Re Limbu Birkhaman

CACV 402/2018

[2019] HKCA 474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 402 OF 2018

(ON APPEAL FROM HCAL 433/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.By the judgment dated 21 January 2019 (published as [2019] HKCA 50), we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 8 August 2018 (published as [2018] HKCFI 1742) refusing leave to apply for judicial review.

2.By his notice of motion filed on 4 February 2019, the applicant sought leave to appeal to the Court of Final Appeal against the judgment.  The applicant did not put forth any grounds of appeal therein.

3.In his written submissions lodged on 18 February 2019, the applicant submitted that we were wrong in concluding that the applicant had no basis to rely on the concept of state acquiescence.  He cited Re MI CACV69/2014, 26 September 2014 and MDB v Betty Kwan HCAL 18/2012, 21 March 2014, and paragraph 18 of General Comment No. 2 (24 January 2008) issued by the United Nations Committee Against Torture in this connection.

4.These authorities were considered by the Court of Appeal (Lam V-P, Kwan and Barma JJA) in Re Esmerez Maria Nieva Gelito [2018] HKCA 611 at [16] to [19], an authority we referred to in [14] of our judgment in the present case. The Court held in that case:

“ 16. In our judgment, the applicant does not have any basis to rely on the concept of state acquiescence. As held in TK v Michael Jenkins HCAL 126/2010, 21 October 2011, the duty of diligence in the context of state acquiescence is not the same as a duty of reasonable protection. It only arises when the government knows or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-state actors and takes no action to prevent, investigate or prosecute. See also the discussion in AM v Director of Immigration [2014] 1 HKC 437.

17. The acts of torture or ill-treatment in question has to reach a minimum level of severity, generally involving actual bodily injury or intense physical or mental suffering: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [173]. The finding of the Board at [24] of its decision was that there was no substantial ground for believing that the applicant would suffer such harm upon refoulement.

18. Further, as held in AM v Director of Immigration [2014] 1 HKC 437 at [64] and [65], the failure to exercise due diligence must be so gross or of such a scale that it enables those persecuting the applicant to do so with impunity. The failure could then be effectively regarded as providing encouragement or de facto permission to those engaged in the acts of torture.

19. There is nothing in the two authorities cited by the applicant (Re MI CACV 69/2014, 26 September 2014 and MDB v Betty Kwan HCAL 18/2012, 21 March 2014) to cast any doubt on the above principles.”

5.The judge adequately explained at [19] of the CALL-1 Form why the extended concept of state acquiescence is not applicable in this case. We held that the judge did not err in law (as analysed in Re Esmerez Maria Nieva Gelito, supra) in so holding. 

6.Thus, the authorities referred to in the written submissions cannot take the applicant’s case on extended state acquiescence further.  

7.In any event, the matters raised by the applicant in the notice of motion and the written submissions do not involve any question of great general or public importance.  There is no reason for us to grant leave on the “or otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is therefore not met: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

8.Accordingly, we dismiss the application for leave to appeal to the Court of Final Appeal.

The applicant acting in person