KUALA LUMPUR, July 18 — The Immigration Department is seeking to deport a Johor-born mother and her three Selangor-born children — all of whom are officially stateless — to Indonesia, having detained them since July 1.
The woman, identified only as D, was born in a government hospital in Johor Baru in 1986, to a couple from Indonesia but permanent residents in Malaysia. This meant D was entitled to Malaysian citizenship under the country’s laws, as she was born in Malaysia to a mother who was a Malaysian PR at the time of her birth.
The 36-year-old D and her three children, all aged below 12, are now urgently seeking orders from the High Court to secure their release from what they allege to be unlawful detention — nearly three weeks now — by the Immigration authorities.
Based on court documents sighted by Malay Mail, D and her three children had on July 15 filed a habeas corpus application at the High Court in Kuala Lumpur seeking to be freed from Immigration detention; they also asked for a stay order to prevent the government from removing them from Malaysia before the court decides on their challenge against the detention.
The four respondents named in the court challenge are the Bukit Jalil immigration depot chief, the Immigration director-general, the home minister, and the Malaysian government.
In seeking for a stay against any deportation, D and her three children explained that they are all stateless persons who were born in Malaysia and have never left the country their entire lives, and had reason to believe they would be removed from Malaysia to be sent to Indonesia. Being stateless means they are not a citizen of any country, including Indonesia.
They also said their welfare — especially the three young children aged 12, 11 and seven — would be harmed if they were to be removed from Malaysia, and that it would cause their challenge against their unlawful detention to be academic.
Based on an affidavit filed by the three children’s biological grandmother, M, she has been a permanent resident of Malaysia since 1984. D is the eldest of M’s five children.
According to M, she was informed on July 1 that Immigration officials had arrested and detained D at around 1.15am, and said that D’s three young children were also detained together as they were all below the age of 12.
The grandmother said she then sought the help of the non-profit organisation Buku Jalanan Chow Kit, which has been providing education to her three grandchildren as they are stateless and cannot attend government schools to receive primary education.
Buku Jalanan Chow Kit wrote on July 1 to the Immigration director-general to plead for the release of the three young children as they were under the organisation’s supervision, but the grandmother said there has yet to be any reply to the letter.
After tapping the help of Buku Jalanan Chow Kit to find out from Immigration why her daughter and the three grandchildren were detained, the grandmother said she was then told that D was detained as the National Registration Department had rejected her bid to renew her temporary identification documents, and that the children were detained together with D as they were aged below 12.
On July 14, the Immigration authorities informed the grandmother’s lawyers that the Immigration Department would be deporting the young family of four to Indonesia.
The grandmother pointed out however that D and the three children have not been brought to court or been charged for any criminal offences since their detention on July 1.
“I believe the applicants were arrested and detained not because they have committed any offences, but that they will be forcibly sent to Indonesia immediately even though all of them were born in Malaysia and had never entered Indonesia,” she said, referring to her daughter D and the three grandchildren.
The grandmother said D is actually entitled to Malaysian citizenship but has yet to be given such status, and that D must not be sent to Indonesia and separated from the three children as they are still young and need their mother’s care.
The grandmother said her three grandchildren also must not be sent to Indonesia as they would be in a dangerous situation as they would be separated from their families, having never left Malaysia and being without any family members in Indonesia.
The grandmother also said the Immigration's act of detaining the three young children is detrimental to their wellbeing and mental health, highlighting it would not be in their best interests as detention centres are not suited for children.
The grandmother said her daughter and grandchildren have "legitimate expectation" to not be sent to Indonesia as they have never left Malaysia since their birth, and also said that she was advised by lawyers that D and her three 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.
Saying that her daughter and grandchildren did not commit any immigration offences, the grandmother believes Malaysian authorities had acted maliciously and do not have any legal basis to detain the four of them, also claiming that the arrest and detention was in breach of the Immigration Act and the rights of the four under the Federal Constitution's Article 5 and Article 8 and the Child Act 2001.
Lawyer New Sin Yew confirmed to Malay Mail that the matter came up for case management today, and that the next case management date for both the stay application and the habeas corpus application is scheduled for July 21.
New had on July 15 filed an application on behalf of the four individuals to the High Court for an urgent hearing date to be fixed for the stay application, in order to prevent any move to deport the stateless Malaysia-born family before their challenge against the unlawful detention can be heard.
In his application, New had also said the court should urgently hear the habeas corpus application or application for the four's release from detention, as the three children are still young and their wrongful and extended detention would jeopardise their best interests and harm their physical, mental and emotional health.
Yayasan Chow Kit’s founder and child rights activist, Datuk Hartini Zainudin wrote on Twitter about the plight of D and her three children, noting that the Malaysia-born D is the only one of her siblings to not have the blue identity card denoting Malaysian citizenship.
Hartini questioned why the Immigration authorities have yet to release the three children from detention.
I have a series of questions on a case that I’m helping out with. It concerns 3 siblings, ages 12 to 8 years old. Born in Malaysia to a mum, who was born in Malaysia. All the mother’s siblings have Blue ICs except the mum who has a green IC and the oldest. Never mind why.
— Tini z (@tiniz) July 18, 2022