Ahmed Abdelaziz Elrawy Hussein v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 325/2018

[2019] HKCFI 1423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 325 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

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

Order by Deputy High Court Judge Bruno Chan:

Leave be granted to the applicant to apply for judicial review of the Torture Claims Appeal Board’s decision dated 1 December 2017.

It is further directed that:

a copy of the decision hereof be sent to the Director of Legal Aid to facilitate the process of any application for legal aid by the applicant for his judicial review application.

Observations for the Applicant:

1.The applicant is a 36-year-old national of Egypt who arrived in Hong Kong on 18 June 2015 with permission to remain as a visitor up to 16 September 2015 when he did not depart and instead overstayed and was arrested by police on 23 September 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Egypt he would be harmed or killed for religious and/or political reasons, and later with supplemental basis of fear of persecution due to gender variance and/or non-conformity.  He was subsequently released on recognizance pending the determination of his claim.

Background

2.The applicant was born and raised in Gharbeya, Egypt as a Muslim, but became interested in the Christian faith as a teenager and for which he was frequently harassed and threatened by the local Muslim youths in his home town.

3.After leaving school he moved to Ismailityah and worked as a waiter there, and continued to develop his interests in the Christian faith and Egyptian politics.  In about 2002 he moved to Nuweiba in Siani near the Israeli border where he opened a shop selling souvenirs to tourists.

4.At the age of 22 he started to develop obsessive compulsive disorder which led to his many conflicts with other people including the police and state securities services over his opinion on political and religious issues.  As he felt frustrated and inhibited in Egypt, he went to Thailand in 2007 where he stayed for three years during which he married a Thai woman and started some small business selling touristry products, and was free to express his religious decisions by attending the local church and synagogues.

5.In 2011, the Arab Spring started with a revolution in Tunisia and spread to other countries including Egypt, and believing that situations back home had improved, the applicant therefore divorced his wife in Thailand and returned to Egypt in December 2013, but when he discovered to his disappointment that there were still restrictions as to religious and political expressions in Egypt that he felt very much of political and religious persecutions and started to develop post-traumatic stress disorder (“PTSD”), and spent most of his time isolated in his apartment until late 2014 when he decided to leave Egypt again and flew to South Korea.

6.Whilst in South Korea, he developed a terrible headache and with muscle pain all over his body that he tried to kill himself by drowning but was saved and sent to the hospital. Upon discharge he was detained by the Korean authorities who tried to deport him to Egypt, but he refused and eventually he was allowed to get on a plane on 18 June 2015 for Hong Kong.

7.However, immediately upon arrival in the Hong Kong airport, he was sent by the Immigration Department to a hospital for suspected suicidal behavior where he was kept for several weeks for treatments and observation.  After his visa had been extended to 20 September 2015, he did not depart and instead overstayed and subsequently raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 10 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

8.Whilst being released on recognizance pending determination of his claim, the applicant underwent several psychiatric examinations or assessments including one at the Tuen Mun Mental Health Centre in November 2016 when he was diagnosed by its psychiatrist Dr Choi to be suffering from Delusional Disorder marked by persistent preoccupation with imagined defect in appearances which had caused him significant distress and impairment in social functioning, and was recommended to continue with his drug treatment with regular follow-up by psychiatrist.

The Director’s decision

9.By a Notice of Decision dated 29 March 2017 the Director of Immigration (“the 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 (“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”).

10.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that his perceived fear of harm from the Muslim majority in Egypt or the Egyptian authorities is real and foreseeable upon his return to Egypt over his religious or political beliefs, that his such fear arose from frustration from being denied his freedom of opinion, belief and expression rather than evidence of actual persecution experienced in the past, and may well be related to his mental illness which is curable by medication and treatments available in Egypt according to reliable and objective Country of Origin Information (“COI”) which also show that the Egyptian government has taken steps to address concerns over freedom of religion and other social issues, and with the availability of state protection and reasonable internal relocation alternatives that it is considered not unreasonable for the applicant as an able-bodied adult with work experience to safety return to live and work in Egypt.

Appeal to TCAB

11.On 6 April 2017 the applicant with legal representation from DLS filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  On 11 October 2017 his lawyer provided his skeleton submissions in which he, in addition to claims of fear of harm for religious and political reasons, also raised fear and concerns over his gender variance which may lead to non-conformity of social norms in Egypt.  On 19 October 2017 he attended an oral hearing before the Board with legal representation during which he gave evidence and answered questions put to him by the adjudicator for the Board, and with submissions made on his behalf by counsel from DLS.  On 1 December 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board found that despite having experienced mental misfortunes, the applicant had not suffered severe injury or severe harm inflicted by any assailant which would place him within the definition or criteria of torture, BOR 2 or BOR 3 or persecution risks, and concluded that he has failed to establish a case of non-refoulement under any of the applicable grounds.

