‘[36] Since the identity of the child’s lawful and biological parents are unknown, it is not possible to determine the lineage of the second appellant that would enable the second appellant to be conferred citizenship by lineage ie jus sanguinis.

(…)

[38] We cannot accept the contention of the appellants that the evidence that the second appellant was born in the Federation and had resided in the Federation all his life, as well as the absence of particulars on the second appellant’s birth certificate in respect of his lineage can be construed as sufficient proof that the second appellant ‘was not born a citizen of any country’. As was stated earlier, what is required is evidence of the second appellant’s lineage, which evidence is absent.’ 

(Emphasis added)

In short, the second appellant’s inability to prove that he was born to a Malaysian mother meant that he could not fulfil the jus sanguinius requirement, and therefore disqualified him for citizenship by operation of law.
 
In Lim Jen Hsian,[24] the Court of Appeal upheld the High Court judge’s findings that the second appellant, born to a Thai mother out of wedlock, was entitled to Thai citizenship before proceeding to conclude that he had acquired it:

‘[13] The learned High Court judge concluded as follows: 

Therefore, the contention of the applicants that the second applicant is a stateless person pursuant to s 14(1)(e) of Part II, of the Second Schedule of the FC could not hold water because from the facts that were disclosed to this court as discussed above and by reason that the second applicant’s biological mother being a Thai national and based on the Nationality Act BE 2508. Despite the second applicant being an illegitimate child, he has a right to be conferred a Thai citizenship and not a Malaysian citizenship even though he was born in Malaysia.

(…)

[40] While the second appellant’s biological father is a Malaysian citizen, because of the second appellant’s illegitimate status, the second appellant does not acquire the citizenship of his biological father. Instead, he acquires the citizenship of his biological mother who, it is not disputed, is a Thai national. Thus, he cannot be said to be one, who is not born a citizen of any country pursuant to para 1(e) of Part II, Second Schedule of the Federal Constitution.’ 

(Emphasis added)

Crucially, in coming to this conclusion, both the High Court and the Court of Appeal in Lim Jen Hsian[25] conflated two issues, namely (i) whether the second appellant was entitled to Thai citizenship, and (ii) whether the second appellant had in fact acquired Thai citizenship.[26] While the answer to the first question may very well have been in the affirmative, a deeper analysis of the factual matrix would have likely revealed a negative answer to the second question. It is a shame that both courts failed to engage with the issue in its entirety, particularly given that Lim Jen Hsian[27] is emblematic of a distinct class of stateless persons (i.e. children born out of wedlock where the mother is a non-Malaysian), and would have proven insightful regarding the courts’ practice of dealing with such cases.  
 
Given that, where do the decisions in Than Siew Beng[28] and Lim Jen Hsian[29] leave us? First, as stated in Than Siew Beng,[30] the court was clearly of the opinion that the burden of proving statelessness falls squarely upon the shoulders of the applicant, and would require ‘reasonable efforts…to determine the identity and citizenship status’ from the applicant (by determining the same of their birth parents).[31] Second, the court, as evidenced by Lim Jen Hsian,[32] does not appear to be concerned with the practical impossibilities faced by the applicants in satisfying those burdens. In Than Siew Beng,[33] the second appellant had no knowledge regarding his birth parent(s) and therefore could not reasonably be expected to obtain that information. While in Lim Jen Hsian,[34]  the second appellant was expected to adduce evidence essentially disproving that he had Thai citizenship (and hence ‘not born a citizen of any country’). Indeed, the issue of practical impossibility is not discussed in either judgment, with the court content to rely upon the factual findings of the High Court judge in both cases.[35]
 
As we will go on to see in the next section, the Malaysian stance runs contrary to the position adopted by that of the courts in Australia and the European Court of Human Rights. Perhaps more importantly, it virtually guarantees that genuinely stateless applicants falling into the same factual category as those in Than Siew Beng[36] and Lim Jen Hsian[37] will face an uphill battle in satisfying the burden and standard of proof requirements, even where it is practically impossible for them to do so — rendering the possibility of acquiring citizenship by operation of law a pipe dream for them.

