The court held that travel bans imposed on directors for unpaid taxes require a reasonable belief of intent to abscond, and ouster clauses do not preclude judicial review of executive actions.

Anand Ponnudurai J:

Introduction

[1] As the saying goes, the only things certain in life are taxes and death. Both individuals and companies are liable to pay various taxes including tax on income. In cases of companies where tax is payable, the directors may then also be liable to pay those taxes. These proceedings bring to fore the circumstances and extent of action that can be taken against directors of the companies when there are taxes due and owing.

[2] This case in essence relates to the action of the Respondents who had issued a travel ban on all four Applicants who were directors of a company that owed tax. The Applicants now seek the assistance and redress from the Court to review the said actions of the Respondents with a view of quashing the same and lifting such travel ban.

[3] I will hereinbelow set out the background facts, the parties' respective contentions and my analysis of the same in order to determine if the application herein is with merits.

Background Facts

[4] The background facts that can be gleaned from the affidavits filed herein are largely undisputed and can be summarised as follows.

[5] The Applicants are directors of a company known as Wellesley Spice Sdn Bhd (hereinafter referred to as "WSSB").

[6] The 1st Respondent is the Director General of the Royal Malaysian Customs Department ("R1"). The 2nd Respondent is the Director General of the Immigration Department of Malaysia ("R2").

[7] The following are the relevant facts/events in chronological order:

[8] The Applicants then filed this judicial review application on 4 June 2024 seeking the following reliefs:

a. A declaration that s 59A of the Immigration Act 1959/63 is inconsistent with art 4(1) of the Federal Constitution and consequently invalid, void, not binding and unenforceable;

b. An order that s 59A of the Immigration Act 1959/63 be forthwith struck down in its entirety for being unconstitutional;

c. An order of certiorari to quash the 1st Respondent's decision in the letter from the Royal Malaysian Customs Department dated 6 March 2024 [Ruj. KE.HD(155)348/02-P KLT14 (Sk 36/2024)] that issued a request to the 2nd Respondent to impose travel bans on the Applicants in order to prevent them from leaving and/or exiting Malaysia;

d. An order of mandamus that the 2nd Respondent do all that is required and take all necessary steps within seven (7) days from the date of service of this Order to remove any travel bans/ restrictions/prohibitions imposed upon the Applicants as a result of the 1st Respondent's decision in the letter from the Royal Malaysian Customs Department dated 6 March 2024 including but not limited to, removing the Applicants' names from all and any travel ban records/blacklists of the Immigration Department of Malaysia.

[9] In light of the Attorney General's Chambers having no objection, the Court had granted leave for the judicial review application on 14 August 2024.

[10] The Applicants have in their affidavit in support in encl 3 annexed various documents to demonstrate the following:

a. that the Applicants are Malaysian citizens who are permanently residing at/domiciled in Malaysia all these while;

b. that the Applicants are gainfully employed as directors of WSSB;

c. that the 1st, 3rd and 4th Applicants owned real properties that are situated within the jurisdiction of Malaysia;

d. that at all material times, WSSB's business is a profitable and an ongoing concern that has to be operated under the diligent supervision and stewardship of the Applicants;

e. that WSSB had been conducting its business for approximately thirty (30) years since 1993 and is well established in Malaysia with its main product being Rabbit Brand chilli sauce which is well known among the populace; and

f. that the 1st Applicant has children studying in Malaysia.

[11] R1 in their affidavit in reply in encl 13 have dedicated a large portion of it explaining how and why tax is payable by WSSB. With respect, with the Applicants contending herein that no tax is pay