Nigerian succeeds in quashing deportation order

After nearly 10 years of living in this country with his Malaysian wife and their two children, a Nigerian national can continue to stay on.

The Shah Alam High Court this morning allowed Simon Momoh’s judicial review application against the Immigration Department’s order to detain and deport him.

Momoh and his wife Low Kar Hui, both 34, were seen embracing each other in tears in the public gallery following the verdict.

Back on April 23 last year, the father of two children, aged six and nine, 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 an 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.

In reading out her judgement today, judge Shahnaz Sulaiman ruled that a traffic offence is not a justification for the deportation order.

She said that the Immigration director-general - who is the first respondent targeted by the legal action - only has the power to remove a non-citizen for offences under the Immigration Act.

The judge noted that offences in other acts such as the Road Traffic Act are not those that permit the authorities to deport a non-citizen.

Not liable for removal

Shahnaz said the cancellation by the immigration of his social visit pass on April 9 last year was procedurally inappropriate and illegal as Momoh was not a person liable for removal from Malaysia.

It was not appropriate for the authorities to take into account the increase in traffic offences in the country as an excuse to cancel the pass, the judge added.

“A non-citizen is liable to be removed from Malaysia only if he commits an offence under the Immigration Act.

“This court is satisfied there is merit in this (judicial review) application and allows the application for an order of certiorari to quash the first respondent’s order (to deport),” Shahnaz ruled.

When met by the media after proceedings, Momoh expressed his gratitude to God for justice prevailing with today’s verdict.

As Low stood by his side, he said that it had been a very challenging time for him and his wife as well as their two children aged nine and six.

“We cried in court (upon hearing the verdict) as it has not been an easy journey. Neither of us expected this (ordeal) to have happened to us.

“When I was first released from detention in April last year, my daughter (one of the two children) always cried and could not go to sleep.

“It was a very emotional time. Great thanks to God for how it went (verdict) today,” he said, his eyes red from crying earlier.

Momoh was represented by Gurdial Singh Nijar and V Vemal Arasan.

Jailed instead of being released

The Immigration director-general and second respondent the home minister (both were not named in the court papers) were represented by senior federal counsel Ahmad Hanir Hambaly @ Arwi.

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 Prison.

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.

Without legal basis

After proceedings today, Gurdial said today's court verdict is important as a large number of foreigners are held in detention for deportation over traffic offences.

"Our Immigration director-general has acted consistently without any basis under the law that affects a large number of non-citizens holding valid social visit passes.

"The government needs to look into this issue as it impacts the people, where (non-citizens were) detained, intimidated, and deported.

"Momoh here has a family with two children. If we did not challenge in court, then he would have been deported and possibly blacklisted, leading to the fracture of his family," Gurdial said.

Vemal, meanwhile, said that today's verdict is an important check on the authorities' power as there is a widespread problem where non-citizens holding valid passes are charged in court and later re-arrested for alleged violation of the visit pass' terms.

"When a non-citizen is detained, they did not know they would be (re-arrested and) brought to an Immigration detention centre.

"They thought they just need to be charged, and they plead guilty (to a non-immigration offence) and be released (from court after they pay a fine or serve jail time)," he said. - Mkini