THE Shah Alam High Court today revoked the Immigration Department’s decision to cancel Nigerian citizen Simon Momoh’s spousal visa and his deportation order.

Judge Shahnaz Sulaiman said in her ruling that Momoh was not a person liable for removal and that the Immigration Department director-general cannot penalise an individual who has not committed an offence under section 56 of the Immigration Act 1959/63. 

“Now for the reasons aforesaid, this court is satisfied there are merits to this application, therefore this court allows this application for order of certiorari on the respondents to revoke the applicant’s social visit pass and to issue the deportation order,” the judge said. 

Momoh and his Malaysian wife Low Kar Hui were both present in the courtroom and were in tears when the decision was read.

The judge said that because Momoh held a valid spousal visa when he was arrested on March 15 at a roadblock in Cheras on suspicion of drink-driving that meant he is not a person liable for removal. 

The offence of drink0driving, which falls under section 45A (1) of the Road Transport (Amendment) Act 2020, is also not grounds for cancellation of Momoh’s visa, she said. 

The DG can only cancel a non-citizen visa if they have committed an offence under section 56 of the Immigration Act, she added.  

The judge also said when Momoh was arrested on March 15 for drink-driving, he was only presented before a magistrate after 28 days, instead of the 14 days required by law.

Momoh was represented by lawyers Gurdial Singh Nijar, V. Vemal Arasan, James Joshua Paulraj and Abraham Au.

Federal counsel Liyana Muhammad Fuad also represented the Immigration director-general and the home minister, while lawyer Raveena Kaur Vessy held a watching brief for the Human Rights Commission of Malaysia. 

Gurdial said that the decision in Momoh’s case will have a significant impact on foreigners in the same circumstances as his client. 

“The position now has been clarified by this court, so long as they (non-citizens) hold a valid pass, they are not liable to be removed,” he said when met outside the court lobby.

“When Momoh was detained, under the constitution they must bring him to the magistrate and justify why he must be remanded within 14 days. 

“They did not do this. He was detained March 15 and an order to cancel his visa was made on April 9. The judge also ruled that was wrong. 

“You can only cancel his pass only if he has committed an offence under the Immigration Act. This is a road traffic act, and the DG has no power.” 

Gurdial said that the DG’s assertion in his affidavit he has unfettered power is also not true, as evidenced by the court’s decision. 

“Their submission on the affidavit of the DG is that he has unfettered discretion and that cannot be questioned.  

“According to case law, unfettered discretion leads to tyranny. The courts have said that.” 

Momoh, who also spoke to reporters after the decision, said he was thankful to God for the outcome. 

“Thank you to God who has made this possible. It’s been a long journey for me and my wife. I thank my wife for standing by me,” he said. 

“God has been there in making sure that justice prevails. I pray that no one will get into this kind of issue and in time, everything is going to be alright.” 

He also thanked his lawyers, his family, St John’s Cathedral and archbishop Julian Leow. 

Momoh filed his judicial review on April 20 last year to challenge the cancellation of his visa and the deportation order, Momoh had named the Immigration director-general and the home minister as the two respondents. 

Among the reliefs 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 articles 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 was also seeking a declaration that the immigration DG and Home Minister Hamzah Zainuddin acted inappropriately and beyond their jurisdictions, 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.

Momoh’s ordeal started when he 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 and held at the Semenyih Immigration Detention Centre.

On April 1, his lawyer filed a habeas corpus application seeking his release from the detention centre. 

Then on April 23, Justice Karim granted the habeas corpus application. In the decision to release Momoh said the authorities failed to abide by the proper procedure in his detention. 

Momoh spent 40 days at the centre before his release. – June 2, 2022.