RE GALVIS SILVA PAOLA ANDREA

CACV 233/2026, [2026] HKCA 987

On Appeal From [2026] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 233 OF 2026

(ON APPEAL FROM HCAL NO. 1413 OF 2021)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims)  Sabrina Ho (“the Judge”)  given on 25 February 2026[1] refusing her application for leave to apply for judicial review against the decision dated 19 July 2021 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed her appeal against the decision dated 28 October 2020 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 Colombia born in 1989.   She last entered Hong Kong as a visitor on 7 January 2009 and overstayed. On 16 April 2009, she surrendered to the Immigration Department. On 9 September 2010, she lodged a non-refoulement claim on the basis that if she returned to Colombia, she would be harmed or killed by the murderers of her boyfriend as she had witnessed the murder.   Details of the applicant’s background, the basis of her claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal were set out in the Board’s decision[6].   

3.  The Board found that the applicant’s fear of being killed as witness to her boyfriend’s murder was more imaginary than real, for the  reasons that: (1)  the applicant could not be a witness of significance as the murderers were wearing helmets at the time of the murder so their faces could not have been seen, (2)  whilst the applicant was told by her friend that the two murderers were present on an occasion when the applicant went to another friend’s house, it was merely hearsay, and this could not have made the applicant a better witness who needed to be killed, (3)  the murderers had only targeted her boyfriend and left the applicant unharmed. The applicant admitted that they never harmed or threatened her, (4)  the Board found it illogical that the murderers would have waited for months before deciding to look for the applicant to kill her when she would have been easy to locate.  On the issue of state protection, the Board found the applicant’s evidence contradictory: she claimed that police would not protect her due to corruption and yet at the same time said that they protected her by giving her advice to stay away from the matter.  Having regard to the relevant country-of-origin information, including the state of law and order in Colombia, the Board considered that the applicant would be able to resort to state protection in Colombia. On the issue of internal relocation, the Board agreed with the Director (at [19] of the Director’s decision)  that relocation to cities such as Cartagena and Ibague would be reasonable options, given that the murderers appeared to belong to a local gang and had no intention to kill the applicant.  The Board thus concluded that the applicant had failed to show any real risk of harm entitling her to non-refoulement protection under any of the applicable grounds.  

The Judge’s decision

4.  The Judge set out the grounds advanced by the applicant in support of the application for leave to apply for judicial review and her reasons for refusing leave: see [6]-[15] of the Form CALL-1. In essence, the Judge did not agree that there was any error of law, procedural unfairness or irrationality in the Board’s decision, or that the Board had wrongly fettered its discretion. It was incorrect to say that the Board had not analysed the facts or turned its mind to the risk of violation of the applicant’s right to life. The applicant’s generalised complaints that the Board had regard to non-official, outdated or hearsay information were unparticularised. The applicant’s wish to stay in Hong Kong to take care of her daughters was irrelevant to her non-refoulement claim.

This appeal

5.  On 11 March 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  She stated that she would face hardship if she returned to her home country, and that the Board had relied on a source of news which was not officially recognised, that the lack of credible sources of information resulted in groundless speculations made against her, and that state protection and internal relocation were not viable.

6.  As the applicant did not lodge any written submissions, despite having been granted an extension of time until 9 April 2026 to do so, the hearing of her appeal scheduled for 5 May 2026 was vacated pursuant to the directions of the Court.  It was only subsequently, on 6 May 2026, that the applicant sought to lodge her written submissions.  In those submissions, the applicant repeated her story about the killing of her boyfriend and her fear of the murderers. She complained that the Director and the Board relied on outdated country-of-origin information to assess her claim. She said that she found some errors in the Judge’s decision, without identifying what these were. She asked for a review of her claim.

7.  We will determine the appeal on the basis of the available documents and materials, including her late written submissions.

Discussion

8.  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.

9.  It is well-established that the assessment of evidence, country of origin information, 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.

10.  The Board’s findings as to the applicant’s credibility and the truth of her claim were findings open to the Board on the based on the evidence it received and for the reasons it gave. The Judge discerned no reasonably arguable legal error, procedural unfairness or irrationality in the Board’s decision. 

11.  The grounds advanced by the applicant in her Notice of Appeal against the Judge’s decision are general assertions unsupported by particulars. They fail to engage with the reasons of the Judge in rejecting her application for leave to apply for judicial review. 

12.  We note that in the application below, the applicant indicated that she wished to remain in Hong Kong to look after her two daughters who are attending school in Hong Kong. She also relied on a Certificate issued by the United Nations High Commissioner for Refugees showing that one of her daughters (“Karla”)  was granted refugee status by the UNHCR. As correctly observed by the Judge and the Board, the status of Karla, or the fact that the applicant has to look after her daughters in Hong Kong, are not relevant considerations in assessing her entitlement to non-refoulement protection.  Nor are these matters relevant to the issues in this appeal. 

13.  The applicant has not been able to demonstrate with particulars any error in the reasoning of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are satisfied that the Judge gave proper and adequate reasons for her holding that the intended judicial review has no prospect of success.  There is no proper basis for us to disturb the Judge’s decision.   

14.  The applicant’s appeal is accordingly dismissed.