ALL attention tomorrow will be on the Shah Alam High Court in Selangor where Nigerian Simon Momoh’s habeas corpus application against his alleged illegal detention and probable deportation will be heard.

The case has garnered much publicity as Momoh, who is married to a Malaysian and has two children, was earlier charged with drink-driving, for which he paid a RM12,000 fine and was jailed for a day.

But he was detained further under Section 35 of the Immigration Act 1959, which allows authorities to hold him for a period not exceeding 30 days.

Though Momoh has the proper paperwork to remain in the country – he is here on a long-term Social Visit Pass (spouse visa) which is valid until October 14, 2022 – the fact that he had served a one-day imprisonment gave the Immigration Director-General the power to cancel his visa.

Momoh’s lawyer is confident and hopeful that his client’s habeas corpus application will go their way tomorrow.

“I’m still confident and I’m hoping for the best. We are confident that we have a meritus case, let’s see what the judge says tomorrow,” lawyer Vemal Arasan told The Malaysian Insight.

The lawyer said the premise of the habeas corpus, which was filed on April 1, is that Momoh has been detained illegally since March 15.

“What we’re saying is the whole process is illegal (his detention), that is the main argument.

“The whole habeas corpus is about detention, we can’t go to deportation yet. But if we hit the detention, then it affects the deportation,” he said.

Vemal had previously said that the Immigration D-G has too much discretionary powers by virtue of the Immigration Act which allows him to revoke a valid visa and deport an individual.

“In our submission, we’re maintaining that his (D-G) powers are not unfettered.”

Following the cancellation of Momoh’s visa on April 14, his wife Low Kar Hui received an email from the Immigration Department, asking her to prepare arrangements for his flight back to Nigeria.

According to the deportation order, Momoh is deemed a prohibited immigrant pursuant to Section 8(3)(d)(i)(ii) of the Immigration Act.

“His (Momoh’s) papers are all fine, the problem is with the Immigration Act. It gives the D-G discretionary powers to cancel his pass the moment he’s convicted of a crime, which includes imprisonment.

“Many people are unaware of this. They just plead guilty thinking they’ll pay a fine and be released. That one-day imprisonment gives the D-G the power to cancel the visa. Many of those detained in the depot are in the same situation.”

After more than a month at the detention centre, Momoh’s wife was finally allowed to see him yesterday (April 19), accompanied by her lawyer.

“(It was) sad when the both of them met, but what to do,” the lawyer said.

Momoh’s two daughters, Divine, eight, and Elisha, five, have not been allowed to visit their father, but his youngest has questioned the reason for his detention.

Currently, Vemal is the only lawyer representing Momoh, but the lawyer said many have come forward to offer help since the issue was first reported.

“Many have volunteered to help, but not sure who will be turning up in court tomorrow. Prof Gurdial might be there, but can’t confirm yet, there is nothing on record,” he said, referring to Professor Gurdial Singh Nijar who is the president of the National Human Rights Society (Hakam) and a former law professor.

On social media, many have questioned how Momoh, a stay-at-home father was able to afford to pay the RM12,000 fine, alluding to the fact that he may be involved in unsavoury activities.

“I know many people think that he may be involved in a scam or something illegal, just because he is a Nigerian national,” Vemal said, adding that the RM12,000 fine was paid by Low who is an internal auditor at a company.

Traumatic for the family

Since the case has been highlighted, many civil society groups have called for the release of Momoh, including the Association of Family Support & Welfare, Selangor & KL (Family Frontiers).

Family Frontiers told The Malaysian Insight that it was alarmed how the case has progressed despite Momoh holding a valid visa and having a family here.

“We are alarmed at how the case has progressed and that despite holding a valid visa, Simon could be detained for such a prolonged period, without access to legal counsel for 31 days and with a deportation order underway after having paid the fine and serving the symbolic imprisonment for a non-Immigration-related offence.

“We are also concerned for the well-being of the family as this has been a traumatic experience for them - emotionally, psychologically and financially. This potential deportation will break up the family unit.

“Simon has been in Malaysia for 12 years, he has qualifications from a Malaysian college, he has a Malaysian family, so we hope for a positive outcome.

“As Malaysia is a signatory to CEDAW (UN Convention on the Elimination of All Forms of Discrimination Against Women) and CRC (UN Convention on the Rights of the Child) we do hope that the well-being of the family and the best interests of the children can be prioritised,” said its programme manager Melinda Anne Sharlini.

She added that Family Frontiers will stand in solidarity with the family and continue creating public awareness on the plight of Momoh and his family.

Momoh’s church, Cathedral of St John the Evangelist, also called for the Nigerian national to be released.

“There is terrible injustice that is happening and we need for the authorities to consider the well-being of his wife and very young children,” the church said in a statement last week.

The church said that Momoh, a parishioner there, is known to be a loving husband and doting father.

The case will be heard tomorrow morning before Justice Ab Karim Ab Rahman. – April 20, 2021.