Nigerian Simon Momoh files court challenge against Immigration Dept’s deportation order, Malaysian wife appealing to home minister

Simon Momoh's wife, Low Kar Hui, shows a picture of her husband on her phone at the Shah Alam High Court April 21, 2021. — Picture by Miera Zulyana
Simon Momoh's wife, Low Kar Hui, shows a picture of her husband on her phone at the Shah Alam High Court April 21, 2021. — Picture by Miera Zulyana

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SHAH ALAM, April 21 — Nigerian man Simon Adavize Momoh yesterday filed a lawsuit to challenge the Immigration Department’s orders to deport him from Malaysia, a country where he has been living for the past eight years with his Malaysian wife and their two young children, his lawyers confirmed today.

At the same time, his wife Low Kar Hui had on Monday also written to the home minister to appeal for the reversal of the Immigration Department’s decision last week to cancel Simon’s spouse visa — which was still valid until October 2022 — and to also reverse the decision to deport him.

Simon’s lawyer V. Vemal Arasan said the lawsuit via a judicial review application was filed in the Shah Alam High Court yesterday, and that it was to challenge the decision of the Immigration director-general’s April 9 decision to cancel Simon’s pass and April 12 decision to deport him..

“The case management for that matter is on May 4. We filed a certificate of urgency but that was the latest date they gave us,” he told reporters when met at the Shah Alam court complex here.

Vemal Arasan said the judicial review was filed yesterday as he had only managed to get Simon to affirm his affidavit on Monday. Previously, the lawyer was not allowed to meet or have access to Simon due to various reasons given by the authorities such as Covid-19 concerns, and had only managed to meet Simon for the first time last Friday and for the second time this Monday.

Simon has been detained by Malaysian authorities for about 37 days now since March 15, even after he had paid a RM12,000 fine and served a symbolic one-day jail sentence for a drink-driving offence.

Simon is still detained at the Semenyih immigration detention centre.

Today was initially scheduled to be the Shah Alam High Court’s hearing of a habeas corpus application to challenge his alleged unlawful detention and to secure his release to enable him to be reunited with his young Selangor family.

But the hearing of the habeas corpus application has now been deferred to this Friday, as the government represented by the Attorney General’s Chambers said it requires time to reply to Simon’s affidavit on the habeas corpus matter. This affidavit was only affirmed by Simon on Monday when his lawyer was able to meet him.

Simon Momoh's lawyer Datuk Gurdial Singh Nijar is pictured at the Shah Alam Court on April 21, 2021. ― Picture by Miera Zulyana
Simon Momoh's lawyer Datuk Gurdial Singh Nijar is pictured at the Shah Alam Court on April 21, 2021. ― Picture by Miera Zulyana

Datuk Gurdial Singh Nijar, another lawyer representing Simon, explained that the judicial review application was necessary to ensure that he can remain in the country even if he is released from his prolonged detention.

“That judicial review is against the deportation, because they have made a decision to cancel his pass, and then pending that, to remove him, deport him.

“So even if he is released under the habeas corpus, they can say, ‘Oh, his pass is cancelled, so we have the right to remove him under that’.

“That’s why Vemal has filed the judicial review challenging that decision, stating that decision is wrong in law. So that’s also a very important second step that he has filed,” he explained to reporters when met.

What Simon is seeking in the judicial review

The judicial review filed by Simon — via law firm Tanes, Khoo & Paulraj — names the Immigration director-general and the home minister as the two respondents.

In the judicial review, Simon is seeking six specific court orders, including a certiorari order to quash the respondents’ decision to revoke his social visit pass and to issue the “perintah tahan usir” or order to detain and deport him, and for a stay on any actions to deport him until the judicial review is heard and decided on by the courts.

Simon is also seeking a declaration that the respondents’ action of detaining him for 30 days under Section 35 of the Immigration Act is invalid as it is inconsistent with the Federal Constitution’s Article 5(4) and Article 4(1) and Section 51(5) of the Immigration Act and the common law.

Article 4(1) states that the Federal Constitution is the supreme law of Malaysia and that any law which is inconsistent with the Federal Constitution is void, while Article 5(4) provides that a non-Malaysian who is arrested or detained under immigration laws is required to be produced before a magistrate “within 14 days” and shall not be further detained without the magistrate’s approval.

Section 51(5) also carries a similar provision where a non-citizen arrested or detained under the Immigration Act — and who has not been charged or released or removed from Malaysia — has to be presented within 14 days of his arrest or his detention to the magistrate, who may order for his detention for the required period.

Simon’s lawyers said however that he had not been brought before any magistrate throughout his detention stretching more than 30 days and that no such remand process had taken place.

Simon also wants the court to declare that Section 35 — which allows a non-Malaysian citizen to be detained by Malaysian authorities for 30 days while waiting for a decision on whether an order for his removal from Malaysia should be made — is “unconstitutional and invalid”.