IV.   THE BURDEN AND STANDARD OF PROOF INTERNATIONALLY
How does the Malaysian position stand against those of other jurisdictions and international standards? This section will consider the decisions of the Australian Administrative Appeals Tribunal and the European Court of Human Rights in two statelessness cases before comparing the positions therein to the position adopted by the Court of Appeal in Than Siew Beng[38] and Lim Jen Hsian.[39]

A.   Australia
In AP v Minister for Immigration and Border Protection,[40] the applicant (AP) was born to a Nepalese mother and an unidentified father (supposedly an Indian or Bangladeshi national) in Australia in 2010. The applicant and his mother applied for a protection visa, but were unsuccessful in the process as the Department of Immigration and Border Protection (‘the respondent’) had found the applicant to be stateless. On this basis, the applicant’s mother argued that he was eligible for Australian citizenship under S.21(8) of the Australian Citizenship Act 2007,[41] and she subsequently made an application to that effect:

‘21 Application and eligibility for citizenship

…

Statelessness

(8) A person is eligible to become an Australian citizen if the Minister is satisfied that:

(a) the person was born in Australia; and

(b) the person:

   (i) is not a national of any country; and

   (ii) is not a citizen of any country; and

(c) the person has:

   (i) never been a national of any country; and

   (ii) never been a citizen of any country; and

(d) the person:

   (i) is not entitled to acquire the nationality of a foreign country; and

   (ii) is not entitled to acquire the citizenship of a foreign country.’

The application was refused and the decision was subsequently appealed to the Australian Administrative Tribunal. The Tribunal ultimately found in favour of the respondent (partially premised on the unreliability of the applicant’s mother’s testimony), holding that it was not satisfied that the applicant was not entitled to acquire Indian or Bangladeshi citizenship.[42] Crucially, however, the tribunal judge specifically addressed the relationship between the burden of proof in S.21(8) of the Act[43] and the evidentiary difficulties faced by the applicant:

‘56. …The Respondent appeared to contend that (i) the application must fail unless AP can nominate his father’s actual citizenship (because only this could preclude the prospect of his potential eligibility for Nepalese, Indian or Bangladeshi citizenship), and (ii) any practical difficulty that an applicant might have in providing an adequate evidentiary basis for obtaining foreign citizenship falls outside the contemplation of s 21(8)(d) of the Australian Citizenship Act 2007. The difficulty with the first of these contentions is that it appears to entail the result that a person who genuinely had no information about his paternity could never come within s21(8)(d) – yet it is precisely that kind of situation the provision appears intended to address. The difficulty with the Respondent’s second submission is that it would require refusal of Australian citizenship even in the face of irrefutable evidence that the person had no prospect of satisfying the procedural and administrative citizenship application requirements of the relevant foreign country. Again this seems to be precisely the kind of situation to which s 21(8)(d) was intended to apply…Even though I regard the primary connotation of entitlement as referring to underlying eligibility or qualification, I do not consider that it is correct in the application of s 21(8)(d) wholly to exclude consideration of the practicalities of any application process that may be required. If the circumstances affirmatively showed that an applicant had no prospect of satisfying the application requirements of the relevant foreign country, it is difficult to accept the proposition that a decision maker could honestly and reasonably fail to be satisfied that the person was “not entitled to acquire” citizenship of that country.’

(Emphasis added)

With due respect to their Lordships, this crucial point was completely absent in the judgments of the Malaysian Court of Appeal in Than Siew Beng[44] and Lim Lim Jen Hsian,[45] and it is argued that had the court taken into account these practical difficulties, the outcome in those cases would have been altogether different. In particular, the second appellant in Than Siew Beng[46] was a ‘person who genuinely had no information about his paternity’, nonetheless, he (or rather, the first appellant on his behalf) was expected to adduce information about his birth mother to determine whether he was eligible for the citizenship of any other country.

It is submitted that the application of the reasoning of the Tribunal to Article 14(1)(b)[47] when read together with paragraph 1(e) of Part II of the Second Schedule of the Federal Constitution[48] will do two things: (i) it acknowledges the realities of genuinely stateless applicants unable to prove their lineage and makes an effort to accommodate their plight, and (ii) it allows for the full potential of paragraph 1(e) to finally be realised and for citizenship to be granted in such cases. Such a positive step forward would go a significant way in resolving the issue of statelessness in West Malaysia, where the factual matrix of cases often falls into similar categories as those in Than Siew Beng[49] and Lim Jen Hsian.[50]
 
B.   European Court of Human Rights
Both the issues of burden and standard of proof were dealt with by the European Court of Human Rights (ECtHR) in Hoti v Croatia,[51] the latter albeit tangentially. The applicant was born in Kosovo (then part of the Socialist Federal Republic of Yugoslavia (SFRY)) to political refugees from Albania who were refugees in the SFRY. He subsequently moved to Croatia (also part of the SFRY) in 1979 and subsequently lived there for nearly 40 years. Throughout this time, he attempted to acquire Croatian citizenship and a permanent residence permit but was turned down. The applicant applied to the ECtHR, alleging that he had not had an effective possibility to regularise his residence status in Croatia, relying on Article 8 of the European Convention on Human Rights.[52]  
 
The Croatian government (the respondent) submitted that he was a national of Kosovo or Albania (owing to his background and that of his parents), while the applicant argued that he was stateless, citing his birth certificate (issued in Kosovo and on which there was no nationality listed) and oral information passed on to him when he contacted the Albanian authorities and that of the SFRY (when it existed). It is also notable that the respondent also put forth a number of other arguments, including that ‘…[i]t was for the applicant, and not for the Croatian authorities, to renounce his [Albanian] citizenship or to show that he was stateless….’[53] The Court ultimately found in favour of the applicant.
 
