SAMUEL EDENILSON RIVAS MEJIA Applicant v. THE MINISTER OF CITIZENSHIP, 2022 FC 498

Date: 20220407 Docket: IMM-4584-21 Citation: 2022 FC 498 St. John’s, Newfoundland and Labrador, April 7, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:SAMUEL EDENILSON RIVAS MEJIAApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent REASONS AND JUDGMENT [1] Mr. Samuel Edenilson Rivas Mejia (the "“Applicant”") seeks judicial review of a decision of the Immigration and Refugee Board,Refugee Appeal Division (the "“RAD”"), dismissing his appeal from a decision of the Immigration and Refugee Board, RefugeeProtection Division (the "“RPD”").

In its decision, the RPD found that the Applicant was not credible. [2] The RAD also found that the Applicant was not credible. [3] The Applicant is a citizen of El Salvador.

He made a claim for protection on the basis of his fear of a gang, the Mara Salvatrucha,because he had witnessed the murder of his cousin by members of that gang. [4] The Applicant advances several arguments about the unreasonableness of the decision. [5] The Minister of Citizenship and Immigration (the "“Respondent”") submits that the decision is reasonable and that judicialintervention is not required. [6] The decision of the RAD is reviewable on the standard of reasonableness, pursuant to the decision of the Supreme Court of Canada inCanada (Minister of Citizenship and Immigration) v.

Vavilov (2019), 2019 SCC 65 , 441 D.L.R. (4th) 1 (S.C.C.). [7] In considering reasonableness, the Court is to ask if the decision under review "“bears the hallmarks of reasonableness – justification,transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on thatdecision”"; see Vavilov, supra at paragraph 99. [8] Findings of credibility are generally entitled to deference by a reviewing Court; see the decision in Zheng v.

Canada (Minister ofCitizenship and Immigration), 2007 FC 673 at paragraph 16. [9] Paragraph 13 of the decision provides as follows: Furthermore, when asked by counsel about this same issue on not disclosing his personal fear at POE, the claimant firsttestified that he did tell the officer about this. However, when asked second time by the counsel, the claimant answered thathe did not tell the officer. The panel finds this to be an evolving testimony and draws negative credibility inference based onthese inconsistencies between the POE and the BOC and then within the oral testimony.

The panel considered theclaimant’s lack of education and the fact that he is illiterate, however, to discount the significant discrepancies andinconsistencies, even within his oral testimony, for the fact that he is not sophisticated would be unreasonable. Lack ofeducation and literacy does not automatically equal inability to testify credibly nor do they mean lack of intellectual capacityas a whole.

As the fact that he faces risk from the gang because of his cousin’s death is the entire heart of the claim, thepanel finds these inconsistencies to be material and that it impacts the overall credibility of the claim. [10] The reference to the Applicant’s "“intellectual capacity”" was raised by the Court in the course of the hearing of the application forjudicial review and the parties were given the opportunity to address whether a designated representative should have been appointed forthe Applicant. [11] The parties filed submissions on this question. [12] Upon consideration of those submissions, I am not satisfied that the negative finding about the Applicant’s credibility was untaintedby the observation made by the RAD about "“intellectual capacity”". [13] In these circumstances, where the RAD may have assessed credibility by reference to a matter that was not clearly raised, thecredibility finding is unreasonable.

Credibility was a determinative issue; it follows that the decision is unreasonable. [14] Accordingly, the application for judicial review will be allowed, the decision of the RAD will be set aside and the matter remitted toa differently constituted panel. There is no question for certification proposed.

JUDGMENT in IMM-4584-21 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Refugee Appeal Division is set aside and the matter is remitted to a differently constituted panel of the Refugee Appeal Division for redetermination. There is no question for certification proposed. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4584-21 STYLE OF CAUSE: SAMUEL EDENILSON RIVAS MEJIA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE BETWEEN TORONTO, ONTARIO AND ST.

JOHN’S, NEWFOUNDLAND AND LABRADOR DATE OF HEARING: MARCH 23, 2022 REASONS AND JUDGMENT: HENEGHAN J. DATED: APRIL 7, 2022 APPEARANCES : Karim Escalona FOR THE APPLICANT Neeta Logsetty FOR THE RESPONDENT SOLICITORS OF RECORD : Lewis & Associates Barristers & Solicitors Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT