Noor Kayes Hashim Ullah @ Noor Kayes Binti Hasmullah v Timbalan Menteri Dalam Negeri, Malaysia & Ors

Appellant(s): Noor Kayes Hashim Ullah @ Noor Kayes Binti Hasimullah

Respondent(s):

• Timbalan Menteri Dalam Negeri, Malaysia
• Komandan Depoh Tahanan Imigresen Tanah Merah Kelantan
• Kerajaan Malaysia

• YA Tan Sri Datuk Nallini Pathmanathan
• YA Dato Rhodzariah binti Bujang
• YA Datuk Hanipah Binti Farikullah

• The appellant, a Rohingya female, was arrested for illegal entry, pleaded guilty, and served a 5-month imprisonment sentence.
• Despite her scheduled release, an Order of Removal and subsequent Order of Detention pending removal were issued, leading to her continued detention for approximately 16 months.
• Her habeas corpus application was dismissed by the High Court, which questioned her affidavit, the validity of her UNHCR cards, and relied on a dental age estimate to dispute her minor status.

• Whether the appellant's detention was lawful under Section 34 of the Immigration Act 1959, particularly regarding the "necessary" period for making removal arrangements.
• Whether the Director-General properly exercised discretion in issuing the Order of Removal, considering the appellant's UNHCR refugee status and possible minor status.
• Whether the prolonged detention constituted a transgression of constitutionally permissible limits, violating the right to personal liberty and proportionality under the Federal Constitution.

• The Court allowed the appeal and issued a writ of habeas corpus, finding the detention unlawful due to insufficient consideration of the appellant's UNHCR refugee status and possible minor status.
• The Court held that the phrase "shall be liable to be removed" in Section 32 of the Immigration Act confers discretionary power, requiring proper consideration of relevant factors, which was absent in this case.
• The Court ruled that the 16-month detention was excessive and disproportionate to the objective of making removal arrangements, thus violating Article 5(1) and 8(1) of the Federal Constitution.
• The Court ordered the appellant's release, prohibiting immediate rearrest for deportation until a full and proper consideration of her case, and directed her placement in a shelter.