Mohmmadhossein Samadi, who is married to a Malaysian, wants the immigration department to produce him in court so he can be freed.
He also wants an order to prohibit the department from deporting him pending a judicial review application before the High Court.
Mohmmadhossein named directors-general of the prisons and immigration departments and the home ministry as respondents to his application filed on May 10.
His wife, Ginny Lim Su Lane, 36, has filed an affidavit in support of the application
She has provided details that they were legally married on May 5, 2012 and have two children, aged seven and five.
Mohmmadhossein’s predicament began when he was charged in a magistrates’ court in Kuala Lumpur on March 26 for a traffic offence.
He pleaded guilty to reckless driving while under the influence of alcohol and was jailed for two days and fined RM10,000.
Lim said her husband paid the fine but upon completing the jail term, he was transferred to the immigration prison at Kuala Kubu Baru, then to its transit depot at Sungai Bakap, Penang, and finally another depot at Bukit Jalil, Kuala Lumpur.
Lim said Mohmmadhossein had an Iranian passport valid until Sept 11, 2025 and multiple entry visas until Nov 17 this year.
She said an immigration officer, identified as Nadia, had informed her on May 6 that her husband would be deported
Lim said the detention was unconstitutional as it was not made known to Mohmmadhossein why he was placed under immigration custody.
She said the immigration authorities should have produced Mohmmadhossein in court within 14 days after they took him from prison on April 26.
“Their action is in violation of Article 5(4) of the Federal Constitution and the Immigration Act,” she said.
Mohmmadhossein is represented by a team of lawyers comprising Alex Anton Netto, Yap Boon Jhoe and Kevin De Rozario
Deputy public prosecutor Mohd Suhairy Zakaria, who appeared before High Court judge Mohd Yazid Mustafa, said the application should be dismissed as it had no merit.
“The immigration director-general has issued notice to Mohmmadhossein on the 13th day (April 8) of detention that his spousal visa had been cancelled and that he was to be deported,” he said.
Suhairy, who is assisted by DPP Syameerah Mustapha, said the director-general had complied with Section 34 of the Immigration Act.
Netto asked for an adjournment to file an additional affidavit in reply and submit on a point raised by Suhairy.
Yazid will hear both parties on Aug 5.