Simon is also seeking a declaration that the respondents did not act appropriately or acted beyond their jurisdiction in deciding to revoke his social visit pass and to issue the detention order (Perintah Tahan Usir), and is also seeking a prohibitory order to prevent the respondents from making any subsequent decision to revoke his social visit pass and to issue the detention order (Perintah Tahan Usir) under the same circumstances.

Among the provisions cited by Simon in this lawsuit are Articles 4, 5, 7 and 8 of the Federal Constitution, which relate to the Federal Constitution as the supreme law of the country, and the fundamental liberties such as those covering liberty of person, and assurance that no person shall suffer greater punishment for an offence than the punishment prescribed by law, and equality before the law and equal protection of the law.

Lawyer V. Vemal Arasan speaks to reporters at the Shah Alam High Court April 21, 2021. — Picture by Miera Zulyana
Lawyer V. Vemal Arasan speaks to reporters at the Shah Alam High Court April 21, 2021. — Picture by Miera Zulyana

The wife’s appeal

The couple, who have been married for the past eight years, have two young Malaysian daughters aged eight and five. Simon was the stay-at-home father caring for the children as his spouse visa only allowed him to remain in Malaysia but not to work, with Low now having also to be the sole caregiver since Simon has been detained for over a month now.

The wife, Low, had previously appealed in writing on April 12 to the Immigration director-general for Simon to be released from detention, only to have her appeal rejected on April 14 with the Immigration also notifying of its April 9 decision to cancel his pass and April 12 decision to deport him.

This Monday, Low wrote to the home minister in a bid to appeal for the reversal of the visa cancellation and deportation order. There has been no reply yet to this appeal.

Vemal Arasan said the home minister has powers under Section 9(8) of the Immigration Act to reverse the decisions to cancel the visa and to issue the deportation order.

The lawyer said that Simon was unable to personally appeal to the home minister, as he was not informed by the authorities of his deportation or cancellation of his visa and as the authorities did not give him any documents related to those matters.

“Firstly, he didn’t even know he’s being deported. Number two, he didn’t get his documents, when we checked with him, there’s no documents in his possessions at all. However in their affidavit, they said they gave him a copy,” the lawyer said, referring to the documents related to the pass cancellation and the deportation order.

The lawyer said that Simon is an educated person and signs all his documents, but that Simon had claimed he was forced to put his thumbprint on documents with contents that were unknown to him.

The lawyer said the documents which Simon was allegedly forced to thumbprint were later revealed in an affidavit by the respondents to be documents acknowledging that he had been served with the pass cancellation and deportation order documents.

“All he knew was that he was forcefully asked to thumbprint certain documents unknown to him the contents, not explained to him what it was. It was only after that, it was informed to him that those documents are for his release, they used the word ‘bebas’, so all this while Simon was thinking he was going to be released,” he said.

It was only when Simon met his lawyer Vemal Arasan last Friday for the first time that he discovered that he would be deported, as he had allegedly been told while being detained that he would be released.

“Simon was shocked when he met me and I informed him that he is being deported,” the lawyer said.

The habeas corpus case

In the habeas corpus case, Simon had named the Malaysian Prisons Department, the Immigration Department of Malaysia and the Home Ministry as the three respondents.

Earlier today, deputy public prosecutor Siti Ruvinna Mohd Rawi told the court that the respondents needed time to respond to Simon’s affidavit as they had received it only yesterday afternoon.

Siti Ruvinna also told the High Court that Simon’s affidavit contained new issues that were not previously raised such as allegations that he was forced to put his thumbprint on documents, and that he was allegedly not given access to his lawyer, and that he was not told about the cancellation of his pass.

She said the respondents needed to reply to such matters and asked for time to be given for the AGC to file an affidavit in reply by this Friday, while also asking for the hearing of the habeas corpus bid to be deferred to next Wednesday.

Vemal Arasan said the new allegations were because he was only given access to Simon recently, while also acknowledging that the respondents had a right to answer.

High Court judge Datuk Ab Karim Ab Rahman however directed for the hearing to be this Friday afternoon.

In the same court proceedings, Vemal Arasan asked the High Court for an interim stay order to ensure that Simon would not be deported while the habeas corpus matter to secure his release is still ongoing in the courts, as there was “precedent” to justify the seeking of such a stay order.

The judge did not give an order on this, but gave an “advice” to the respondents as represented by the AGC for no action to be taken while the court case is still pending. Vemal Arasan then said it was good enough as long as the respondents undertake not to carry out any actions that would affect the status quo.

Lawyer Abraham Au also appeared today together with Vemal Arasan and Gurdial for Simon, while lawyer CR Selva held a watching brief for the Bar Council and the Foreign Spouses Support Group (FSSG), and lawyer Mahajoth Singh held a watching brief for the Human Rights Commission of Malaysia (Suhakam).

Civil society organisations present to observe the court proceedings today were FSSG with its co-founder Bina Ramanand attending, as well as Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) as represented by Melinda Anne Sharlini, and Amnesty International Malaysia as represented by Brian Yap.

Today is the 38th day that Simon has been held in detention since March 15.

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