Docket: IMM-17657-24
Citation: 2025 FC 1922
Ottawa, Ontario, December 3, 2025
PRESENT: The Honourable Mr. Justice Régimbald
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BETWEEN: |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Applicant |
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and |
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MEHDI AFSHAR |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, the Attorney General of Canada, seeks judicial review of a September 8, 2024, decision of the Refugee Appeal Division [RAD] allowing the appeal and setting aside the decision of the Refugee Protection Division [RPD] excluding Mr. Afshar [Respondent] from refugee protection under Article 1F(a) of the 1951 Convention Relating to the Status of Refugees [Convention] and section 98 of the Immigration and Refugee Protection Act [IRPA]. The Respondent and his spouse sought refugee protection in Canada under sections 96 and 97(1) of the IRPA, alleging a fear of returning to Iran because of the Respondent’s conversion from Islam to Christianity. The RPD and RAD accepted his spouse’s claim.
[2] The issue before the RAD was whether the Respondent was complicit in war crimes and crimes against humanity during his service in the Iranian Air Force [IRIAF] after serving as an F-14 aircraft maintenance specialist during the 1980-1988 Iran-Iraq War [War] and until his retirement in 2003. During the War, the Iranian Air Force, as part of the Islamic Republic of Iran Army, engaged in war crimes and/or crimes against humanity, including the bombing of civilian targets and civilian merchant ships or “tankers”
.
[3] The RAD overturned the RPD decision and held that the Applicant had failed to prove that Mr. Afshar’s contribution to the war crimes and/or crimes against humanity was voluntary. According to the RAD, the Applicant failed to meet the burden of proving that the Respondent “had a realistic opportunity to leave the IRIAF before he did, not just without being killed but also without suffering any serious harm”
. Consequently, the Respondent’s contribution to the war crimes and/or crimes against humanity was not voluntary and the Respondent could not be excluded from protection under section 98 of the IRPA and the complicity test established by the Supreme Court of Canada [SCC] in Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 at paragraphs 36; 84-90 [Ezokola].
[4] For the reasons that follow, the Applicant’s application for judicial review is granted.
II. Background Facts
[5] The Respondent is a citizen of Iran who voluntarily joined the Iranian Air Force in 1973 before the Iranian Revolution. Two years later, he completed an electronics training at the IRIAF base and an F-14 aircraft training in the United States of America. From 1975 to 1983, the Respondent worked as an F-14 aircraft maintenance specialist responsible for repairing electronic malfunctions of F-14 aircrafts, specifically in the autopilot and flight control units. Thereafter, he held several higher ranks in the IRIAF until his retirement in 2003.
[6] On October 11, 2021, the Respondent and his spouse came to Canada on visitor visas to visit their daughter, a Canadian citizen.
[7] On February 4, 2022, the Respondent and his spouse filed a refugee claim on the basis that they fear returning to Iran because of his conversion from Islam to Christianity.
A. The RPD’s Decision
[8] The RPD found that the Respondent is a person referred to in Article 1F(a) of the Convention and section 98 of the IRPA. The RPD concluded that the Respondent was not directly responsible for the war crimes or crimes against humanity that occurred during the War. However, the Applicant met their burden to establish that there are serious reasons for considering that the Respondent was complicit in the war crimes and/or crimes against humanity while working for the IRIAF, under the test enunciated in Ezokola (Ezokola at para 29).
[9] With regards to the factors set out in Ezokola, the RPD found that the Respondent had knowledge of the human rights violation and/or crimes committed by Iran’s military forces during the Iran-Iraq War. Furthermore, the RPD found that the Respondent knew that his work as an F-14 aircraft maintenance specialist within the army would contribute to the advancement of such crimes. Precisely, F-14 aircrafts, which he “maintained and repaired”
, were effective tools during the War to support F-4 and F-5 bombers during “tanker”
wars and the bombing of civilian population.
[10] With regards to the voluntariness factor in Ezokola, the RPD provided the following reasons:
The principal claimant’s “voluntary” contribution
[87] As to whether the principal claimant’s contribution was voluntary, although the Iran-Iraq war had not yet started when the principal claimant voluntarily joined the Air Force in 1973, the evidence reveals that he continued his employment after the war began and remained employed with the IRIAF during the 8 years that it lasted until his retirement in 2003, some 15 years after the war ended. Both during and after the war, the principal claimant gained advantages, rising in the ranks, from First Lieutenant, to Captain, Major, 2nd Colonel, and finally Colonel, at retirement.
[88] The panel agrees with the Minister’s submissions that the evidence points to the principal claimant’s voluntary affiliation with the IRIAF for decades.
[89] The principal claimant’s lengthy service with the IRIAF after he became aware of the human rights violations by Iran’s military forces weighs heavily in favour of his complicity in war crimes and/or crimes against humanity committed by Iran’s military forces during the Iran-Iraq war. There was no persuasive evidence that the principal claimant served or remained due to duress.
[90] The principal claimant testified that he tried to leave two times for family reasons. This testimony came in response to a question from the Minister asking the principal claimant whether he considered leaving the military, after gaining knowledge about the human rights violations during the Iran-Iraq war. The principal claimant stated he did. He initially testified that he tried to resign after the war ended, approximately 1988 or 1989. The principal claimant later testified that there was a prior attempt to resign during the war, in 1986 or 1987, but he was told at the time that he could not go and if he did, he “will face problems and issues.”
