GALLEGO VALDES MARIA MELEK (a minor) by her mother and next friend ANZOLA SANCHEZ YESICA DANIELA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2551/2024

[2026] HKCFI 875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2551 OF 2024

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 5-year-old national of Colombia born in Hong Kong out of wedlock to her Colombian parents who were both non-refoulement claimants whose respective separate claims had already been rejected by the Director of Immigration (“Director”), and upon her birth in Hong Kong on 27 May 2020 that her mother as her next friend also raised a non‑refoulement claim for her based on her mother’s own claim that if the Applicant returned to Colombia with her mother she would be harmed or killed by her mother’s former boyfriend and his fellow members of the guerrilla insurgency group the National Liberation Army (“ELN”) which has been branded as a terrorist organization by the Colombian government, and that in addition as an illegitimate child with a single mother that there is also fear of risk of her being discriminated against if refouled to Colombia.

The Claim of the Applicant’s Mother

2.  The Applicant’s mother now aged 32 was born and raised in Caldas, Colombia where she started a relationship with her boyfriend Luis who was a member of the ELN which has been in military conflicts with the Colombian government for years and branded as a terrorist organization by the government.

3.  Later when she wanted to end their relationship, Luis and other ELN members made threats against her, she therefore departed Colombia on 17 March 2017 for China, and from there she later travelled to Hong Kong and raised her non-refoulement claim for protection, but which was rejected by the Director and the Torture Claims Appeal Board (“Board”) respectively on 27 September 2018 and 10 January 2019 under the 2-tier screening system of the Unified Screening Mechanism (“USM”) for non-refoulement claims upon finding that both state protection and reasonable internal relocation alternatives would be available to her to negate whatever risk that might arise from her former boyfriend or his fellow ELN members upon her return to Colombia.

4.  Her application for leave to apply for judicial review of the Board’s decision was then refused by this Court on 31 December 2021 upon finding no error of law or procedural unfairness in her process before the Board or in its decision or any failure on its part to apply high standards of fairness in its consideration and determination of her claim (HCAL 172/2019 [2021] HKCFI 3894).

5.  Her subsequent appeal against the Court’s decision was also dismissed by the Court of Appeal on 20 September 2022 (CACV 22/2022 [2022] HKCA 1084).

The Applicant’s Claim    

6.  As noted above that after giving birth to the Applicant in Hong Kong out of her relationship with another Colombia man, her mother raised a non-refoulement claim for her based on her own claim of fear of harm from her former boyfriend Luis and his fellow ELN members if refouled to Colombia, and in addition that being an illegitimate child born to a single mother that there is also fear of discrimination against the Applicant upon her return to Colombia, and for which her mother completed on her behalf a Non-refoulement Claim Form (“NCF”) on 5 February 2021 and attended screening interview before a different immigration officer with legal representation from the Duty Lawyer Service (“DLS”) for the Applicant.             

7.  By a Notice of Decision dated 27 April 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and those of her mother’s claim and found no substantial grounds for believing that she will be subjected to any risk of harm from her mother’s former boyfriend or ELM members upon her return to Colombia due to the absence of any past ill-treatment from them, that it is not accepted that her mother’s former boyfriend or any ELM members would have any knowledge of the Applicant’s existence let alone to form any intention to harm or kill her, or for that matter to still have any adverse interest in her mother after all these years since she left the country in 2017, that in any event it was a private relationship dispute between her mother and her former boyfriend only without any official involvement and that with ELM being a terrorist organization that state or police protection would be available to the Applicant and her mother as well if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Colombia with a large population of 49 million people spread across a vast territory of more than 1.1 million square kilometers that it would not be unduly harsh for the Applicant to move safely with her mother as an able-bodied adult with working experience to other areas of the country away from her mother’s home district in large cities such as Cali or Barranquilla where it would be difficult if not impossible for anyone to locate her or her mother, while relevant COI also show that support and assistances from governmental departments and NGOs as well as her mother’s own family would be available to help her and her mother to adapt and settle into a normal life in Colombia without any fear of any discrimination against either of them.

