Benjamin Taine & Sabinah bte. Raymond (MJLR 2009b11) David Wong, 17/7/2009, SS
[K34-27-2008-I]
Jurisdiction:
MALAYSIA
IN THE HIGH COURT IN SABAH & SARAWAK
AT KOTA KINABALU
Parties:
Applicants: Benjamin Taine
Sabinah Binti Raymond Emus
File Number:
K34-27-2008-I
Issue:
Whether the infant being an offspring of a legal
foreign worker in Malaysia is entitled to be adopted
by Malaysian under the Adoption Ordinance?
Hearing Dates:
16.1.2009, 17.4.2009 and 18.5.2009
Date of Decision:
17th July 2009
Judge:
HONOURABLE JUSTICE DAVID WONG DAK
WAH
Representation:
For Applicants: Puan Priscilla Ruth Marcus
Messrs. Kurup Robert Marcus &
Co.
Kota Kinabalu, Sabah
[K34-27-2008-I]
2
GROUNDS OF DECISION
The issue in this matter 5 is simply this:
Whether an infant who is an offspring of single mother and a
foreign worker is entitled to be adopted by applicants who are
resident in the State of Sabah under the Adoption Ordinance?
10 Determination of this issue requires construction of section 4(5) of the
Adoption Ordinance 1960 which reads as follows:
“An adoption order shall not be made in respect of any infant unless the
applicant and the infant reside in Sabah.”
15 This section prescribes the requirement that both the applicants and the
infant must reside in Sabah. Needless to say both the applicants and infant
must also be residing in Sabah legally.
Deliberation of the above issue requires me to determine whether the infant
resides in Sabah in the context of the Adoption Ordinance.
20
Before I discuss the issue I should first set the legal status of the infant. She
is the offspring of a female Indonesian worker in Sabah while the natural
father of the infant cannot be located and information as to his status of
nationality and residence is also unknown. Under such circumstance it is of
25 course undisputed that the residential status of the infant in law will be that
of her mother who now lives in Sabah pursuant to a work pass issued by the
[K34-27-2008-I]
3
Immigration Department. The infant under the law is also an Indonesian by
virtue of her mother’s nationality. However from my query as the status of
the infant under the Immigration Act, I was given an answer which I must
admit that I cannot comprehend. Common sense dictates that the infant
being a foreigner requires a visa to remain in Malaysia 5 in the same way as
her mother. In fact this is provided for under section 12 of the Immigration
Act which states as follow:-
12. Endorsement of name of wife and children on Permits, Passes and
Certificates.
10 Subject to such conditions as may be prescribed it shall be lawful for the Director
General, on application made in that behalf in the prescribed form by the holder
of, or by an applicant for, a Permit, Pass or Certificate, to endorse upon the
Permit, Pass or Certificate issued to the person the name or names of the wife or
child of that person.”
15 Why this was not done, the court is not informed.
I now deliberate on what the word ‘reside’ means. The word is not defined
in the Adoption Ordinance; hence the need to look to other sources.
Viscount Cave L.C. in Levene (Appellant) v Inland Revenue (Respondents)
[1928] UKHL 1 adopted what was stated in the Oxford English Dictionary:
20 ‘My Lords, the word "reside" is a familiar English word and is defined in the
Oxford English Dictionary as meaning "to dwell permanently or for a
considerable time, to have one's settled or usual abode, to live in or at a
particular place." No doubt this definition must for present purposes be taken
[K34-27-2008-I]
4
subject to any modification which may result from the terms of the Income Tax Act
and Schedules; but, subject to that observation, it may be accepted as an accurate
indication of the meaning of the word "reside”.
The definition adopted by Lord Cave in my view requires an element of
permanency in one’s dwelling and to determine that 5 one must apply an
objective test in that the circumstance in which infant came to stay in Sabah
must be taken into consideration. It must be stressed that Lord Cave’s
definition must of course be read in the context of the Adoption Ordinance
as opposed to a Tax Act where the primary purpose is to ensure that income
10 of resident tax payers are taxed and paid.
The starting point in my deliberation must be to determine what rights the
law gives to a foreign worker. Those rights are contained in section 16 of
Immigration Regulations, 1963 which reads as follow:-
16. Work Pass for Sabah.
15 (1) A Work Pass may be issued by the Controller to any person other than a
prohibited immigrant who satisfies the Controller that he wishes to enter Sabah
(whether from within or from outside the Federation) in order to take up work or
employment in Sabah and that -
(a) he is qualified to work or undertake employment in the trade, business or
20 calling in respect of which the application is made; and
(b) there is not already unemployment in Sabah of persons skilled in that class of
trade, business or calling; and
(c) his taking up such work or employment will be to the benefit generally of
Sabah.
