Date: 20260318

Docket: IMM-3756-25

Citation: 2026 FC 359

Saskatoon, Saskatchewan, March 18, 2026

PRESENT: The Honourable Madam Justice McVeigh

BETWEEN:

MICHAEL SIYUM KESETE

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In the decision under review, dated February 3, 2025, a Migration Officer [the Officer] determined that the Applicant is inadmissible to Canada under paragraph 35(1)(a) of the IRPA. Accordingly, the application for permanent residence as a Convention refugee under section 11 of the IRPA was refused [the Decision].

I. Facts

[2] The Applicant is a 31-year-old citizen of Eritrea. He was born in Shinara and is ethnically Bilen.

[3] In the refusal letter dated February 3, 2025, the Officer stated a finding of inadmissibility under paragraph 35(1)(a) of the IRPA, stemming from the following determination:

I am of the opinion that you have made a significant knowing contribution to the crime committed, namely torture, in a systematic and generalized context by the Eritrean army while you were employed as a soldier from 2011 to 2020 in Assab.

[4] In the Global Case Management System [GCMS] notes, the Officer presented a more detailed account of their reasoning. Within, the Officer concluded that the Applicant cannot rely on a defence of duress because he denied ever participating in torture, despite serving in his role for 7.5 years and admitting to witnessing acts of torture.

[5] In February 2011, when the Applicant was 16 years old, Eritrean authorities came to his school. His mandatory military career began when, by forcible abduction at gunpoint, he was taken to a military training centre called Clima, located near the southeastern port city of Assab.

[6] After six months of basic training, the Applicant was assigned to a military unit where he carried out his national service. The Applicant said he opposed orders to assist his unit commander with private projects and was detained in a military prison called Adi Nefas for 18 months beginning in December 2016. On May 10, 2018, the Applicant was released from Adi Nefas.

[7] The Applicant reported continuing to serve in his assigned unit near Assab after his release from imprisonment. His tasks were to guard his unit’s camp on a rotating basis, collect information from new recruits, and to register the duration and destination of vacations. In short, he did perimeter security and logistics.

[8] On February 9, 2020, while on leave to visit his family in Keren, the Applicant travelled to Sudan along with three others. Upon crossing the border, he remained in Shagarab refugee camp for 18 months. After receiving his United Nations High Commissioner for Refugees certificate, he traveled to Khartoum on October 5, 2021.

[9] In November 2021, the Applicant applied for permanent residence in Canada and relocated to Uganda. The Applicant was interviewed in Kampala with the assistance of a Bilen interpreter on November 29, 2024. It was confirmed at the start that he fully understood the translator and vice versa. The Applicant indicated in his Schedule 2 Form that he spoke Bilen, Tigrigna, and Tigre well. In several places in the Certified Tribunal Record [CTR] it is indicated he speaks Bilen. In this application he says he understands Bilen but “speak[s it] only poorly.”

II. Issues and Standard of Review

[10] The Applicant raises the following issues:

1. Was the Decision reasonable?

2. Was the Decision procedurally fair?

[11] The applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]).

[12] The Applicant submitted that issues of procedural fairness are not subject to a standard of review, as the Court’s sole responsibility is to determine whether the Officer’s findings or conduct were fair or not. I agree that this is essentially the Court’s role with respect to procedural review.

III. Relevant Provisions

[13] IRPA, ss 11(1), 33, 35(1):

[14] Crimes Against Humanity and War Crimes Act, SC 2000, c 24, s 6 [War Crimes Act]:

IV. Analysis

A. Legal framework for exclusion under Article 1F(a) of the Refugee Convention

[15] Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can TS 1969 No 6 [Refugee Convention] provides that a person is excluded from the definition of “refugee” where there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity.”

[16] The Supreme Court of Canada has pronounced that the test for whether a person has been complicit in such crimes is “if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime” (Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 at para 29 [Ezokola]).

B. Reasonableness

[17] The Applicant submitted that the Officer incorrectly found that his military service made him complicit in crimes against humanity and therefore inadmissible under paragraph 35(1)(a) of the IRPA. Centrally, the Applicant argued that the proper analysis of inadmissibility under this provision involves an assessment of the refugee claimant’s voluntary, significant, and knowing contribution to crimes against humanity (Ezokola at para 36).

