The Kuala Lumpur High Court has granted leave for terror suspect Mohamad Iqbal A Rahman to seek declarations to quash the government's decision to revoke his permanent resident (PR) status.

Judicial commissioner Wan Afrah Wan Ibrahim said she was satisfied that the home minister and the immigration director-general had applied the wrong provisions of the Immigration Act in labelling Iqbal as undesirable and hence, a prohibited immigrant.

"I am of the opinion that the applicant had shown prima facie that the application is not frivolous and vexatious and that there is some substance in the grounds supporting the application," she said in delivering her judgement this morning.

Wan Afrah said that, in weighing the submissions by both sides, she had also considered principles laid down in the 1990 case of the Association of Bank Officers of Peninsular Malaysia v the Malaysian Commercial Bank Association .

In the case, the Supreme Court decided that it could grant leave for applicants to question the decisions of public administrative authorities as long as there are substance in the grounds supporting their applications.

Procedural breach

Iqbal, an Indonesian-born former religious teacher who obtained PR status in 1985, was among the first batch of suspected Kumpulan Mujahidin Malaysia members detained in August 2001 under the Internal Security Act.

Days before expiry of the two-year detention order, he was informed that he faced imminent deportation following the revocation of his PR status by immigration authorities.

The Home Ministry, in declaring that Iqbal, 46, was an "undesirable immigrant" had said that it had reasons to believe that he had been involved in activities against Malaysia's national interest.

However, in applying for leave to challenge the home minister and director-general's decisions, Iqbal's lawyer Edward Saw had argued that there was a breach of procedural requirement in the process, therefore rendering the revocation of his PR status invalid.

Among others, Saw said the DG had applied provisions which were applicable only to persons seeking to enter Malaysia and not those who were already in the country.

Constitutional clause

Wan Afrah, however, dismissed another application for the court to declare as unconstitutional Sections 59 and 59A of the Immigration Act.

The former clause excludes the right of any individual who receives an order from the DG to be heard, while the latter excludes judicial reviews of any decisions made by the DG and home minister.

Wan Afrah said she was bound by the Federal Court decision in the case of Sugumar Balakrishnan v Sabah Immigration Director (1998) when the court upheld the constitutionality of Section 59.

"It is clear that the Federal court had pronounced then that Section 59 of the Immigration Act is valid and constitutional. As such, it does not warrant for this court to consider Section 59.

"Even though the (Federal Court) did not spell out specifically the constitutionality of Section 59A, from the reading of the whole case, this court can infer that it was the intention of the Federal Court in the said case that Section 59A is constitutional," she said.

"As such, it is my considered opinion that there is no necessity for this court to adjudicate on the issue whether Section 59A is constitutional or otherwise."

Wan Afrah did not extend a stay on the deportation order already issued to Iqbal.

Conditions 'appalling'

Later, Saw said the court's decision has cleared the way for Iqbal to file a substantive application to quash the home minister and DG's decisions.

"We will be doing this within the week," he said.

Also present was Iqbal's wife and co-applicant, Fatimah Zahrah Abdul Aziz, who said she was satisfied by today's decision.

However, she also pointed out that her husband's status remains uncertain pending the application to overturn the revocation order.

She said she had instructed her lawyers to proceed with the case, but that her husband was not against going back to Indonesia while awaiting the outcome of the case here.

"If we win the case, then he can come back here. But he does not want to remain in the detention centre," she said.

Fatimah, who had visited Iqbal at the Ajil detention centre in Terengganu on three separate occasions since his transfer there in late September, claimed he was still being kept in appalling conditions.

Iqbal is allegedly being held in solitary confinement, with no access to toilet facilities.

He was transferred to Ajil after he complained in a letter (which was made available to malaysiakini ) about poor detention conditions at the Kuala Lumpur Immigration Department headquarters.