TB4-03278

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB4-03278 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 4, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REDETERMINATION OF THE APPEAL REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) claims that he is a citizen of Somalia. He appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has tendered new evidence in this appeal and requests an oral hearing. The Appellant asks that the RAD set aside the decision and substitute a determination that he is a Convention refugee or, in the alternative, refer the claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. His appeal is denied. BACKGROUND [3] The Appellant alleged before the RPD that he is a citizen of the Somalia who fears returning there because of the Al-Shabaab militia and his fear of his father-in-law. He alleged that he belongs to the minority XXXX XXXX XXXX sub-clan of the XXXX clan and is at risk due to his minority clan status. The Minister intervened1 at the RPD hearing on issues of identity, credibility and well-foundedness of the claim based on the following: 1. The Appellant provided inconsistent evidence in his Basis of Claim (BoC) form and his Schedule "A" regarding when he last lived in Somalia. 2. The Appellant has not provided Canada Border Services Agency (CBSA) and/or Citizenship and Immigration Canada (CIC) with any identity documents. [4] The Appellant's refugee determination hearing was held over two sittings, November 4, 2013 and January 27, 2014. In a written decision of March 11, 2014, the RPD rejected the Appellant's claim finding that he was not credible about the central elements of his claim. [5] The Appellant appealed the negative RPD decision to the RAD and submitted that the RPD's findings on his lack of subjective fear are not relevant to an IRPA section 97 analysis. The Appellant also submitted that the RPD erred in fact as follows: 1. The RPD erred in its finding of fact that the Appellant was not a member of the XXXX XXXX XXXX sub-clan of the XXXX clan, as the RPD accepted the identity of the Appellant based on the testimony of the identity witness, in that the identity witness confirmed the Appellant's clan affiliation. The RPD did not give reasons for disregarding the conclusions of the Somali Immigrant Aid Organization regarding the Appellant's clan affiliation. The US documents revealed that the Appellant provided consistent evidence regarding his clan affiliation. 2. The Appellant faces a risk based on his identity as a minority clan member as well as a man who is subject to forcible recruitment. [6] In a decision of November 5, 2014, the RAD rejected the Appellant's appeal for reasons other than those given by the RPD, specifically that the Appellant had not established his personal identity or nationality as a citizen of Somalia. [7] The Appellant appealed the RAD's decision to the Federal Court. In a decision of August 10, 2015, the appeal was remitted back to the RAD on consent for redetermination by a differently constituted panel. [8] The Appellant has provided a Supplemental Appellant's Record2 in which, in addition to relying on the submission he made in his initial Appellant's Record,3 the Appellant submits that: 1. Regardless of his clan affiliation as a citizen of Somalia returning from the west, he merits protection; and 2. The issue of applying for permanent residency in the Republic of South Africa (RSA) is irrelevant because he did not leave RSA because he could not get status but rather because it was dangerous. ROLE OF THE RAD [9] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the Federal Court decision, in Huruglica,4 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [11] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The Appellant has submitted one document as new evidence with his original Appellant Record. A report from the United Nations High Commissioner for Refugees (UNHCR) entitled: International Protection Considerations with Regard to people fleeing Southern and Central Somalia.5 [13] The Appellant argues that the report ought to be admitted as new evidence; however, the RAD notes that the document claimed as new evidence was accepted by the RPD as an exhibit.6 The RAD also notes that the Appellant's counsel made submissions at the RPD hearing based on the document. As such, the document is not new evidence in this appeal. [14] The Appellant also tendered additional documents as new evidence in its Supplemental Appellant Record including: (a) A Wikipedia article stating that XXXX XXXX XXXX do not always consider themselves as part of the XXXX oven those other Somalis believe that; and (b) A portion of a report from the UK Country of Origin Report 2011 which states that some of the XXXX XXXX XXXX believe themselves as part of the XXXXclans. [15] The RAD's analysis of the admissibility of this proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim. (b) The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove. For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD's hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the probative value of the evidence. (e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to the Appellant at the time of the hearing? If so, the RAD will proceed to assess the probative value of the evidence. (f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the probative value of the evidence. [16] In the case at hand, the Appellant submits that the new evidence meets the test set out in s.110(4) because, although it did not arise after the rejection of the claim, he could not reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his claim because he could not anticipate that it would be important to establish that XXXX XXXX XXXX can be seen as part of two different clans. [17] The RAD notes however that the portion of the UK Country of Origin Report 2011 proposed as new evidence in this appeal was in evidence at the RPD hearing. Although the UK Country of Origin Report in evidence is dated 2012, the contents relating to the Appellant's argument are identical, and, as such, it is not new evidence in this appeal. [18] The RAD finds that the Appellant's argument on the admissibility of the remaining new evidence has some merit. The RAD also finds that, given the circumstances in this particular appeal, in order to conduct a full, fact-based appeal, the RAD must show flexibility in order to address the issues on appeal. [19] Accordingly, the RAD finds that the remaining proposed new evidence does satisfy the statutory requirements of section 110(4) of the IRPA, and, as such, this document is admitted as evidence in this appeal. However, the RAD will access the probative value of the document in the merits of the claim. ANALYSIS OF THE MERITS OF THE CLAIM Clan Affiliation [20] The Appellant alleged that he feared returning to Somalia because of his status as a minority member of the XXXX XXXX XXXX clan. The RPD found that the Appellant was not a member of the XXXX XXXX XXXX sub clan of the XXXX clan. [21] The Appellant submits that the RPD erred in this finding. He argues that his fear of harm was based on the grounds of being a member of the XXXX XXXX clan which had problems with the XXXX clan. He further argues that he personally had clashes with the XXXX XXXX. He argues that the RPD accepted his identity because the identity witness who testified was found to be credible. He further argues that the statutory declaration7 of the witness confirms his clan affiliation. [22] The RAD is not persuaded by the Appellant's argument in this regard. [23] The RAD notes that the RPD found on the basis of its analysis of the totality of the evidence that the Appellant's testimony was not credible. However, the Appellant does not contest most of the RPD's findings on his credibility. The RAD has reviewed those credibility findings of the RPD and finds no perceptible error. The RAD further finds that the credibility findings are significant and convincing and that the totality of those credibility findings undermines the general credibility of the Appellant. [24] The Appellant's argument in this appeal relies heavily on the RPD's findings on the testimony of the identity witness in establishing not only his identity, clan affiliation and nationality but also to corroborate his allegations. After its own review and assessment of the evidence, including the testimony of the identity witness and the Appellant, the RAD finds that, contrary to the argument of the Appellant, the RPD did not make any findings with regard to the witness' general credibility. [25] While it is true that the RPD accepted that the witness corroborated aspects of the Appellant's allegations, the RPD concluded that much of the information he had with regard to allegations was information provided to the witness by the Appellant. The RAD finds that although the RPD accepted that the witness provided reliable evidence of the Appellant's identity as a national of Somalia the RAD notes that the RPD did not accept the witness' evidence with regard to the Appellant's clan affiliation. [26] The RAD has reviewed and considered the totality of the evidence on the record in the assessment of the testimony of both the Appellant and the witness and finds that there is ample justification to reject the testimony of the witness and the Appellant with regard to the Appellant's clan afflation. The RAD notes that the evidence lacked spontaneity and specificity and depth of details that the RAD finds reasonable to expect given the length and closeness of the relationship alleged. [27] The RAD notes that the witness' testimony concerning where he lived evolved from the evidence he provided in the first sitting to that provided in the second sitting. In the first sitting, the witness testified that he lived in Alberta but altered his evidence at the second sitting, testifying that he lived principally in Alberta but that he lived