SHAH ALAM, April 23 — Malaysian Low Kar Hui has expressed relief over the High Court’s order today for the Immigration Department to release her Nigerian husband Simon Adavize Momoh from his detention that has stretched to 39 days.

For the past 39 days or 40 days if today is included, Simon has been kept apart from his wife and their two young Malaysian children.

Today, the High Court in Shah Alam however ruled that the Immigration Department had unlawfully detained Simon and that his detention is in breach of the Federal Constitution and the Immigration Act, also ordering that he be released as soon as practicable.

 

When met immediately after the court decision, Low was relieved and grateful that her husband would be freed.

"I’m in big relief right now, knowing that he will be released soon. And thank you Prof, thank you Vemal and other NGOs that have been morally supporting me in every way.

"I’m really grateful and thankful that justice is served for my husband,” she told reporters when met at the Shah Alam court complex here.

When asked how the past 40 days have been for her and their two daughters aged eight and five, Low said: "It’s very difficult. It’s a very difficult period for us, but we stay strong for my husband. And both the children have been staying strong for their father.”

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.

Bina Ramanand, co-founder of the Foreign Spouses Support Group (FSSG), said it was a happy thing that the family can be reunited soon after 40 days apart, stressing the importance of ensuring the "best interests” of the children who had always been cared for by Simon as a stay-at-home father.

"Because the children have been separated from the father who was the primary carer for the children, I don’t think the children are going to forget this. It’s going to impact them for the rest of their lives.

"It’s been a very difficult time, we are glad Simon can come back and resume his duties as a father,” Bina, who was also present during the court proceedings as an observer and to provide moral support, told reporters here.

Under his spouse visa, Simon was allowed to remain in Malaysia but not allowed to work, which resulted in him being the caregiver for his two children while his wife became the sole income-earner. For the past 39 or 40 days, Low has also become the sole caregiver to the children as Simon is in detention. 

Why Simon was detained and why the court said it was wrong

The starting point for this case was the Immigration’s rearrest of Simon on March 15, after he had served his one-day jail sentence the same day for the drink-driving offence.

The Immigration Department’s justification for Simon’s arrest was Section 35 of the Immigration Act, where any person — who is reasonably believed to be a person liable to be removed from Malaysia — can be arrested without warrant and detained for a maximum 30 day while waiting for a decision on whether to make an order to remove him from Malaysia.

The Immigration Department said it had detained Simon since March 15 as he falls under the category of "prohibited immigrants” under the Immigration Act’s Section 8(3)(d), covering persons convicted of an offence in any country and sentenced to imprisonment for any term and who has not received a free pardon and who is deemed by the Immigration director-general to be an "undesirable immigrant”.

Under Section 8(2), a "prohibited immigrant” is not allowed to remain in Malaysia, unless an exemption has been granted under Section 55 of the same law. Under Section 55, the home minister may order for the Immigration Act’s provisions to not apply to any person or any class of persons.

On April 1, Simon’s lawyers via his wife filed a habeas corpus application in the Shah Alam court to challenge the alleged unlawful detention and to secure his release.

Simon’s spouse visa was valid until October 2022, until the Immigration authorities cancelled it on April 9 or the 26th day of detaining him with an intention to deport him to Nigeria. A deportation to Nigeria would mean that Simon would be further separated from his Malaysian wife and young children living in Selangor.

On April 14, it was made known to the wife that the Immigration authorities had on April 9 cancelled Simon’s spouse visa and had on April 12 issued a deportation order to have Simon removed from Malaysia.

Lawyer V. Vemal Arasan speaks to reporters at the Shah Alam High Court April 23, 2021. — Picture by Yusof Mat Isa

Simon’s lawyer V. Vemal Arasan today said the High Court judge had decided that Simon’s detention is unlawful and unconstitutional as the Immigration authorities did not follow the procedure required under the law.

Vemal Arasan said the judge found that the Immigration Department had failed to obtain a remand order within 14 days of his detention as required under both the Federal Constitution and the Immigration Act for non-citizens arrested under immigration laws.

Vemal Arasan said that Simon was never brought before a magistrate for court proceedings to get a remand order that would have enabled his detention beyond 14 days.

While acknowledging that the Immigration authorities have discretion when it comes to the decision to remove a non-citizen on a spouse visa, Vemal Arasan said that there is precedent in the courts that said the discretion should be exercised when it involves an immigration offence and a serious offence.

Lawyer Datuk Gurdial Singh Nijar (2nd left) speaks to reporters at the Shah Alam High Court April 23, 2021. — Picture by Yusof Mat Isa

Datuk Gurdial Singh Nijar, another lawyer representing Simon, said that the Immigration’s cancellation of the spouse visa was wrong and they had no right to cancel the pass. 

"Because they arrested him on one basis, the basis was that sentence to imprisonment for one day, and so then he’s liable to removal, they have to make a decision on that. But then they arrested him on that and then they cancelled his pass, and then they ordered for him to be removed. So the whole procedure, they got the entire procedure from beginning to end wrong.

On top of that, Gurdial said the Immigration authorities were also required to bring Simon before a magistrate to obtain a remand order within 14 days of his arrest and detention if they were not going to charge him.

"But they admitted today they actually never had that remand, that’s a constitutional protection that is given, which is also reflected in the Immigration Act, that also they did not comply, they were wrong on every count,” he said.

While the High Court has ordered for Simon to be released by the Immigration from his detention, Gurdial noted that Simon had on April 20 also filed a lawsuit via a judicial review application to quash the cancellation of his spouse visa and the deportation order.

As Simon’s lawyers have already served the judicial review papers on the Immigration, Gurdial said that even if the courts have yet to decide on that lawsuit on the visa cancellation and deportation order, anyone who acts to defeat the lawsuit by quickly removing Simon from the country would be in "contempt of court” as the High Court had decided today to release him.

Gurdial also stressed that the Immigration authorities will now have to release him as ordered by the High Court today, as they would already be aware of the decision and court order as they are represented by the Attorney General’s Chambers who were present in court.

"Because the judge already ruled his arrest right up to whatever order they made is wrong, so they cannot act contrary to the fact that they have acted illegally and therefore they cannot act on that order to deport,” Gurdial said.