[91] The principal claimant testified that on both occasions that he attempted to resign from Air Force it was for personal reasons relating to his family. The principal claimant explained that the period he had committed to remain in the Air Force had passed, and he was separated from his family members. On one occasion, he asked the employer to transfer him to Tehran, where his family was residing, but they refused, and he told them he would quit or stop providing services.
[92] The principal claimant testified that the Air Force had a resignation form or document that employees had to complete, which was then sent to a branch commander for signature. The principal claimant stated he followed these steps, writing on the form or document that he was not able to perform his services anymore, due to “family problems and issues.” The principal claimant stated after submitting the document he received an oral response both times, with the Air Force denying his requests, stating that they wanted to rebuild aircrafts and use them for future missions.
[94] The Minister asked the principal claimant if the decision to resign was ever because he opposed the war. He stated no. I find this significant. Notably, but for family reasons, the principal claimant was willing to remain with an organization he knew had been committing, or had committed, human rights violations, which is material to whether his contribution was voluntary.
[95] While I accept that two separate requests to resign were denied, I find this does not negate the evidence showing voluntariness in this case. According to the principal claimant’s testimony, when he submitted the request to resign during the war, in 1986 or 1987, he was told that he could not go and if he did, he “will face problems and issues.” The principal claimant clarified that if someone leaves the military without permission, that person is considered a fugitive and among the consequences, one would be brought before a court and sent to jail.
[96] The defense [sic] of duress was set out by the Supreme Court of Canada in R. v. Ryan, [2013 SCC 3] at paragraph 81, and has been interpreted in the jurisprudence as follows:
• the perpetrator was in danger of explicit or implicit imminent harm;
• the perpetrator reasonably believes that the threat will be carried out;
• there is no safe avenue of escape;
• there is a close temporal connection between the threat and the harm threatened, the evil threatened them was on balance, greater than or equal to the evil which they inflicted on the victim;
• the perpetrator is not a party to a conspiracy or association whereby they are subject to compulsion and actually knew that the threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association; and they were not responsible for their own predicament.
[97] I find in the circumstances of this case that the principal claimant has not established, on a balance of probabilities, that the harm that he was likely to suffer, if he left the Air Force, without permission, whether during or after the Iran-Iraq war, would have been greater than or equal to the evil which was inflicted on innocent civilians who lost their lives during the war.
[98] When questioned by his counsel, the principal claimant stated several times that the penalty for someone who left the armed forces without permission would be at the judge’s discretion.
[99] In response to further questioning, the principal claimant did state that there is a distinction between the penalty of going AWOL during the war and after the war, informing his counsel that if a person left without permission during the war, such action might possibly lead to execution.
[100] Later, however, the principal claimant stated leaving the military would result in him being brought before a court, that his sentencing would be at the discretion of a judge, but after that the military would take away all his privileges, and whatever was owned to him, for instance all his benefits and that he would not receive a pension upon retirement. The principal claimant testified that he would never take that risk because he knew that he would have to leave everything. When asked by his counsel whether this would be the worst penalty that he would have to face if he left the military after the war, the principal claimant stated yes. After his counsel asked if he would not have faced jail time, the principal claimant again stated it would have been at a judge’s discretion.
[106] Even if I accept, which I do not, that the principal claimant felt compelled to remain with the Armed Forces during the war, because as he stated, desertion might have resulted in execution, the same cannot be said for the principal claimant’s decision to remain with the Armed Forces for another 15 years after the war ended, until his retirement in November 2003. Rather, as noted beforehand, the principal claimant testified that leaving the Armed Forces without permission after the war would lead to his privileges taken away, including his benefits and pension upon retirement– a risk he stated he was not willing to take – and that at most he would have faced imprisonment
[107] While the objective evidence before the panel documents deplorable prison conditions and mistreatment of prisoners in Iran, I find that this treatment would not have been greater than or equal to the evil which was inflicted on innocent civilians who lost their lives during the Iran-Iraq war, as documented in the Minister’s disclosure. The principal claimant failed to establish, on a balance of probabilities, that he stayed with the IRIAF due to duress. Rather, based on his own testimony, he made a conscious decision to stay, so he would not lose his privileges and/or benefits.
[108] I find that the principal claimant’s reluctance to leave the IRIAF because he would lose privileges and/or benefits, the decision to remain with the Armed Forces for 15 years after the war ended, at which time he had knowledge of the military’s human rights violations, favour a conclusion that his contribution was voluntary.
[109] Based on the totality of the evidence, the panel finds that it has been established that there are serious reasons for considering that the principal claimant’s contribution to the IRIAF, and the crimes committed by Iran’s armed forces during the Iran-Iraq war, was voluntary.
[11] Significantly, the RPD held that despite the Iranian military’s legitimate function as a regular army, it “still operated with a criminal purpose when it intentionally used military tactics against international laws such as the use of human waves with children and the intentional bombing of Iraqi civilian towns and merchant ships in international waters”
(RPD decision at para 120).