with friends at XXXX Rd. in Toronto while he was in Toronto. The RAD finds that the witness' residency and contact information was lacking, which was compounded by a failure of the Appellant to provide a notice to the RPD required in RPD Rule 44 which includes the provision of contact information for the witness. The travel document tendered as an identity document for the witness does not establish his residence or contact information. The RAD finds that the lack of identity and residency information and the uncertainty with regard to the witness' actual address undermines the weight which can be given to his testimony. [28] The RAD notes that the Appellant tendered a Statutory Declaration of the witness8 in which the witness declares that the Appellant "belongs to the XXXX XXXX XXXX XXXX Clan in Somalia". The RAD notes that the witness declared that he has known the Appellant from before he came to Canada but did not state how long he has known him. The witness further declared that the Appellant: "was his next door neighbor in XXXX District in XXXX, Somalia". The RAD notes that this declaration sworn before a commissioner of oaths is inconsistent with both the Appellant's and the witness' oral testimony that the witness resided in the XXXX District of XXXX. The RAD finds that the inconsistency between the witness' oral testimony and his declaration undermined the credibility of the witness and the statements he made both in the statutory declaration and in his oral testimony. [29] The RAD further finds that the uncertainty in the witness' residency in Canada undermines the credibility of the testimony of the Appellant. The Appellant alleged that it was a happy coincidence that he ran into the witness at a restaurant in Toronto. However, the Appellant was unable to provide the date that he met the witness other than indicating that it was recently, and probably the middle of September. The RAD notes that the Appellant was represented by competent counsel at the time he alleged that he met the witness. The RAD notes that the BoC documents were signed by the Appellant on September 9, 2013. The RAD finds that it is reasonable to expect that the issue of the Appellant's identity would be centermost in the minds of the Appellant and his counsel given the fact that the Appellant did not tender any identity documents. As such, it is reasonable to expect that when the Appellant happened upon the only witness and the only way of establishing his identity weeks before his RPD hearing, it would have been a significant event for the Appellant and that the Appellant would have a clear recollection of the circumstances of that first encounter with the witness. The RAD notes that there is insufficient evidence that the witness was in Toronto at the time when he allegedly ran into the Appellant at the restaurant. The RAD notes that, despite the importance of this evidence, the witness did not sign the declaration until October 30, 2013. Given the lack of specific details around when the Appellant met the witness and the lack of evidence that the witness was in Toronto when they allegedly met, the RAD finds that the Appellant's testimony regarding their meeting was not credible. [30] The witness was unable to provide details of when he met the Appellant in Somalia other than indicating that it was since they were young. The witness was unable to indicate how old he was when he first met the Appellant until prompted and walked through questions by the Minister. When asked how many years the witness knew the Appellant in Somalia, he was unable to indicate the number of years other than indicating that it was "since he was grown". The witness was also unable to indicate the number of times that he visited the Appellant's home in Mogadishu. The RAD finds that the witness' testimony about their alleged friendship in Somalia lacked the specificity and detail the witness ought to provide given the closeness of their relationship in Somalia. The RAD notes that the witness did provide testimony about obscure details such as the Appellant wore number XXXX in soccer and the name of the clinic at which he visited the Appellant. The RAD finds this contrast in the witness' ability to recall obscure facts and inability to recall facts he ought to know calls into question the genuineness of their relationship in Somalia. [31] The RAD also notes that the Appellant was unable to recall how old he was when he first met the witness whom he claimed was one of his closest friends. The Appellant testified that he met the witness while playing soccer but was unable to recall when they began to play soccer. The RAD finds the Appellant's inability to recall even the approximate year when he first met his witness undermined the credibility of their alleged friendship in XXXX. [32] The RAD also notes that under questioning of the Minister, the Appellant did not provide any evidence that the witness lived in Alberta and was unable to provide specifics