|
HCAL 734/2020
[2026] HKCFI 1945
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 734 OF 2020
|
BETWEEN
|
| |
Shah Syed Mujahid Hussain |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 22 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 7 April 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000734_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 April 2018 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board and Non-refoulement Claims Petition Office as both the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party.
4. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
6. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be at risk from Sunni extremists as he was a Shia Muslim.
Oral hearing
8. The applicant requested for an oral hearing and his case was heard on 10 March 2026. When this court asked the applicant for the grounds of his intended judicial review, the applicant only reiterated the background facts of his case, such as how the Sunni Muslims in his home area attacked the Shias, including him and his family since he was young. He said that the purpose of the Sunni Muslims’ attacks was to stop them from their religious activities. It was useless to report them to the police, and the Sunnis would even slap them in the police station.
9. The applicant added that two of his cousins were seriously injured in an attack on 26 February 2026. His son was also injured on 1 March 2026. After his family reported the attack on his son, the police merely detained the assailants for a few days and let them go because the assailants were strong politically. The applicant also said that his enemies would send him messages even though he was in Hong Kong. The applicant asked this court to grant him leave, as it was very risky for him to go back to his own country.
Grounds for judicial review
10. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
11. The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 22 April 2020. The applicant merely stated that he did not agree with the Board’s Decision as his case was true, and his life was in danger in Pakistan.
12. As aforesaid, the applicant also repeated his danger from Sunni Muslims in his home area and added that two of his cousins and his son were attacked recently. These, however, cannot amount to any valid grounds to challenge the Board’s Decision.
Discussion
13. First of all, the applicant’s assertion at the oral hearing that his son and two of his cousins were attacked and injured recently was not presented to the Board for assessment. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
14. Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
15. Thus, the applicant cannot rely on matters not raised before the Board as a ground for his intended judicial review. This court will not take on the role of the primary decision-makers and re-assess his non-refoulement claim.
16. The applicant’s case and his danger from Sunni Muslims had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
17. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration, supra).
18. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
19. In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 4 December 2019. The applicant was present and was represented by his solicitor. Thus, the applicant was given the chance to present his case to the Board through his legal representative.
20. As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence. The Board laid out in no ambiguous terms in paragraph 59 to 60 of the Board’s Decision that all the claims made by the applicant were seriously affected by negative credibility indicators and the core and heart of his claim was fundamentally undermined by the unexplained discrepancy between the nature of his claim as put to the Director and the central nature of his claim as put to the Board.
21. The Board concluded that the applicant was not a witness of truth and none of his claims could be given any credence. The Board proceeded to determine his claim for non-refoulement protection only on the agreed facts which were not disputed. These included (1) the applicant was a Shia Muslim who held no post within that sect; (2) the applicant attended Shia religious events; (3) the applicant required no medical treatment for any of the difficulties he claimed to suffer; (4) when staying in Jhelum with relatives, the applicant experienced no attacks; and (5) the applicant had no difficulties departing through immigration from Pakistan.
22. The Board found that the applicant did not rely upon any risk of harm from the state and only asserted a risk from non-state actors. The Board had considered relevant country of origin information (“COI”) and concluded that the risk the applicant would face sectarian violence was a mere possibility and not a real risk or one reasonably likely to occur, as he was simply a member of the local Shia community with no particularly high profile.
23. The Board further found that in case the Board was wrong in its analysis and even assuming, without deciding, a lack of sufficient state protection in the applicant’s home area of Kashmir, the Board had no doubt that the applicant could safely and reasonably relocate to a different part of Pakistan. The applicant had lived without difficulties with his relatives in Jhelum, an area with a significant Shia population.
24. The Board also found that it would not be unreasonable for the applicant, being free of serious health problems, to re-establish his life with his relatives in Jhelum or in some other part of Pakistan where there was a significant Shia community. There was no reason why the applicant would be in any worse situation than any other member of the Pakistan Shia community in re-establishing his life, finding work and living a reasonably normal life similar to others of his religion, age and socio economic origin in Jhelum.
25. Thus, the Board concluded that the applicant had no real risk of any of the proscribed forms of harm if he were refouled to Pakistan.
26. The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
27. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
28. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 1st day of April 2026
| |
( Teresa NG )
for Registrar, High Court
|
Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 1 April 2026
Applicant’s ref. no:
Nil |
|
Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 1 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11422/18/5/7/P2219
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1384/18 (formerly RBCZ 11404/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|