The wrongful detention of a minor, without adequate consideration of human rights and refugee status, constitutes a misuse of executive discretion under immigration law.

[1]This appeal was filed in respect of the High Court decision to dismiss an application for habeas corpus. The appellant is Noor Kayes Hashim Ullah @ Noor Kayes Binti Hasimullah (referred to as “the applicant”, as she was in the High Court proceedings) while the respondents are the Deputy Minister of Home Affairs Malaysia, the Commander of the Tanah Merah Immigration Detention Depot in Kelantan Darul Naim and the Government of Malaysia (referred to collectively as “the respondents”) We heard and allowed the applicant’s appeal on 9 April 2025, making further orders necessary for the justice of the case. We now give our grounds for our decision.

Salient Facts

[2]The applicant is a female of Rohingya descent. She was arrested in Tumpat, Kelantan Darul Naim sometime in mid-2023. At the time her age was stated to be 16 years. At the material time, she did not possess a registered United Nations High Commissioner for Refugees (“UNHCR”) card in Malaysia but held a UNHCR card issued in Bangladesh.

[3]The copy of the Bangladesh UNHCR card in the court records is blurred but the essential details that are discernible on the face of it are that the applicant’s purported date of birth is 1 January 2007, that she originates from Myanmar, and that the card was issued on 19 August 2019 . However, it does not stipulate an expiry date (unlike the Malaysian UNHCR card) .

[4]The applicant was charged under section 6(1)(c)Immigration Act 1959section 6(3)Immigration Act

[5]While she was carrying out her term of imprisonment, an Order of Removal dated 19 November 2023 under section 33(1)Immigration Actsection 34(1)Immigration Act

[6]As she was not released in January 2024, on 27 February 2024 her lawyer appealed to the Minister of Home Affairs for her release under section 33(2)Immigration Actsection 33(1)section 34(1)section 33(2)

[7]While in detention, the applicant was interviewed by a representative from UNHCR Malaysia which subsequently registered her as a refugee in Malaysia.

[8]On 21 May 2024, the Tanah Merah Immigration Detention Depot wrote to UNHCR to inquire as to whether the applicant held a UNHCR card. UNHCR urgently wrote back in a letter dated the same date, informing that the applicant was a minor aged 17 years old (as opposed to the Immigration Detention Depot’s letter to UNHCR which stated the applicant’s age as 19 years old). UNHCR confirmed that the applicant is indeed registered with them and pleaded for the applicant’s early release.

[9]The UNHCR letter cited the principle of non-refoulement, the contravention of the preamble to the Child Act 2001, and Article 22 of the Convention on the Rights of the Child to which Malaysia is party. UNHCR went on to highlight that in Shah Alam and Alor Setar, the High Courts have released refugee children from prolonged detention.

[10]In the same letter, UNHCR gave an undertaking to receive her and to ensure that basic care and protection arrangements would be made for her. It attached a temporary 1 month UNHCR card for her.

[11]The Malaysian UNHCR card is slightly different from the Bangladesh UNHCR card (for example, it omits the names of the applicant’s parents) but the essential details on the Malaysian UNHCR card are that her date of birth was 1 January 2007, that her country of origin is Myanmar, and the date of issue of the card is 3 May 2024. The renewal date was stipulated as 3 June 2024. It is not in dispute that this card expired before the applicant’s habeas corpus case was heard.

[12]On 30 May 2024, having failed to secure the applicant’s release, her lawyer filed the habeas corpus application on the basis that she ought not remain under detention due to her refugee status and asserting that her fundamental rights have been violated. However, the High Court dismissed her habeas corpus application. The High Court order is the subject of the present appeal.

[13]The High Court gave several grounds for dismissing the habeas corpus application. First, the applicant’s affidavit in reply was dated