of where the witness lived while he was in Toronto other than indicating that his witness lived not far from the XXXX area. The Appellant's lack of knowledge of where the witness lived in Canada and his failure to indicate that the witness was working in Alberta further undermined the credibility of their friendship in Canada. [33] The RAD finds that, given the foregoing concerns with the testimony of the witness and the Appellant, the RAD finds that little weight can be provided to the testimony of the witness in establishing the Appellant's clan affiliation and allegations. Treatment of the Corroborative Evidence of Clan Affiliation [34] The Appellant submits that the RPD had before it evidence from the Somali Immigrant Aid Organization9 attesting to his affiliation to the XXXX XXXX clan but failed to address the letter in its reasons. While the RAD finds it problematic that the RPD did not address this evidence, the RAD finds that the jurisprudence allows the RAD to conduct its own independent assessment of this evidence. The letter states that the Appellant's mother is a member of the XXXX XXXX clan. The letter states that "many of Community (sic) members know the XXXX XXXX Family ... after we consulted with our community elders they have confirmed the Mr. XXXX family is from the clan of XXXX XXXX". The RAD notes that the letter does not indicate the efforts that the organization went through to identify the "many" community members who know the Appellant's family and does not provide the identities of those individuals. The RAD finds it reasonable to expect that, given the importance in the establishment of the Appellant's identity in his RPD hearing, if there are many individuals who know the Appellant's family that information on the identities of those individuals would be included with the letter or that the letter would be accompanied by declarations from at least some of those "many" community members. Furthermore, the RAD finds that the letter does not make it clear to what extent its authors relied on the information provided by the Appellant himself. The letter does not indicate whether the organization verified the information of the Appellant or those whom they consulted. The RAD finds that, while the Somali Immigrant Aid Organization may be well meaning, they cannot usurp the findings that the RAD must make. Given the above-noted concerns, in the context of the totality of the findings in this appeal, the RAD finds that the letter from the Somali Immigrant Aid Organization has little probative value in supporting the Appellant's clan affiliation. The RAD further finds that, even if the letter was to be given more weight, the RAD finds that it is insufficient to overcome the totality of the findings with regard to the Appellant's clan affiliation. US Claim Documents [35] The RAD considered the Appellant's argument that he provided consistent information regarding his clan affiliation in his US claim and that US authorities found that he had a credible fear on that basis. The RAD notes that the US documents in the record do establish that the Appellant was consistent about his allegations with respect to his membership in a minority clan. However, although he was found to have a credible fear on that basis, the RAD notes that the assessment made by US authorities was an initial interview to determine whether the Appellant met the threshold screening and that the finding of credible fear was based on the "significant possibility that the assertions underlying the applicant's claim could be found credible in a full asylum or withholding of removal hearing".10 [36] The RAD notes that, although reasons are not included in the US claim documents, it is clear that the Appellant's US refugee claim was not successful and that he was denied asylum and withholding of removal. Regardless, the RAD finds that the Appellant has not established that his allegations, including his allegations of his minority clan affiliation were found to be credible by US authorities. The RAD further finds the fact that he was consistent in his allegation of his clan affiliation with US authorities does not mean that the allegation is truthful. The RAD notes that, in his application with US authorities, the Appellant alleged that his wife was alive and living in XXXX11which is in stark contrast to his allegations in his Canadian claim that his wife was murdered in RSA prior to his departure for the US. Documentary Evidence [37] The RAD has considered the documentary evidence related to the Appellant's alleged clan affiliation. The RAD noted that the documentary evidence indicates that Somali society is one that is divided into clans and sub-clans, and political affiliation is based on clan lines.12 The RAD has considered the Appellant's new evidence but finds that little weight can be given to this document. The RAD finds that, given the nature of how Wikipedia articles are created and updated, they cannot be relied upon