[18] The Applicant asserted that the Officer incorrectly relied on an outdated test from Ramirez v Canada (Minister of Employment and Immigration), 1992 CanLII 8540 (FCA), which requires only a finding of personal and knowing participation to determine that a person is excluded from refugee status.

[19] The Applicant emphasized in both written and oral submissions that the Officer did not appear to engage with the fact that he was forcibly conscripted as a child soldier at the age of 16.

[20] The Applicant further asserted that his recollection of the interview is significantly different from the Officer’s notes. He suggested that the Officer erroneously recorded his responses to the interview questions, possibly as a result of inadequate interpretation.

[21] The Applicant submitted that subsequent jurisprudence affirms the Ezokola framework and that a refugee claimant’s mere membership in a group is not sufficient to prove complicity with crimes against humanity in the sense required under article 1F(a) of the Refugee Convention.

[22] The Applicant submitted that the Decision is “fatally flawed” because it ignores the context of his forced conscription into Eritrea’s system of national service, 18-month detention for disobedience, and low rank. Additionally, the Applicant submitted that the Officer “misapplies or disregards each” of the six non-exhaustive Ezokola factors: namely, the size and nature of the organization; the part of the organization with which the refugee claimant was most directly concerned; the refugee claimant’s duties and activities within the organization; the refugee claimant’s position or rank in the organization; the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and the method by which the refugee claimant was recruited and his opportunity to leave the organization (Ezokola at para 91).

[23] The Applicant submitted that the Officer’s suggestion that he “could have left earlier” ignores the Eritrean authorities’ directives to kill deserters. He emphasised that he was only able to escape when granted a two-week home leave in February 2020.

[24] The Applicant submitted that the Officer unreasonably found that the defence of duress was unavailable because the Applicant did ultimately leave Eritrea. Effectively, the Applicant argued that the Officer failed to contextually and holistically consider the record, which he said reveals the facts that he had no opportunity to flee until February 2020 and that he faced cumulative risks as a child soldier, former detainee, and ethnic minority.

[25] The Applicant also claimed that the Officer improperly relied upon reporting by the Washington Post and Amnesty International which establish that torture occurred at Assab where he was a soldier. The Applicant said that such reports do not prove his own contribution to torture. The Applicant argued that the significance of his contribution to crimes against humanity has not been made out, and that the Officer improperly treated his physical proximity to and observation of torture as proof of his participation in those crimes.

[26] Given that the Supreme Court has said that a person must have the intent and knowledge that their conduct will further a crime or criminal purpose to be found complicit in crimes against humanity (Ezokola at paras 89–90). The Applicant submits that this, too, forms the ground of an error made by the Officer. The Applicant submitted that in this case the Officer inferred that the Applicant had such intention and knowledge based on his acknowledgement that he had witnessed acts of torture “on many occasions.” The Applicant first asserts that this could have been an interpretive error. Further, he argues that the proof of mere awareness of criminal acts is not sufficient to prove knowledge and intention to contribute to such criminality.

[27] When the Ezokola factors are properly considered, the Applicant argues, it reveals that the Decision was unreasonable. According to the Applicant, the Officer’s treatment of the factors was unreasonable because:

• (a)the Eritrean Defence Forces are large and multifaceted, and the link between his coerced participation and its criminal purposes is tenuous given his actual unit was very small;

• (b)the Applicant worked on logistics and perimeter security with his unit rather than with the military police or interrogation wing, so the scope of his duties did not involve transportation of prisoners, or operation of detention blocks;

• (c)the Applicant had no rank or position, and this was a significant factor in having no control over anyone committing crimes against humanity, and that he should not be excluded from refugee status;

• (d)the Applicant was in the national service for the first 2 years as a child soldier, and later spent 18 months in prison, with the remaining years he spent under supervision with the threat of execution on desertion. He argues that his 7.5 years of service in the army is not sufficient on its own to justify his exclusion as a refugee;

• (e)the Officer should have given great weight to the fact that he could not escape earlier because of his period of imprisonment and because he would have been shot for desertion.

