Petitioner Advocates:Nik Nasrun Nazmi Nik Mohamad,Mohamad Wafiq Hafiewith ,Respondent Advocate: Mohd Zain Ibrahim,Rahmath Nisa Segu Alavudin

This case involves a complex examination of the legality of detention and the procedural and substantive considerations surrounding the applicant's status and rights. The core issues revolve around whether the detention of the applicant, a Rohingya minor, was lawful and proportionate, and whether the authorities properly exercised their discretion in issuing the removal order.

The court emphasized that the constitutional duty in habeas corpus cases is to inquire into the legality of detention, not merely to accept procedural compliance at face value. The duty of inquiry is heightened given the fundamental importance of personal liberty and the need to prevent unlawful detention, especially of minors and refugees. The court highlighted that illegality must not be condoned and that procedural safeguards are critical, particularly when the detention involves vulnerable individuals such as minors.

A significant aspect of the case is the applicant’s refugee status, as recognized by UNHCR. The court underscored the importance of giving weight to UNHCR’s designation and evidence, especially considering the applicant’s potential risk of persecution if returned to her country of origin. The UNHCR’s involvement and recognition of her refugee status, despite the lack of a valid Malaysian UNHCR card at the time of detention, were deemed relevant and should have been considered thoroughly by the authorities.

The court scrutinized the legal basis for detention under the Immigration Act, focusing on the interpretation of the phrase "liable to be removed." It found that this phrase connotes a discretionary power rather than an obligation, requiring the authorities to consider all relevant circumstances before proceeding with removal. The failure to adequately consider the applicant’s refugee status, her age, and the risk of harm upon return was viewed as a breach of procedural and substantive law.

Furthermore, the court examined the duration of detention, which exceeded what is reasonably necessary for making removal arrangements. It stressed that detention must be proportionate to its purpose and that extended detention without clear, expeditious progress toward removal violates constitutional rights and legal standards. The prolonged detention, especially in the absence of concrete steps to effectuate removal, was characterized as excessive and unjustified.

Lastly, the court acknowledged its broad powers to craft remedies in cases involving constitutional rights. It exercised its discretion to order the applicant’s release, emphasizing the importance of considering her status as a minor and refugee. The decision reflects a balance between respecting immigration policies and safeguarding individual rights, with a clear stance that detention must be lawful, necessary, and proportionate.

In summary, the case underscores the importance of proper legal exercise of detention powers, the need for comprehensive consideration of individual circumstances, especially for minors and refugees, and the courts’ role in ensuring that such powers are not abused or exercised arbitrarily.