With ex-Cambodian refugee parents and siblings all Malaysians now, Pahang-born woman wins chance to continue bid for citizenship

PUTRAJAYA, Oct 26 — A 36-year-old woman, who was born in a refugee camp in Pahang, will be able to continue her bid in court to be recognised as a Malaysian, following the Federal Court’s decision today.

Azimah Hamzah is the only one in her family who is yet to be a Malaysian, as her Muslim parents who were originally Cambodian refugees became Malaysians just months after her birth.

Azimah’s elder sister who came to Malaysia as a refugee has also become a Malaysian, while all her four younger Malaysia-born siblings are Malaysians.

Having previously failed at both the High Court and Court of Appeal, Azimah had sought to appeal to the Federal Court. She had to first obtain the Federal Court’s leave or permission for her appeal to be heard.

Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, who headed the Federal Court panel hearing the leave application, today said Azimah can proceed to have her appeal heard.

“Having considered the submissions by both learned counsels and upon due consideration of the cause papers concerned with this decision, we are unanimous in our view that leave be granted for one question only, which is question two. There shall be no costs,” he said, also confirming that there will be no costs for the actual appeal to be heard by the Federal Court.

The other two Federal Court judges on the panel today were Datuk Rhodzariah Bujang and Datuk Mohamad Zabidin Mohd Diah.

With the Federal Court’s decision today, it means Azimah will be able to pursue her bid to be called a Malaysian, just like all her other family members.

She had proposed two legal questions for the Federal Court to decide in her appeal, with the question that was accepted by the Federal Court today being: “Whether a child born of refugee parents who have acquired citizenship of Malaysia and all the siblings of which child are Malaysian citizens is upon a true construction of Part II of the Second Schedule of the Federal Constitution entitled to be registered as a citizen of Malaysia.”

Or in other words, the legal question is on whether a child — who was born to refugee parents who became Malaysians and with all her siblings being Malaysians — is entitled to be registered as a Malaysian citizen, based on the interpretation of citizenship provisions in the Federal Constitution.

Azimah was represented by lawyers Datuk Seri Gopal Sri Ram, Shahid Adli Kamarudin, Latheefa Koya, Yasmeen Soh Sha-Nisse, and Athanasia Yolanda Bartolome.

The National Registration Department director-general, home minister, and government was represented by senior federal counsels Nik Mohd Noor Nik Kar and Mohd Izhanudin Alias.

Sri Ram argued that his client should be granted leave to appeal as her case fulfils the requirements under Section 96(b) of the Courts of Judicature Act.

Sri Ram argued that this was because Azimah’s case involves a constitutional question, and Section 96(b) only requires her to show that her application is in relation to a decision as to the effect of any constitutional provision including the validity of any written law relating to any such provision.

Sri Ram had argued that his client’s case has strong merits if allowed to be heard as an appeal at the Federal Court, saying: “The appeal will succeed because this is a case where all her siblings and her parents have acquired citizenship, therefore she has been excluded from citizenship. For that reason, we say we have a good case to argue before the court.”

In objecting to leave being granted for appeal, Nik Mohd claimed that Azimah was not stateless, arguing that this was because her parents were Cambodians at the time of her birth.

He also argued that Cambodia’s citizenship laws would mean she would have acquired Cambodian citizenship regardless of her birthplace due to her parents’ Cambodian nationality at the time she was born.

Nik Mohd argued that there would be a slim chance of success for Azimah’s appeal if the Federal Court grants leave, and also argued that Azimah could choose to apply for Malaysian citizenship through naturalisation via Article 19 of the Federal Constitution instead of seeking to be recognised as citizen through Article 14(1)(b) of the Federal Constitution.

Sri Ram said Azimah is stateless, noting: “Actually the facts are with me in rendering her stateless, because if the decision is to grant citizenship to the rest of the family under different provisions that renders my client stateless, that product of that decision is to render my client stateless.”

After hearing both sides, the Federal Court decided to grant leave for Azimah to appeal.

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 applied for a Malaysian identification card when she was 12 but was rejected, and had also made multiple attempts to obtain Malaysian citizenship status.

Azimah had previously 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) but was rejected in March 2019, and had on June 3, 2019 filed the judicial review application in court to seek to be declared a Malaysian and to be given such citizenship documents.

The High Court on March 11, 2020 dismissed Azimah’s lawsuit, while the Court of Appeal on February 15 this year dismissed her appeal, which led her to filing for leave to appeal at the Federal Court.