SITI AZRENA BINTI ZULKEPLI 1. ) PENGERUSI LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1), JABATAN IMIGRESEN MALAYSIA, PUTRAJAYA 2. ) LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1), JABATAN IMIGRESEN MALAYSIA, PUTRAJAYA 3. ) LEMBAGA RAYUAN TATAT

JA-25-43-10/2021 Kand. 25 JA-25-43-10/2021 19/09/2022 09:25:42 _____________________________________________________________________________________________ DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA RAYUAN SIVIL : JA-25-43-10/2021 Dalam perkara permohonan oleh SITI AZRENA BINTI ZULKEPLI (NO. KP. 790212- 05-5240) untuk mendapatkan satu Perintah Deklarasi dan/atau Certiorari dan/atau Mandamus DAN Dalam perkara keputusan yang dibuat oleh Lembaga Tatatertib Kumpulan Sokongan (No. 1), Jabatan Imigresen Malaysia pada 13 Januari 2020 dan keputusan yang dibuat oleh Lembaga Rayuan Tatatertib Perkhidmatan Awam, Suruhanjaya Perkhidmatan Awam Malaysia pada 11 Januari 2021. DAN Dalam perkara Perintah-Perintah Am Bab D; Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) 1993 dan Peraturan- Peraturan Pegawai Awam (Kelakuan & Tatatertib) (Pindaan) 2002 dan Peraturan- Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993 DAN Dalam Perkara 5, 8 dan 135 Perlembagaan Persekutuan DAN Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 1 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ ANTARA SITI AZRENA BINTI ZULKEPLI ...PEMOHON DAN 1. PENGERUSI LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1), JABATAN IMIGRESEN MALAYSIA, PUTRAJAYA 2. LEMBAGA TATATERTIB KUMPULAN SOKONGAN (NO. 1), JABATAN IMIGRESEN MALAYSIA, PUTRAJAYA 3. LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM, SURUHANJAYA PERKHIDMATAN AWAM, MALAYSIA 4. KERAJAAN MALAYSIA ...RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT [Enclosure 1] Brief background [1] As a brief background, the Applicant was an Assistant Superintendent of Immigration (acting Grade KP 38) at the Immigration Department, Malaysia. 2 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ [2] On 19.1.2021, the Secretary to the Public Services Commission, Malaysia sent a letter to the Applicant informing her that the 3rd Respondent in its meeting on 11.1.2021 had considered and dismissed the Applicant’s appeal and decided to confirm the 2nd Respondent’s decision in imposing the punishment of dismissal against the Applicant. However, the Applicant claimed that she only received the letter on 20.3.2021. [3] On 20.10.2021, the Applicant filed an application under O. 53 of the Rules of Court 2012 (“ROC”) to extend the time for filing of her application for leave for judicial review as to annul the decisions made by the 2nd and 3rd Respondents. [4] The Applicant stated the following reasons as to support her application for an extension of time for filing of the application for leave for judicial review: (a) the Applicant was in a state of shock and trauma as her appeal against the 2nd and 3rd Respondents’ decisions failed and she was dismissed from the public service; (b) the Applicant was suffering a financial problem following the Covid-19 pandemic; (c) the Applicant had delivered a baby on 3.7.2019 by caesarean section and the baby had been under the supervision of specialist for two years; 3 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ (d) the Applicant had to send her father for dialysis treatments three times a week; (e) the Movement Control Order (“MCO”) imposed by the government had restricted the Applicant from getting legal advices; (f) the Applicant was not aware of the provision of O. 53 r. 6(3) of the ROC; and (g) the public stigma on the Applicant as she was dismissed from the public service. [5] Nevertheless, this application was strenuously objected by the Attorney-General Chambers as it was made out of time. Law on the extension of time [6] Order 3 r. 5(1) of the ROC 2012 gives a discretionary power to the Court as far as extension of time is concerned and it states explicitly that – Extension of time (O. 3, r. 5) 5. (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act in any proceedings. [7] It is trite that this discretionary power should not be exercised with whim and fancy. The Federal Court in National Union of Bank Employees v. 4 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ Director General of Trade Unions & Anor [2013] 7 CLJ 957; [2013] 6 MLJ 167 laid the key principles on O. 3 r. 5 as follows: "[27] The grant of extension of time by the court is one of discretion by virtue of O. 3 r. 5 of the RHC. The principle to be applied by the court is settled. In Saeed U Khan v. Lee Kok Hooi [2001] 5 MLJ 416, it was held that, the court should consider certain factors, when exercising its discretion to extend time, namely: (1) the delay in making an application; (2) whether or not there are cogent reasons for the litigant not to have made the application within the prescribed time; and, (3) the likelihood and degree of prejudice, as well as injustice to the opposite party should the court exercise its discretion. In the present appeal, the application for extension of time was made before the hearing of the judicial review application and the respondents were not prejudice by this application as they had been duly served with all the cause papers prior to the application itself. In exercising its discretion, the court must have regard to justice. This is in line with the provision in O. 1A of the RHC (see Maxwell v. Keun [1928] 1 KB 645; Walker v. Walker[1967] 1 WLR 327)". [8] In Tong Kim Soo v. Tirai Prospektif Sdn Bhd [2020] 3 CLJ 353, Kamaludin Said JCA held that – “[14] Be that as it may, it is always trite that the granting of extension of time was discretionary to be exercised by the judge in each particular case. The factors to be considered were: (i) the length of the delay; (ii) the reasons for the delay; (iii) the chances of the appeal succeeding; and 5 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ (iv) the degree of prejudice to the would-be respondent if the application was granted.”