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

HCAL 1468/2025

[2026] HKCFI 873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1468 OF 2025

  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 barely 2-year-old national of Colombia born in Hong Kong out of wedlock to his Colombian parents who were both non-refoulement claimants but whose respective separate claims had already been rejected by the Director of Immigration (“Director”), and upon his birth in Hong Kong on 26 March 2024, his mother as her next friend also raised a non-refoulement claim for him on the factual basis of her own claim that if refouled to Colombia that he would be harmed or killed by her former boyfriend and/or 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 as an illegitimate child with a single mother that he may be subjected to discriminations in 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 former boyfriend Luis who was said to be a member of ELN which has been in military conflicts with the Colombian government for years and has been branded a terrorist organization by the authorities.

3.  Later when she wanted to end their relationship, Luis together with some other members of ELN made threats against her, and fearing for her life she therefore departed Colombia on 17 March 2017 for China, and from there she travelled to Hong Kong where she overstayed and subsequently raised her non-refoulement claim for protection to the Immigration Department but which was rejected by both the Director and the Torture Claims Appeal Board (“Board”) respectively on 27 September 2018 and 10 January 2019 under the Unified Screening Mechanism (“USM”) upon finding that even if her claimed risk were real that it would be negated by both state protection and reasonable internal relocation alternatives being available to her upon her return to Colombia.

4.  Her subsequent leave application 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 the consideration and determination of her claim (HCAL 172/2019 [2021] HKCFI 3894).

5.  Her 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 Non-refoulement Claim   

6.  As noted above that after giving birth to the Applicant in Hong Kong out of her relationship with another Colombian man, the mother also raised a non-refoulement claim for the Applicant based on the primary facts of her own claim of fear of being harmed or killed by her former boyfriend and/or his fellow ELN members if refouled to Colombia, and that as an illegitimate child with a single mother that there is a risk of the Applicant being subjected to discrimination in Colombia, for which she completed a Non‑refoulement Claim Form (“NCF”) on his behalf on 10 October 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 5 March 2025 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 his 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 as well as those of his mother and assessed the claimed level of risk of harm upon his return to Colombia as low due to the absence of or low intensity or frequency of past ill-treatment on his mother by her former boyfriend Luis or the ELN people that her perceived threats were not as imminent as she alleged while her own behavior did not commensurate with what she alleged, that it was a private relationship dispute between her and her former boyfriend only and with no evidence of any real intention of him to seriously harm or kill her other than just angry words or empty threats, nor is it accepted that there would be any adverse interest of either the former boyfriend or the ELN people in the Applicant at all when they would not even know of his existence let alone to form any intention to harm or kill him upon his return to Colombia, that in any event as it was a private dispute between his mother and her former boyfriend without any official involvement and with ELN being branded as a terrorist organization that state or police protection would be available to the Applicant 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 his mother as an able‑bodied adult with working experience to other areas of the country away from her home district in large cities such as Bogota where it would be difficult if not impossible for anyone to locate them, while relevant COI also show that there are constitutional provisions as well as governmental department and NGOs to protect assist and support single mothers and illegitimate children such as the Applicant and his mother in Colombia that it is not accepted that the Applicant would face an real and foreseeable risk of being subjected to discriminations or similar harms if refouled to Colombia.

9.  On 19 March 2025 the Applicant’s mother on his behalf lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 6 May 2025 before the Board during which she gave evidence and answered questions raised of the Applicant’s claim by the Adjudicator for the Board.  On 3 June 2025 his 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 his fellow ELN members that caused her to leave her country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of Luis or his fellow ELN members to harm or kill her other than some angry words or empty threats and without any reliable evidence of any past ill‑treatments inflicted against her by either of them, nor is there any evidence that Luis or ELN people knew of the existence of the Applicant let alone to form any reason or intention to harm him, that in any event it was a private relationship dispute between his mother and her former boyfriend only without any official involvement that state or police protection would be available to the Applicant upon his return to Colombia as well as reasonable internal relocation alternatives for him to move safely with his mother to other parts of the country away from her home district without any risk of being located by her former boyfriend or ELN people, while relevant COI show that the Applicant being born to his Colombian parents would be entitled to all the legal rights and protections guaranteed by the Colombian constitutions as well as support and assistance from relevant governmental departments and NGOs available for illegitimate children and single mothers such as him and his mother that it is not accepted that he would face any real risk of any harm or discrimination if refouled to Colombia that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 25 June 2025 the Applicant’s mother on his behalf filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his mother’s supporting affirmation of the same date, nor was she able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant or his mother, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

12.  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.

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

14.  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.

15.  I am of course mindful of the fact that the Applicant being a minor at his present age of not even 2 years old was without legal representation in his appeal before the Board, nor for that matter in his 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 consider and examine whether his non-refoulement claim had been properly assessed 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 which might not have been properly advanced to the Board due to lack of legal representation in his 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.

16.  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 [2021] HKCA 53 elaborated as follows:

“31. … when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non‑refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, 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 above 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 …

33. …     on the other hand, if the court is satisfied the Board had achieved high standards 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.”        

17.  In the present case of the Applicant, as noted above that the Board in rejecting his claim did properly consider and determine it in a manner consistent with those propositions set out in Fabio Arlyn Timogan and Re Jasvir above, and sufficiently to meet the required high standards of fairness in taking into account of all materials specific to the Applicant’s personal circumstances for any underlying matter that might support his potential non-refoulement bases, and upon scrutinizing the Board’s decision and the factual basis of the Applicant’s claim as well as his specific personal circumstances as an illegitimate child born outside his home country to a single mother, I do not find any underlying matter either that might support his non-refoulement claim but which had not been advanced to the Board due to his lack of legal representation in his appeal before the Board, and as there is no merit in his intended application for judicial review I shall accordingly treat the absence of legal representation for him in his present leave application as required by Order 80 rule 2 of the RHC as a mere irregularity as in the case of Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and discussed in Fabio Arlyn Timogan.     

18.  In the premises, as I am for the given reasons 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 his 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