Leave to apply for judicial review   

13.On 1 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and although he did not put forward any ground for seeking relief in his Form, in his supporting affirmation of the same date he exhibited, inter alia, a legal opinion dated 15 January 2018 of his former counsel in which were set out the following errors said to have been made in the Board’s decision:

(1)  failure to consider gender variance;

(2)  failure to apply the correct legal test to future risk;

(3)  failure to consider COI objectively; and

(4)  failure to consider the psychiatric report fairly.  

14.Before proceeding to consider his grounds or complaints, I should first note that at the hearing of his application before me, the applicant was brought by the Correctional Service Officers to the court as he was then being remanded by the Kowloon City Magistrates’ Court as a result of being charged with the offence of assault occasioning actual bodily harm in a fight with some passers-by after displaying violent behavior in public, for which the Magistrates’ Court had called for a psychiatric report as to his mental capacity.

15.I mentioned this because when the applicant appeared before me, he displayed a very hostile, aggressive and un-cooperative manner that it was impossible for me to ascertain from him as to the reason for his delay with his application, and more importantly as to his proposed grounds for his intended application including for him to confirm his intention to adopt those grounds provided in his counsel opinion as set out above.  When that turned out to be impossible given his un-cooperative behavior in Court, I had concern over his mental capability to conduct his application while unrepresented, I therefore adjourned the hearing so that a copy of his psychiatric report called for by the Magistrates’ Court could be produced for my consideration solely for that purpose.

16.That report, dated 27 February 2019 by Dr Tang of Siu Lam Psychiatric Centre, stated that the applicant was suffering from psychosis but was found “mentally fit to plead”, of which I have taken to mean that he is mentally capable of understanding and conducting his own legal proceedings, and that by producing a copy of his counsel’s opinion in his affirmation, he has wanted to rely on those errors said to have been made by the Board as listed in the opinion as the grounds for his intended challenge against its decision.  Accordingly and for the reasons apparent below, I did not find it necessary to bring the applicant back before me for his application, and instead proceed to consider on paper the merits, if any, of his intended application, starting with the first ground.

Ground 1

17.For Ground (1), the applicant’s complaint as set out in his counsel’s opinion is that the adjudicator failed to consider gender variance or non-conformity by placing no weight on the applicant’s supplemental statement dated 10 October 2017 because it was not raised in his NCF or screening interview, and that the adjudicator also wrongly stated that the issue was not mentioned to the psychiatrist Dr Choi in his psychiatric examination back in November 2016, and while the applicant did explain in his supplemental statement why the matter had not been relied on as a ground for seeking protection in the initial screening, it was unfairly ignored by the adjudicator who just dismissed the issue without addressing the future risk, either independently or cumulatively with the original grounds as a matter that would draw adverse attention.

18.This is in fact what the adjudicator stated in the Board’s decision of this issue of the applicant’s gender variance or sexual non-conformity:

“ 3.7 Less than a week before the oral hearing with the Appeal Board the Appellant, via his Duty Lawyer, submitted ‘new evidence’ to the effect that he has ‘gender variance’ or ‘sexual non-conformity’ and hence will be submitted to torture or CIDTP or persecution in Egypt. However I place no weight on this new assertion, for several reasons: (1) despite the assertion of a long history of psychiatric problems since 2005 when he was aged 22 to 24 (see his record of Interview dated 8 March 2017 at QA.15), he has only just now raised this issue, having mentioned nothing about this despite the completion of his Non-refoulement Claim Form over 1.5 years ago in March 2016 or during his interview with the immigration screening officer in March 2017; he was speaking about his psychiatric situation from QA.13 to 17 but has made no mention of ‘gender variance’, which suggests recent fabrication, (2) worse still, he was examined by psychiatrist Dr Choi one year ago (November 2016) but has mentioned nothing about this psychiatric issue, despite speaking with a specialist psychiatrist, (3) as will be seen under the laws of non-refoulement below, a claimant is not entitled to sit back and make the Director disapprove his bare assertion, (4) the undisputed evidence shows that Appellant has a psychiatric illness and is prone to delusions, which makes his bare assertion even more unreliable, and (5) furthermore, even on his own version, nobody in Egypt knows about his alleged gender variation. For all these reasons I place no weight on this aspect of his case. I can see no substantial risk of serious harm for the purpose of non-refoulement. I will say no more on this aspect, and will focus on the other issues of the case.”

