RE SHAH SYED MUJAHID HUSSAIN

CACV 391/2026, [2026] HKCA 1118

On Appeal From [2026] HKCFI 1945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 391 OF 2026

(ON APPEAL FROM HCAL NO. 734 OF 2020)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 1 April 2026[1] refusing his application for leave to apply for judicial review against the decision dated 7 April 2020 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeal against the decision dated 20 April 2018 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Pakistan born in 1974.  He is a Shia Muslim from the Mirpur district of Pakistani-administered Kashmir. After entering Hong Kong illegally, he surrendered to the Immigration Department on 27 January 2016, and lodged a non-refoulement claim on 9 March 2016.  His claim was on the basis that if refouled to Pakistan, he would face persecution and harm from local Sunni extremists.  According to the applicant, during the holy month of Muharram in December 2015, he was confronted by local Sunnis who told him not to conduct a Muharram event publicly.  Thereafter, he was kidnapped, assaulted, attacked and threatened by the local Sunnis on various occasions.  He reported the kidnapping incident to the police but they did not take any action.  He fled to Jhelum to stay with his maternal grandparents but was still being followed.  Consequently, he left Pakistan on 24 January 2016.  

3.  The Board heard the applicant’s appeal against the Director’s decision at an oral hearing on 4 December 2019.  The applicant was represented by a lawyer assigned by the Duty Lawyer service and the Director was represented by the Department of Justice.  A list of issues together with some agreed facts was prepared and submitted to the Board. The applicant adopted all the information submitted and gave evidence with the assistance of an interpreter.  The legal representatives submitted written skeleton arguments and also made oral submissions.  

4.  By a decision given on 7 April 2020, the Board rejected the applicant’s appeal[6]. In gist, the Board identified a fundamental inconsistency between the applicant’s evidence at the hearing and his previous accounts.  The parties had agreed as an undisputed fact that the applicant was an ordinary Shia who held no particular post. However, in his testimony before the Board, the applicant stated that he was a high-profile preacher responsible for converting Sunnis to the Shia sect.  The Board noted that the background country information showed that proselytising and conversion activities carried a much greater risk of harm than being an ordinary Shia member, and there was no credible explanation for the applicant’s failure to mention his role as a high-profile preacher in his earlier statement and interview given to the Director and the agreed facts.  The Board found this inconsistency to be a fundamental and central negative credibility indicator. The Board also identified other discrepancies in the applicant’s oral testimony and written claims, and found his evidence lacking in detail and spontaneity, and he was evasive particularly during cross-examination.  The Board attached very little weight to the documentary evidence and the hearsay evidence such as the gun attack on his home, as there was no explanation on the source.  The Board concluded that the applicant was not a witness of truth and that none of his claims, apart from the agreed facts, could be given any credence.  Based on the available country of origin information (“COI”), the Board assessed that the applicant faced no real risk of serious harm as an ordinary Shia Muslim, given that Shia Muslims make up approximately 20% of Pakistan’s population and that sectarian violence has significantly reduced in recent years due to counter-terrorism operations. The Board found, in the alternative, that it would be safe and reasonable for the applicant to re-establish his life and find work in Jhelum or another area with a significant Shia community. 

The Judge’s decision

5.  By a Form 86 filed on 22 April 2020, the applicant applied for leave to judicially review the Board’s decision. An oral hearing was held on 10 March 2026 during which the applicant reiterated the danger he faced from Sunni Muslims.  He added new information that his son and two of his cousins were recently attacked by the assailants in February and March 2026 respectively.  He said that his family had reported the attack to the police but the assailants were only detained for a few days because of their political influence. 

6.  By a Form CALL-1 dated 1 April 2026, the Judge refused his application for the reasons set out in [13] to [28].  In summary, the Judge was of the view that the new information mentioned at the hearing was not raised before the Board and should not be considered by the court in the application for judicial review, relying on Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090.  The Judge held that the intended judicial review had no realistic prospect of success because the Board was entitled to arrive at the finding of facts in the decision, including the assessment of credibility, COI and risk of harm, had applied the correct legal principles, and there was no procedural unfairness or irrationality in its decision.  