[28] I do not agree with the Applicant that the Officer was unreasonable.

[29] A decision is unreasonable if it fails to reveal a rational chain of analysis, if the conclusion cannot follow from the analysis undertaken, or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning (Vavilov at para 103).

[30] I agree with the Respondent that section 33 of the IRPA specifies that the applicable standard of proof is met when the facts present the decision maker with “reasonable grounds to believe” that the applicant is inadmissible due to their complicity in crimes against humanity (IRPA, s 33; Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paras 114–116).

[31] Despite the Applicant’s arguments to the contrary, the GCMS notes show that the Officer clearly recognized and applied the Ezokola test, including due consideration of the six non-exhaustive factors. Additionally, the Officer acknowledged and gave positive weight to the fact that the Applicant was forcibly conscripted when he was 16 years old.

[32] The arguments now made by the Applicant (see para 27, above) were directly addressed by the Officer. The Officer directly questioned the Applicant about his responsibility for capturing or reporting deserters from his unit and the use of torture by the Eritrean army to prevent escape attempts. The Applicant stated that attempted escapees were beaten, sometimes tortured, and imprisoned. The Applicant, in his interview stated, “they do it in front of you.” He also clearly described the “Otto” tie, a form of torture in which the victim’s wrists and ankles are tied together to form an eight. As well, the Applicant knew that prisoners subjected to the Otto in the sun did not receive water, and he stated that he felt bad for them, as it is “very hard.”

[33] The Applicant’s imprisonment resulted from his refusal to carry out some of his superior officers’ personal business, not from any disagreement with the torture occurring. The Applicant acknowledged that he knew torture occurred many times while he was imprisoned. As well, while guarding the camp, he never attempted to leave in all the years he was in the army. His duties were perimeter security and logistics, which suggest at least some ability to plan an escape, which the Applicant confirmed he never attempted. The Officer found that “the [Applicant] was able to flee when he decided to do so.” This is a reasonable conclusion.

[34] The Officer’s mistaken comment that he was a prison guard does not lend itself to a reviewable error. The Applicant did guard the perimeter of the camp, and he acknowledged he knew of torture being done when he was in prison. In the next sentence, the Officer set out exactly what his job was, so the Officer clearly knew his role and made a typographical error. The Officer based his decision on those facts, and this misstatement was not determinative.

[35] Considering the Applicant’s answers, the Officer raised inadmissibility concerns with the Applicant as a matter of procedural fairness. The Officer stated that the Applicant’s response suggested a potential defence of duress, as he said, “you don’t have a choice; they do it in front of you,” while denying participating in violence. The Officer found that although the Applicant said he was aware of torture at the detention centre, a defence of duress was not available as he did not admit to having committed criminal acts under duress.

[36] I find that the Officer’s conclusion was based on more than “mere suspicion” of the Applicant’s complicity in crimes against humanity, even though the Applicant’s criminal conduct was not necessarily proved on a balance of probabilities. The Officer found that “…it is clear that during that time, at the location that the [Applicant] was posted, there has been violation of international human rights that amounts to crime against humanity-namely torture- on a widespread and systematic basis. I based this on the [Applicant]’s answer to my questions during the interview, available documentation and my general knowledge of the country conditions over the past year.”

[37] In my opinion, the Officer’s decision satisfied the applicable standard of proof in finding that there were “reasonable grounds to believe” that the Applicant had knowingly contributed in a significant manner to a crime against humanity. Although the Applicant presents new testimony regarding his intended answers to questions asked in the interview, he has not shown that the Officer’s reasons do not reveal a rational chain of analysis, or that the conclusion cannot follow from the Officer’s reasoning. Therefore, the Applicant fails to demonstrate that the Decision was unreasonable.

C. Procedural Fairness

[38] The Applicant alleged that he and this Court would be unable to effectively respond to findings made by the Officer in the decision under review because there was no transcript of the interview.

