KUALA LUMPUR, April 11 — Nigerian Simon Adavize Momoh will know on June 2 if he can continue to stay here with his Malaysian wife and two children or leave the country that has been his home for the past nine years.
The High Court in Shah Alam will be deciding on June 2 on whether to quash the Immigration Department’s previous order for Simon to leave Malaysia.
Judicial commissioner Shahnaz Sulaiman set the date after hearing arguments from the lawyers for both Simon and the Malaysian government this morning.
Simon actually had a valid spouse visa that would only expire in October 2022.
But the Immigration Department decided last year on April 9 to cancel his spousal social visit pass. It followed up three days later with a detention and deportation order against Simon.
These events happened even as Simon was already detained by immigration officials for weeks without access to his lawyers.
Background
Simon was first arrested on March 15, 2021 on a drink driving offence. For this, he paid a RM12,000 fine and served a symbolic one-day jail sentence. But instead of being released, he continued to be held for over a month.
Simon was successful in challenging this, with the High Court ruling on April 23 last year that his detention was unlawful and unconstitutional, enabling him to reunite with his wife and children after 40 days apart.
Simon is now challenging the Immigration director-general’s order to have him removed from Malaysia.
In the hearing today of the lawsuit 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 is seeking 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 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.
What the lawyers argued today
Simon’s lawyer Datuk Gurdial Singh Nijar argued that the Immigration Department’s decision to cancel his client’s spouse visa was illegal.
Among other things, Gurdial urged the High Court to consider the need to preserve the family unit of Simon, his Malaysian wife and their two young children, as the deportation order by the immigration authorities would result in the family being torn apart.
“We must take into account the family circumstances. What you want to do, want him to go to Nigeria? Then the two children are deprived of parental care of both parents. These are the kind of circumstances that have to be engaged before you declare a person prohibited and decide to throw him out,” he said.
Gurdial noted that Malaysia is a country that is party to or had agreed to be bound by the United Nations’ Convention on the Rights of the Child which places the child’s best interest as the paramount consideration, and that there is then a legitimate expectation for the government to take into account the paramount interest of the child.
Gurdial also argued that it was disproportionate for the Immigration authorities to exercise their discretion to categorise Simon as a prohibited immigrant that should be deported from the country, simply because of his drink driving offence.
“The law cannot accept that simply as a basis to restrict a person’s rights that he has already acquired by virtue of the spousal social visit pass. The point is, where is the consideration in respect of the family unit which you tear apart, should that not be a consideration?
“We are saying that the authorities, because they are part of the government and they have ratified the international treaty which says you take into account the paramount interest of the child, then you should at least have regard to that when you exercise your discretion,” he argued.
Senior federal counsel Ahmad Hanir Hambaly, who represented the Immigration director-general and home minister, argued that Simon’s previous unlawful detention under 40 days and which he had been released from was a separate matter from the visa cancellation and deportation order that was being challenged now.
“Yes, I concede they succeeded in their habeas corpus application, he has been released. That is the end of his detention issues. Right now, the main issue this court needs to decide is the cancellation of his social visit pass and Perintah Tahan Usir, the removal order,” he said.
He cited the ouster clause under Section 59A of the Immigration Act, which states that there shall be no judicial review of any action or decision by the home minister or Immigration director-general, except over issues of compliance with procedural requirements under the Immigration Act or related regulations.
He then argued that what Simon would need to show is whether the decision to revoke his social visit pass is procedurally improper or procedurally tainted, before going on to list legal provisions in the Immigration Act that grants the Immigration director-general the absolute discretion to cancel any pass given to foreigners.
Ahmad Hanir noted the immigration director-general had in an affidavit in this lawsuit explained that his decision to cancel Simon’s spouse visa was due to his conviction of the drink-driving offence which he considered to be a serious crime and that he was jailed and had not been pardoned, with the immigration director-general also concluding that this makes Simon an undesirable immigrant who should be removed from Malaysia. Ahmad Hanir argued that this was a reasonable and proportionate consideration for the decision to deport Simon.
