Dorbane Talha Abd Elkhalek v Peguam Negara Malaysia (WA-25-427-12/2025)

MENTERI DALAM NEGERI … RESPONDEN-RESPONDEN

The Applicant was allegedly imposed a lifetime ban from entering Malaysia by the Respondents. He now applies for leave to commence judicial review proceedings against them, seeking an order of certiorari to quash the decision to impose the ban. Factual background

The application for leave is premised on the grounds in the O. Statement and the factual matrix stated in the Affidavit in Support.

The Applicant is the holder of an Algerian passport. In September 2018, he entered Malaysia on a student visa to pursue his studies in the International Islamic University.

Whilst in Malaysia, he encountered financial difficulties in paying his course fees. In spite of several appeals to renew his student visa, the university terminated his course as the fees were not paid.

As the university had custody of his passport, he requested for it to be returned to him. He also requested for the university to send over his passport to the Algerian Embassy in Malaysia. But it was not done.

He then participated in the Repatriation Programme of the Immigration Department, and was issued a compound for overstaying.

Prior to his deportation, he was informed by an Immigration Officer that in view of the overstaying, he would be prohibited from entering Malaysia for 5 years. However, no written notice to that effect was given to him.

Back in Algeria, on 28.5.2025, he married a Malaysian woman. The marriage was solemnised according to the hukum syarak. A Deed of Marriage was issued on 2.6.2025. Pursuant thereto, the Malaysian Embassy in Algiers wrote to the Registrar of Marriages in Putrajaya, forwarding the documents given by the Applicant for its verification and further action.

On 18.9.2025, his wife contacted the Immigration Department. She was informed that the Applicant has been issued a lifetime ban from entering Malaysia. A month later, his wife again made inquiries with the Immigration Department and was told that the Applicant can appeal in respect of the ban.

He now files the present Judicial Review proceedings, which he contends is filed within the 3 months stipulated in O. 53 Rules of Court 2012, taking into account the date of 18.9.2025 when he was informed of the ban.

He seeks to impugn the lifetime ban on him, claiming firstly, the Respondents have no jurisdiction to impose the ban on him. It is therefore illegal. Secondly, there was procedural impropriety in the decision to do so as he was not given a right to be heard. Thirdly. the decision was unreasonable as it did not consider the relevant fact of his marriage on 2.6.2025, which requires him to be present at the Jabatan Agama Islam Wilayah Persekutuan (JAWI) in Malaysia to validate his marriage. Finally, the ban would cause hardship to both him and his wife, and present obstacles to the leading a normal married life. Analysis and finding Key principles

There have been various formulations on the test to be applied for leave to commence with judicial review. I shall state a few.

In WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 CLJ 478 the Federal Court held: [12]…Leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case of granting the reliefs sought at the substantive hearing may be resultant outcome. A rider must be attached to the application though, i.e. unless the matter for judicial review is amenable to judicial review no success may be envisaged.

The Supreme Court in the case of Tuan Hj Sarip Hamid & Anor v Patco Malaysia Bhd [1995] 3 CLJ 627 approved the following guidelines stated in R. v. Secretary of State for the Home Department, ex parte Rukshanda Begum [1990] Crown Office Digest 109, Dip, by the Court of Appeal in England to be followed by the Court when considering an application for leave, in the following terms:

The Judge should grant leave if it is clear that there is a point for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such argument as is necessary on the law.

(ii) If the Judge is satisfied that there is no arguable case he should dismiss the application for leave to move for judicial review.

(iii) If on considering the papers, the Judge comes to the conclusion that he really does not know whether there is or is not an arguable case, the right course is for the Judge to invite the putative respondent to attend and make representations as to whether or not leave should be granted. That inter partes leave hearing should not be anywhere near so extensive as a full substantive judicial review hearing. The test to be applied by the Judge at that inter partes leave hearing should be analogous to the approach adopted in deciding whether to grant leave to appeal against an arbitrator’s award ... namely: if, taking account of a brief argument on either side, the Judge is satisfied that there is a case fit for further consideration, then he should grant leave.

Reference is also made to the Federal Court case of Ahli-Ahli Suruhanjaya Yang Membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip Video Yang Mengandungi Imej Seorang Yang Dikatakan Peguambela Dan Peguamcara Berbual Melalui Telefon Mengenai Urusan Pelantikan Hakim- Hakim vs Tun Dato’ Seri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim [2012] 1 CLJ 805 where it was held: [20]…Leave is normally granted if the application is neither frivolous nor vexatious and it justifies further argument on a substantive motion.

With these principles in mind, it leaves me now to consider if leave ought to be granted.

The Applicant’s case as revealed from his affidavit is deficient in material particulars and evidence. Apart from stating that he participated in the repatriation programme, he failed to state when he was repatriated. This is a material piece of information which he has personal knowledge of, and which he did not provide. There are no documents furnished in support of the alleged repatriation programme, which I must say, is surprising.

