After having lived in this country with his Malaysian wife and their two children for nearly 10 years, a Nigerian national will know on June 2 whether he gets to continue to stay in the country.
The Shah Alam High Court today set the date to deliver its decision on Simon Momoh’s judicial review against the Immigration Department’s order to detain and deport him.
Back on April 23 last year, the father of two children, aged 6 and 9, succeeded in his habeas corpus application to be released from unlawful detention.
However, since then, Momoh still faced the possibility of being deported back to Nigeria, following the immigration authorities revoking his social visit pass.
If not for the revocation, the social visit pass would have been in effect until October this year.
The Immigration Department’s justification for revoking the pass was due to the 34-year-old having been convicted and sentenced to one-day jail and RM12,000 fine over the offence of drink driving. He served the jail term and paid the fine.
Since his release, Momoh has been incurring a cost of RM100 a month to renew a special immigration pass for him to remain in Malaysia, pending disposal of the judicial review.
Submissions from legal teams
He and his wife Low Kar Hui, 34, were seen observing proceedings before judicial commissioner Shahnaz Sulaiman today.
The court heard submissions from legal teams representing Momoh and the immigration authorities over the merits of the judicial review.
“The court will deliver its decision on June 2,” Shahnaz informed lawyer Gurdial Singh Nijar and senior federal counsel (SFC) Ahmad Hanir Hambaly @ Arwi.
Gurdial represented Momoh while Hanir acted for the two respondents in the matter - the Immigration director-general and the home minister (both were not named in the judicial review application).
Earlier during submissions this morning, Gurdial submitted that the authorities are trying to legalise the revocation of Momoh’s social visit pass and his yet-to-be-implemented deportation as the whole matter is to be regarded as a single overarching transaction.
The lawyer said due to the court previously had allowed the habeas corpus application, then the cancellation of the social visit pass is not valid as well.
“They claim that whatever irregularity (that was behind the initial detention of Momoh) cab be carried over to the second (yet-to-be-implemented) detention of Momoh (over the cancellation of the social visit pass).
“One must look at the irregularity from the very beginning. After the (successful) habeas corpus application, they refused to cancel the (Immigration director-general) decision to cancel the pass.
“That is why we come to court to challenge the order for removal and detention,” Gurdial submitted.
Family circumstances
The lawyer also told the court that the Immigration authorities’ decision over the social visit pass is not unfettered and needs to take into account Momoh’s family circumstances.
Gurdial said that the authorities also should have taken into account the fact that the drink-driving offence was not a serious one as Momoh was only given a day’s jail over it.
“If you send (deport) him to Nigeria, you deprive his wife as well as their children of parental care.
“These kinds of circumstances you must consider before declaring him a foreign prisoner and trying to kick him out.
“We (Malaysia) is also a signatory of the (United Nations) Convention on the Rights of the Child.
“When one is a party to the convention that speaks on the paramount interest of the child, our government (should be) committed to this mantra of the interest of the child,” Gurdial said.
However, in response, Hanir submitted that the outcome of the habeas corpus bid has no bearing on the present matter which is only confined to the legality of the revocation of the social visit pass.
The SFC contended that the cancellation of the pass is a totally separate transaction, thus the alleged unlawful aspect of Momoh’s initial arrest does not affect the present issue.
Hanir claimed that the Immigration DG’s revocation is valid as the drink-driving offence was still a serious one as it may lead to the risk of more deaths on Malaysian roads due to accidents.
“He (Momoh) did not appeal to the (Home) minister if he was dissatisfied with the cancellation of the pass,” the SFC said.
Can always reapply
Hanir pointed out that the order to remove him from Malaysia is not a blacklist as Momoh can always reapply to be allowed back into the country later.
“We say the Convention (on the Rights of the Child) shall not be applicable unless it is legislated into law (in Malaysia),” he said.
Momoh was arrested at a roadblock at Cheras on March 15 last year over suspicion of a drink-driving offence.
He was then brought to the Kuala Lumpur Magistrate’s Court where he pleaded guilty under Section 45A(1) of the Road Transport Act
After pleading guilty and being jailed as well as fined, instead of being released, he was transferred to the Kajang Prisons.
Then on April 7, he was transferred to the Semenyih immigration detention centre.
The department said it had arrested him under Section 35 of the Immigration Act (power to arrest persons liable to removal) on March 15 over his drink-driving conviction.
The department said it later “re-arrested” him under Section 34 (detention of persons ordered to be removed) when it cancelled his spousal visa and wanted to deport him. - Mkini
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