Ahmad Hanir referred to the notice of the visa cancellation that was issued to Simon on April 9 last year, while noting that the notice stated that Simon may appeal to the home minister within seven days if dissatisfied with the visa cancellation and further said that there was no appeal made by Simon.
As for the removal order, Ahmad Hanir said that the Immigration director-general had said this order for Simon to be removed does not amount to him being blacklisted, noting: “Meaning to say, he can reapply for the social visit pass.”
In response to the point about the need to consider Simon’s Malaysian family, Ahmad Hanir also argued that the courts had in several cases ruled that international conventions shall not apply to Malaysia unless adopted by being made into local laws, while saying that both Malaysia’s Child Act and Immigration Act do not make reference to a child’s interests in relation to the cancellation of social visit passes.
Gurdial, however, responded by insisting that the government lawyers were merely rerunning the same arguments which another High Court judge had previously rejected either expressly or impliedly in the April 23 decision for Simon to be released from unlawful detention.
Gurdial pointed out that Simon’s judicial review application to challenge the deportation order was filed before the High Court’s April 23 decision.
He argued that this meant that Simon’s 40-day unlawful detention and his deportation order is “one overarching transaction” that must be considered from beginning to an end, and that they could not be taken in isolation or seen as two separate matters as Ahmad Hanir had argued.
Gurdial noted that the government did not appeal the April 23 decision which found the detention of Simon — which Gurdial said was part of irregularities leading to the visa cancellation and deportation order — to be unlawful and unconstitutional.
Gurdial also questioned how a detainee like Simon would be able to appeal to the home minister on the April 9, 2021 visa cancellation within seven days, when he was still being detained and still without access to lawyers.
As for the point made that Simon could reapply for a spouse visa as the visa cancellation does not mean he is being blacklisted, Gurdial said this was “ludicrous” as he questioned whether reapplication would lead to approval of a new spouse visa.
“Of course, if the director-general of Immigration undertakes to give him the pass when he reapplies, we can do that immediately and withdraw the application. But this is just to illustrate, we must afford the Federal Constitution and its safeguards some respect and honour,” he said, urging for the court to reverse the visa cancellation to enable Simon to continue living in Malaysia as he has been for the past decade with his Malaysian wife and children.
The other lawyers representing Simon today were V. Vemal Arasan, James Joshua Paulraj and Abraham Au.
Federal counsel Liyana Muhammad Fuad also 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).
Both Simon and his Malaysian wife Low Kar Hui were present in the courtroom during the hearing.
Representatives from the Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) were also present during the court hearing.
When met after the court hearing, Simon’s lawyer Vemal noted that the Immigration Department had on April 23 last year issued a special one-month renewable pass to his client to enable him to remain in Malaysia, and confirmed that his client has had to travel every month to Putrajaya to have this pass renewed while awaiting the conclusion of this case.
“Why the unnecessary burden? He is here. He’s not going to run away, at least give the pass until the case finishes,” he said, noting that his client also has to make payment for each renewal of the pass.
In a brief statement issued after the hearing, Family Frontiers noted that Simon is the primary caregiver of his two young Malaysian children, and said that the order to detain and deport him would deprive his children of parental care while violating their rights.
Family Frontiers noted that the family is a fundamental unit of society that is entitled to protection and assistance under international human rights law such as the Universal Declaration of Human Rights.
Family Frontiers also pointed out that the previous unlawful detention of Simon and the long-drawn out legal battle against the Immigration Department’s revocation of his spouse visa has caused “heightened vulnerability to family separation and uncertainty”, as well as “devastating consequences on his family members’ health, well-being and safety as well as their ability to rebuild their lives”.
With the growing number of binational families in Malaysia as part of globalisation and with over 150,000 spouse visas issued every year, Family Frontiers said this makes it necessary for these families to be accounted for, in order to protect and strengthen the family unit which makes up the backbone of society.
“We would like to stress on the urgency to safeguard and protect the personal liberties of non-citizen spouses and children of Malaysians against arbitrary measures,” it said, urging for government policies to be reviewed to ensure they are family friendly and protect the best interest of the child.
*An earlier version of this story contained an error which has since been corrected.
