By Ida Lim | Malay Mail
The Immigration Department acted unlawfully when it detained three Selangor-born but stateless children for weeks without bringing them to court as they were protected by Malaysian law even without citizenship, the High Court has said in a ground-breaking ruling.
The High Court ruled that Malaysia’s Child Act 2001 also protects non-citizen children, and said the immigration authorities should have brought these three children before a Court for Children within 24 hours of arresting them.
But the Immigration Department failed to bring these three stateless children before a Court for Children within 24 hours or even before a magistrate within 14 days of arresting them as required by the law. It was only after detaining them for 28 days that the Immigration Department produced the children in court for the first time.
This case involves a 36-year-old mother — identified only as D for privacy reasons — who was born in a Johor government hospital to a couple who have permanent resident (PR) status in Malaysia.
As her mother originally from Indonesia was a Malaysian PR at the time of her birth, D should have been entitled to Malaysian citizenship under the Federal Constitution, but is instead stateless.
On July 1, 2022, the Immigration Department arrested D and her three stateless children aged 12, 11, and seven, and detained them at the Bukit Jalil immigration detention centre. D was arrested under suspicion of the offence of not having a valid pass to enter Malaysia, but her own Malaysian PR mother said she has never left Malaysia since her birth here.
The Immigration Department only released D and her three children on November 3, 2022 after detaining them for over four months at the detention centre, as the High Court in Kuala Lumpur had ordered their release from their unlawful detention.
D and her three children had won their freedom back after filing a habeas corpus application in court on July 15, 2022 to challenge their immigration detention, where they named the four respondents as the Bukit Jalil immigration depot chief, the immigration director general, the home minister and the Malaysian government.
The Malaysian government initially appealed against the High Court’s November 2022 decision which ordered the young stateless family’s release, and the Federal Court was scheduled to hear the appeal this April 10. (This is because appeals on High Court decisions in habeas corpus cases go straight to the Federal Court.)
But the family’s lawyer New Sin Yew told Malay Mail that the government had decided to withdraw its appeal. This means the High Court decision still stands and the family remains free from immigration detention.
The full High Court judgment by Justice Datuk Noorin Badaruddin goes beyond deciding whether the young family should be released from detention, and makes it clear that even non-citizen children are protected by a law for children in the country.
The Immigration Department on July 14, 2022 issued an order to deport D and her three young children from Malaysia under the Immigration Act’s section 54(2) — which applies to any non-citizens unlawfully entering Malaysia — and also an order to detain them while waiting for their deportation.
The family’s lawyer argued that the deportation order and the detention order were both wrong as they were born in Malaysia and did not enter the country, and argued that the Immigration authorities’ failure to bring the family before a magistrate within 14 days of their arrest had gone against the requirements in the Federal Constitution and the Immigration Act.
The Immigration Department argued that it had lawfully arrested and detained the family as the deportation and detention orders were made 14 days after their arrest, and argued that the three children’s non-Malaysian status meant that there is no need to bring them before a magistrate within 24 hours of their arrest and that they only need to be produced before a magistrate within 14 days of their arrest.
The Immigration Department also argued that detention and deportation orders can apply even though there is no record of entry into Malaysia.
Why the High Court said immigration authorities were wrong and how it upheld child protection
In a written judgment dated January 12, the High Court judge noted the Federal Constitution’s Article 5(4) where non-citizens have to be brought before a magistrate within 14 days of their arrest and detention under immigration laws, as well as a similar provision of a 14-day deadline under section 51(5)(b) of the Immigration Act for non-citizens who are arrested and detained under immigration laws.
The judge said the Immigration authorities had breached these two laws and illegally detained the family, as they were only produced before a magistrate 28 days after their arrest.
The High Court judge then examined the Child Act 2001’s section 84, where a child has to be brought before a Court for Children within 24 hours of being arrested.
Among other things, section 84 also said the Court for Children shall release the child on a bond, unless the charge involves murder or a grave crime, or if it is in the child’s best interest to remove them from association with an undesirable person or there was reason to believe the child’s release would defeat the ends of justice.
The High Court cited the Child Act’s preamble which recognised “every child is entitled to protection and assistance in all circumstances” without regard to their race, social origin, or any other status, with the judge saying this law was enacted to recognise that “every child” should be protected.
The Malaysian government had tried to argue that section 84’s 24-hour requirement does not apply to the three children as they were not charged and as they are non-citizens, and argued that the children only have to be brought before a magistrate within 14 days due to their non-citizen status.
But the judge said that the Immigration authorities had arrested the three children for suspicion of the offence of illegal entry into Malaysia, and said this meant section 84 should apply to their case.
The judge cited the Child Act’s section 83, where a child who is alleged to have committed an offence cannot be arrested, detained, or put on trial unless it follows the Child Act’s provision.
This means that the Child Act’s section 84 requirement for the child to be produced in court within 24 hours of arrest would “override” the Immigration Act’s section 51(5)(b) requirement of “within 14 days” for non-citizens, the judge said.
The judge said the “provisions and safeguards enshrined in the Child Act 2001 must be complied with to give full effect to the intention of Parliament”, adding that the failure of immigration officers to bring the three children “before a Court for Children within 24 hours of their arrest is a clear breach of procedural requirement under the law”.
While the Federal Constitution’s Article 5(4) states a maximum of 14 days before a non-citizen who is arrested or detained must be brought before a magistrate, the High Court said Parliament had legislated the Child Act 2001 “to give greater protection of rights, so that for children specifically, the 24-hour time limit must apply”.
Ultimately, the High Court said the immigration detention of the children was flawed on all accounts, as there was no compliance with either the 24-hour or the 14-day rules under the laws.
While the Immigration Department has argued the detention of the family is lawful as they are non-citizens and their presence in Malaysia is illegal and they can be removed from the country, the High Court said that it is the authorities who have the burden to prove that a person is not a Malaysian citizen.
The High Court said the immigration authorities and Malaysian government have failed to prove that the family of four are Indonesian citizens on balance of probabilities, and ultimately ordered the release of D and the three children from the immigration detention centre.
Previously, D’s Malaysian PR mother said she was advised that D and her three stateless children are all entitled to Malaysian citizenship under Article 14 of the Federal Constitution and that they would take the necessary legal action to have their citizenship rights recognised. Malay Mail understands that the family is currently pursuing Malaysia’s recognition of them as citizens.
Detention centres not suitable for children
The family’s lawyer New highlighted the significance of the High Court’s judgment which he said sets an “important precedent” for cases involving children.
He said non-citizen children are currently not brought before a Court for Children which would be more suited to handle their cases, but are instead detained for many days.
New said however that the Child Act establishes a Court for Children as children need special safeguards and care — including appropriate legal protection — due to their physical and mental immaturity.
“At the Court for Children, the Magistrate is assisted by two advisers appointed by the Minister. The Court for Children will advise on the treatment of the child with the best interest in mind. Currently, children who are not citizens are kept languishing in detention for 14 days or more.
“Regardless of our views on immigration issues, we can all agree that a detention centre is no place for a child. Hopefully, with this High Court decision, the Government will review its current practice of arresting and detaining children who are not citizens,” he said.
The other lawyers on the family’s legal team are Beatrice Chin, Allyna Ng, and Nur Izni Syazwani Ahmad.
Senior federal counsel Siti Ruvinna Mohd Rawi appeared for the four respondents.