[12] In a decision dated September 8, 2024, the RAD allowed the appeal. After citing the paragraphs of the RPD decision noted above, the RAD concluded that the Respondent did not make a voluntary contribution and thus, was not complicit in war crimes or crimes against humanity. Therefore, he is not excluded under Article 1F(a) of the Convention and section 98 of the IRPA. The RAD provided the following analysis:
[12] For the following reasons, the RAD agrees with the appellant that the RPD erred and finds that this RPD finding is incorrect. According to the facts of this case, the appellant did not agree with the crimes against humanity and/or war crimes that the RPD found Iran committed during the War, and members of the Iranian armed forces were unable to speak out against these matters as doing so was not tolerated. Furthermore, the RPD overlooked the law that the appellant does not have to establish a duress defence to escape a voluntary contribution finding: the decision-maker just needs to be persuaded that the Minister has not established that the appellant’s contribution to the war crimes or crimes against humanity was voluntary [citations omitted]. This is a significantly different perspective from which to analyze the appellant’s actions from the erroneous one that guided the RPD above because it means that the Minister needed to demonstrate that appellant had a realistic opportunity to leave the IRIAF before he did not just without being killed but also without suffering any serious harm. In this regard, the RAD also notes that the appellant needed to have had this realistic opportunity to leave regardless of what reasons he had in his own mind for wanting to leave. In the RAD’s view, nothing in the evidence reviewed above by the RPD indicates that he did have that kind of an opportunity to leave at any time. It obviously would have been unthinkable at any time for him to have explicitly requested to the IRIAF that he wanted to leave because the Iranian military was engaged in war crimes or crimes against humanity during the War, that is unless he wanted to go to straight to execution and/or Evin prison. Moreover, while the RAD acknowledges the appellant’s lengthy service in the IRIAF before, during and after the War, the facts are that he was denied leave from the IRIAF for personal reasons twice and there is nothing in the evidence to indicate that leave for that reason would have been granted to him to him by the IRIAF if he had asked for it a third time no matter when he asked for it. And, critically here, while the evidence reviewed by the RPD above does indicate that he might have deserted the IRIAF at some point without being sentenced to death and executed for having deserted, it does not clearly demonstrate that he could have deserted the IRIAF at any time without suffering imprisonment in a jail with Iranian prison conditions which, in the RAD’s view, still qualifies as serious harm. The RAD therefore finds in its independent assessment that the appellant did not have a realistic opportunity to leave the IRIAF before he eventually did and that his length of service in the IRIAF is therefore not an indicator of a voluntary contribution by him to any war crimes and/or crimes against humanity that Iran perpetrated during the War. Therefore, as there was little else in the evidence to indicate that he made a voluntary contribution to any war crimes and crimes against humanity that Iran perpetrated during the War apart from his length of service in the IRIAF, the RAD therefore disagrees with the RPD and finds that he did not make a voluntary contribution.
[13] In essence, the RAD found that the Respondent did not agree with the war crimes and crimes against humanity that the RPD found the Iranian military had committed during the Iran-Iraq War. Based on the Respondent’s testimony, the RAD further concluded that members of the Iranian armed forces were unable to speak against these crimes as doing so would result in the member’s execution or imprisonment.
[14] The RAD determined that the RPD overlooked the principle that when assessing complicity under the Ezokola test, the refugee claimant does not have to establish the defence of duress to escape a voluntary contribution finding; the decision maker just needs to be persuaded that the Minister has not established that the individual’s contribution to the war crimes or crimes against humanity was voluntary (Al Khayyat v Canada (Citizenship and Immigration), 2017 FC 175 at para 56 [Al Khayyat]; Ezokola at paras 86 and 99).
[15] In the RAD’s view, this meant that the Minister had to establish that the Respondent “had a realistic opportunity to leave the IRIAF”
without death or suffering serious harm, regardless of the reasons he had in his own mind for wanting to leave. The RAD concluded that the evidence did not show that he had a “realistic opportunity”
to leave at any time before he eventually retired in 2003.
III. Issue and Standard of Review
[16] The issue on judicial review is whether the RAD’s decision is reasonable.
[17] The applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7, 39–44 [Mason]). To avoid judicial intervention, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99; Mason at para 59). The decision must be read holistically and contextually, in light of the evidence, the submissions and the context in which it was rendered (Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 at para 47 [Pepa]; Vavilov at paras 94, 97). A decision may be unreasonable if the decision maker misapprehended the legal constraints of the evidence before it (Vavilov at paras 99, 101, 105, 108, 111, 125-128; Mason at para 73). However, the reviewing Court must refrain from “reweighing and reassessing the evidence considered by the decision maker”
(Vavilov at para 125). In determining reasonableness, the reviewing Court must not create its “own yardstick”
and use it to measure what the decision maker did (Pepa at para 48; Vavilov at para 83, and Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67 at para 40). Reasonableness review is not a “rubber-stamping”
exercise, it is a robust form of review (Vavilov at para 13; Mason at para 63). The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100). Any alleged flaws must be “sufficiently central or significant to render the decision unreasonable”
or cause the “reviewing court to lose confidence in the outcome reached”
(Vavilov at paras 100, 106; Pepa at para 49).
IV. Analysis
A. The Applicant’s Submissions
[18] The Applicant submits that the RAD diverged from the Ezokola test for complicity by assessing the voluntariness element incorrectly and requiring the Applicant to prove that the Respondent had a realistic opportunity to leave the IRIAF to establish voluntariness. In support of this argument, the Applicant argues that the Ezokola test for complicity involves a contextual analysis of six factors, which include the method by which the refugee claimant was recruited and their opportunity to leave the organization. The RAD thus erred by treating this one factor as a strict legal requirement or precondition for voluntariness (Al Khayyat at paras 42, 44-45; Ezokola at paras 91-92).
