KUCHING - PKR Member of Parliament for Subang in Selangor and the party’s vice-president Sivarasa K Rasiah was granted leave on Thursday to apply for a judicial review of the Sarawak government’s decision to bar him from entering Sarawak on Feb 14 this year.

The opposition politician had applied for leave to apply for the judicial review of the decision, citing the state Director of Immigration, the State Secretary and Sarawak government as respondents.

The application to apply for leave was heard in open court before Judge Linton Albert.

Appearing for Sivarasa were Baru Bian and See Chow How of Baru Bian & Advocates, a Kuching-based legal firm, and for the respondents senior federal counsel Azizah Narawi.

The PKR legislator was refused entry on Feb 14 this year when he flew in and was told by immigration officers that for some undisclosed reasons he had been placed on the black list and refused entry into Sarawak on the instructions of the State Secretary.

An arguable case, says judge

He was handed a formal notice which stated as follows:

“To: Sivarasa a/l K Rasiah

This serves to notify you that you are refused entry into Sarawak as:

You do not belong to the state of Sarawak and are not entitled to enter the state without a permit or a pass by virtue of section 66(1) of the Immigration Act 1959/1963.

For Director of Immigration, Sarawak”

Sivarasa is now applying for an order of certiorari (and other consequential reliefs) to quash the Sarawak government’s decision barring him from entering.

Judge Linton said there was clearly an arguable case in the following aspects of Sivarasa’s application.

Firstly, the ouster clause in Section 59(1) of the Immigration Act refers to a decision made by the state authority and it is unclear whether the Director of Immigration or the State Secretary or both constitute the state authority which would then justify the invocation of the ouster clause.

‘It is by no means frivolous’

Secondly, and more importantly, the judge said, it is unclear what constitutes the burden of proof required under Section 67 of the same Act.

“Surely no self-respecting Member of Parliament would take along with him on his arrival at Kuching International Airport documentary evidence of not only that he is a Member of Parliament but also the legitimate political activities envisaged during his visit to Sarawak.”

Such a requirement, he added, would, in his view, offend common sense and gives an absurd meaning to the relevant statutory provision.

The judge said he does not think it is either necessary or appropriate to embark on a judicial determination of the merits of the respective arguments advanced by the respective parties.

“Suffice at this stage, and in the circumstances I have set out, that the application for leave is by no means frivolous and that there is clearly an arguable case which ought to be heard on a full inter parte basis,” Linton said.