Zulkiflee Bin SM Anwarul Haque v 1. Ketua Pengarah Jabatan Imigresen Malaysia (Permohonan Semakan Kehakiman No. WA-25-239-12/2016)

Ketua Pengarah Jabatan Imigresen Malaysia 2. Menteri Dalam Negeri 3. Kerajaan Malaysia … Responden-Responden Grounds of Decision Azizah Nawawi, J: Application [1] In the Originating Summons (Enclosure 1), the applicant is seeking the following reliefs:

an order of Certiorari to quash the travel ban imposed by the respondents against the applicant;

(ii) a declaration that the travel ban imposed on the applicant is in breach of Article 5 (1), Article 8 and/or Article 9 of the Federal Constitution and is therefore null, void and unconstitutional;

(iii) a declaration that the respondents have no power to impose the travel ban and had acted beyond their jurisdiction; 3

(iv) a declaration that the respondents have no unfettered discretion in imposing the travel ban;

a declaration that the respondents cannot act under section 59 and section 59A of the Immigration Act 1959/63 (“Act 155”) to deny the right to natural justice as this contravenes Article 160 read with Article 4 of the Federal Constitution;

(vi) a declaration that section 59 of the Immigration Act 1959/63 which excludes a right to be heard and section 59A which excludes judicial review, is ultra vires the Federal Constitution;

(vii) an order or mandamus to compel the respondent to allow the applicant to travel abroad with no restriction;

(viii) an order of prohibition to prohibit the respondents from making any decision or direction to blacklist the applicant from travelling abroad; and

(ix) alternatively, an order of prohibition to prohibit the respondents from making any decision or direction to stop the applicant from travelling abroad without giving any reasons and allow the applicant the right to be heard. [2] The grounds of the application are: 4

that the decision is against the fundamental rights of the applicant as guaranteed by Articles 5(1), 8 and 9 of the

(ii) that the decision was made without jurisdiction as no reasons was given to the applicant;

(iii) that the applicant has a legitimate expectation to travel abroad;

(iv) that the respondents had breached the principles of natural justice and the established principles of administrative law when the applicant was not given an opportunity to be heard before the decision was made; and

that the decision was an abuse of discretion, unreasonable and against procedural justice. [3] On 13.11.2017, the applicant filed an application (enclosure 12) seeking an order from this court to refer the following constitutional questions to the Federal Court under section 84 of the Courts of

Whether the decision in Government of Malaysia v. Loh Wai Kong [1979] 2 MLJ 33 is null and void and of no effect as having been decided without jurisdiction and therefore is not in accordance with Article 121 of the Federal Constitution 5 read with section 67 of the CJA 1964 as it stood in 1979 when the aforesaid decision was made;

(ii) whether section 59 of the Immigration Act 1959 (revised 1975) violates Article 5(1) of the Federal Constitution having regard to the decision of the Privy Council in Ong Ah Chuan v. Public Prosecutor [1981] 1 MLJ 64;

(iii) Whether section 59 of the Immigration Act 1959 (revised 1975) violates Article 5(1) of the Federal Constitution in that it impedes access to justice guaranteed by that article; and

(iv) Whether the decision in Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 3 MLJ 72 is unconstitutional in that it was decided in violation of the provisions of Article 5(1) of the Federal Constitution, in particular, by following the decision in Government of Malaysia v. Loh Wai Kong [1979] 2 MLJ 33 and in denying to an applicant affected by a decision made under the Immigration Act 1959 (revised 1975), access to justice which right is guaranteed by Article 5(1). [4] The ground of the application is in paragraph 6 of the affidavit affirmed by the applicant on 13.11.2017: 6 “6. I am advised by my solicitor that the Court of Appeal’s decision in Pua Kiam Wee v. Ketua Pengarah Imigresen Malaysia & Anor Rayuan Sivil No: W-01(IM)-352-09/2016 (“Pua Liam Wee’s case”) is binding on this Honourable Court on the issue of restriction to travel abroad. Now produced and shown to me and marked as Exhibit “A-1” is a copy of the judgment of the case Pua Kiam Wee v. Ketua Pengarah Imigresen Malaysia & Anor Rayuan Sivil No: W-01(IM)-352-09/2016.” (Pua Kiam Wee v. Ketua Pengarah Imidresen Malaysia & Anor [2017] 1 LNS 993) The Salient Facts [5] The applicant is a Malaysian citizen holding a Malaysian Passport No. A34726525 with an expiry date of 23.8.2020, issued by the 3rd respondent, the Government of Malaysia. [6] The 1st respondent is the Director General of Immigration (“DG of Immigration”) having the powers to act on immigration matters pursuant to section 3(2) of Act 155. [7] The 2nd respondent is the Minister of Home Affairs, being in charge of immigration matters whilst the 3rd respondent is the Government of Malaysia. 7 [8] The Director of Security and Passport Division of the Immigration Department had received a letter dated 20.6.2016 from the Inspector General of Police informing that the applicant is under investigation for several offences including under the Sedition Act

He was then directed by the DG of Immigration to bar any application from the applicant to get immigration facility, which was later carried out in the department computer system. [9] On 17.10.2016, the applicant was stopped by the Immigration Officer at the Immigration Gate in the Kuala Lumpur International Airport from boarding a flight to Singapore. The applicant was informed by the Immigration Officer that he was prevented from travelling abroad based on the request by the Inspector General of Police. The applicant states that he was not given any other information and/or explanation on the decision to bar him from travelling abroad. [10] On 20.10.2016, the applicant, through his solicitors sought an explanation on the said matter but there was no response from the DG of Immigration. Hence, the applicant filed this application to essentially quash the decision to restrict/bar him from travelling abroad. The Findings of the Court [11] There are two (2) applications before this court, the substantive application to review the decision of the DG of Immigration which 8 is fixed for hearing and the case management of enclosure (12), which is an application for a reference to the Federal Court to consider constitutional questions under section 84 of the CJA

[12] However, since both parties have submitted on enclosure (12), I will deal with the same as parties are on common ground that on the substantive application, this court is bound by the decision of the Court of Appeal in Pua Kiam Wee’s case. [13] Section 84(1) of the CJA 1964 reads: “(1) Where in any proceedings in the High Court a question arises as to the effect of any provision of the Constitution the Judge hearing the proceedings may stay the same on such terms as may be just to await the decision of the question by the Federal Court” [14] The above provision was considered by the Court of Appeal in Wee Choo Keong v Lee Chong Meng & Anor [1996] 3 CLJ 508, where the respective members held as follows: “We will first consider the effect of s. 84 of the Courts of Judicature Act 1964, under which the application to refer was made. It relates to the situation where in any proceedings before the High Court the Judge may in his discretion refer a 9 question relating to the effect of any provision of the Constitution to the Federal Court by way of a special case. Before deciding so the Judge must be satisfied that the constitutional question sought to be referred must have a direct bearing to the matter of dispute before him and that the decision of the Federal Court must have the effect of bringing the determination of the dispute before him to a speedy and economical end. In some way the dispute must be related to the constitutional question sought to be referred and that there must be a difficult issue or issues posed by the dispute that are irreconcilable with a constitutional provision and it is only in this situation that reference of a constitutional question becomes necessary.” per Siti Norma Yaakob JCA “Subsection (1) of s. 84 of the Act provides that where in any proceedings in the High Court a question arises as to the effect of any provision of the Federal Constitution, the Judge hearing the proceedings may stay the same on such term as may be just to await the decision of the question by the Federal Court. Read in its proper context, “the effect of any provision”, in my view must surely mean a constitutional provision that has left room for doubt in the sense that it is 10 vague or ambiguous which necessitates a proper construction from the Federal Court” per Abdul Malek Ahmad JCA “It is settled law that a reference is only done if a question arises in the course of the proceedings before him and there is ambiguity and it would help to advance the rapid conclusion of that proceedings” per Abu Mansor JCA [15] Therefore, before this court refer a question relating to the effect of any provision of the Federal Constitution to the Federal Court by way of a special case under section 84 of the CJA 1964, this court must be satisfied that:

the constitutional question sought to be referred must have a direct bearing to the matter of dispute;

