Nigerian Simon Momoh gets nod to continue lawsuit to challenge Immigration Dept’s deportation order

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

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KUALA LUMPUR, May 6 — The High Court in Shah Alam today allowed Nigerian man Simon Adavize Momoh to proceed with his lawsuit to challenge the Immigration Department’s cancellation of his spouse visa and to challenge its order to deport him.

Simon’s lawyer V. Vemal Arasan confirmed that High Court judge Datuk Wan Ahmad Farid Wan Salleh had granted leave for Simon’s lawsuit to be heard.

“Leave for judicial review was granted today. There were no objections by the respondents.

“Immigration also gave a letter stating that Simon’s pass will be extended until the hearing of this case is over,” he told Malay Mail today, referring to a special pass that allows Simon to legally remain in Malaysia until the court decides on this lawsuit.

On April 20, Simon had filed the lawsuit via a judicial review application against the Immigration Department director-general and the home minister, seeking for six specific court orders to ensure that he can stay on in Malaysia with his Malaysian wife and their two young Malaysian children.

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 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 order 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.

According to Vemal Arasan, lawyer James Joshua Paulraj also appeared for Simon today in the court proceedings, while senior federal counsel Ahmad Hanir Hambaly and federal counsel Liyana Muhammad Fuad from the Attorney General’s Chambers appeared for the Immigration director-general and home minister.

For lawsuits filed via judicial review application, the High Court must first grant leave for the judicial review to be heard, before the judicial review application can proceed to be heard by the court on its merits and on substantive issues.

With the High Court granting leave for the judicial review today, the first hurdle has been cleared and Simon can now have the lawsuit heard by the High Court.

Vemal Arasan said Simon’s lawyers will now have to formally notify the respondents in this case of the lawsuit, before a case management date is fixed.

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

The Malaysian authorities had detained Simon for 40 days since March 15, only releasing him on April 23 which was also the 40th day of detention after the High Court in Shah Alam ordered for his release.

Prior to Simon’s 40-day detention from March 15 to April 23, he had a spouse visa that was valid until October 2022.

But after considering Simon to be a “prohibited immigrant” over his one-day jail sentence for a drink-driving offence and a person liable to be deported, the Immigration authorities on April 9 cancelled his spouse visa and issued a deportation order dated April 12.

Despite the cancellation of his spouse visa, Simon may for now continue to be in Malaysia legally, as the Immigration authorities had issued him a special pass on April 23 and had today provided a letter to extend the validity of the special pass until his lawsuit against the spouse visa cancellation and deportation order is over.

Simon has been married to Malaysian woman Low Kar Hui for the past eight years.

Before his detention, Simon was a primary caregiver as a stay-at-home father for their two daughters aged eight and five, as his spouse visa had only allowed him to remain in Malaysia but not to work.

Read here for the chronology of events that saw Simon being kept under detention for more than a month away from his young Selangor family since March 15, despite him having served his symbolic one-day jail term and paid a RM12,000 fine for a drink-driving offence.

Read here for more on the lawsuit that Simon filed, including the six specific court orders that he is seeking in order to ensure that he can stay on in Malaysia with his family.

Read here for the High Court in Shah Alam’s April 23 decision to order for Simon to be freed from his detention, which it had found to be unlawful and unconstitutional. Simon’s wife had expressed relief and gratitude over the decision, and he was released the same night from the Semenyih immigration detention centre to finally reunite with his family.

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