(delivering the Judgment of the Court): The appellant, a citizen of the United States of America, was granted an employment pass on November 2, 1984 for a period of two years -- valid until November 2, 1986 -- for the purposes of his employment as a staff correspondent attached to the Kuala Lumpur office of the Asian Wall Street Journal. On September 26, 1986 he was served with a notice of cancellation forthwith of his employment pass by the first respondent under regulation 19 of the Immigration Regulations, 1963 (the Regulations) and simultaneously issued with a special pass under regulation 14(3) of the Regulations to remain in the country up to 3.00 p.m. on September 28, 1986 for the purpose of making arrangements to leave the country within forty eight hours of service, but the stipulated deadline was subsequently extended to midnight on October 1, 1986. The notice of cancellation of the employment pass recited that the first respondent was satisfied that the appellant had contravened or failed to comply with the Immigration Act, 1959-1963 and the Regulations, that he had failed to comply with the conditions imposed in respect of that pass or the instructions endorsed thereon, and his presence in the Federation was or would be prejudicial to the security of the country.

The appellant then immediately took steps to apply to the High Court for leave to apply for an order of certiorari to quash the cancellation of his employment pass and for an order of prohibition against his removal from the country. Harun Hashim J. after a hearing inter partes on October 1, 1986 refused to grant him leave solely on the ground that as one of the reasons for the cancellation of the employment pass involved the matter of national security it would be an exercise in futility to grant leave since, as he put it, in such a case a Court should not go behind the decision (of the executive). The appellant left the country that very day and an appeal was lodged on his behalf against the rejection of his application for leave.

At the outset of the hearing of the appeal before us we were of the view ex facie that leave should in fact have been granted in the court below as the point taken by the appellant was not frivolous to merit refusal of leave in limine and justified argument on a substantive motion for certiorari. We accordingly applied and followed the procedure adopted by the Federal Court in Mohamed Nordin bin Johan v Attorney General Malaysia [1983] 1 MLJ 68 (at page 70) and allowed the appeal, and granted leave to the appellant to apply for an order of certiorari. We then turned to a consideration of the substantive motion for certiorari on an undertaking by counsel for the appellant to formally file this in the registry.

We asked Mr. Selventhiranathan, Senior Federal Counsel appearing for the respondents, to address us in the first instance on one point only, scilicet, whether the appellant should have been afforded an opportunity to be heard before the cancellation of his employment pass. He was unable to give any effective answer to this question and merely referred to Regina v Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 WLR 766 to which we will presently advert, but there an opportunity had in fact been given for representations to be made, and when we pointed this out to him, he was unable to take the matter further and said he had noticing to add.

The Court of Appeal in England held in Schmidt and Another v Secretary of State for Home Affairs [1969] 2 Ch 149 that no duty existed to give an alien an opportunity of being heard before a decision was made refusing an application for an extension of permission to remain in the United Kingdom. Lord Denning M.R. emphasised that the alien had no right and no legitimate expectation of being allowed to stay. However, he also said that the alien had not been treated unfairly since he had had an opportunity of making representations. L