(ii) the constitutional provision that has left room for doubt in the sense that it is vague or ambiguous which necessitates a proper construction from the Federal Court; and

(iii) the decision of the Federal Court must have the effect of bringing the determination of the dispute to a speedy and economical end. 11 [16] So, the first issue is whether the constitutional question sought to be referred to the Federal Court have a direct bearing to the matter of dispute in this application. Prayer (ii) of the Originating Summons is on the interpretation of article 5(1), 8 and/or 9 of the Federal Constitution. However, the main constitutional issue raised by learned counsel in this application under s. 84 CJA 1964 is the validity of the case of Loh Wai Kong (supra) in light of article 121 of the Federal Constitution. [17] I am therefore of the considered opinion that article 121 of the Federal Constitution is not an issue in the substantive application, but was only raised in order to question the validity of Loh Wai Kong’s case as a precedent that has been applied in many other cases. As such, the constitutional issue posed in enclosure (12) does not arise from the substantive application and does not have a direct bearing to the matter of dispute in this application. [18] The other requirements for reference under section 84 of the CJA 1964 is that the constitutional provision has left room for doubt in the sense that it is vague or ambiguous which necessitates a proper construction from the Federal Court and therefore the decision of the Federal Court must have the effect of bringing the determination of the dispute to a speedy and economical end. [19] I am of the considered opinion that the constitutional issues raised in this case have been decided in many cases, including Loh Wai Kong (supra), Pihak Berkuasa Negeri Sabah v. Sugumar 12 Balakrishnan (supra) and Pua Kiam Wee’s case. Therefore, it cannot be said that there are ambiguities to the interpretation of these provisions that requires a speedy and final determination by the Federal Court. [20] Therefore, in respect of enclosure (12), I find that there is no merit in the application and the same is dismissed with costs. [21] On the substantive application, parties are on common ground that this court is bound by the decision in several cases, the latest is Pua Kiam Wee’s decision. In Pua Kiam Wee’s case, the Court of Appeal has held, inter alia:

that pursuant to the ouster clause in section 59A of Act 155, the courts cannot review the decision of the DG of Immigration to restrict or bar the applicant from travelling abroad;

(ii) that this court is bound by the Federal Court decision in Loh Wai Kong that Article 5 (1) of the Federal Constitution concerns with liberty relating to the person or body of the individual, and not to a right to a passport or right of travel;

(iii) that section 59 of Act 155 excludes the right to be heard before the DG of Immigration makes the decision to restrict or bar the applicant from travelling abroad; 13

(iv) that section 59 of Act 155 does not offend the principles of natural justice and/or Articles 5 or 8(1) of the Federal Constitution. [22] Since the prayers in this case are similar to the prayers in Pua Kiam Wee’s case, then this court is bound by the principles enunciated in the said case. I therefore find that there is no merit in the application as the decision of the DG of Immigration is not amenable to judicial review pursuant to the ouster clause in section 59A of Act 155. Added to that the applicant has no right to travel abroad under article 5(1) of the Federal Constitution. Further, there is no breach of natural justice as section 59 of Act 155 excludes the right to be heard before the DG of Immigration makes the decision to restrict or bar the applicant from travelling abroad. [23] In the premise, the application is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 15th February 2018 14 For the Plaintiff : Datuk Seri Gopal Sri Ram/ Latheefa Koya Messrs Daim & Gamany Petaling Jaya, Selangor. For the Defendants: SFC, Tuan Shamsul Bolhassan/ SFC, Tuan Khairul Nizam Bin Mohd Kamal Jabatan Peguam Negara Putrajaya. Cases referred:

Wee Choo Keong v Lee Chong Meng & Anor [1996] 3 CLJ 508.

Pua Kiam Wee v. Ketua Pengarah Imidresen Malaysia & Anor [2017] 1 LNS 993.

Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 3