GURDEV SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 958/2025, [2026] HKCA 194

On Appeal From [2025] HKCFI 4885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 958 OF 2025

(ON APPEAL FROM HCAL NO 2224 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge (Non-refoulement Claims)  Philips Wong (“Judge”)  on 17 October 2025 dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 21 December 2018.  In that decision, the Board allowed the applicant’s appeal/petition to be withdrawn and confirmed the further decision of the Director of Immigration (“Director”)  dated 26 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1982 and his claim was made on the basis that if he returned to India, the brothers of his former girlfriend would harm or kill him due to their political differences.  Details of the Board’s reasons for acceding to the applicant’s request for withdrawal of petition are set out in its decision by letter dated 21 December 2018: see [2] of the Form CALL-1.  The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusal of the application: see [5] – [9] of the Form CALL-1.

Appeal to this Court

3.  On 31 October 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the Judge did not consider his judicial review, that the Board did not give a correct decision, and that the Board’s decision was wrong, but he did not provide any particulars.

4.  The applicant has lodged written submission in which he cited the legal principles of the high standards of fairness and Wednesbury unreasonableness.  He also stated that the Board did not properly assess the applicant’s credibility and that the Board failed to provide cogent and compelling reasons to justify the rejection of the applicant’s claim.

5.  At the hearing, the applicant stated that, last week, he found out that his family had accidentally revealed to his former girlfriend’s family that he was currently in Hong Kong and they threatened to shoot him if they saw him.  The applicant further asserted, without providing any documentary support, that his father had passed away and his brother was killed by his former girlfriend’s family, which left him as the only man in his family.  He also stated that there will be an election in his home country in 2027, so once his problem is resolved, he can go back home after remaining in Hong Kong for around one year longer.

Discussion

6.  In assessing the merits of the appeal, we shall 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.

7.  As this Court pointed out in Re Das Purnima Rani [2019] HKCA 669 at [41], once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.  The only option left to a claimant who has validly withdrawn his or her appeal is to make a fresh non-refoulement claim under section 37ZO(2)  of the Immigration Ordinance (Cap 115)  if the requirements of that section are met.

8.  In the present case, the applicant has not contested the validity of the withdrawal of his appeal and the Board’s acceptance of his withdrawal.  According to the Judge, the applicant appeared to accept that the Board’s decision was correctly decided and he simply wanted to re-open his case due to a change of circumstances at [6] of the Form CALL-1.  In the circumstances, he has not provided any basis for invalidating the withdrawal of his appeal.  Although the applicant has mentioned new matters in his oral submissions, those submissions cannot be entertained in this appeal which is solely based on the evidence before the Board and before the Judge below.

9.  Equally the applicant has not identified any viable ground of appeal against the Judge’s decision.

10.  For these reasons, there are no grounds to interfere with the Judge’s decision.  Accordingly, the applicant’s appeal is dismissed.