Asylum Access Berhad (Asylum Access Malaysia) and Aimal Sdn Bhd (Amnesty International Malaysia) [collectively referred to as “the Applicants“] recently filed a judicial review application against the Director General of Immigration, the Home Minister, and the Government of Malaysia over the planned repatriation of 1,200 Myanmar nationals (“Impugned Decision“).
The Applicants successfully obtained an interim stay of the repatriation on 23rd February 2021 but the success was shortlived as, on the same day, 1,086 Myanmar nationals (out of the 1,200) were nevertheless repatriated by the Immigration Department in collaboration with the Royal Malaysian Navy, National Task Force, and the Myanmar Embassy.
The Immigration Department’s actions received widespread criticism in light of the interim stay granted by the High Court. The Immigration Department was legally represented by the Attorney General’s Chambers when the interim stay was granted and had full knowledge of the same.
The interim stay has since been extended until 9th March 2021, the date on which Yang Arif Dato’ Sri Mariana binti Haji Yahya will deliver her decision on whether the Applicants should be granted leave to proceed with their judicial review application.
During the leave hearing on 24th February 2021, the Attorney General’s Chambers objected to the Applicants’ application for leave and reportedly raised arguments on the:
i. Lack of reviewability of the subject matter in light of Section 59A of the Immigration Act 1959/63, save for procedural non-compliance; and
ii. Lack of locus standi (or legal standing) of the Applicants.
With regard to Section 59A of the Immigration Act 1959/63, its constitutionality was the subject of YB Maria Chin Abdullah’s recent legal challenge and the Federal Court upheld it.
In view of the above, if the Applicants’ judicial review application intended to review the Impugned Decision on the basis that it was unreasonable/irrational and/or illegal instead of going on the basis that the Impugned Decision suffered from procedural non-compliance, Section 59A of the Immigration Act 1959/63 would likely apply to oust the jurisdiction of the Court and leave for judicial review would not be granted.
As for locus standi, the test to be applied would be whether the Applicants are adversely affected by the decision to repatriate the 1,200 Myanmar nationals.
As highlighted by the Federal Court in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor  3 MLJ 145, on the issue of locus standi for judicial review:
“The court has to assess the applicant’s claim to standing against the whole legal and factual context of the application. Other factors which the court has to consider at this stage as suggested by case law are the merit of the challenge, the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other challenger (see ,  1 WLR 386; 2  3 All ER 329 at 349 – 50 cited in (2000) by Clive Lewis in para 10-009, fn 22).”
In light of the above, the Applicants may be able to overcome the issue of locus standi. Notwithstanding that, Section 59A of the Immigration Act 1959/63 stands in the way of the Applicants’ judicial review application.
If the Applicants are unsuccessful in obtaining leave, they have the option of appealing. Pending the hearing of the appeal, if a stay is not obtained, the Immigration Department could repatriate the remaining Myanmar nationals thereby rending the judicial review application academic.
As a general rule, the courts “decline to determine academic, abstract, or hypothetical questions.” The exceptions include where the case involves “important questions of public law, where the case does not involve a detailed consideration of the facts, or where a large number of similar cases needs to be resolved.”
 Kuala Lumpur High Court Judicial Review Application No. WA-25-60-02/2021
 “NGOs obtain interim stay to stop deportation of Myanmar refugees.” TheSundaily.my. The Sun daily. Accessed February 28, 2021. https://www.thesundaily.my/home/ngos-obtain-interim-stay-to-stop-deportation-of-myanmar-refugees-BG6877627
 Ida Lim, “After 1,086 Myanmar nationals repatriated, High Court extends order to suspend further deportations until March 9 decision on lawsuit.” Malaymail.com. Malay Mail. Accessed February 28, 2021. https://www.malaymail.com/amp/news/malaysia/2021/02/24/after-1086-myanmar-nationals-repatriated-high-court-extends-order-to-suspen/1952441
 “AGC objects to NGOs’ application to challenge govt’s decision to repatriate Myanmar refugees.” MalayMail.com. Malay Mail. Accessed February 28, 2021. https://www.malaymail.com/news/malaysia/2021/02/24/agc-objects-to-ngos-application-to-challenge-govts-decision-to-repatriate-m/1952505
 Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [Federal Court Civil Appeal No. 01(f)-5-03/2019(W)], per Abdul Rahman Sebli FCJ, at paragraph 180: “I have determined that section 59A of the Immigration Act is valid and constitutional as it had been validly enacted by Parliament pursuant to the power vested in it by Article 121(1) of the Federal Constitution, which means the decision of the Director General of Immigration to impose the travel ban on the appellant is not subject to judicial review save in the manner prescribed. Only procedural non-compliance is. Therefore, the only question left to be considered is whether there was failure by the respondents to comply with the procedure prescribed by the Immigration Act or the rules made thereunder, if any, when imposing the travel ban.”
 For the grounds of judicial review, see https://joshuawu.my/the-court-of-appeal-erred-vis-a-vis-the-grounds-for-judicial-review/
 Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor  3 MLJ 145, per Hasan Lah FCJ, at paragraph 57: “In view of the foregoing we are of the view that the view expressed by the Court of Appeal in QSR Brands Bhd v Suruhaniava Sekuriti & Anor that the ‘adversely affected’ test was a single test for all the remedies provided for under O 53 of the RHC is to be preferred. Hence the answer to the question posed in this appeal has to be in the negative.”
 Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor  3 MLJ 145, per Hasan Lah FCJ, at paragraph 60
 Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor  MLJU 119, at paragraph 33
 Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor  MLJU 119, at paragraph 38