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Case Update: Whether notice of refusal of entry into Sabah is a breach of fundamental liberties

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ADMINISTRATIVE LAW
Judicial review – Decision of state authority refusing appellant entry into Sabah – Whether decision subject to judicial review – Whether respondents acted in excess or without jurisdiction, ultra vires, or with mala fide or abuse of power – Whether breach of appellant's legitimate expectation and fundamental liberties – Immigration Act 1959/63, section 59A, section 65
 
Ambiga a/p Sreenevasan v Director of Immigration, Sabah, Noor Alam Khan bin A Wahid Khan & 3 Ors
 [2018] 4 AMR 525, Court of Appeal
 
Facts The appellant was barred from entering Sabah to participate in a forum in Kota Kinabalu that was organised by a movement advocating national unity. The appellant wrote a letter to the first respondent, the Director of Immigration, Sabah, on the reasons for barring her entry but received no reply. The appellant then filed for judicial review, an order of certiorari to quash the notice of refusal of entry into Sabah ("the impugned notice") and an order of mandamus to compel the respondents to allow her entry into Sabah. The High Court dismissed the said application on the grounds that the ouster clause in section 59A of the Immigration Act 1959/63 ("the Act") expressly provides that any act done or decision made by the state authority under the Act is not subject to judicial review except on grounds of procedural non-compliance or requirements of the Act, and that the focus of the court is to consider the decision-making process and not whether the impugned decision was fair and reasonable. Dissatisfied, the appellant appealed.
 
Issue The main issue is whether there are any merits to the appeal.
 
Held In dismissing the appeal, the Court of Appeal held that there was no merit in the appeal as (i) section 59A(1) of the Act is clear in that the jurisdiction of the court is ousted except on grounds of procedural non-compliance of the requirements of the Act or regulations governing the act or decision and nothing else, (ii) that since there is no reason to depart from Sugumar[1]’s case, the respondents are not required to give reasons for the decision to bar the appellant from entering Sabah, (iii) that the right to be heard is not stipulated or provided for in section 59[2] and section 65[3] of the Act, and (iv) that although the appellant had travelled to Sabah in the past, that could not be made as a basis for the appellant to rely on the doctrine of legitimate expectation.
 
 
[1] Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan (and Another Appeal) [2002] 3 AMR 2817
[2] Exclusion of right to be heard
[3] General powers of State authority

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