Docket: IMM-1079-25
Citation: 2026 FC 273
Toronto, Ontario, February 27, 2026
PRESENT: The Honourable Mr. Justice Southcott
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BETWEEN: |
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M.K. |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] This is an application for judicial review of a decision dated December 20, 2024 [the Decision], by the Refugee Protection Division [RPD], finding that the Applicant is excluded from refugee protection under Article 1F(a) of the Refugee Convention [the Convention] in accordance with section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] As explained in further detail below, this application for judicial review is dismissed, because the Decision is reasonable.
II. Background
[3] The Applicant is a citizen of Turkey, of Kurdish ethnicity, who alleges fear of persecution at the hands of the Turkish authorities as a Kurdish supporter of the People’s Democratic Party [HDP] and fear of lengthy imprisonment on false charges, and risk to his life, at the hands of his commanders in the Cybercrime Division of the Gendarmerie General Command [the Gendarmerie], for refusing to follow illegal orders to add evidence of support for terrorism to investigation files about supporters of the HDP.
[4] In 2019, the Applicant, who has a background in information technology [IT], applied for a position as a junior specialist corporal with the Gendarmerie’s Cybercrime Division. He was successful and, after completing six months of training, was assigned to Hakkari province. However, due to a lack of necessary cybercrime equipment in the region, he initially worked for the Gendarmerie in administrative units.
[5] In July 2022, the Applicant was transferred from Hakkari to Mugla, where he began working in the Gendarmerie’s cybercrime section, his work then involving the examination of digital devices seized from suspects to identify the existence of evidence relevant to the commission of offences. While the Applicant was initially assigned to criminal cases, including drug defences, fraud, and sexual assault, he was subsequently assigned to terrorism cases and was pressured by his superiors to falsify reports on evidence, so as to support terrorism prosecutions.
[6] The Applicant applied for annual leave from his employment with the Gendarmerie, left Turkey, and eventually arrived in Canada and claimed refugee protection.
III. Decision under Review
[7] In the Decision that is the subject of this application for judicial review, the RPD rejected the Applicant’s refugee claim on the basis that he is excluded from refugee protection under Article 1F(a) of the Convention in accordance with section 98 of the IRPA. As noted in the Decision, section 98 provides that a person described in Article 1F(a) of the Convention is neither a Convention refugee nor a person in need of protection. Article 1F(a) provides that the Convention’s provisions shall not apply to any person with respect to whom there are serious grounds for considering that they have 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.
A. Applicable law
[8] The RPD noted that the standard to be applied to an exclusion analysis is whether there are “serious reasons for considering”
that the test for exclusion is met, which is lower than the civil standard of “balance of probabilities”
but higher than “mere suspicion or reasonable grounds for suspecting.”
Serious reasons for considering exist where there is an objective basis for the belief that is based on credible and compelling information.
[9] The RPD further explained that it is not necessary to determine whether a claimant is guilty or innocent of relevant crimes, only whether they are complicit in the commission of the crimes. Relying on Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 [Ezokola], the RPD noted that the necessary link between an individual and the knowledge of the crime or criminal purpose of a group will be established where there are serious reasons for considering that the individual made a voluntary, knowing, and significant contribution to the crime or criminal purpose of the group that is alleged to have committed the crime. Mere association or passive acquiescence is not sufficient to conclude that there is complicity.
B. Turkish security forces, Gendarmerie, and crimes against humanity
[10] The RPD conducted what it described as a brief and non-exhaustive overview of human rights violations committed by the Gendarmerie and Turkish security services, including at the times and places where the Applicant had served. As explained below, RPD concluded that both the objective country condition evidence [CCE] and the Applicant’s own testimony supported a finding that the Gendarmerie and Turkish security services were engaged in the commission of crimes against humanity in the locations where the Applicant served, during the Applicant’s time with the Gendarmerie. The RPD noted that this particular issue was not in contention, as the Applicant’s counsel’s written submissions acknowledged that the Applicant was exposed to human rights abuses against Kurdish people committed by Turkish securities forces as part of his service in Hakkari and Mugla.