[19] The Applicant also submits that the RAD failed to conduct a full contextual analysis of the tripartite test in Ezokola and consider other factors and evidence, emphasizing on the realistic opportunity to leave the IRIAF. The Applicant recognizes that though decision makers are not required to explicitly address each Ezokola factor, an assessment of voluntariness should consider a full contextual analysis of all relevant factors, including both the method of recruitment and any opportunity to leave (Al Khayyat at paras 44-46; Canada (Minister of Citizenship and Immigration) v Badriyah, 2016 FC 1002 at para 27).
[20] Finally, the Applicant submits that the RAD’s analysis was contextually incomplete and that its reasons lack transparency. The Respondent had knowledge of the Iranian military’s war crimes and made two attempts to leave — the first during the War, and the second shortly after the end of the War. However, none of these two attempts to resign from the IRIAF were based on his knowledge of the war crimes or crimes against humanity and his position against them but rather for family reasons. Moreover, the reasons why he refused to risk leaving the army without leave after the end of the War was to ensure that he would not lose his privileges including his pension, and not because a prison sentence was likely in that scenario. These contextual issues were not addressed in the RAD’s reasons nor weighed against the Respondent’s opportunity to leave. Instead, and without applying any kind of duress or coercion test, the RAD accepted that the Respondent’s contribution was not voluntary.
B. The Respondent’s Submissions
[21] The Respondent submits that considering the cumulative nature of the Ezokola test, the RAD analyzed the first criterion of the tripartite test, being voluntariness, and once it found that the Respondent’s actions were not voluntary, concluded that he was not excluded under Article 1F(a) of the Convention and under section 98 of the IRPA.
[22] The Respondent submits that though the six factors for assessing complicity enunciated in Ezokola are not mandatory, the three elements of the tripartite test (voluntariness, significance and knowledge) are mandatory to establish complicity. Voluntary contribution is therefore a strict legal requirement.
[23] The Respondent also submits that the RAD did not apply the notion of having “a realistic opportunity to leave the IRIAF”
(or not) as a strict legal requirement. He further submits that it was logical for the RAD to conclude that if there was no realistic choice but to remain in the IRIAF due to certain factual circumstances applicable to his case, the Respondent could not be found to have acted voluntarily and so could not be found to have been complicit for war crimes and crimes against humanity under the Ezokola test.
C. The Ezokola Test
[24] Under section 98 of the IRPA, a person described in sections E and F of Article 1 of the Convention is excluded from protection in Canada. Section 98 of the IRPA provides that “(a) person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.”
Article 1F(a), which is the applicable Article in this case, states : “[t]he provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; […]”
.
[25] A person is excluded from refugee protection, under section 98 and Article 1F(a), if there are serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity. However, exclusion also includes those that were complicit in those crimes (Ezokola at paras 1-2). Complicity requires “serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to an organization’s crime or criminal purpose”
(Ezokola at paras 84, 86-90). The evidentiary standard of “serious reasons for considering”
is lower than the civil standard of a balance of probabilities (Ezokola at para 34).
[26] The complicity test requires a contextual analysis of all relevant factors. In Ezokola, the SCC established the following six non-exhaustive factors meant to guide the analysis (at paras 91-100):
(i) the size and nature of the organization;
(ii) the part of the organization with which the refugee claimant was most directly concerned;
(iii) the refugee claimant’s duties and activities within the organization;
(iv) the refugee claimant’s position or rank in the organization;
(v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and
(vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization.
[27] The complicity test centres on the individual’s knowledge, voluntariness and significant contribution to the crime or the organization’s criminal purpose. The Ezokola factors are neither exhaustive nor mandatory. Depending on the facts of a particular case, certain factors will be more or less significant (Ezokola at para 92). A full contextual analysis includes considering any viable defences, which includes but is not limited to the defence of duress or coercion impeding an individual’s opportunity to leave the organization, especially after acquiring knowledge of the organization’s crimes or criminal purpose (Ezokola at paras 99-100).
D. The RAD’s Decision is Unreasonable
[28] The RAD’s decision is unreasonable for several reasons, most importantly because the reasons are not justified, transparent or intelligible and may not comply with the factual and legal constraints bearing on the decision. The errors are in my view “sufficiently central or significant to render the decision unreasonable”
and cause “a reviewing court to lose confidence in the outcome reached”
(Vavilov at paras 99-101, 105-106, 108, 111, 125-128).
[29] At the outset, it is important to note that the RAD properly held that the Respondent does not have to establish the defence of duress to demonstrate that his contribution was not voluntary – coercion to remain in the governmental organization after having acquired the knowledge of the organization’s crimes or criminal purpose may also lead to a conclusion that the individual’s contribution was not voluntary (Ezokola at para 99; Canada (Citizenship and Immigration) v Guevara Robles, 2025 FC 761 at para 32; Al Khayyat at paras 47, 55-56). In that regard, the RPD’s finding that the Respondent’s contribution was voluntary because he failed to establish the defence of duress is incomplete.
