NKHU v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2025] 6 MLJ 158

 Federal Court (Putrajaya)

 Criminal Procedure — Habeas corpus

1. The Appellant, NKHU, a Rohingya minor, was arrested in Tumpat, Kelantan in 2023 for entering Malaysia without valid documents. Her Bangladesh-issued UNHCR card showed her date of birth as 1 January 2007, making her 16 years old. However, the Appellant has yet to have a registered Malaysian UNHCR card.
2. The Appellant was charged under paragraph 6(1)(c) of the Immigration Act 1959/63 for unlawful entry and sentenced to five months’ imprisonment at the Tanah Merah Immigration Detention Depot, with release expected in January 2024. However, before her release, the Immigration Department issued a removal order (subsection 33(1)) and a detention-pending-removal order (subsection 34(1)) on 19 November 2023, keeping her in custody beyond her sentence.
3. The Appellant’s lawyer appealed for her release to the Minister of Home Affairs and the Director-General of Immigration, but no action was taken. Whilst in detention, UNHCR Malaysia interviewed and confirmed her refugee status, and issued her a temporary UNHCR card on 3 May 2024. UNHCR then requested for the Appellant’s immediate release, stating that she was a minor refugee protected under the principle of non-refoulement and the Child Act 2001.
4. Despite this, the authorities refused to release the Appellant. The Appellant’s lawyer then filed an application for a writ of habeas corpus, arguing that the Appellant continued detention was unlawful and unconstitutional. The High Court dismissed the application, finding the detention lawful and rejecting her claim of being a minor.
5. Aggrieved by the decision, the Appellant appealed to the Federal Court, arguing that her detention and removal were unlawful, that the authorities failed to consider her refugee status and age, and that her prolonged detention violated her constitutional right to personal liberty.

1. Whether the detention of the Appellant is in accordance with the Immigration Act?
2. Whether there was a transgression of constitutionally permissible limits?

(1)  Whether the detention of the Appellant is in accordance with the Immigration Act?

(a) The Federal Court answered this question in the negative, holding that the detention and removal orders were not issued in accordance with law and were therefore invalid.

(b) The Federal Court held –

“The constitutional duty of the court in a habeas corpus application is not merely to adjudicate, but to inquire into the deprivation of liberty. Such duty requires the court to ensure that no illegality is condoned, particularly when the fundamental right to personal liberty is at stake.” (paras [25], [27]– [29])

(c)  The Court emphasized that the Director-General of Immigration had exercised his powers mechanically and failed to consider all relevant factors before issuing the removal and detention orders. The use of the phrase “shall be liable to be removed” in section 32 of the Immigration Act conferred a discretionary, not mandatory, power. Hence, the Director-General was obliged to evaluate the Appellant’s personal circumstances, including her refugee status, age, and risk of persecution upon return. (paras [36], [43]– [46])

(d) The Court further held that the failure to give proper and exhaustive consideration to these factors amounted to a breach of procedural fairness and rendered the decision unlawful. (paras [56]– [61])

(e)  The Court observed that the removal and detention orders were both made on the same day, showing that the decision was mechanical and without proper inquiry. (paras [46])

(f)   The Federal Court also held that technical objections regarding the Appellant’s affidavit should not defeat her right to judicial review. Invoking section 4 of the Criminal Procedure Code, the Court affirmed its inherent power to depart from procedural technicalities to prevent injustice, especially where the detainee is a vulnerable refugee minor. (paras [48]– [50])

(g) Thus, the Court held that the detention and removal orders were issued in violation of the Immigration Act and contrary to constitutional safeguards, and that the Appellant’s continued detention was unlawful.

(2)  Whether there was a transgression of constitutionally permissible limits?

(a) The Federal Court answered this question in the affirmative, finding that the Appellant’s prolonged detention constituted a breach of constitutional rights, as it was disproportionate and excessive.

(b) The Federal Court explained that detention under section 34 is only justified to the extent necessary to make arrangements for removal. When such arrangements cannot realistically be achieved, continued detention becomes unlawful. In this case, the Appellant had been detained for 16 months, yet there was no evidence of genuine steps being taken to arrange her removal. This rendered her continued detention an unconstitutional transgression of permissible limits. (paras [99]–[101])

(c)  The Federal Court further held that detention must satisfy the test of proportionality under Articles 5(1) and 8(1). The length of detention must be proportionate to the legitimate objective pursued. Prolonged and indefinite detention particularly involving a minor refugee was found to be grossly disproportionate and inconsistent with constitutional protections.

(d) Accordingly, the Federal Court held that the Appellant’s 16-month detention was a violation of proportionality and legality and ordered her immediate release. (paras [102]–[105])

1. The Federal Court allowed the appeal and issued a writ of habeas corpus, ruling that the Appellant’s detention was unlawful and violated her constitutional right to personal liberty.

1. Habeas corpus requires active judicial inquiry, not passive review.
2. Immigration authorities must properly consider refugee status, minority, and UNHCR evidence before issuing removal or detention orders.
3. Indefinite or prolonged detention under section 34 Immigration Act is unlawful.
4. Detention must be proportionate and aligned with constitutional protections of personal liberty.