25 (2) Subject to the conditions stated in the Pass and to these Regulations, a Work
Pass shall authorise the holder thereof to enter the Federation or to enter Sabah
[K34-27-2008-I]
5
from within the Federation (as the case requires) within the period stated in the
Pass and to remain therein for the purpose of working or engaging in employment
in Sabah as specified in the Pass for such period not exceeding five years as shall
be stated in the Pass, and the Pass may specify the employer or proposed
employer by whom such person may 5 only be employed:
Provided that the Controller may, in his discretion, extend the period of validity of
a Work Pass from time to time for any period not exceeding five years at any one
time.
(3) Every Work Pass issued to any person under this regulation shall be subject to
10 the conditions that the holder shall take up the work or employment specified in
the Pass and shall continue therein during the validity of the Pass.
(4) Where a person is specified in a Work Pass as the employer or proposed
employer of the holder, that person shall forthwith inform the Controller if the
holder -
15 (a) fails to take up the employment; or
(b) is discharged from, or leaves, the employment.
(5) A Work Pass may at any time be cancelled by the Controller, and shall be
cancelled if the holder does not observe the conditions required by the paragraph
(3) of this regulation.
20 (6) The Controller may require any person applying for a Work Pass to make
application therefor in the Form 17 set out in the Second Schedule hereto,
supported by a declaration in the form set out in Part II and a covenant in the
form set out in Part III of Form 17 made by a person resident in the Federation,
and to furnish the Controller with two recent photographs of the applicant.
25 (7) A Work Pass shall be in the Form 18 set out in the Second Schedule hereto, or
in the form of an endorsement on the passport or internal travel document of the
applicant as the Controller may determine
From the wordings of the above, one can easily see that the sole purpose of a
30 ‘work pass’ is to allow the infant’s natural mother the right to work in Sabah
only. That work pass is only for a limited period and can also be canceled if
there has been a breach of any of the conditions attached to the work pass.
From that it is my finding that the intention of parliament is clear and that is
[K34-27-2008-I]
6
a ‘work pass’ does not confer on her any permanency of residential status.
Being allowed to stay in Sabah under a work pass is only coincident to her
right to work which she derives from the work pass. My view is fortified by
the existence of other provisions in the Immigration Act dealing specifically
with applicants wishing to reside in Malaysia. Further unlike 5 other countries
there is no legislation which gives infants born to legal migrant worker in
Malaysia a right of residency or citizenship. This much is clear in section 19
of the Federal Constitution which reads as follows:
19. Citizenship by naturalization.
10 (1) Subject to Clause (9), the Federal Government may, upon application made by
any person of or over the age of twenty-one years who is not a citizen, grant a
certificate of naturalization to that person if satisfied -
(a) that -
(i) he has resided in the Federation for the required periods and intends, if the
15 certificate is granted, to do so permanently;
(ii) (Repealed);
(b) that he is of good character; and
(c) that he has an adequate knowledge of the Malay language.
(2) Subject to Clause (9), the Federal Government may, in such special
20 circumstances as it thinks fit, upon application made by any person of or over the
age of twenty-one years who is not a citizen, grant a certificate of naturalization
to that person if satisfied -
(a) that he has resided in the Federation for the required periods and intends, if
the certificate is granted, to do so permanently;
25 (b) that he is of good character; and
(c) that he has an adequate knowledge of the Malay language.
[K34-27-2008-I]
7
(3) The periods of residence in the Federation or the relevant part of it which are
required for the grant of a certificate of naturalization are periods which amount
in the aggregate to not less than ten years in the twelve years immediately
preceding the date of the application for the certificate, and which included the
twelve months immediately preceding 5 that date.
(4) For the purposes of Clauses (1) and (2) residence before Malaysia Day in the
territories comprised in the States of Sabah and Sarawak shall be treated as
residence in the Federation; and for purposes of Clause (2) residence in
Singapore before Malaysia Day or with the approval of the Federal Government
10 residence in Singapore after Malaysia Day shall be treated as residence in the
Federation.
(5) A person to whom a certificate of naturalization is granted shall be a citizen
by naturalization from the date on which the certificate is granted.
15 For reasons stated above I find that the infant is not a person who resides in
Sabah under the adoption Ordinance. Accordingly this application is
dismissed.
(Y.A TUAN DAVID WONG DAK WAH)
20 Judge
25
30
Notice: This copy of the Court's Reasons for Judgment is subject to
formal revision.