19.It seems to me that the adjudicator refused to place any weight on the applicant’s new assertion of gender variance in assessing his claim essentially that it was a bare assertion never raised before until shortly before his appeal hearing which he found unreliable, which is a credibility issue. 

20.It is however the applicant’s case that the adjudicator was wrong in saying that this gender issue had never been raised before and in particularly during his psychiatric examination by Dr Choi back in November 2016.  A close examination of Dr Choi’s report dated 23 January 2017 entitled Forensic Psychiatric Examination Report appears to support the applicant’s argument, as this is what was recorded in the penultimate paragraph under subtopic “Background information (as provided by the subject)” on page 3 of the report:

“ Psychosexually, he had heterosexual orientation. He had several relationship in the past before getting married with a Thai woman. He got divorced before he returned to Egypt in 2014, saying that he wanted to ‘wrap up all his past’. Since then, he didn’t have contact with ex-wife. He said he started to suffer from neurological pain since last year when he was staying at Korea, followed by change of body-shape, including his chest and muscularity. He believed that he had ‘gender problems’, but he was not willing to tell if he had use hormone. He still regarded himself a man. He said he wanted to see ‘man clinic’ and he didn’t want to discuss more about his gender issue. He is not in relationship now. He said he was completely normal before he went to Korea.”

21.There it was clear that the applicant did in November 2016 raise the issue of his “gender problems” to Dr Choi who then went on to record further instances of such issue being discussed with him under “Psychiatric History (according to the subject)” in the report as follows:

“ (IV) Psychiatric History (according to the subject)

…

Mr. HUSSIN reported to have experienced a lot of traumas after he returned to Egypt from Thailand. However, he didn’t want to recall the details as they were too painful to him. When he was in Korea, he had seriously thought about suicide. He also developed a lot of pain and was troubled by ‘change of body shape’ that made him worrying if he had ‘gender problems’. He had consulted doctors and was prescribed with drugs. According to the prescription list as attached in document no. 2, the drugs he was prescribed in Korea include naratriptan (analgesic drug), naproxen (analgesic drug), propranolol (for treatment of palpitation associated with anxiety), escitalopram (antidepressant), etazolam (anxiolytics). He didn’t find the drugs very useful.

After coming to Hong Kong, Mr. HUSSEIN said he had been compulsorily admitted to Kwai Chung Hospital for a month, where he had been isolated for 2 weeks (as there were Middle East SARS problems in Korea at that time), and he had been restrained twice, which he regarded to be horrible experience.  He also reported to have been assaulted by police before he was brought to the hospital.  He said it was actually problems related to miscommunication due to language barriers, yet he was treated as suffering from psychotic disorder at that time.  He said his pain and gender problems were real and of neurological origin but the doctors just treated him as having mental problems.”

22.In fact, it appears that the applicant had raised such issue or its related symptoms even earlier in September 2015 when he was admitted to the psychiatric unit of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) for about two weeks, and that from his hospital discharge summary Dr Choi extracted the following statement and recorded in his own report under “Psychiatric History (according to records retrieved from Hospital Authority)” about what the applicant had then told PYNEH:

“ He reported that he was mentally well in Egypt. In October 2014 when he was in Korea (? purpose), suddenly had episodes of abnormal bodily sensation like having electric shock to shoulder, back muscles, and also an episode of facial numbness and difficult to raise eyebrow and movement of jaw and face. He had headache sometimes. He was anxious, low mood and insomnia. He attended doctor in Korea in January 2015, reported that he had MRI brain done. He was given Lexapro 5mg BD, Inderal 10mg BD and Etizolam 0.25mg BD.

He came to Hong Kong in June 2015 (? purpose).  He reported these symptoms fluctuated and changed.  He reported his wife and mother (in Egypt) told him he looked different from before.  Also he said he looked different from the photos as if he was feminine.  He worried of neurological illness which cause these changes.  He was nervous, anxious, insomnia.  Somatic symptoms: headache, epigastric discomfort.  He reported he visited many doctors in HK, but they did not refer him to neurological assessment because he was not HK citizen and they did not believe in him.”

23.Dr Choi also recorded from the applicant’s psychiatric follow-up at Kowloon Hospital Psychiatric Unit on 22 August 2016 of what he had then said about his gender issue in the penultimate paragraph of his psychiatric history:

“ He had attended follow-up three times after he was discharged … On 22 August 2016, he was remarked to be ‘eager to discuss his gender this time, thinks that he is not a man anymore, mentioned that he injected male hormones and took oral hormones when he was young, noted to be jumping topics … also mentioned he thinks he had OCD, PTSD, depression and personality disorder … MSE: mood not depressed, anxious, obsession +, persecutory delusion +. Dosage of antipsychotic drugs increased. On 17 October 2016, he was noted to have similar complaints and similar mental state, with obsession and persecutory delusion detected; mood not depressed or anxious. He refused blood taking suggested. Same medications are prescribed.”

24.Dr Choi then proceeded to report his examination of the applicant’s mental state on 22 November 2016 as follows:

“ … He was preoccupied with a fixed belief that he was having ‘neurological pain’ and ‘gender disorder’; he kept requesting doctor to refer him to neurological and ‘Man’s clinic’, yet being reluctant to disclose details of his reasoning behind. No perceptual abnormalities, active suicidal thoughts or features of OCD could be found. He was fully orientated. No cognitive impairment could be elicited.”

25.It is therefore quite clear to me that the applicant did as early as in late 2015 already allude to his gender issue or problem, and whilst it is true that at the time of his psychiatric examination by Dr Choi in November 2016, he did not specifically claim to have fear of harm arising from his issue of gender variance or sexual non-conformity upon return to Egypt, it is in my view reasonably arguable, as his counsel submitted in his opinion, that the applicant was then still coming to terms with a relatively new situation which he was unable to define or feel comfortable raising it at that stage, as evidenced in Dr Choi’s report that he was reluctant to discuss the issue at any length with the psychiatrist, and as such he framed his claim in regard to the experiences he had had while still in Egypt as they related to politics and religion, but as matters had developed since his psychiatric examination and screening interview before the Immigration Department, as evidenced by the various gradual changes recorded in the Director’s decision, that the adjudicator was wrong in refusing to consider this new issue essentially because it was only raised less than a week before the oral hearing of his appeal.

26.Even if it were true that this issue indeed had never been raised or mentioned before by the applicant to anyone including any doctor or psychiatrist in his psychiatric assessments until only shortly before the appeal hearing, it would still be in my view reasonably arguable that the adjudicator was wrong in failing to take it into consideration of the applicant’s claim, or at least should have called for expert evidence or assistance as to the usual or normal time for the true manifestation of symptoms of gender variance rather than just brushing it aside because it was only raised shortly before the hearing.

Grounds (2) and (4)

27.As for the complaint under Ground (2) of the adjudicator’s failure to apply the correct legal test to future risk by wrongly relying on past events to find that there was no risk of future harm, while ignoring the fact that the applicant was able to avoid serious harm in the past by limiting his rights of expression which would constitute an impermissible restriction of his fundamental rights if he was required to do so to avoid serious harm upon his return to Egypt, thus failed to apply the correct test laid down by the UK Supreme Court in HJ (Iran) & HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31.

28.In his assessment of the applicant’s claim under BOR 3 risk, the adjudicator gave the following evaluation:

“ The Appellant has mentally experienced misfortunes, but has not suffered severe injury or serious harm which was inflicted by any assailant and which would place him within the criteria of CIDTP. In any event, for reasons stated I find no substantial ground to believe he will face any future risk of serious harm. The situation fails to establish ‘BOR 3 Risk’.

Furthermore, although he may feel frustrated and unhappy in Egypt, he has been back several times since he left for Thailand, and he was safe from serious harm in Egypt, so that there is no substantial basis to say that he will now be unsafe, which is another independent reason for a claim under ‘BOR 3 Risk’ to fail.”

29.When he came to assess the applicant’s claim under persecution risk, it seems to me that the adjudicator gave the same assessment as before by simply substituting “Persecution Risk” for “BOR 3 Risk”, notwithstanding that the tests and requirements for non-refoulement protection under the two risks are obviously dissimilar as he had so identified in the paragraphs preceding his evaluations.

30.As such this complaint can in fact conveniently be considered together with Ground (4) in which the adjudicator is said to have failed to consider the applicant’s psychiatric report fairly, as it is submitted that this report was an essential document in the applicant’s claim given that screening for persecution risk is essentially a subjective assessment, where the psychiatrist’s opinion was to the effect that the applicant was obsessive and preoccupied by political issues, and hence the correct test in HJ (Iran), supra must be considered in light of the ability of the applicant to be discrete about his political opinions and religious belief as well as the impact upon him of attempting to do so in light of his history of suicide ideations.

31.In HJ (Iran), which were appeals by two gay men claiming asylum under the Convention relating to the Status of Refugees 1951 on the basis of well-founded fear of persecution in the country of their nationality based on membership of that particular social group, the UK Supreme Court laid down the proper approach to be adopted by the fact-finding tribunals as set out by Lord Rodger in paragraph 82 of the judgment:

“ When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself weather it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.

If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.

If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.

If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution — even if he could avoid the risk by living ‘discreetly’.

