KUALA LUMPUR, June 2 — Nigerian Simon Adavize Momoh can continue to stay on in Malaysia with his Malaysian wife and their two young children now that the High Court in Shah Alam has quashed both the Immigration Department’s cancellation of his spouse visa and his deportation order.
Judge Shahnaz Sulaiman ruled in favour of Simon this morning.
"Now for the reasons aforesaid, this court is satisfied there are merits to this application, therefore this court allows this application for order of certiorari on the respondents to revoke the applicant’s social visit pass and to issue the deportation order," she said.
The two main issues that the judge decided on was that the legal requirements for Simon to be brought to the court within 14 days of his detention had been breached, and that Simon could not be deported from Malaysia as he still had a valid spouse visa and as he did not commit an immigration offence that would enable him to be deported.
Simon was arrested on March 15, 2021 on a drink driving offence under Section 45A(1) of the Road Transport Act 1986, and pleaded guilty before paying a RM12,000 fine and serving a symbolic one-day jail sentence.
But the authorities continued to hold him for 39 days instead of releasing him after the one-day jail term, first bringing him to the Kajang prison on March 15 for a Covid-19 test before transferring him to the Immigration Department’s detention centre on April 7.
While Simon was still under weeks of detention without access to lawyers, the Immigration Department on April 9 decided to revoke his social visit pass — which was still valid until October 2022 — and on April 12 issued a notice about his pass cancellation and its order to detain and deport him from Malaysia.
Simon was eventually released on April 23, 2021 after the High Court in Shah Alam ruled that his detention was unlawful and unconstitutional, enabling him to reunite with his wife and children after 40 days apart.
The High Court judge today noted that the law required a person to be brought to a magistrate within 14 days of detention, but noted that the Immigration Department’s order was only made on April 9 and that it was only told to Simon on April 12, with the judge saying: “Hence there was 28 days before the applicant was informed. During the whole period of detention, the applicant was not brought to court.”
The judge was referring to Article 5(4) of the Federal Constitution, which 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.
The judge also referred to Section 51(5) of the Immigration Act, which 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, for an order of detention to be obtained.
As for the second issue, the judge considered the Immigration Department’s detention of Simon and the issue of whether it was procedurally wrong, while also noting the reference made by Simon’s lawyers to Section 35 of the Immigration Act.
Under Section 35, any person reasonably believed to be a person liable to removal from Malaysia under the Immigration Act may be arrested without warrant by any immigration officer generally or specially authorised by the Immigration director-general or by a senior police officer, and may be detained in any prison, police station or immigration deport for a maximum 30 days while waiting for a detention on whether to order for his removal from Malaysia.
“This court is of the view that the applicant is not a person liable to removal. This is because during the arrest of the applicant under the Road Transport Act, the applicant held a valid spouse visa, hence in the view of this court, the applicant does not fall under person liable for deportation,” the judge said, having considered a High Court judgment in 2008 in the case of Sajad Hussain Wani v Ketua Pengarah Imigresen Malaysia & Satu Lagi where it was also ruled that a non-citizen who still had a valid pass is not a person liable to be removed from Malaysia.
As for the issue of procedural impropriety and illegality, the judge noted that the Immigration director-general had decided to revoke Simon’s social visit pass and deport him for an offence committed under the Road Transport Act, but pointed out that he could only be deported if he had committed an offence under the Immigration Act.
“The question for this court is what constitutes an offence which makes a non-citizen liable to be removed from Malaysia,” the judge said, before referring to Section 56 of the Immigration Act and a Federal Court judgment in 2021 in Petaling Jaya MP Maria Chin Abdullah’s challenge against a travel ban by the Immigration authorities.
Section 56(2) states that any person who is not a citizen — who unlawfully entered or re-entered or attempted unlawfully to enter or re-enter Malaysia or unlawfully remaining in Malaysia — shall be liable to be removed from Malaysia by the Immigration director-general’s order, whether or not any proceedings are taken against him over the offence.
Having cited the Federal Court’s decision in Maria Chin’s case, the High Court judge today ruled that the “offence” mentioned would be limited only to offences provided under Section 56 of the Immigration Act, if the Immigration director-general is relying on Section 56 to remove a non-citizen from Malaysia.
“Hence this means the offences listed in Section 56(1) would be the offence meant in Section 56(2) of the Immigration Act,” the judge said.
Section 56(1) covers immigration offences such as having obtained any pass by making false statement, or using or having any forged pass or travel documents.
Previously, Simon’s lawyers had already highlighted that the Immigration director-general’s decision under Section 56(2) to remove him from Malaysia was not due to any offence committed under Section 56 or the entire Immigration Act, but was for an offence under the Road Transport Act which they argued was clearly outside the scope of Section 56(2).
The judge then concluded by giving the order sought by Simon to quash his visa cancellation and to quash the deportation order, giving no order as to costs.
Simon and his wife Low Kar Hui were present in the courtroom during the delivery of the decision.
In his judicial review filed on April 20, 2021 to challenge the cancellation of his visa and the deportation order, Simon had named the Immigration director-general and the home minister as the two respondents.
In the judicial review, Simon had sought several 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.
Simon also sought 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).
He 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 under the same circumstances.
Simon was represented by lawyers Datuk Gurdial Singh Nijar, V. Vemal Arasan, James Joshua Paulraj and Abraham Au.
Senior federal counsel Ahmad Hanir Hambaly and federal counsel Liyana Muhammad Fuad represented the Immigration director-general and the home minister, while lawyer Raveena Kaur Vessy held a watching brief for the Human Rights Commission of Malaysia (Suhakam).
Bina Ramanand was also present on behalf of Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) at the delivery of the decision today.
For more on Simon’s previous ordeal, read here on how his one-day jail sentence on March 15, 2021 became a detention of weeks, and what the court decided on April 23, 2021 when ordering his release, and his reunion with his young Malaysian family.