[11] The RPD explained that the CCE identified accusations against the Gendarmerie of extensive human rights violations, including torture, custodial deaths, arbitrary detentions, and death threats. It noted that, with respect to conflict in the southeast of Turkey, security forces have been involved with protracted and violent conflict with the Kurdistan Workers’ Party [PKK], which is listed as a terrorist organization by both Turkey and Canada. The RPD observed that, in the broader context of this conflict, there were numerous, credible, and continued reports of extensive human rights violations including killings of civilians, extrajudicial killings, torture, violence against women, excessive use of force, destruction of housing and cultural heritage sites, severe restrictions on freedom of expression, and prevention of access to emergency medical care and safe water.
[12] With respect to the situation in Hakkari from 2019 to 2022, the RPD referenced CCE identifying casualties and abuses of civilian populations disproportionately impacting Kurds in the Hakkari province. The RPD also referenced the Applicant’s testimony as to human rights abuses that he was aware of during his time in Hakkari. He testified that, around the time he began working in Hakkari, he was aware of the death of a civilian in an incident where civilians were considered terrorists and shot from a helicopter. He also testified that, six or seven months later, he heard about raids on Kurdish households to look for weapons and ammunition. He also referred to F-16 fighter jet attacks against targets over the Iraqi border that he considered to be excessive. The Applicant testified that he heard about unlawful detentions, although they did not occur at the place where he was stationed, and that he was aware of and was shown photos of Gendarmes and other Turkish security personnel stepping on the remains of deceased PKK fighters.
[13] The RPD stated that there was significantly less objective evidence regarding the actions of the Cybercrimes Division of the Gendarmerie that the Applicant alleged were ongoing in his unit in Mugla. However, the RPD noted evidence that that Division was set up in 2019 to investigate cases, including doing forensic analysis of electronic devices, and some sources indicating the use of legally questionable or planted evidence to prosecute individuals, as supporting the Applicant’s testimony that he and his colleagues in his unit in Mugla were ordered to fabricate evidence of support for the PKK in their reports on devices for cases involving supporters of the HDP.
[14] Based on the foregoing, the RPD found that there was clear and convincing evidence of a multitude of human rights violations against Kurdish civilians carried out by Turkish security forces, including the Gendarmerie, and therefore that the Gendarmerie had committed crimes against humanity, including in Hakkari and Mugla during the times at which the Applicant was serving there.
[15] The RPD then analysed the application of the non-exhaustive list of factors identified in Ezokola as relevant to assessing whether a claimant has made a knowing, significant, and voluntary contribution to an organization’s crime or criminal purpose.
C. Applicant’s awareness of crimes against humanity during service
[16] The RPD identified the following examples, based on the Applicant’s testimony, of crimes against humanity committed by the Gendarmerie of which the Applicant was aware: (a) around when he first arrived in Hakkari, the killing of a civilian from a helicopter; (b) six or seven months later, targeted raids on Kurdish households; (c) around the midpoint of his three-year deployment in Hakkari, Gendarmes standing on the corpses of PKK fighters; (d) in late September or October 2022, members of the Applicant’s unit in Mugla adding evidence to reports; (e) after two and a half months in Mugla, being told himself to falsify reports for terrorism investigations into HDP supporters; and (f) unlawful detentions in which the Applicant believed excessive force was being used.
[17] Based on this evidence, the RPD found that the Applicant was aware of crimes against humanity being committed by the Gendarmerie and first became aware of examples of such crimes shortly after he was stationed in Hakkari in 2019. The RPD concluded that the Applicant’s participation in the Gendarmerie, while knowing about the crimes against humanity that were being committed, weighed in favour of his exclusion.
D. Applicant’s method of recruitment, length of service, and opportunity to leave
[18] The RPD noted that the Applicant joined the Gendarmerie voluntarily in 2019 and signed a further contract to continue his employment with them around the time he redeployed from Hakkari to Mugla in 2022. The Applicant had testified as to three possible ways to leave the Gendarmerie if under contract: (a) when the contract ended; (b) for medical reasons; and (c) by being terminated for not attending work for more than seven days. Noting that the Applicant opted to voluntarily renew his contract, the RPD found that his service was voluntarily entered into and voluntarily extended in 2022.