Two sections of the judgment are of particular interest to us for our current purposes. First, the Court seemed to not only take the view that the burden of proof was a shared one between the applicant and the respondent, but went further by taking Croatia to task for not proactively taking steps to determine whether the applicant was, in fact, stateless:

138. Furthermore, the Court finds it striking that despite being aware that the applicant does not have any nationality, as is evident from his birth certificates issued by the authorities in Kosovo in 1987 and 2009, when extending the applicant’s residence status on humanitarian grounds the Croatian authorities insisted that the applicant was a national of Kosovo (see paragraphs 53 and 55-56 above). As there was no suggestion that the applicant had ever had Kosovo nationality, it is difficult to understand the Croatian authorities’ insistence on the fact that the applicant should obtain a travel document from the authorities in Kosovo (see paragraph 53 above). It is also noted in this connection that despite the applicant’s statelessness, which was apparent from the relevant documents available to the Croatian authorities, they never considered taking the relevant measures, such as providing administrative assistance to facilitate the applicant’s contact with the authorities of another country, to resolve the applicant’s situation, as provided in the international documents to which Croatia is a party (see paragraph 65 above; see also paragraph 63 above).’

(Emphasis added)

Second, the Court held that the applicant was stateless on the basis of the evidence available (the applicant’s birth certificates), and that there were ‘no reasons to doubt the applicant’s arguments that he was advised by the Albanian authorities that he was not an Albanian national’[54] despite the absence of written evidence or witness statements corroborating the applicant’s testimony. Notably, the legal certainty requirement applied here is not a very high bar to meet — leading to the inference that where statelessness is concerned, the standard of proof to be satisfied cannot be set too high.[55]
 
It is also worth noting that the ECtHR’s position on both the burden and standard of proof requirements falls squarely in line with United Nations High Commissioner for Refugees (UNHCR) guidelines on statelessness determination procedures.[56]
 
How does the Malaysian position fare against that of the ECtHR? Much like in AP, the outcome would have been vastly different for the appellants in Than Siew Beng[57] and Lim Jen Hsian[58] had these standards been applied instead. The imposition of a positive burden on the authorities to take steps to clarify the citizenship status of the second appellant in Lim Jen Hsian[59] with the Thai government would have put that issue to rest well before the case ever made its way to court (indeed, it may have avoided judicial proceedings entirely if the second appellant had been granted Malaysian citizenship on that basis, having satisfied the requirements).
 
Likewise, the adoption of the ECtHR’s significantly lower threshold for the standard of proof requirement would, arguably, have altered the outcome in Than Siew Beng.[60] The second appellant with his birth certificate displaying none of his biological parents’ particulars would likely have been able to meet that standard and the appellants’ actions of placing an advertisement in the newspaper to solicit information on his birth mother’s identity and citizenship status (and having failed to gather any useful information therefrom) would only have further strengthened his case.

V.   CONCLUSION
It is clear that the Malaysian position on the issues of the burden and standard of proof in statelessness cases is not only prejudiced against genuinely stateless applicants who have difficulties satisfying those requirements, but lags behind international standards on the matter. At the very least, the burden of proof should be a shared one between the applicant and the State. In some cases, the onus may fall on the State with its resources and international obligations to take steps to clarify the citizenship status of the applicant. Similarly, the standard of proof should not be so high as to defeat the purpose of the statutory provisions granting citizenship by operation of law to stateless persons and should be reflective of the fact that stateless applicants may have limited access to information about their lineage and background.
 
It is unfair to say that the Malaysian courts have always failed to conduct a deeper analysis of the underlying facts in every statelessness appeal that makes its way before them. Indeed, in Augustin v Augustin,[61] a different panel of the Court of Appeal adopted an approach not dissimilar to that of the ECtHR in Hoti.[62] For the appellants in Than Siew Beng[63] and Lim Jen Hsian[64] (and the three other appeals heard alongside them), their stories ended happily.[65] Yet the precedent set in those cases continues to hang heavily over the head of stateless people in Malaysia — a judicially-crafted Sword of Damocles that threatens to derail future cases until and unless they are overturned.