SIMON Momoh’s lawyer has filed a judicial review to quash Immigration director-general Khairul Dzaimee Daud’s decision to cancel the Nigerian’s visa and subsequently deport him.

Lawyer Vemal Arasan said the judicial review was filed against Khairul and Home Minister Hamzah Zainudin at Shah Alam High Court yesterday.

Among the relief sought in the judicial review are:

• an order to quash the decision to revoke Momoh’s spouse visa and his detention;
• a stay on the deportation order pending trial;
• a declaration that Section 35 of the Immigration Act is inconsistent with Article 5(4) and 4(1) of the federal constitution; and
• a declaration that Section 35, which allows for the detention of non-Malaysian citizens for 30 days, is unconstitutional and invalid.

Momoh is also seeking a declaration that the Khairul and Hamzah acted inappropriately and beyond their jurisdiction, and is requesting an injunction to prevent Khairul and Hamzah from making any subsequent decision to revoke Momoh’s visa and issue a detention order.

“The judicial review is against the deportation because they have made a decision to cancel his visa and, pending that, to deport him,” Arasan told reporters today after the high court today postponed a habeas corpus hearing to Friday.

Arasan filed a habeas corpus application on April 1, on the grounds his client had been illegally detained since March 15.

On April 14, Momoh’s wife Low Kar Wai received an email from the Immigration Department, asking her to make arrangements for his flight back to Nigeria. The deportation order stated Momoh was deemed a prohibited immigrant pursuant to Section 8(3)(d)(i)(ii) of the Immigration Act.

She was also informed that Momoh’s spouse visa, which was valid until October 14, 2022, had been cancelled.

Momoh was arrested on March 15 at a roadblock in Cheras on suspicion of drink-driving, in violation of Section 45A(1) of the Road Transport (Amendment) Act 2020. He had pleaded guilty to the charges and paid a RM12,000 fine.

However, he was detained again under Section 35 of the Immigration Act 1959. He has since been held at Semenyih Immigration Detention Centre.

Arasan said today that even if Momoh is released under the habeas corpus, Immigration will say that his visa has been cancelled and it has the right to remove him.

“That is why we have filed the judicial review to challenge the cancellation of the visa and the deportation. This is an important second step.

“If successful, he will be released immediately. In the interim, the judge has advised the Immigration authorities not to take any action on the decision to deport him,” Arasan said.

The court has set May 4 to hear the judicial review application. Pending that, Judge Ab Karim Ab Rahman has advised the Attorney-General’s Chambers not to deport Momoh.

“He has not given an order, but he has advised them and the A-G’s Chambers agreed.”

Arasan also said the Immigration Department has been pressuring Momoh’s wife to buy the ticket for a flight back to Nigeria, but added that the family will not give in to that.

The lawyer added that when he met Momoh at the detention centre he was in good spirits.

“He’s a strong man. The first time I met him I saw how Malaysian he was. He’s been Malaysianised, he’s been here 13 years, married for eight.”

Momoh also has two daughters with Low: Divine, eight, and Elisha, five. – April 21, 2021.