[30] However, the RAD failed to explain on what legal or factual grounds it was ruling that the Respondent’s contribution was not voluntary. The RPD had applied the test set out in R v Ryan, 2013 SCC 3, perhaps erroneously, but still had made findings of facts that may be relevant in assessing whether the Respondent’s contribution to the IRIAF and the war crimes and crimes against humanity committed by the Iranian military was voluntary, such as the facts that the Respondent :
A. Served the IRIAF for decades and, but for family reasons, was willing to remain with the organization after being made aware that the organization had been committing, or had committed, war crimes or human rights violations (RPD decision at paras 88-89, 94);
B. Tried to leave twice for family reasons, during the war in 1986 or 1987, and after the war in 1988 or 1989. He understood that if he left the army without leave during the war, he would “face problems and issues” and perhaps execution. However, if he left without leave after the war, the sanction was that the military would take away his privileges including his benefits and pension and he did not want to take that risk. The Respondent concluded stating that a potential prison term for leaving the army without leave after the war was at the discretion of the judge (RPD decision at paras 90-95, 98-100);
C. Remained in the army for 15 years after the war ended. The reluctance to leave the IRIAF for 15 years after the war ended was because the Respondent would lose privileges and/or benefits even in the knowledge of the human rights violations, which favours a conclusion that the Respondent’s contribution was voluntary (RPD decision at paras 106, 108).
[31] The RAD failed to provide adequate reasons to explain its conclusions of fact dismissing the entirety of the RPD’s findings. The RAD merely stated that “[i]t obviously would have been unthinkable at any time for him to have explicitly requested to the IRIAF that he wanted to leave because the Iranian military was engaged in war crimes or crimes against humanity during the War, that is unless he wanted to go to straight to execution and/or Evin prison”
and that “critically here, while the evidence reviewed by the RPD above does indicate that he might have deserted the IRIAF at some point without being sentenced to death and executed for having deserted, it does not clearly demonstrate that he could have deserted the IRIAF at any time without suffering imprisonment in a jail with Iranian prison conditions which, in the RAD’s view, still qualifies as serious harm”
.
[32] With respect, the RAD failed to engage with the factual constraints bearing on its decision-making process (Vavilov at paras 125-126). At no time was it suggested that the Respondent should “explicitly”
request to the IRIAF to leave because the Iranian military was engaging in war crimes or crimes against humanity during the War. Rather, a reasonable person would do whatever they could and seek to leave for any reason even if the real reason was because of the commission of war crimes and crimes against humanity (albeit the Respondent’s reason was indeed because of family reasons and not the crimes). Duress or coercion is not established on the facts of this case simply because the Respondent could not “explicitly”
express his desire to leave the IRIAF because they were committing war crimes or crimes against humanity. Duress or coercion can only be made out if it was difficult for the Respondent to leave the IRIAF for any reason during that time.
[33] Likewise, coercion or duress is not made out simply because the Respondent might “suffer […] imprisonment in a jail with Iranian prison conditions which, in the RAD’s view, still qualifies as serious harm”
. The evidence weighed by the RPD was that the consequences for the Respondent to leave the IRIAF without authorization was different after the War when compared with during the War.
[34] It is theoretically possible that the Respondent’s contribution was voluntary during his entire career in the IRIAF because there was no duress nor coercion (as the RPD held). It is also theoretically possible that his contribution was involuntary because there was coercion or duress during the entire period (as held by the RAD). Finally, it is also theoretically possible that there was coercion or duress during one period (during the War for example) but not thereafter. Any of these conclusions require findings of fact, adequate weighing of the evidence as a whole and in context, and sufficient reasons explaining the decision. Only after a careful and adequate assessment of the evidence can it be determined which of those three fundamentally distinct outcomes, and perhaps more than one, is reasonable.
[35] However, the RAD failed to explain which of the RPD’s factual conclusions it disagreed with and which evidence it found convincing. The RAD failed to apply any legal test applicable to coercion or duress and failed to apply a contextual assessment of the evidence as a whole, in determining whether the Respondent’s contribution to the IRIAF throughout his entire career (or part thereof) was voluntary or not, and ultimately whether he was complicit in the crimes committed by the IRIAF and the Iranian military.
[36] For example, unlike the RPD, the RAD failed to explain its own findings of fact as to why the Respondent’s contribution and reasons for intending to leave the IRIAF during the War was not important in assessing whether his contribution was voluntary. In Gebremichael v Canada (Citizenship and Immigration), 2024 FC 884 at paragraphs 47-48 [Gebremichael], which to be fair to the RAD had not yet been rendered at the time of the RAD’s decision, this Court held that even in the case where an individual is conscripted and coerced to remain, an element that may be given weight in favour of an individual in the assessment of voluntariness, the fact that the individual remained for a period of time before trying to escape may be held against them. In this case, the Respondent remained in the IRIAF between 1980 and 1986 before asking for the first time to leave for family reasons. The timing of his request to leave the IRIAF, if it comes several years after having acquired knowledge of the war crimes and crimes against humanity (the time when the Respondent became aware of the crimes is a finding of fact to be made by the decision maker), may be relevant in establishing whether the Respondent voluntarily contributed to the IRIAF’s crimes or criminal purpose.
[37] Likewise, after the War ended, the Respondent testified that if he left the IRIAF without authorization, the more likely sanction would be the loss of his benefits and pension, and that at no time he wanted to take that risk. The potential for a prison term was at the discretion of the judge, the Respondent finally added, in response to a suggestive question by his counsel. The RAD failed to explain why, in the context of the Respondent’s own evidence, it concluded that in its view, “the evidence reviewed by the RPD […] does not clearly demonstrate that he could have deserted the IRIAF at any time without suffering imprisonment in a jail […]”
. No analysis is offered as to why, and in the context noted above relating to the Respondent’s own testimony in response to a suggestive question, the RAD put greater weight on the potential for a prison term and rejected the direct evidence suggesting that a different and much lighter sanction was more likely since the prison sentence was discretionary. The analysis fails to explain why, in any event, that evidence allows the Respondent to meet the criteria of coercion or duress necessary to establish that his contribution was not voluntary. Put rhetorically, the Respondent’s testimony certainly does not “clearly”
establish that he will face prison time — quite the contrary. Therefore, the RAD’s reasons do not provide any indication as to what weight it put on the various evidentiary elements and why, despite no “clear”
evidence of a prison term, the Respondent still established his defence of coercion or duress for his failure to leave after the end of the War.
[38] Finally, the RAD held that “while the RAD acknowledges the appellant’s lengthy service in the IRIAF before, during and after the War, the facts are that he was denied leave from the IRIAF for personal reasons twice and there is nothing in the evidence to indicate that leave for that reason would have been granted to him by the IRIAF if he had asked for it a third time no matter when he asked for it.”
Again, the RAD fails to explain the basis of its factual assessment. The RPD previously had ruled that the Respondent requested to leave the IRIAF for family reasons during and after the end of the War. His request was refused the first time because the country was at War, and after the War in 1989 “to rebuild aircrafts and use them for future missions”
(RPD decision at para 92). The RPD found that the Respondent’s reason to remain with the IRIAF thereafter was for his privileges, including his pension (RPD decision at para 108). In other words, his previous reasons for wishing to leave the IRIAF no longer existed, and he now wished to remain, to keep his privileges and qualify for his pension. The RAD does not explain on what evidence it relies upon to make its implicit finding that leave would have been denied if he had asked for it a third time. The facts as known is that the Respondent was refused leave in 1989 “to rebuild aircrafts and use them for future missions”
. Also in evidence is that the Respondent retired in 2003 and that he did get his pension, and therefore an authorization to leave must have been granted (otherwise he would have lost his benefits and pension, which is the reason why he remained in the IRIAF after the end of the War). There is no evidence suggesting that the Respondent would not have been authorized to leave at any time after 1989 but before 2003 when the aircrafts were eventually “rebuilt”
. The RAD’s conclusion, without more explanation on its weighing of the evidence, appears at best speculative.
[39] As a result, the RAD’s findings on these crucial evidentiary elements bearing on its decision-making is insufficiently justified, transparent or intelligible. Its ultimate conclusion, based on these elements, that “the [Respondent] did not have a realistic opportunity to leave the IRIAF before he eventually did and […] his length of service in the IRIAF is therefore not an indicator of a voluntary contribution by him to any War crimes and/or crimes against humanity that Iran perpetrated during the War”
is therefore unreasonable.
E. Application of the Ezokola Test - Voluntary Contribution to a Criminal Purpose After the End of the War
[40] As discussed above, section 98 of the IRPA and Article 1F(a) of the Convention excludes individuals for whom there are “serious reasons for considering”
that they are complicit in the commission of a crime against peace, a war crime, or a crime against humanity, when they made a voluntary and significant contribution to a governmental organization while being aware of the organization’s crime or criminal purpose, and while being aware that their conduct will assist in the furtherance of the crime or criminal purpose (Ezokola at paras 29, 40, 84, 89 [emphasis added]). Humanitarian protection is not afforded to those who commit those offences, and the evidentiary burden falls on the Minister (Ezokola at paras 1-2, 29, 36).
[41] The RPD held that the Iranian military operated with a criminal purpose (RPD decision at para 120). Since the RAD concluded that the Respondent’s contribution was not voluntary, it did not opine as to whether or not the Iranian military or the IRIAF operated with a criminal purpose, which is an important factor in the Ezokola analysis.
[42] As held by the SCC, senior officials may be complicit and held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government (Ezokola at paras 6, 80). However, complicity by association is not sufficient. There must be a link between the individuals and the criminal purpose of the governmental organization, such as to establish serious reasons for considering that the individual has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose (Ezokola at paras 7-8).
[43] Ezokola has therefore set out a tripartite test to establish complicity which requires (a) a voluntary and (b) significant contribution to the crime or criminal purpose of the group, as well as (c) knowledge of the governmental entity’s crime or criminal purpose (Ezokola at paras 84-90).
[44] To assess the voluntariness criterion, the SCC held in Ezokola that the decision maker should, for example, consider the method of recruitment and any opportunity to leave the organization (Ezokola at para 86). For the significant contribution criterion, the decision maker must carefully assess the degree of contribution to prevent unreasonable extensions of the notion of criminal participation. Only a significant contribution to the crime or criminal purpose of the group will meet the threshold (Ezokola at para 88). For the knowledge criterion, the official must be aware of the crime or criminal purpose of the group and be aware that their conduct will assist in the furtherance of the crime or criminal purpose (Ezokola at para 89).
[45] In assessing the tripartite test and determining whether an individual is complicit, a decision maker may look at the six factors noted above (Ezokola at paras 91-92). A contextual assessment of the evidence as a whole is necessary. As held by the SCC in Ezokola, the bigger the size of the governmental entity, the lesser the individual may have known and participated in the crime or criminal purpose, while a small organization would increase it. Likewise, if the organization is multifaceted as opposed to heterogenous, such as an army with multiple units, the link between the contribution and the crime may be more tenuous. The same can be said when the governmental organization performs both legitimate and criminal acts, again as can be the case of an army in the present case. In such case, it will be more difficult to demonstrate that the individual was aware of the crimes or that they contributed to them significantly. Moreover, the involvement of an individual with the part of the organization responsible for the crimes is relevant. If the individual was exclusively affiliated with another part of the organization that was not responsible for any crime, that may serve to exonerate them (Ezokola at paras 94-95). The individual’s duties and rank with the organization is also relevant in this regard (Ezokola at paras 96-97). Finally, the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose, is a relevant factor (Ezokola at para 98), as is the claimant’s opportunity to leave the organization (Ezokola at para 99). It is a question of fact (Ezokola at para 94).