to contain accurate, unbiased information. The RAD notes that the article in question was updated a month previous to its submission by an individual identified as "Gyrofrog". The RAD has no information on who Gyrofrog is and no information to determine whether that individual can be relied upon to provide trustworthy information. [38] The Appellant also refers to the UK Country of Origin Information Report in evidence which states that some of the XXXX XXXX XXXX believe themselves as part of the XXXX clans. However, the RAD finds that the Appellant has not established how this evidence undermines the findings of the RPD with regard to the Appellant's credibility on his clan affiliation. The RAD notes that the Appellant was found not to be a credible witness and that there is insufficient evidence in the record that establishes his clan affiliation. As such, the RAD finds that the Appellant's argument fails. Failure to Claim Elsewhere [39] The Appellant has alleged that he lived in South Africa for five years after leaving Somalia. The RPD drew an adverse finding with regard to the Appellant's failure to claim refugee protection or seek permanent residency in South Africa. The Appellant has made two submissions on this finding. The Appellant submits that its findings on subjective fear are not relevant to section 97 of the IRPA. The Appellant further submits that the issue of failing to apply for permanent residence in RSA is irrelevant because he did not leave RSA because he could not get permanent status but rather because it was dangerous. [40] The RAD is not persuaded by the Appellant's argument in this regard. While it is true that subjective fear is not relevant to section 97, the RAD notes that the accompanying adverse credibility finding is relevant. Moreover, the adverse credibility finding and subjective fear findings are relevant to section 96 of the IRPA. [41] Furthermore, the RAD finds that the Appellant's failure to apply for residency in South Africa after having lived there is highly relevant. The RAD notes that evidence in the record establishes that he was eligible to acquire permanent residency in RSA.13 The RAD also notes that the Appellant was found not to be credible about the allegations he alleges led him to flee RSA for North America. The Appellant alleged that his wife and business partner were killed in RSA; however, he was found not to be credible in this regard. The RAD also notes that the Appellant does not contest this finding of the RPD. The RAD has reviewed these findings of the RPD and concurs with those findings. [42] As such, the RAD finds that the Appellant's argument in this regard fails. The Appellant's Risk upon Return to Somalia [43] The Appellant submits that he is at risk upon return to Somalia from XXXX XXXX XXXX because they target returnees. The RAD is not persuaded by the Appellant's argument in this regard. [44] The RAD notes that the Appellant has quoted an excerpt from a document but has not properly cited where the document can be found in the record. The RAD notes the document cited was not before the RPD. The RAD also notes that the document is also not before the RAD in this appeal and that the Appellant has not made any application to include this document. Nonetheless, the RAD notes that the document in question is taken from the latest NDP for Somalia14 and given that the refugee protection assessment is forward-looking, the RAD has considered this document in its analysis. [45] The RAD notes that the document states that: According to sources, Al Shabaab has made threats specifically against diaspora returnees (HIPS June 2014, 2; Norway and Denmark Mar. 2014, 22). The 2014 joint report by Landinfo and the Danish Immigration Service quotes Al Shabaab commander Ali Mohamed Hussein on December 29, 2013 as stating that "returnees 'will be killed and fought against in the same manner' that Al Shabaab fights against the Somali government" (ibid., 23). According to HIPS, these "specific threats made against returnees" by Al Shabaab often serve to "deter returnees from settling permanently" (HIPS June 2013, 2).15 [46] The RAD notes that the Response to Information Request (RIR) also includes information that states that XXXX XXXX XXXX no longer controls XXXX but continues to carry out periodic attacks in XXXX. There are reports of civilian causalities; however, there is no evidence on the incidence of specific attacks on members of the diaspora or that they are disproportionally targeted by XXXX XXXX XXXX. [47] The RAD notes that the RIR also states that that there is improved stability and security in Somalia which has prompted members of the Somali diaspora to return to their country of origin. A report published in 2013 by the UN Office for the Coordination of Humanitarian Affairs (OCHA) states that "over 42,000 IDPs [internally displaced persons] and refugees have spontaneously returned to their areas of origin between January and October 2013. This