. Analysis of this Court [9] In our present case, the Applicant admitted that she received the decision of the 3rd Respondent relating to the dismissal on 20.3.2021. However, the application for the extension of time was only filed by the Applicant seven months later i.e on 20.10.2021. [10] O. 53 r. 3(6) of the ROC requires that an application for leave for judicial review must be made within three months after the decision communicated to the applicant. The said subrule reads – (6) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant. [11] On the reasons given by the Appellant as alluded to before, I find that they are not cogent enough to be the grounds for the Appellant in delaying the filing of the application. There was no evidence forwarded by the Applicant as to prove that the Applicant was suffering a trauma due to the dismissal that led her unable to file the application in time. This reason did not convince me at all as the decision on the dismissal was not something new to the Appellant. In fact, the Appellant knew about her dismissal since December 2018. The Applicant admitted that she received the 1st Respondent’s letter dated 20.12.2018 informing the Appellant that the 2nd Respondent found that the Appellant was guilty of the disciplinary charges 6 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ and dismissed her from the public service with effect from 15.12.2018. It is unacceptable for the Appellant took seven months after receiving the decision on 20.3.2021 to take actions pertaining to her own career and fate. If the Applicant was really worried and care about her future, she must have filed this application immediately after the decision communicated to her. [12] On the issue relating to the MCO which was enforced all over the country from 18.3.2020 until 31.3.2020, I find that there was no hindrance for the Appellant to consult any legal firm the moment she received the 3rd Respondent’s decision on 20.3.2021. Furthermore, there was no restriction under the law for the Applicant to get online services from any legal practitioner during the MCO. In fact, the trial by way of online was first introduced on 26.3.2020. [13] Likewise the issue of the merit of the Appellant’s application for judicial review, it is trite that the merit is not relevant at this stage. The Federal Court in Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193, held that – "[6] The time frame in applying for judicial review prescribed by the Rules is fundamental. It goes to jurisdiction and once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, the court no longer has the jurisdiction to hear the application for leave for judicial review. Whether the application has merits or not is irrelevant." Conclusion [14] In Menteri Besar Negeri Pahang Darul Makmur v. Seruan Gemilang Makmur Sdn Bhd [2010] 5 CLJ 123, the Court of Appeal held that the 7 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ requirement to file a judicial review application within the time prescribed by O. 53 goes to the jurisdiction of the Court. Zaleha Zahari JCA (as she then was) when delivering the judgment of the Court said – [16] The High Court in its judgment was of the view that the 40 days specified under O. 53 r. 3(6) was not rigid. I am of the view the judge erred in ruling that the time frame prescribed by the rules is not rigid. I am in agreement with the appellant's counsel that compliance with the time frame prescribed by the rules is fundamental as it goes to jurisdiction (See Mersing Omnibus Co. Sdn Bhd v. The Minister of Labour & Manpower & Anor [1983] 2 CLJ 7; [1983] CLJ (Rep) 266). [15] In Ahmad Jefri bin Mohd Jahri @ MDHS Johari v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865; [2010] 3 MLJ 145, James Foong FCJ when delivering the judgment of the Federal Court held that: [16] One may ask what is the purpose of these conditions? The basic objective is to protect those entrusted with the enforcement of public duties "against groundless, unmeritorious or tardy harassment that were accorded to statutory tribunals or decision making public authorities by O. 53, and which might have resulted in the summary, and would in any event have resulted in the speedy disposition of the application, is among the matters fit to be taken into consideration by the judge in deciding whether to exercise his discretion by refusing to grant a declaration..." - O'Reilly v. Mackman [1982] 3 All ER 1124 @ 1133. Further, it is aimed to reduce delay in resolving such application in the interest of good administration. As Lord Diplock in O'Reilly v. Mackman (supra) reiterated, "The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any 8 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ longer period than is absolutely necessary in fairness to the person affected by the decision." [16] In Ratnam v Cumarasamy and Another [1964] 2 AER 933 where Lord Guest when delivering the judgment of the Privy Council held that the Rules of Court must prima facie be obeyed and if the extension of time was given without a cogent and reasonable ground it would defeat the purpose of the rules. [17] As a conclusion, it is clear to me that the Applicant failed in establishing to the Court that the existence of any merit to make out this application deserving of the grant of extension to file the application for leave for judicial review. Thus, I allow the Attorney-General Chambers’ objection and dismiss the Applicant’s application in Enclosure 1 with no order as to costs. Dated: 16.9.2022 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judicial Commissioner, Johor Bahru High Court Counsels: For the Appellant – Ebrina binti Zubir; Messrs Maniam Nair & Co For the Attorney-General Chambers – Syazana binti Abd Lajis (Senior Federal Counsel) 9 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal JA-25-43-10/2021 _____________________________________________________________________________________________ Cases referred to: - Ahmad Jefri bin Mohd Jahri @ MDHS Johari v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865; [2010] 3 MLJ 145 - Menteri Besar Negeri Pahang Darul Makmur v. Seruan Gemilang Makmur Sdn Bhd [2010] 5 CLJ 123, - National Union of Bank Employees v. Director General of Trade Unions & Anor [2013] 7 CLJ 957; [2013] 6 MLJ 167 - Ratnam v Cumarasamy and Another [1964] 2 AER 933 - Tong Kim Soo v. Tirai Prospektif Sdn Bhd [2020] 3 CLJ 353 - Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193 Legislations referred to: - Rules of Court – O. 3 r. 5(1), O. 53 r. 3(6) 10 S/N PWSMiQHQ6UgeBMb16DbTw **Note : Serial number will be used to verify the originality of this document via eFILING portal