35
Jurisdiction:
MALAYSIA
IN THE HIGH COURT IN SABAH & SARAWAK
AT KOTA KINABALU
Parties:
Applicants: Benjamin Taine
Sabinah Binti Raymond Emus
File Number:
K34-27-2008-I
Issue:
Whether the infant being an offspring of a legal
foreign worker in Malaysia is entitled to be adopted
by Malaysian under the Adoption Ordinance?
Hearing Dates:
16.1.2009, 17.4.2009 and 18.5.2009
Date of Decision:
17th July 2009
Judge:
HONOURABLE JUSTICE DAVID WONG DAK
WAH
Representation:
For Applicants: Puan Priscilla Ruth Marcus
Messrs. Kurup Robert Marcus &
Co.
Kota Kinabalu, Sabah
[K34-27-2008-I]
2
GROUNDS OF DECISION
The issue in this matter 5 is simply this:
Whether an infant who is an offspring of single mother and a
foreign worker is entitled to be adopted by applicants who are
resident in the State of Sabah under the Adoption Ordinance?
10 Determination of this issue requires construction of section 4(5) of the
Adoption Ordinance 1960 which reads as follows:
“An adoption order shall not be made in respect of any infant unless the
applicant and the infant reside in Sabah.”
15 This section prescribes the requirement that both the applicants and the
infant must reside in Sabah. Needless to say both the applicants and infant
must also be residing in Sabah legally.
Deliberation of the above issue requires me to determine whether the infant
resides in Sabah in the context of the Adoption Ordinance.
20
Before I discuss the issue I should first set the legal status of the infant. She
is the offspring of a female Indonesian worker in Sabah while the natural
father of the infant cannot be located and information as to his status of
nationality and residence is also unknown. Under such circumstance it is of
25 course undisputed that the residential status of the infant in law will be that
of her mother who now lives in Sabah pursuant to a work pass issued by the
[K34-27-2008-I]
3
Immigration Department. The infant under the law is also an Indonesian by
virtue of her mother’s nationality. However from my query as the status of
the infant under the Immigration Act, I was given an answer which I must
admit that I cannot comprehend. Common sense dictates that the infant
being a foreigner requires a visa to remain in Malaysia 5 in the same way as
her mother. In fact this is provided for under section 12 of the Immigration
Act which states as follow:-
12. Endorsement of name of wife and children on Permits, Passes and
Certificates.
10 Subject to such conditions as may be prescribed it shall be lawful for the Director
General, on application made in that behalf in the prescribed form by the holder
of, or by an applicant for, a Permit, Pass or Certificate, to endorse upon the
Permit, Pass or Certificate issued to the person the name or names of the wife or
child of that person.”
15 Why this was not done, the court is not informed.
I now deliberate on what the word ‘reside’ means. The word is not defined
in the Adoption Ordinance; hence the need to look to other sources.
Viscount Cave L.C. in Levene (Appellant) v Inland Revenue (Respondents)
[1928] UKHL 1 adopted what was stated in the Oxford English Dictionary:
20 ‘My Lords, the word "reside" is a familiar English word and is defined in the
Oxford English Dictionary as meaning "to dwell permanently or for a
considerable time, to have one's settled or usual abode, to live in or at a
particular place." No doubt this definition must for present purposes be taken
[K34-27-2008-I]
4
subject to any modification which may result from the terms of the Income Tax Act
and Schedules; but, subject to that observation, it may be accepted as an accurate
indication of the meaning of the word "reside”.
The definition adopted by Lord Cave in my view requires an element of
permanency in one’s dwelling and to determine that 5 one must apply an
objective test in that the circumstance in which infant came to stay in Sabah
must be taken into consideration. It must be stressed that Lord Cave’s
definition must of course be read in the context of the Adoption Ordinance
as opposed to a Tax Act where the primary purpose is to ensure that income
10 of resident tax payers are taxed and paid.
The starting point in my deliberation must be to determine what rights the
law gives to a foreign worker. Those rights are contained in section 16 of
Immigration Regulations, 1963 which reads as follow:-
16. Work Pass for Sabah.
15 (1) A Work Pass may be issued by the Controller to any person other than a
prohibited immigrant who satisfies the Controller that he wishes to enter Sabah
(whether from within or from outside the Federation) in order to take up work or
employment in Sabah and that -
(a) he is qualified to work or undertake employment in the trade, business or
20 calling in respect of which the application is made; and
(b) there is not already unemployment in Sabah of persons skilled in that class of
trade, business or calling; and
(c) his taking up such work or employment will be to the benefit generally of
Sabah.