He stated in his affidavit that he was issued a compound for overstaying. Again, there is no documentary evidence which one is expected to be given, in such circumstances, to substantiate his assertion.

In view of the fact that an application for leave is heard exparte, there is a duty on the part of the Applicant to disclose material facts which would convince the court that leave ought to be granted. The judgment of Tuan Hj Sarip Hamid is particularly instructive as follows: The salutary advice of Dunn LJ in R v Secretary of State for Trade & Ors, ex p Anderson Strathclyde plc [1983] 2 All ER 233 should be kept in the forefront of the mind of any lawyer who drafts the statement for purposes of O 53 r 1(2), and the affidavit in support thereof. What the learned Lord Justice said was this (at p 239f): … Proceedings for judicial review are not designed for detailed enquiry into contested facts. It is for the applicants to take all proper steps to put the facts on which they rely in support of the relief claimed before the court at the first opportunity … Similarly, it is worthwhile for the draftsman to remind himself of what Lord Diplock had said in O'Reilly v Mackman [1983] 2 AC 237 at p 282[1982] 3 All ER 1124 at p 1132[1982] 3 WLR 1096 at p 1107, namely: … The facts … can seldom be a matter of relevant dispute on an application for judicial review, since the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards (Inspector of Taxes) v Bairstow & Anor [1956] AC 14 at p 36[1955] 3 All ER 48 at pp 57–58) … Having said that, we would add that it is a counsel of prudence for a lawyer drafting his application under O 53 r 1(2) to ensure that it contains substantial particulars of the facts and matters on which he intends to rely in support of his application. He should also ensure that his affidavit in support of his application is as detailed and comprehensive as the circumstances will permit, and it should exhibit all the documentary exhibits which are truly relevant and upon which he intends to rely. The object of these steps is to ensure that the court has as complete a picture as is possible right from the start, of the case for the applicant who is seeking judicial review.

I find the Applicant’s affidavit to fall short of the requirements in Tuan Hj Sarip Hamid as it bereft of material facts and documentary evidence.

His judicial review application is premised on the decision which was informed to him by his wife on 18.9.2025. Therefore, the alleged decision pertaining to the lifetime ban was not conveyed to him, but to his wife. There is no affidavit filed in support to confirm this communication. As matters stand, it is hearsay evidence which this court should be circumspect to accept. Even if it can be admissible for the purposes of granting leave, the weight to be attached is a relevant matter which the court should consider.

O. 53 r. 3(6) Rules of Court 2012 provides for the time frame to file an application for judicial review. It must be filed when the grounds of application first arose or when the decision is first communicated to the applicant. There are legal implications when applications are not filed within the time stipulated as it goes to the jurisdiction of the court. (See: Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor. [2013] 4 MLJ 161 (FC), Ketua Pengarah Hasil Dalam Negeri v Genting Malaysia Bhd [2025] 2 MLJ 822 (CoA)).

I am of the view that this court ought not to permit oral communication made to a third party to form the basis for a challenge. If oral communication can be taken as a decision, any party can easily circumvent the provisions of O. 53 r. 3(6) as to the time limit to file judicial review proceedings. To my mind, this would open the floodgates to judicial review proceedings.

I find the Applicant’s own affidavit to contain conflicting evidence. The Applicant stated that his passport was not returned by the university in spite of his request and having personally turned up at the university. The exchange of emails in relation to his request was exhibited as “D-1”. Having examined the telephone messages with the university staff, it would appear that the Applicant was asked several times to present himself at the visa unit for a discussion and on another occasion to collect his passport. The Applicant refused on the grounds that his lawyer had advised him against it. The documentary evidence appears to be at variance with what he stated in his affidavit.

The Applicant is challenging the alleged ban on grounds of unreasonableness. He alleged that the Respondents failed to consider the fact of his marriage. It was not even in evidence that the fact of his personal circumstances was made known to the Respondents for the Applicant to complain that it was not considered. On the face of his affidavit evidence, there are no facts to support this ground. It therefore cannot form the basis for a challenge.

I am mindful of the fact that in considering if leave should be granted, the court is not to delve into and evaluate the merits of the case from the affidavit filed in support. However, this does not mean that the affidavit evidence is not to be subject to some scrutiny.

In conclusion, I am of the view that the contents of the Applicant’s affidavit leave much to be desired. There is insufficient material for this court to grant leave.

I should also add that this judicial review proceedings should not be taken as a fishing expedition where it is hoped that upon leave being granted and in the substantive application, the Applicant will discover facts and evidence from the Respondents to build its case. It would be tantamount to an abuse of the process of the court.

This court has a duty at this stage to determine if an arguable case is made out as held by decided authorities. I do not find the requisite threshold to have been satisfied.

Premised on the foregoing reasons, the application for leave is dismissed. I make no order as to costs. Dated: 27th March 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: Nevyn Vinosh Venudran Tetuan Lim Wei Jiet For the Attorney General: Sharmaaraj Shankar a/l Sangar