[39] The Applicant argued that the absence of an interview transcript was an omission from the record constituting a breach of procedural unfairness (Togtokh v Canada (Citizenship and Immigration), 2018 FC 581 at para 16 [Togtokh]). He asserted that the transcript was either a document known to have been properly submitted by an applicant but not reproduced in the CTR, or a document known to have been before but is not before the Court, as contemplated in Togtokh.

[40] I do not agree. There is no obligation to produce a transcript in this situation. A review of the Officer’s notes of the questions and answers provides a clear understanding of what was asked and answered at the interview. This argument must fail.

[41] In oral submissions, the Applicant claimed that this argument referred to the non-disclosure of GCMS notes in the initial letter received pursuant to Rule 9 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22. Upon the production of the CTR, counsel for the Applicant conceded that this issue was rectified but argued that the Applicant was nevertheless disadvantaged in perfecting his application for judicial review.

[42] I do not accept that this amounts to a breach of procedural fairness. The Applicant was entitled to prepare and file a further memorandum of argument upon reviewing the materials disclosed in the CTR and opted not to do so. That choice is not without consequence. Arguments asserting that the Officer failed to apply the proper test and did not provide interview notes must now fail in light of the record before the Court.

[43] Nor do I agree with the procedural unfairness argument based on the allegation that the interpreter who assisted the Applicant during the interview lacked linguistic understanding of Bilen. He confirmed at the start of the interview that he understood the Bilen interview. His BOC said he speaks Bilen. It is only on judicial review that he now says he understands but speaks poorly. Given the other evidence that it was his native language, it is hard to believe his current position.

[44] There is no evidence showing that the Applicant objected to the quality of the translation during the interview. In fact, he agreed he could understand. When considered in conjunction with the Applicant’s documentation stating that he was fluent in Bilen, the inevitable conclusion is that the quality of the translation was satisfactory during the interview itself (see Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at paras 6, 19).

[45] The Applicant reported reviewing the interview with “a person fluent in both English and Tigrigna.” This does not lend any weight to his argument, given the person assisting the Applicant is not specified to have any degree of fluency in Bilen. It is difficult to conclude that a third party who was not present at the interview and who is fluent in unrelated languages would have been able to effectively assist the Applicant in reconstructing and properly translating the true contents of the interview several months after it had been conducted.

[46] Further, I agree with the Respondent that the Applicant’s new submission that he cannot speak Bilen fluently raises the concern that his memory of what was discussed in Bilen at the interview is unreliable. I agree that it is plausible on this account of the facts that the Applicant did make all the statements recorded by the Officer and that they were faithfully translated by the Bilen interpreter.

[47] In summary, the record shows that the Applicant expressed an ability to communicate in Bilen and that he did not raise any contemporaneous objections regarding the quality of the interpretation provided to him during the interview. Consequently, the Applicant did not raise an objection at the first opportunity where it is reasonable to expect that a complaint would have been made and therefore must be understood to have waived his constitutional right to challenge the assistance of the interpretation services provided to him (Gebrezgi v Canada (Citizenship and Immigration), 2021 FC 255 at para 10; Mowloughi v Canada (Citizenship and Immigration), 2012 FC 662 at para 22).

[48] At any rate, the Applicant abandoned this line of argument in oral submissions. I find that the evidentiary record does not support the Applicant’s allegation of procedural unfairness arising from inadequate interpretation services.

[49] I will dismiss this application.

[50] No question was presented for certification, and none arose.

 

JUDGMENT in IMM-3756-25

THIS COURT’S JUDGMENT is that:

1. The application is dismissed.

2. No question is certified.

"Glennys L. McVeigh"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-3756-25
STYLE OF CAUSE:	MICHAEL SIYUM KESETE v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Held by way of videoconference and in person at dalhousie university in halifax, nova scotia
DATE OF HEARING:	March 5, 2026
JUDGMENT AND REASONS:	MCVEIGH J.
DATED:	MARCH 17, 2026

APPEARANCES:

Zelalem Beza	For The Applicant
Michael Butterfield	For The Respondent

SOLICITORS OF RECORD:

The Law Office of Teklemichael Ab Sahlemariam Barrister and Solicitor Toronto, Ontario	For The Applicant
Attorney General of Canada Toronto, Ontario	For The Respondent