Asylum Access Malaysia & Amnesty International Malaysia’s Judicial Review Application

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[1] over the planned repatriation of 1,200 Myanmar nationals (“Impugned Decision“).[2]

The Applicants successfully obtained an interim stay of the repatriation on 23rd February 2021[3] 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.[4]

The Immigration Department’s actions received widespread criticism in light of the interim stay granted by the High Court.[5] 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.[6]

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.[7]

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Stay of Industrial Court Monetary Awards

In cases of unfair dismissal or constructive dismissal, if the Industrial Court finds in favour of a Claimant, the Industrial Court would generally award backwages and compensation in lieu of reinstatement.

In Koperasi Serbaguna Sanya Bhd. (Sabah) v. Dr. James Alfred and Anor [2000] 3 CLJ 758, the Court of Appeal noted:

“In industrial law, the usual remedy for unjustified dismissal is an order of reinstatement. It is only in rare cases that reinstatement is refused. For example, as here, where the relationship between the parties had broken down so badly that it would not be conducive to industrial harmony to return the workman to his place of work. In such a case, the Industrial Court may award monetary compensation. Such an award is usually in two parts. First, there is the usual award for the arrears of wages, or back wages, as it is sometimes called. It is to compensate the workman for the period that he has been unemployed because of the unjustified act of dismissal. Second, there is an award of compensation in lieu of reinstatement.”[1] (emphasis mine)

The Industrial Court could possibly award monetary compensation in trade disputes. For example, the Industrial Court in Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v Assunta Hospital [Industrial Court Case No. 21(26)(13)/3-455/15][2] ordered the Company to make a one off payment of RM1,000.00 to selected confirmed employees.

The Industrial Court’s decision was affirmed by the High Court in Assunta Hospital v Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta & Anor [Kuala Lumpur High Court Judicial Review Application No. WA-25-215-05/2019].

For the purposes of this article, any Industrial Court Award ordering the payment of monetary compensation will henceforth be referred to as an “Industrial Court Monetary Award.”

Stay

When an Industrial Court Monetary Award is challenged at the High Court via judicial review, it is not uncommon for the Applicant/Company to apply for a stay of the Industrial Court Monetary Award.

For example, in Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd/Landmarks Holding Bhd [2006] 5 MLJ 113, the Federal Court noted in passing that the High Court had granted a stay of the Industrial Court Monetary Award:

“The appellant questioned his dismissal in the Industrial Court and in Award No 179 of 1993, dated 16 June 1993, that court ruled in his favour and held his dismissal to be without just cause or excuse. The appellant was awarded compensation in lieu of reinstatement, back wages and payments in respect of leave due and not taken, to be paid to him within one month of the date of the award. A stay on the award was granted pending further proceedings in the High Court.”[3] (emphasis mine)

In Sungei Wang Plaza Sdn Bhd & Anor v Ngeow Voon Yean & Anor [1997] MLJU 261, Abdul Kadir Sulaiman J (as His Lordship then was) noted in his judgement:

“On 16th June 1993 the Industrial Court handed down the impugned award holding that the dismissal of the first Respondent was without just cause or excuse and awarded him with compensation in lieu of reinstatement, back wages and payments in respect of leave due and not taken, to be paid to him within one month of the date of the award. Aggrieved with the terms of the award, the Applicant filed this application and obtained a stay of the order of the Industrial Court until the determination of the application.”[4] (emphasis mine)

The purpose of the stay is to disallow the Claimant/Union, amongst others, from pursuing non-compliance proceedings against the Applicant/Company pursuant to Section 56 of the Industrial Relations Act 1967.

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Commentary on Sundra Rajoo’s Judicial Review Application

On 31st December 2019, former director of the Asian International Arbitration Centre (AIAC), Datuk Prof Dr N. Sundra Rajoo (“Sundra Rajoo”) succeeded in his judicial review application against the decision of the Attorney General’s Chambers (“AGC”) to charge him with three counts of criminal breach of trust[1]  involving over RM1 million belonging to AIAC.[2]

The effect of this decision, until and unless a stay of the High Court’s decision is obtained, is that inter alia the criminal breach of trust case against Sundra Rajoo in the Sessions Court has to come to an end.

Leave to proceed with the judicial review application was initially refused by the High Court on the basis that “the decision of the Attorney General in exercising his discretion to prefer charges against the appellant is not amenable to judicial review.”[3]

On appeal, the Court of Appeal was “of the view that the issues raised by the appellant might on further consideration turn out to be an arguable case in favour of granting the reliefs sought for by the appellant.”[4]

The case was then sent back to the High Court and heard on its merits. It was reported that Yang Arif Dato’ Seri Mariana Yahya held that the Attorney-General (“AG”)’s discretionary power under Article 145 (3) of the Federal Constitution to institute, conduct or discontinue any proceedings for a criminal offence is subject to  judicial review.

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