This appeal

7.  On 14 April 2026, the applicant filed a Notice of Appeal to appeal the Judge’s decision to this Court. His grounds of appeal are that: (1) the decisions of the Judge and the Board are unfair; (2)  his life is in danger as the Sunni Tehreek members are still very active in Pakistan and he was a Shia preacher; (3) he had told the Director he could not relocate in Pakistan because Shia-Sunni conflicts and killings were common and happened all over Pakistan and the authority took no action; (4) he had told the Board he had taken his complaint to a higher authority (SSP) but he was transferred together with the Sunnis to a local police station, where he was stripped of his clothes and beaten up by the Sunnis in the presence of the police officers, who took no action as the Sunnis were in the majority and Shias were the minority in the country; and (5) at the hearing before the Board, the duty lawyer representing him was not allowed to speak when he tried to interfere. 

8.  The appeal was listed for hearing on 8 June 2026.  Despite directions given by the Court, the applicant did not lodge any written submissions.  He was thus deemed to have waived his right to make submissions and the scheduled hearing was vacated pursuant to the directions of the Court.  We have therefore proceeded to determine the appeal on the basis of the available documents and materials.

Our reasons for decision

9.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

10.  Further, it is well-established that assessments of evidence, country of origin information (COI), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

11.  The principal ground of appeal is that the decisions of the Judge and the Board are unfair due to the matters stated in the Notice of Appeal.  We would point out at the outset that insofar as the applicant seeks to challenge the Director’s assessment on internal relocation, this is not permissible because the Director’s decision is no longer susceptible to judicial review once an appeal was pursued and determined by the Board. The Director’s decision has been superseded by the Board’s decision: Re Moshsin Ali [2018] HKCA 549.

12.  As to the other grounds advanced by the applicant, we are of the view that they are unarguable for the following reasons:

(1)     Regarding the applicant’s claim that he would face danger in the ongoing Shia-Sunni conflict in Pakistan as he was a Shia preacher, this is a direct challenge against the Board’s findings of fact and credibility, which are matters for the primary decision-maker and not for the court on judicial review. As observed by the Judge, the Board gave comprehensive reasons for rejecting the applicant’s evidence. Central to its finding was the fatal discrepancy between his claim to the Director and in the agreed facts before the Board that he held no position within the Shia sect and his oral testimony at the hearing before the Board that he was a high-profile Shia preacher.  The Board found it inexplicable that such critical information would have been omitted from all his prior accounts[7].  These are findings of fact properly open to the Board based on the evidence including the agreed facts submitted, and for the reasons it gave.  There is no basis for the Court to interfere by way of judicial review.  The Judge did not err in declining to interfere with these findings.

(2)     Regarding the applicant’s complaint about the assessment on the viability of internal relocation, given that the Board had rejected the applicant’s evidence and its conclusion that the applicant failed to prove his core claim, it was not strictly necessary for the Board to address the viability of internal relocation.  In any event, the Board’s assessment was based on the country information which showed that sectarian violence had significantly decreased, the vast majority of attacks occurred outside Kashmir, and  Jhelum has a significant Shia population and the risk to an ordinary Shia member was far below the threshold of a real risk such that it would be safe and reasonable for the applicant to relocate to Jhelum.  The Board’s conclusion on internal relocation was supported by the evidence before it, and was neither irrational nor procedurally unfair.

(3)     In respect of the assertion that the applicant was mistreated by the Sunnis at the police station when he pursued his complaints to the senior police and the police took no action against the Sunnis, the applicant only told the Board he had taken the matter to the senior police but not the mistreatment by the Sunnis.  As the Board pointed out, the applicant had not in his previous accounts mentioned he had taken the matter to the senior police, and this was one of the several discrepancies which undermined his credibility.  The Board, as it was entitled to do so, regarded this belated assertion as a negative credibility indicator in assessing his evidence.   

(4)     As to the claimed mistreatment by the Sunnis and the inaction of the police, the Board had no duty to investigate them given that they were not raised before it, and they should not be considered by the court:  Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090. It follows that the applicant cannot contend in this appeal that the Board erred in not taking into account these matters.

(5)     Regarding the procedural complaint that the applicant’s lawyer was not allowed to interfere at the hearing, we note that there is no contemporaneous complaint from the applicant or his lawyer about being prevented from participating at the hearing. More importantly, the Board recorded at [8] of its decision that the legal representatives of the parties were given the opportunity to ask further questions after the Board made clarifications with the applicant, but neither of them had done so.  Further, the applicant did not provide any evidence to support this allegation, nor did he raise it before the Board at the time or in the leave application before the Judge.  In the circumstances, we are of the view that this ground is not made out.

 

13.  We are satisfied that the Judge had given proper and adequate reasons for his holding that the intended judicial review had no prospect of success.  As the applicant’s appeal has no merits, we dismiss the appeal.

[1] [2026] HKCFI 1945

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] [39] to [43] of the Board’s decision