NOOR KAYES HASHIM ULLAH @ NOOR KAYES BINTI HASIMULLAH v 1. ) TIMBALAN MENTERI DALAM NEGERI, MALAYSIA 2. ) KOMANDAN DEPOH TAHANAN IMIGRESEN TANAH MERAH KELANTAN 3. ) KERAJAAN MALAYSIA

Case Significance

Confirms that immigration detention pending removal must be proportionate under Article 5(1) read with Article 8(1) of the Federal Constitution, and that an initially lawful detention can become unlawful if unduly prolonged.

This Federal Court decision concerns an application for a writ of habeas corpus by a young woman of Rohingya descent who was held at an immigration detention depot after completing a term of imprisonment. She had been convicted under section 6(1)(c) of the Immigration Act 1959 for entering Malaysia without a valid pass, and although her prison term expired she remained in custody under an Order of Removal made under section 33(1) and an Order of Detention pending removal made under section 34(1). The central question was whether her continued detention had become unlawful, so as to justify the issue of a writ of habeas corpus. The Court framed the issue around the interplay between the separation of powers and the judiciary's role as a check on executive power, and around the balance between the personal liberty protected by Article 5(1) read with Article 8(1) of the Federal Constitution and the State's power to detain in the interests of national security. Drawing on the proportionality analysis in Alma Nudo Atenza v Public Prosecutor, the Court held that any measure restricting liberty must be proportionate to its objective, and that the words "such period as may be necessary" in the removal power do not authorise indefinite detention. The Court found that the detaining authority had given insufficient consideration to relevant factors, including the length of time the applicant had already spent in detention, and had not discharged its duty of inquiry. Emphasising that the courts have wide power to mould relief to meet the needs of justice, the Court allowed the appeal and granted the writ, making further orders to secure the applicant's safe release, including oversight by the United Nations High Commissioner for Refugees and by her counsel. The judgment is significant for treating proportionality as a constitutional limit on executive detention and for confirming that a lawfully commenced detention can become unlawful over time.