When a foreigner remains in Malaysia beyond the time, limit or duration of his/her Pass without authorisation, this results in overstaying. There are several types of Passes in Malaysia that can be issued to the foreign nationals subject to their eligibility, inter alia, the Social Visit Pass, Employment Pass, Long Term Social Visit Pass, Professional Visit Pass, etc. Regardless of the type of pass issued, there is a prescribed duration/period of stay for the said Pass which the Pass holders must adhere to and should not remain in Malaysia upon its expiry.
Social Visit Pass
A foreign national may enter Malaysia by way of a Social Visit Pass and is permitted to stay in Malaysia for a prescribed period. The activities that are legally permissible to be undertaken under the Social Visit Pass are strictly limited to the following[1] :
• Social visit;
• Visiting relatives;
• Tourism;
• Journalism/Reporting;
• Meeting/Conference;
• Business Discussion;
• Factory Inspection;
• Auditing Company Accounts;
• Signing Agreement;
• Carrying out a survey on investment opportunities/setting up factory;
• Attending Seminars;
• Students on goodwill missions or taking examinations at a university;
• Taking part in sports competitions;
• Other activities approved by the Director General of Immigration.
The duration of stay is entirely discretionary and is decided by the immigration officers at the point of entry into the country. The factors considered in granting the duration of stay, include, inter alia, the nationality of the individual, the purpose of visit, the frequency of visit and the travel history. The extension of a Social Visit Pass is generally only given in extraordinary circumstances such as illness, accident, or war in the home country.
A Social Visitor must adhere strictly to the duration of stay reflected on the entry stamp to ensure that he does not exceed the stipulated period granted. It is pertinent to note that section 15(1)(c) of the Immigration Act 1959/63 strictly prohibits a person from remaining in Malaysia after the expiration of the period of any Pass relating to or issued to him, and overstay is an offence under section 15(4) of the Immigration Act 1959/63[2] . For those who have overstayed, there is a risk of being prohibited from entering the country for a prescribed period of one to five years dependent on the length of the overstaying.
Under the Immigration Act 1959/63, the immigration officers are conferred with wide powers similar to that exercised by police officers, including the power to arrest, detain or remove a person if he has reason to believe that there is any offence against the Act. Generally, the Court is reluctant to interfere with their decisions.
The Court’s reticence approach in adjudicating overstaying matters is well reflected in the case of Re Meenal W/O Muniyandi[3] , where, a female Indian national was married to a Malaysian citizen and lived with him in Malaysia. She was given the status of a permanent resident and issued with a red identity card in 1960. However, in 1970, she surrendered her red identity card and returned to India. In 1979, she returned to Malaysia and was issued with a social visit pass. On expiry of the pass, the immigration authority issued her a special pass to enable her to make the necessary arrangements to leave Malaysia in September 1979. However, she continued to remain in Malaysia and was arrested in October 1979 for overstaying beyond the duration of her pass. She then applied for habeas corpus to secure her release.
One of the questions that arose was whether she was lawfully detained. The Court held that the Order of Removal under section 33(1) of the Immigration Act 1959/63 and Order of Detention issued against her were not illegal. The detention was therefore lawful. In this regard, the Court stated as follows:
“It is trite observation to say that the function of the court is merely to interpret and enforce the law however sad or unfortunate the consequences may be to an individual. The plea of the applicant in this case should therefore be addressed not to the court but to the appropriate authority.”
The same view was echoed by the Federal Court in Andrew s/o Thamboosamy v Superintendent of Pudu Prisons, Kuala Lumpur[4] . The Federal Court in its judgment dealt with the approach to be adopted in dealing with immigrants as follows:
“ … the duty of the court is quite clear; the court should simply apply the law, no matter how harsh its effect may be on the immigrant. His remedy is then not judicial, but political and administrative.”
As such, any Pass holder must always ensure compliance with the direction or order given by the immigration officers as it is very unlikely that an overstayer can seek for recourse in the courts given the immigration related problem is a matter of public policy which will be strictly regulated and enforced by the immigration authority.
Employment Pass
Similarly, an Employment Pass holder is prohibited to remain and/or continue to work in Malaysia after the expiry of his/her Pass. In the event the employer permits an individual whose Employment Pass has lapsed to remain in his employ without any form of extension, this could potentially amount to a breach of section 55B (1) of the Immigration Act 1959/63 and employing a person without a valid Pass is an offence under the same section[5] . As such, an employer should always exercise due diligence to ensure that the Employment Pass of its foreign employee is valid at all times. A renewal can be effected as early as three months before the expiry of the Pass should the employer intend to continue the engagement.
Notwithstanding the above, the presence of any overstayer in a company’s premises albeit being supplied by third parties or contractors of a company engaged to render any form of services would also impose a corresponding obligation on a company to ensure that all such individuals have the requisite authorisation to remain.
This is provided for under section 55E(1) of the Immigration Act 1959/63, which stipulates that no occupier shall permit any illegal immigrant to enter or remain at any premises. Under the Act, an occupier refers to any person having the charge, management or control of the premises.
As such, the presumption under the law is that a company is correspondingly responsible for the foreign workers supplied by the third parties to ensure the legitimacy and validity of their work permits. The case of Pendakwa Raya v Wong Haur Wei[6] further buttresses this point, where the accused contended that he was not familiar with the rule and procedure in the employment of foreign workers, as they were handled by the agents. It was however held that his ignorance of the laws and procedures was not a mistake of fact but a mistake of law which rendered him guilty of the offence.
Hence, as the occupier of the premises, or as an employer, a company is shouldered with the duty to ensure that all foreign workers located at its premises possess valid work permits and/authorisations at all material times.
Conclusion
The liability and responsibility is ongoing and hence, as an employer, the responsibility continues to subsist as long as such individuals remain either in the employer’s employ or are found at s vompany’s premises. Similarly, the obligation is also vested in an individual to ensure that he or she does not remain in the country beyond the period granted. To do so would amount to a strict liability offence. As such, vigilance is key on dual fronts upon the individual as well as the employer.
For further information, please contact:
Suganthi Singam, Shearn Delamore & Co.
suganthi@shearndelamore.com
1. https://www.imi.gov.my/index.php/en/main-services/pass/visitor-pass/social-visit-pass/short-termsocial-visit-pass/.
2. Any person who unlawfully remains in Malaysia will be subject to a fine of not less than RM10,000 or to imprisonment for a term not exceeding 5 years or to both upon conviction.
3. [1980] 2 MLJ 299.
4. [1976] 2 MLJ 156.
5. Any person who employs a person who is not in possession of a valid pass will be subject to a maximum fine of RM50,000 or to imprisonment of up to 12 months or to both upon conviction.
6. [2008] 7 CLJ 200.