[46] As a result, the first argument made by the Applicant may be dismissed summarily. The Applicant argues that the RAD elevated to a strict legal test the fact that the Respondent did not have a “realistic opportunity”
to leave the IRIAF. In my view, the RAD did not make such error. The voluntary nature of a contribution is a criterion of the tripartite test to determine whether an individual was complicit in war crimes, crimes against humanity or crimes against peace. The RAD did not err in applying a criterion that can be determinative in the analysis. In Ezokola at paragraph 99, the SCC explained that an individual’s conduct may be found to be involuntary even if it is short of duress, after conducting a contextual analysis. In this case, the RAD concluded that, since the Respondent was forced to remain in the army, his contribution was not voluntary and, on that basis alone, the Ezokola tripartite test for complicity could not be met because a fundamental criterion, voluntariness, was missing. In doing so, however, the RAD did not establish a new standard. It simply ruled that one of the three elements of the criteria to establish complicity could not be met in any event, and the inquiry could end there. The distinction that the Applicant draws is in my view semantical, but not substantive (see Canada (Citizenship and Immigration) v Guevara Robles, 2025 FC 761 at paras 31-33). As such, the RAD’s failure to analyze the other two Ezokola elements of the tripartite test is not necessarily erroneous.
[47] This being said, it remains prudent to look at all six of the Ezokola factors in a contextual manner to fully assess the Ezokola tripartite complicity test. In Gebremichael, for example, it was established that while there was some coercion, the other Ezokola factors pushed in favour of a voluntary contribution to the criminal purpose of the group. Therefore, even where coercion may exist during a specific period within which an individual is a member of the organization, that on its own may not be sufficient to rule out that the individual’s contribution to the criminal purpose of the group may have been voluntary during other periods when the individual remained a member of that organization.
[48] The objective is to determine whether the individual made a voluntary and significant contribution to the organization, all the while knowing about the group’s crimes or criminal purpose and that their conduct will assist in the furtherance of the crime or criminal purpose (Ezokola at para 89). Ultimately, on the basis of the tripartite test, the Applicant must prove that there are “serious reasons for considering”
that the individual was complicit in the commission of war crimes, crimes against humanity or crimes against peace (Ezokola at para 101).
[49] In this case, two of the Ezokola factors are of particular importance. The first one being the length of time that the Respondent was in the IRIAF, particularly after acquiring knowledge of the Iranian military’s crime or criminal purpose, and the second one being whether he had an opportunity to leave the organization or if he was coerced or under duress to remain, and if that is the case, during which period.
[50] In the case of the Respondent and in light of the factors mentioned in Ezokola, it is also relevant to determine whether or not the Iranian military (which was held to have a criminal purpose by the RPD) continued to have a criminal purpose after the end of the War. If the Iranian military did continue to have a criminal purpose after the end of the War, it becomes important to determine whether the IRIAF is distinguishable from the Iranian military as a whole and if the answer is yes, whether the IRIAF also had a criminal purpose after the end of the War (Ezokola at para 95).
[51] Indeed, as held by the SCC in Ezokola, the fact that the organization is multifaceted as opposed to heterogenous and performs both legitimate and criminal acts, is relevant in the analysis (Ezokola at para 94). In this case, the Iranian military is multifaceted as it has many different units, and a national army does perform legitimate acts. The Respondent’s link between his contribution and the crimes may be more tenuous if the IRIAF can be distinguished from the Iranian military as a whole, and if that is the case, the fact that the Respondent is not involved with the part of the organization responsible for the crimes is relevant and may serve to exonerate him for the time he served in the IRIAF, including after the end of the War (Ezokola at paras 94-95).
[52] The factual scenario in this case is interesting and perhaps unprecedented. In normal circumstances, the criminal purpose of a governmental organization is established and continues in time (for example, the National Intelligence Agency and its previous iterations in the Democratic Republic of Congo have over the years been recognized as having a limited and brutal purpose: Gupa v Canada (Citizenship and Immigration), 2023 FC 157 at para 2; Zoya v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16634 at para 11; Diasonama v Canada (Minister of Citizenship and Immigration), 2005 FC 888 at paras 23–23). Joining or remaining in the organization voluntarily and in full knowledge of the organization’s continuing criminal purpose allows an individual to perhaps “assist in the furtherance of the crime or criminal purpose”
(Ezokola at para 89). In such case, the individual could be excluded under section 98 of the IRPA and Article 1F(a) of the Convention by failing to leave the organization after having been made aware of the crimes (and if the other criteria of the Ezokola tripartite test for complicity are established).
