Maria Chin's 2016 travel ban unlawful, rules Federal Court


PUTRAJAYA: The Federal Court has ruled that a travel ban imposed on former Bersih 2.0 chairman Maria Chin Abdullah in 2016 by the Immigration Department on claims that she had disparaged the government was unlawful.

In a unanimous decision by a seven-man bench chaired by Chief Justice Tengku Maimun Tuan Mat, the court said there was no law in place to allow the respondents (Immigration director-general and Home Minister) to impose the travel ban on the appellant (Maria).

"There is no positive provision of law, setting out clearly and unequivocally that the respondents have the right to impose the travel ban on the appellant," she said here Friday (Jan 8).

This was the ruling on one of the three questions raised by Maria in her appeal.

Other judges on the bench were Court of Appeal president Justice Rohana Yusuf, Federal Court judges Justices P. Nallini, Abdul Rahman Sebli, Hasnah Mohammed Hashim, Mary Lim Thiam Suan and Harmindar Singh Dhaliwal.

On May 15,2016, Maria was barred from travelling to South Korea to receive an award for Bersih 2.0 but the travel ban was lifted two days later.

She then filed a judicial review to challenge the Immigration D-G’s decision to bar her from travelling.

She lost her case in the High Court and Court of Appeal but on Feb 19, last year, the Federal Court granted Maria leave to appeal.

On the Immigration's reliance on an internal circular to impose the ban on Maria, the Chief Justice said the ban could not be valid if all the respondents had was the circular, which had no such authority.

"I have perused the circular and I cannot find anything in the document suggesting, even remotely, that the respondents have the power to ‘blacklist’ a person holding a valid passport apart from the specific factual situation in which they lose their passport," she added.

Tengku Maimun added that the right to travel abroad was a fundamental right guaranteed to all persons under Article 5(1) of the Federal Constitution and it was "obvious" that the appellant's right had been breached in this incident.

Based on the reasons mentioned, Tengku Maimun said Maria's appeal (on the first question) was allowed and the orders of the lower courts were set aside.

On the second and third legal questions relating to the constitutionality of Section 59 and Section 59A of the Immigration Act, a majority of 4-3 decision favoured the respondents and ruled that the sections were valid and constitutional.

Section 59 touched on the exclusion of right to be heard, whereby a person is excluded from being given the opportunity to be heard before the Home Minister and Immigration D-G before an order is made.

Meanwhile, Section 59A is on the exclusion of judicial review in any court on any order or decision made by the Minister or D-G.

Justices Rohana, Abdul Rahman, Hasnah and Lim ruled in the majority while the minority - Tengku Maimun, Nallini and Harmindar - were of the opinion that the laws ought to be struck down.

Maria was represented by lawyers Dr Gurdial Singh Nijar, Lim Wei Jiet, Abraham Au Tian Hui and Joshua Andran.

The respondents were represented by Senior Federal Counsel Shamsul Bolhassan, Liew Horng Bin and Mohd Sabri Othman.

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