AISHA SAJID v Pendakwa Raya

Case Significance

Illustrates how the courts reconcile immigration prosecution with refugee-protection principles: an applicant who entered lawfully and holds UNHCR recognition may be treated as a protected person entitled to temporary protection against prosecution under section 6(1)(c) of the Immigration Act 1959/63, consistently with Articles 5 and 8 of the Federal Constitution and non-refoulement.

This High Court decision concerns a constitutional and immigration challenge to the prosecution of a UNHCR-recognised asylum seeker, and the interaction between domestic immigration law and international refugee-protection principles. The applicant, a natural person and a Pakistani national referred to here by role, had entered Malaysia lawfully in December 2022 on a valid passport and an e-visa, together with her young children, and had applied to the United Nations High Commissioner for Refugees (UNHCR) for asylum. After her original passport expired and she obtained a new one, she was arrested and charged in the Magistrate's Court under section 6(1)(c) of the Immigration Act 1959/63 with not holding a valid pass.

The applicant brought her application invoking Articles 5 and 8 of the Federal Constitution and the international-law principles of refugee protection and non-refoulement under the 1951 Convention and 1967 Protocol. The court first dismissed the respondent's preliminary objection, holding that it had "inherent power" to hear an application that challenged the prosecution and, in substance, the exercise of the Public Prosecutor's power under Article 145(3) of the Federal Constitution to bring the charge. It observed that the applicant's lawful entry was recorded on the e-visa in her old passport, and that any check run against her new passport would naturally show no movement record — a point that undercut the assumption underlying the charge.

The court granted the application. It declared that the applicant, as a recognised and verified UNHCR asylum seeker, was a "protected person" under international humanitarian law entitled to temporary protection and immunity from prosecution or detention pending a final decision on her refugee status; it declared the prosecution under section 6(1)(c) inconsistent with Articles 5 and 8 of the Federal Constitution; and it granted a stay of the criminal proceedings, subject to the prosecution amending or withdrawing the charge.

The judgment is a significant illustration of how the courts reconcile immigration prosecution with refugee-protection principles: an applicant who entered lawfully and holds UNHCR recognition may be treated as a protected person entitled to temporary protection against prosecution under section 6(1)(c) of the Immigration Act, consistently with the constitutional guarantees in Articles 5 and 8 and the principle of non-refoulement.