25 (2) Subject to the conditions stated in the Pass and to these Regulations, a Work
Pass shall authorise the holder thereof to enter the Federation or to enter Sabah
[K34-27-2008-I]
5
from within the Federation (as the case requires) within the period stated in the
Pass and to remain therein for the purpose of working or engaging in employment
in Sabah as specified in the Pass for such period not exceeding five years as shall
be stated in the Pass, and the Pass may specify the employer or proposed
employer by whom such person may 5 only be employed:
Provided that the Controller may, in his discretion, extend the period of validity of
a Work Pass from time to time for any period not exceeding five years at any one
time.
(3) Every Work Pass issued to any person under this regulation shall be subject to
10 the conditions that the holder shall take up the work or employment specified in
the Pass and shall continue therein during the validity of the Pass.
(4) Where a person is specified in a Work Pass as the employer or proposed
employer of the holder, that person shall forthwith inform the Controller if the
holder -
15 (a) fails to take up the employment; or
(b) is discharged from, or leaves, the employment.
(5) A Work Pass may at any time be cancelled by the Controller, and shall be
cancelled if the holder does not observe the conditions required by the paragraph
(3) of this regulation.
20 (6) The Controller may require any person applying for a Work Pass to make
application therefor in the Form 17 set out in the Second Schedule hereto,
supported by a declaration in the form set out in Part II and a covenant in the
form set out in Part III of Form 17 made by a person resident in the Federation,
and to furnish the Controller with two recent photographs of the applicant.
25 (7) A Work Pass shall be in the Form 18 set out in the Second Schedule hereto, or
in the form of an endorsement on the passport or internal travel document of the
applicant as the Controller may determine
From the wordings of the above, one can easily see that the sole purpose of a
30 ‘work pass’ is to allow the infant’s natural mother the right to work in Sabah
only. That work pass is only for a limited period and can also be canceled if
there has been a breach of any of the conditions attached to the work pass.
From that it is my finding that the intention of parliament is clear and that is
[K34-27-2008-I]
6
a ‘work pass’ does not confer on her any permanency of residential status.
Being allowed to stay in Sabah under a work pass is only coincident to her
right to work which she derives from the work pass. My view is fortified by
the existence of other provisions in the Immigration Act dealing specifically
with applicants wishing to reside in Malaysia. Further unlike 5 other countries
there is no legislation which gives infants born to legal migrant worker in
Malaysia a right of residency or citizenship. This much is clear in section 19
of the Federal Constitution which reads as follows:
19. Citizenship by naturalization.
10 (1) Subject to Clause (9), the Federal Government may, upon application made by
any person of or over the age of twenty-one years who is not a citizen, grant a
certificate of naturalization to that person if satisfied -
(a) that -
(i) he has resided in the Federation for the required periods and intends, if the
15 certificate is granted, to do so permanently;
(ii) (Repealed);
(b) that he is of good character; and
(c) that he has an adequate knowledge of the Malay language.
(2) Subject to Clause (9), the Federal Government may, in such special
20 circumstances as it thinks fit, upon application made by any person of or over the
age of twenty-one years who is not a citizen, grant a certificate of naturalization
to that person if satisfied -
(a) that he has resided in the Federation for the required periods and intends, if
the certificate is granted, to do so permanently;
25 (b) that he is of good character; and
(c) that he has an adequate knowledge of the Malay language.
[K34-27-2008-I]
7
(3) The periods of residence in the Federation or the relevant part of it which are
required for the grant of a certificate of naturalization are periods which amount
in the aggregate to not less than ten years in the twelve years immediately
preceding the date of the application for the certificate, and which included the
twelve months immediately preceding 5 that date.
(4) For the purposes of Clauses (1) and (2) residence before Malaysia Day in the
territories comprised in the States of Sabah and Sarawak shall be treated as
residence in the Federation; and for purposes of Clause (2) residence in
Singapore before Malaysia Day or with the approval of the Federal Government
10 residence in Singapore after Malaysia Day shall be treated as residence in the
Federation.
(5) A person to whom a certificate of naturalization is granted shall be a citizen
by naturalization from the date on which the certificate is granted.
15 For reasons stated above I find that the infant is not a person who resides in
Sabah under the adoption Ordinance. Accordingly this application is
dismissed.
(Y.A TUAN DAVID WONG DAK WAH)
20 Judge
25
30
Notice: This copy of the Court's Reasons for Judgment is subject to
formal revision.
35