[53] However, in this case, while the RPD held that the Iranian military as a whole had a criminal purpose (RPD decision at para 120), no finding was made as to whether the IRIAF was distinguishable, nor whether the Iranian military and/or the IRIAF maintained their criminal purpose after the War. The Iranian military is, after all, an army and as such, may also conduct legitimate acts (Ezokola at para 94). It also has many units. It is therefore possible that the Iranian military or the IRIAF, or both, no longer had a criminal purpose after the end of the War, unlike the National Intelligence Agency in the Democratic Republic of Congo. A conclusion on the status of the Iranian military, and/or of the IRIAF, after the end of the War is therefore important in the context of this case.
[54] In the end, if the Respondent was under coercion throughout the period, as held by the RAD, then his contribution was not voluntary and the status of the Iranian military and/or of the IRIAF during or after the War is irrelevant. Likewise, if he was not coerced or under duress during the entire period (as held by the RPD), then according to the RPD the Respondent is excluded as he was complicit during the time when the IRIAF participated in war crimes and crimes against humanity.
[55] However, there is a theoretical possibility that the Respondent was under duress or coercion during the War, but not thereafter. In such a scenario, the Respondent may not be held to having been complicit for the crimes committed during the War. Likewise, he cannot become complicit for having remained with the IRIAF thereafter, for crimes that were committed during the War at that time when his contribution was involuntary — if the Iranian military and/or the IRIAF do not have a criminal purpose after the end of the War.
[56] Therefore, to the extent that the Respondent’s conduct after the end of the War is relevant, it may only be so if he voluntarily continued to serve while being aware of the Iranian military’s and/or the IRIAF’s continuing criminal purpose and that his conduct would assist in the furtherance of that criminal purpose (and that his contribution met the significant contribution criterion of the Ezokola tripartite test to establish complicity).
[57] As stated, the RPD made a finding of fact that the Iranian military had a criminal purpose (RPD decision at para 120). The RAD provided no comment on that issue, ruling that in any event the Respondent’s contribution was not voluntary. In the scenario where the Respondent cannot be complicit in war crimes or crimes against humanity occurring during the War because he was under coercion, he could only be excluded under Article 1F(a) of the Convention and section 98 of the IRPA if he was complicit in the continuing criminal purpose of the Iranian military after the end of the War (if the IRIAF cannot be distinguished from the Iranian military as a whole), or if the IRIAF itself continued to maintain such criminal purpose after the end of the War (if the IRIAF may indeed be considered to be a distinct unit from the Iranian military as a whole).
[58] By analogy and in a different context, under paragraph 34(1)(f) of the IRPA, an individual is inadmissible on security grounds for being a member, inter alia, of an organization that engaged in terrorism (under paragraph 34(1)(c)). Many groups that are associated with terrorism are listed entities under section 83.05 of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. All listed entities are reviewed within five years of the date when they were initially listed to confirm whether their status is maintained and if it is not, they must be removed from the list. An individual who was a member of an organization during the time that it was a listed entity could be inadmissible in Canada under paragraph 34(1)(f) of the IRPA for having participated in or facilitated terrorist activities under section 83.05 of the Criminal Code. However, an individual who would have joined the same organization after it was removed from the list may not be captured under paragraph 34(1)(f) of the IRPA (subject to an evaluation of the activities of the organization while the individual was a member).
[59] The aforementioned reasoning is equally applicable in this case. If the Iranian military and/or the IRIAF (if it is distinguishable as discussed in paragraph 94 of Ezokola) did not have a criminal purpose after the end of the war, then the Respondent is not complicit in any war crime or crime against humanity (if he was under coercion during the War). In such circumstances, the Respondent may not be excluded under section 98 of the IRPA and Article 1F(a) of the Convention because his contribution during the War cannot be held against him as it was not voluntary; and his contribution after the War is irrelevant, because he was not a part of an organization that had a criminal purpose from that point onward.
[60] However, the fact that the Iranian military and the IRIAF did commit or contribute to war crimes or crimes against humanity during the War may also be indicative that they have a continuing criminal purpose after the end of the War. In such circumstances, the Respondent had to leave as soon as possible thereafter when he was no longer coerced or under duress to remain. Indeed, the Respondent’s continuing contribution enables the Iranian military and/or the IRIAF to be ready to resume their criminal activities when it will be necessary to do so. Continuing participation in a group with a criminal purpose may consist in a conduct assisting in the furtherance of the crime or criminal purpose of the group (Ezokola at para 89). The term “furtherance”
is indicative of an act to develop, advance or promote a specific and future looking end goal or objective.
[61] Those issues are questions of fact. Changes to the leadership, rank and structure of the army, for example, may indicate that the military unit’s objectives have changed and therefore no longer has a criminal purpose. On the other hand, if no changes were made to the unit and its purpose (other than the renewal of its personnel), it could be considered that the past crimes are indicative that a criminal purpose remains, depending on the evidence available regarding the activities of the army in question.
[62] Consequently, the issue as to whether the Respondent is complicit in the crimes committed by the Iranian military and/or the IRIAF must be determined anew. A complete and contextual assessment of the evidence as a whole must be made in this regard, including an assessment of the Respondent’s complete military career and at each relevant period, but also of the IRIAF and the Iranian military, to determine whether they continued to have a criminal purpose. If the Iranian military continued to have a criminal purpose, it becomes important to determine whether the IRIAF may be distinguished from the Iranian military or not. If it can, it will be necessary to determine whether the IRIAF itself continued to have a criminal purpose after the end of the War.
V. Conclusion
[63] The application for judicial review is allowed and the decision is remitted back to a different Officer.
[64] The parties have not proposed a question of general public importance to certify, and I agree that none arise.
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