9.  On 11 May 2021 the Applicant’s mother on her behalf lodged an appeal to the Board against the Director’s decision, and for which her mother attended no less than 5 hearings before the Board during which, and mainly on 18 July 2023, she gave evidence and answered questions raised of the Applicant’s claim by the Adjudicator for the Board.  On 5 December 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the evidence of the Applicant’s mother that it doubted the credibility of her claim of fear of harm from her former boyfriend Luis or any of the ELN people and rejected her claim that her had any such fear that caused her to leave her country to come to Hong Kong to seek protection, nor could she prove that such risks against the Applicant is real and foreseeable based on her alleged facts upon her return to Colombia, that the Applicant was not yet born at the time when her mother left the country that Luis or the ELN people could not have known her existence let alone to form any intention to harm or kill her, while relevant COI show that single mothers and illegitimate children such as the Applicant and her mother are not uncommon in the society of Colombia and with support and assistance from relevant government departments and NGOs that it is not accepted that there would be any real risk of any discrimination against the Applicant upon her return with her mother to Colombia, and as for any children-specific risks in Colombia such as forced displacement, human trafficking, or statelessness that relevant COI show no such underlying risks to the Applicant based on her personal circumstances including the fact that she was born to both Colombian parents albeit illegitimately and outside the country in Hong Kong that she would not be rendered stateless under the Colombian Constitution, and that in any event state protection as well as reasonable internal relocation alternatives would be available to the Applicant upon her return with her mother to Colombia to negate whatever risk that may arise from her mother’s former boyfriend or any ELN members that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 19 December 2024 the Applicant’s mother on her behalf filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date her mother put forward the following grounds for her intended challenge:

(1)   That the Board failed to conduct sufficient inquiry of the relevant COI as regard the situation of Colombia in its assessment of the Applicant’s claim;

(2)   That the Board failed to properly consider the issue of BOR 3 risks or to give reasons for its decision;

(3)   That the Board failed to apply high standards of fairness in its determination of the Applicant’s claim under torture risk as her life and limbs are at risk and in jeopardy and her fundamental human rights not to be subjected to torture risk is involved.         

12.  These are however just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI in its assessment and determination of the Applicant’s claim.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor was her mother able to do so at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.  

14.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her mother in her oral evidence and her answers to questions raised of the Applicant’s claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant or her mother, I do not find any reasonably arguable basis to challenge the finding of the Board.               

15.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  I am of course mindful of the fact that the Applicant is a minor at her present age of only 5 years old and was without legal representation in her appeal before the Board, and for that matter nor was she in her present leave application for judicial review as required by Order 80 rule 2 of the Rules of the High Court, Cap 4A, and hence it would be necessary to separately consider and examine whether her non-refoulement claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are underlying matters that may support his potential minor-specific non-refoulement bases but which might not have been advanced to the Board due to lack of legal representation in her appeal before the Board, as held by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

17.  The case of Fabio Arlyn Timogan however is not authority for the proposition that any decision of the Board in relation to children claimants of tender age must be quashed if they were not legally represented, as the same Court of Appeal in the subsequent case of Re Jasvir Singh [2021] HKCA 53 elaborated as follows:

“31. … the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] – [53], [56] – [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80 rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.” 

18.  In the present case of the Applicant, as noted above that the Board in rejecting her claim did properly consider and determine it in a manner consistent with those propositions set out in Fabio Arlyn Timogan and Re Jasvir Singh and sufficient to meet the required high standards of fairness, and upon scrutinizing the factual basis of her claim as well as her specific and personal circumstances, I do not find any underlying matters that may support her potential minor-specific non-refoulement bases that might not have been advanced to the Board due to lack of legal representation in her appeal before the Board, there is therefore no merit in her intended application for judicial review that I shall accordingly treat the absence of legal representation for her in her present application as a mere irregularity as in the case of Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and discussed in Fabio Arlyn Timogan.         

19.  In conclusion, and for all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

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

Form CALL-1