includes over 27,000 refugees who returned to Somalia mostly from Kenya (Dadaab refugee camp) and Ethiopia" (UN Oct. 2013, 1). According to the 2015 UNHCR Country Operations Profile for Somalia, in July 2014, there were 9,944 returned refugees and 10,146 IDPs residing in Somalia who had returned to their "place of origin" in the first six months of 2014 (ibid. n.d.c). A November 2014 OCHA report notes that, from January to November 2014, "more than 7,000 refugees moved from Kenya to Somalia, while over 2,000 others crossed from Ethiopia to Somalia" (ibid. Nov. 2014, 10). The same source states that approximately 4,000 Somalis "voluntarily returned from Yemen in the first half of 2014" (ibid.).16 [48] Members of the Somali diaspora are returning due to the increased stability, and humanitarian actors continue to support the voluntary return of displaced people through planned programs. The RPD also noted that the documentary evidence supports that clan membership is not as important as it once was and that those returning to XXXX do not face a risk of persecution because of clan affiliation alone. [49] The RAD finds that the Appellant has not established that there is a serious possibility of persecution or a likelihood of death or cruel or unusual treatment or punishment if he were to return to Somalia. [50] The Appellant argues that because he has lived in the western countries of South Africa and Canada he is "westernized". However, he has not made any argument about how this affects his risk in Somalia. The RAD has considered his argument but fails to see how his residency in South Africa has westernized him. He has not tendered sufficient evidence to establish that his time in North America would result in his westernization. The RAD also notes that the objective evidence in the record establishes that XXXX XXXX XXXX would be particularly negative to a person who recently arrived from the western diaspora and who is passing through an XXXX XXXX XXXX checkpoint;17 however, the RAD notes, as previously stated in these reasons, that XXXX is no longer controlled by XXXX XXXX XXXX and not everyone who arrives from abroad will come to the attention of XXXX XXXX XXXX.18 [51] Accordingly, the RAD finds the Appellant's argument in this regard fails. Application for an Oral Hearing [52] The Appellant requests an oral hearing. The RAD finds however that section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection". [53] According to Section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in Section 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [54] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [55] The RAD finds that the new evidence in this appeal does not raise a serious issue with respect to the credibility of the Appellant, is not central to the RPD's decision, and does not justify allowing or rejecting the refugee protection claim. As such, the RAD must proceed without a hearing in this appeal, and the application for an oral hearing is denied. CONCLUSION [56] The RAD agrees with the RPD and finds, based on the totality of the evidence, that the Appellant has not established that there is a serious possibility that the Appellant would be persecuted in Somalia or that, on a balance of probabilities, he would be personally subjected to a danger of torture, or face a risk to life, or to a risk of cruel and unusual treatment or punishment in Somalia. [57] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [58] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division. (signed) "L. Favreau" L. Favreau November 4, 2015 Date 1 Exhibit RPD-1, RPD's Record, Exhibit 4, Minister's Notice of Intent to Intervene and Evidence, pp. 86 - 155. 2 Exhibit P-4, Supplemental Appellant's Record. 3 Exhibit P-2. 4 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 5 Exhibit P-2, Appeal Pleadings, UNHCR Report, pp. 12-27. 6 Exhibit RPD-1, RPD's Exhibit 8, UNHCR Report, January 2014, pp. 161-176. 7 Exhibit RPD-1, RPD's Record, Exhibit 5, p. 157. 8 Exhibit RPD-1, RPD's Exhibit 5, Statutory Declaration, p. 157. 9 Exhibit RPD-1, RPD's Exhibit 5, Letter from Somali Immigrant Aid Organization, October 30, 2013, p. 160. 10 Exhibit RPD-1, RPD's Record, US Record of Determination/Credible Fear Worksheet, pp. 143-155. 11 Exhibit RPD-1, RPD's Record, biographical information, p. 144, item 2.13. 12 Exhibit RPD-1, RPD's Exhibit 3, National Documentation Package for Somalia (20 December 2013), Item 13.12 UK Country of Origin Report, 8 May 2007. 13 Exhibit RPD-1, RPD's Exhibit 4, Minister's Evidence, Refugee Status & Asylum RSA, pp. 133-136. 14 Exhibit P-4, Supplemental Appellant's Record, p. 18, Response to Information Request (RIR) SOM105094.E, 13 March 2015. 15 Ibid., RIR SOM105094.E, 13 March 2015. 16 Ibid., RIR SOM105094.E, 13 March 2015. 17 Exhibit RPD-1, NDP for Somalia (20 December 2013), item 2.4. 18 Ibid., item 2.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD File No. / N° de dossier de la SAR : TB4-03278