If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.

If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressure, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.

If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then other things being equal, his application should be accepted.  Such a person has a well-founded fear of persecution.  To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect—his right to live freely and openly as a gay man without fear of persecution.  By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”

32.It is the applicant’s case that the HJ (Iran) test applies to his situations both for his fear in expressing his political and religious opinion and in particularly his fear arising from his gender variance issue if returned to Egypt, as he clearly so stated in his skeleton submissions before the Board, but given the ways the adjudicator assessed his persecution risk as noted above, it is in my view reasonably arguable that the Board failed to consider his psychiatric report fairly and/or to apply the correct legal test as to his future risks.

Ground (3)

33.As for the complaint under Ground (3) that the adjudicator failed to consider the COI objectively, the submission of his counsel is that the adjudicator did not assess the COI submitted by the applicant in respect of political opinion or apostasy from Islam, and instead the adjudicator considered in detail only four COI documents which he had provided to the parties, two of which were Wikipedia articles accessed months previously and which dealt with situation of Coptic Christians in Egypt, while the COI provided by the applicant could potentially illustrate the risk faced by him if he was perceived to be a Christian, and hence the adjudicator failed to assess future risk in light of the COI submitted by the applicant which was directly relevant to the bases of claim of the applicant and were from more credible sources.

34.In his skeleton submissions before the Board, the applicant did rely on the COI and legal submissions provided to the Immigration Department by way of various letters from his legal representative, and in particular also drew the Board’s attention to the subjective elements of the test for a “well-founded fear” of persecution with reference to the UNHCR Handbook and the HJ (Iran) principle, as well as his supplemental COI relevant to gender-based persecution in addition to persecution on account of his political and religious opinions (§§3 – 5, 10 – 20 of his skeleton submissions).

35.In the Board’s decision this is what the adjudicator stated about the COI:

“ 13.1 The Appellant submitted case law, articles and publications, including: from the Immigration and refugee Board of Canada (8 May 2015), from Amnesty International articles headed ‘Urgent Action’ (February 2016), Human Rights Watch ‘Look for Another Homeland’ (World Report 2016) and ‘Egypt: Repeal Laws Used to Convict Author’ (June 4, 2014), Amnesty International: ‘Govt announces campaign to save youth from atheism’ (June 19, 2014), ‘Egypt: ‘Officially You Do Not Exit’ (2016).

13.2 The Director has also included numerous articles and publications inside his Notice of Decision (also in the Hearing Bundle).

…

13.4 The following COI is helpful, which I handed to both Government Counsel and Duty Lawyer for consideration after the oral hearing, providing them both with time to make written submissions:

(a) Christianity in Egypt (Wikipedia: accessed 13 October 2017) ‌…

(b) Copts (Wikipedia: accessed 13 July 2017) …

(c) Egypt: At least 28 dead as gunmen fire on bus carrying Coptic Christians (CNN news: May 26, 2017) …

(d) Egypt (OpenDoors USA: accessed 13 July 2017) …

14.  I have taken into account the written submissions from Government Counsel and from the Duty Lawyer regarding the above COI.  The above publications do not show that the Appellant will experience torture or CIDTP or persecution merely because he is interested in Christianity.  The Appellant himself says he is not a Christian, hence irrespective of the above COI he has no real and substantial risk of suffering from torture or CIDTP or persecution as a result of his religious interest in Egypt.  Duty lawyer says that the Appellant may be perceived by others to be a Christian hence the Appellant may be subjected to persecution. In the light of the whole case viewed in proper perspective, I do not accept this to be the situation.”

15.  For these additional reasons the claim under ‘Torture Risk’ fails.”

36.It seems that the adjudicator did not, as submitted by the applicant, assess the COI submitted by him in respect of political opinion or apostasy from Islam, or his supplemental COI in respect of fear of persecution based on sexual or gender expression in Egypt, but rather just relied on his own COI in his assessment of the torture risk which appear neither directly relevant to the bases of the applicant’s claim nor from more credible sources.  As such it is in my view reasonably arguable that the Board failed to consider COI adequately and objectively in assessing the applicant’s persecution risk.

Conclusion

37.In the premises and for the reasons given above, I am of the view that all four grounds advanced by the applicant are reasonably arguable for his intended application, and accordingly I grant leave to the applicant to apply for judicial review of the Board’s decision. Given the applicant’s mental condition as noted in his psychiatric report and as exhibited when he appeared before me during the hearing of his application, I also direct that a copy of this decision be sent to the Director of Legal Aid to facilitate the process of any application for legal aid by the applicant for his judicial review application.

Dated the 31^st day of May 2019.

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