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, Malay Mail reports.
Nigerian man, Simon Adavize Momoh will know on June 2 if he can continue to stay in Malaysia 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, Malay Mail reports.
Judicial commissioner Shahnaz Sulaiman set the date after hearing arguments from the lawyers for both Simon and the Malaysian government on Monday.
Simon actually had a valid spouse visa that would only expire in October 2022.
But the Immigration Department decided on April 9, 2021, 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.
Simon was first arrested on March 15, 2021, on a drink-driving offence. For this, he paid 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.
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 a 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.
