2021 Statelessness & Citizenship Review 3(2) As set out in Chin Kooi Nah, art 14(1)(b), read together with s 1(e), imposes a dual jus soli/jus sanguinis requirement to be met. 33 Prospective applicants must therefore satisfy the Court that (i) they are born on Malaysian soil (the ‘jus soli limb’) and (ii) they are ‘not born a citizen of any other country’ (the ‘jus sanguinis limb’). 34 The application of this test — and how it can be used to deny citizenship to applicants who, prima facie, satisfy the requirements of s 1(e) — can be seen in Than Siew Beng v Ketua Pengarah Jabatan Pendaftaran Negara (‘Than’) and Lim Jen Hsian v Ketua Pengarah Jabatan Pendaftaran Negara (‘Lim’). 35 In Than, the second appellant, T, was born at a local polyclinic and subsequently adopted by the first appellant (a Malaysian citizen) and his wife. At birth, T was issued a birth certificate that listed the particulars of his adoptive parents as his biological parents. When T applied for an identity card, an investigation revealed that he had been taken away from his biological mother shortly after birth and was raised by the first appellant and his wife. The first birth certificate was revoked and a second one was issued to him with no information listed about his biological parents. In Lim, the second appellant, L, was born out of wedlock at a local hospital to a Thai mother, Rai Putta, and his father, the first appellant. L’s parents were not legally married, and Rai Putta separated from them when the second appellant turned one, returning to Thailand. L was left in the care of his father and his paternal grandmother. Both T and L applied separately for citizenship by registration under art 15A but their applications were rejected by the Government. They then applied to the court seeking a declaration that they were citizens by way of art 14(1)(b), read together with sch II pt II s 1(e). The Court of Appeal dismissed both appeals, upholding the decisions of the High Court. Although both the appellants in Than and Lim satisfied the jus soli limb of the test, it was found that neither satisfied the jus sanguinis limb. In Than, the Court held that because the identity and citizenship of T’s birth parents were unknown and the steps that had been taken to solicit that information were insufficient, he had failed to prove that he was of Malaysian lineage. In Lim, because L was born out of wedlock to a Thai mother, it was held that he had acquired Thai citizenship and therefore fell afoul of s 1(e). Two points are of note here. First, the burden of proof falls upon the applicant to show that they have not acquired the citizenship of any other country. Yet, in both cases what the courts were asking of the appellants was practically impossible to fulfil. In Than, T had been separated from his biological mother at birth and had not seen her since. The Court nevertheless took the view that the onus fell upon him to ascertain her nationality, information without which he could not satisfy the second limb of the test. 36 With enough time and resources, a particularly persistent applicant could perhaps achieve this objective. But that is to ignore the reality of most stateless persons in Malaysia, who are often from less well-off backgrounds and can hardly be expected to fund a potentially fruitless hunt for answers and review proceedings against the Government. The issue is compounded when one considers the 33 34 35 36 Chin Kooi Nah (n 13). Federal Constitution of Malaysia, art 14(1(b), sch II pt II s 1(e). Than (n 14); Lim Jen Hsian v Ketua Pengarah Jabatan Pendaftaran Negara [2018] 6 MLJ 548 (‘Lim’). Than (n 14) [29]–[37]. 316