GALVIS SILVA PAOLA ANDREA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1413/2021

[2026] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1413 of 2021

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  The Form 86 be amended to name the Director of Immigration as the putative interested party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 8 October 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”) dated 19 July 2021 (the “Board’s Decision”).

2.  In the Form, the Applicant named the Board as the interested party. I amend the Form on my own motion to name the Director of Immigration (the “Director”) as the interested party instead.

3.  The Leave Applicant is supported by the Applicant’s Affirmation dated 8 October 2021 (the “Affirmation”), which exhibited the Board’s Decision.

4.  The Applicant requested an oral hearing, which took place on 21 January 2026 (the “Hearing”).

Background

5.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat them here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

6.  In the Form, the Applicant raised various grounds in support of her Leave Application, I will summarise them below:

a.  The Board is in breach of procedural fairness;

b.  The Board’s Decision was unreasonable and irrational in the public law sense, or is a result of procedural errors or unfairness;

c.  The Board has unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that it does not satisfy the requirements;

d.  The Board fails to meet the greater care and duty owed to a self-represented claimant;

e.  In dismissing the Applicant’s appeal, there is no indication that the Board has conducted any analysis of the facts and the supporting documents or turned its mind to the risk of violation of the Applicant’s right to life under Article 2 of the Bill of Rights Ordinance (“BOR 2 Risk”);

f.  The Board has significantly relied on source of news which is not officially recognised, or it is simply hearsay;

g.  The Board has relied on some cases which are outdated. The lack of credible source of information has resulted in the Board making groundless speculations.

7.  At the Hearing, the Applicant handed up a purported Certificate (the “Certificate”) issued by the United Nations High Commissioner for Refugees concerning the Applicant’s daughter Galvis Silva Ka Lam Karla Lucia (“Karla”). In the Certificate, it was stated that Karla is a person under the mandate of the office of the United Nations High Commissioner for Refugees and she should be protected from forcibly return to a country where she would face threats to her life or freedom. The Applicant said that she had presented the Certificate to the Director and the Board before. Relying on the Certificate, the Applicant said that she has gotten married with an individual in Hong Kong and they have two daughters who need to go to school in Hong Kong.

8.  The relevant legal principles are well established. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

9.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

10.  I have reviewed the Board’s Decision in detail. The Board has fully considered the Applicant’s challenge against the Director’s decision in refusing her claim for non-refoulment protection. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision, or that the Board had wrongfully fettered its discretion in refusing rejecting the Applicant’s appeal as alleged: cf. the Applicant’s complaints in paragraphs 6 (a) to (c) above.

11.  With respect to paragraph 6 (d) above, as recorded in the Board’s Decision, the Applicant was given the opportunity to make submissions at the hearing before the Board, the Applicant did not add anything save as maintaining that her life in Colombia was still in danger: see the Board’s Decision paras. 6-7. During the hearing, the Applicant was also given the opportunity to address questions raised by the Board: see e.g. the Board’s Decision paras. 35-37.

12.  Contrary to the Applicant’s complaint in paragraph 6 (e), the Board has considered the evidence comprehensively before reaching the conclusion that the Applicant’s alleged fear that the killers of her boyfriend would harm her if she returns to Colombia was “more imaginary than real”: see the Board’s Decision paras. 41-45, 49. On that basis, the Board found that the Applicant has failed to show that she was facing any BOR 2 Risk in Colombia.

13.  As to paragraph 6 (f) above, it is unclear what “news” the Applicant was referring to. Similarly, the complaint in paragraph 6 (g) above lacks particulars, the Applicant has not identified the “cases” which were allegedly outdated.

14.  As for the Certificate and the Applicant’s wish to stay in Hong Kong to take care of her daughters, this is irrelevant to her non-refoulment claim.

15.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23. I have considered all the relevant documents and the grounds raised by the Applicant in reaching the present decision.

Conclusion

16.  For the reasons stated above, I make an order that the Leave Application be dismissed.

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