Docket: IMM-3546-11
Citation: 2012 FC 562
Ottawa, Ontario, May 9, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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BABACAR DIALLO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Babacar Diallo claims he was persecuted in Guinea because of
his sexual orientation. He says that when he was 12 he was sexually abused by a
teacher at his school, which later caused him to be sexually attracted to men. In
2009, police found him being sexually intimate with another male and arrested
and beat him. As a result, he claims he was shunned by his family and
community. He went to live with an aunt, but a mob burned her house down. Mr.
Diallo was treated in hospital, moved to another city, and then fled to Canada.
[2]
A
panel of the Immigration and Refugee Board considered Mr. Diallo’s claim for
refugee protection, but rejected it because of a lack of reliable evidence. Mr.
Diallo argues that the Board treated him unfairly by demonstrating a hostile
attitude toward him. He also suggests that the Board unreasonably doubted his credibility
and ultimately rendered an unreasonable decision. He asks me to quash the
Board’s decision and order another panel to reconsider his claim.
[3]
In
my view, the Board did not treat Mr. Diallo unfairly and had valid grounds for
questioning his credibility in certain areas. However, the Board erred in its
treatment of important evidence supporting Mr. Diallo’s claim. Accordingly, I must
overturn the Board’s decision and allow this application for judicial review.
[4]
There
are two issues:
1. Did the Board
treat Mr Diallo unfairly?
2. Was the
Board’s decision unreasonable?
II. The Board’s Decision
[5]
The
Board had concerns about Mr. Diallo’s credibility. For example, he was unable
to state clearly the years he had been at school. He was also unable to provide
evidence that the allegedly abusive teacher was employed at the school at the
relevant time.
[6]
Mr.
Diallo claimed to be vulnerable and traumatized by the alleged abuse, but
provided no evidence to support that allegation. In addition, he claimed that
he was hospitalized for two weeks after the attack on his aunt’s home and left
on crutches. However, the medical report he provided stated that he was
discharged after a week with a neck brace. The Board, therefore, questioned Mr.
Diallo’s claim that he had been persecuted in Guinea.
[7]
Mr.
Diallo gave evidence about his time in Canada, but was
unable to identify most of the gay bars he said he frequented. He also supplied
a letter from a community centre stating that he was part of a support group,
but the letter did not identify the particular group to which he belonged. In
addition, while he provided photographs taken with two friends, neither of them
provided supportive affidavits.
[8]
Based
on this evidence, the Board found that Mr. Diallo was not homosexual and,
therefore, that there was no basis for his refugee claim. In addition, the
Board found that Mr. Diallo would not face a risk of torture or other serious
mistreatment if he returned to Guinea.
III. Issue One – Did the Board
treat Mr. Diallo unfairly?
[9]
Mr.
Diallo argues that the Board was sarcastic and hostile, and prevented counsel
from presenting evidence in Mr. Diallo’s favour.
[10]
Having
reviewed the record, I find that Mr. Diallo’s concerns are not entirely unfounded.
Some of the Board’s comments were sarcastic and inappropriate. For example, the
Board stated that Mr. Diallo was not particularly young when he was sexually abused
at age 12. In addition, the Board interrupted repeatedly when counsel made
submissions on Mr. Diallo’s behalf. However, overall, the Board entertained and
considered counsel’s submissions. Indeed, counsel conceded that “things seemed
to balance out”. The Board’s conduct cannot be praised or even condoned, but it
did not suggest bias or a lack of impartiality.
[11]
In
my view, looking at the evidence as a whole, the Board conducted a fair
hearing, and reasonably considered the evidence in Mr. Diallo’s favour.
IV. Issue Two – Was the Board’s
decision unreasonable?
[12]
Mr.
Diallo argues that the Board unreasonably expected him to prove his sexual
identity. Mr. Diallo also contends that the Board failed to acknowledge documentary
evidence showing that homosexuals are persecuted in Guinea, and that he
was involved in the homosexual community in Toronto. The real
issue is whether the Board reasonably concluded that Mr. Diallo had not
established his sexual orientation or the basis for his refugee claim. In my
view, the Board’s conclusions were unreasonable.
[13]
Before
the Board was a letter from the 519 Church Street Community Centre which stated
that Mr. Diallo had been an active member of the
Lesbian-Gay-Bisexual-Transgendered [LGBT] Refugee Support Group since 2010. The
Board gave little weight to the letter because the Centre accepts members both from
within and without the LGBT community. But the letter explicitly stated that Mr
Diallo was a member of the LGBT support group, suggesting that he was, indeed,
gay.
[14]
The
medical report before the Board indicated that Mr. Diallo had received a
serious head injury, which Mr Diallo confirmed in oral evidence. His memory of
the treatment he received was unclear. He said he may have been given a neck
brace while in hospital and, when discharged, given crutches. The medical
records did not contradict his testimony.
[15]
The
Board also overlooked some evidence. For example, the medical report noted that
Mr. Diallo’s family and community disapproved of his lifestyle. Witnesses provided
letters corroborating Mr. Diallo’s version of events. The Board did not refer
to those documents.
[16]
Clearly,
there were problems with some areas of the evidence. Mr. Diallo’s testimony was
inconsistent in some respects. Evidence was lacking in certain areas. Witnesses
who could have given helpful testimony were not called.
[17]
However,
given the errors described above, I am satisfied that the Board’s conclusion
was unreasonable given that it did not take account of important evidence in
Mr. Diallo’s favour.
V. Conclusion and Disposition
[18]
While
the Board did not treat Mr. Diallo unfairly, it did misconstrue and overlook
some important evidence. As a result, the Board’s conclusion that Mr. Diallo’s
claim was unsupported by the evidence was unreasonable. I must, therefore,
allow this application for judicial review. Neither party proposed a question
of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is allowed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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