistake since he was only 15 years then. I do not accept this. The applicant said he was a minor then. He did not say that he could not read. So, after being issued the NRIC in the name of Kalithasan a/l Krishnan in 1987, it would have raised a red flag to the applicant. 14 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal [33] There is another aspect of the applicant’s narration of events. It is this. If the application for the NRIC in 1987 was mistakenly based on the wrong birth certificate, as the applicant claimed it to be, then what is the real name of the applicant? The applicant cannot approbate and reprobate. He cannot say the NRIC application in 1987 was based on a mistaken birth certificate, but at the same time, he is indeed Kalithasan a/l Krishnan. [34] It is of utmost importance that in an application for judicial review, even as early as the leave stage, the applicant owes a duty to give full disclosure and to act uberrimae fidei by making full and candid disclosure of all material facts. Lord Diplock, in delivering the judgment of the House of Lords in O'Reilly v Mackman [1982] 3 WLR 1096 HL, made the following observation: The application for leave which was ex parte but could be, and in practice often was, adjourned in order to enable the proposed respondent to be represented, had to be supported by a statement setting out, inter alia, the grounds on which the relief was sought and by affidavits verifying the facts relied on: so that a knowingly false statement of fact would amount to the criminal offence of perjury. Such affidavit was also required to satisfy the requirement of uberrima fides, with the consequence that failure to make on oath 15 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal a full and candid disclosure of material facts was of itself a ground for refusing the relief sought in the substantive application for which leave had been obtained on the strength of the affidavit. [35] Sadly, the applicant did not make a full and frank disclosure in his AIS-3 and AIS-18. His narration of facts was dithering and contradictory. He does not even assert what his name in the Indian passport was if, indeed, he came to this country in 1984 by using the Indian passport. It could not possibly be Kalithasan a/l Krishnan. [36] I have no hesitation whatsoever in concluding that the applicant is an imposter, masquerading as Kalithasan a/l Krishnan when the applicant first appeared at the JPN Perak on 17.11.1987. [37] The applicant has come to this Court seeking discretionary remedies in the form of certiorari and mandamus. These are equitable remedies. Unfortunately, the applicant has not come with clean hands. In Badat bin Drani v Tan Kheat [1953] 1 MLJ 67, Briggs J was of the view that the making of the order of certiorari was discretionary and would not be made if the conduct of the applicant had been such as to disentitle him to the relief asked for. [38] On these grounds alone, this application should be dismissed in limine. 16 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal [39] However, for the sake of completeness, I will deliberate on the issues raised by the applicant. [40] In his usual persuasive way, Encik M Manoharan has invited me to consider the proposition in John Peter Berthelsen. Learned counsel submitted that the applicant ought to be given the opportunity to be heard before the revocation of the NRIC. To begin with, I am in complete agreement with the ratio in John Peter Berthelsen. But in that case, the employment pass was validly issued to the appellant. In this case, the applicant could not even positively assert who he actually is since it is quite apparent that he is not the real Kalithasan a/l Krishnan. [41] It is, therefore, not accurate to suggest that the NRIC was validly issued to the applicant. It was not. It was issued to Kalithasan a/l Krishnan and not to the applicant. Since the NRIC that was issued does not belong to the applicant, he could not be adversely affected by the impugned decision within the meaning of O 53 r 2(4) of the ROC. [42] In the circumstances, the question of being given the opportunity to be heard no longer arises. [43] In any event, the applicant was given the right to be heard when asked to be present at the JPN on 21.12.2012. He did not attend. He let the opportunity pass. Had he attended the meeting, he could have explained his narration of the event. 17 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal [44] According to the applicant in para 9 of the AIS-3, he could not attend the JPN on the said date because of his heart condition. But the applicant opted not to inform the 1st respondent of his condition. He just ignored the request for him to be present at the JPN. He did so at his peril. He has only himself to be blamed for missing the opportunity to explain to the 1st respondent. Findings [45] For the aforesaid reasons, the impugned decision is not tainted with any illegality, procedural impropriety or otherwise irrationality. [46] This application for judicial review is dismissed with costs of RM10,000 subject to allocatur. Tarikh: 29 September 2022 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur 18 S/N ZstT305Q0WrApbyfhiU9g **Note : Serial number will be used to verify the originality of this document via eFILING portal