[19] The Applicant testified that he renewed his contract because he wanted to be assigned to western provinces to work on cyber files and that, after he was instead assigned to Mugla, he made the decision to leave the Gendarmerie and did so. However, the RPD did not find this to be a sufficient explanation of his decision to renew his contract and continue contributing to the work of an organization that he had known was committing serious crimes and human rights violations for approximately two and a half years. The RPD found that the Applicant not only voluntarily remained in the Gendarmerie after having seen and heard evidence of crimes against humanity but voluntarily renewed his contract notwithstanding that awareness. The RPD therefore found that the Applicant’s service was both knowing and voluntary, which weighed in favour of his exclusion.
E. Part of the organization the Applicant belonged to, its size, and its nature
[20] The RPD noted that the Gendarmerie is a large and national force in Turkey. Within that organization, the Applicant testified that, when he worked in Hakkari, he was part of 8 to 12 employees working in the personnel affairs section of the base, where there were approximately 200 to 250 people, divided into four troops. Along with another individual, the Applicant was responsible for the personnel affairs of the 2nd troop, consisting of between 59 and 73 individuals over the course of the Applicant’s time in Hakkari.
[21] In Mugla, the Applicant was a Digital Forensic Officer. He and three others carried out the same role within the 11-person department of which he was a part. Their work involved investigating electronic devices of suspects in crimes relating to fraud, drugs, and terrorism, and sexual crimes.
F. Applicant’s rank and duties
[22] The Applicant joined the Gendarmerie as a Specialized Corporal. This was a low rank with no supervisory responsibility. Approximately one year and three months later, he was promoted to the rank of Specialized Sergeant, at which he remained until his service was terminated. Again, this rank had no supervisory responsibility.
[23] As previously noted, at his base at Hakkari, the Applicant was one of two individuals in the personnel affairs group responsible for the 2nd troop. He testified that he was responsible for paperwork for personnel issues. He would know when members of the troop were on a mission, but not their location, and would interface with the intelligence movement group within the internal tasks team, completing and filing paperwork related to 2nd troop members going out on missions. The Applicant was also responsible for interfacing with the logistics group and handling petitions from members of the 2nd troop who wanted to obtain a secondary (personal) weapon in addition to their service weapon.
[24] The Applicant also explained the work he performed in his subsequent posting in Mugla, investigating the content of suspects’ digital devices and preparing reports on the evidence that such devices could provide. He testified that he was first asked to falsify evidence for terrorism reports approximately two and a half months after he began working in Mugla. The RPD noted that the Applicant indicated in his Basis of Claim narrative [BOC] that he didn’t want to add crimes to files, that most the time he tried to avoid these tasks, and that in one particular case his superior made death threats against him and forced him to change his report.
[25] The RPD noted the Applicant’s testimony that he went to the public prosecutor’s office in December 2022 or early January 2023 to file a complaint about the falsification of evidence but that he was unable to provide any evidence of this complaint. The RPD also noted that the Applicant testified that it was his complaint that he had been forced to change, not a report on the evidence on a suspect’s device. However, based on the BOC narrative and other testimony, the RPD concluded that the Applicant was attempting to shift his evidence, drew a negative inference as to his credibility, and found that he was forced on at least one instance to change a report to include false evidence.
G. Conclusion on significant contribution
[26] As explained below, the RPD found that the Applicant’s roles and actions in Hakkari and Mugla did amount to a significant contribution to the crimes and criminal purposes of the Gendarmerie. In Hakkari, the Applicant’s role in the administration of that base, which was tasked with securing from the PKK an area adjacent to the Iraqi border, involved assistance with necessary administrative tasks, the procurement of weapons for individuals, and duties regarding the operational status of service members in the troop he was responsible for. The RPD reasoned that, but for the work of the Applicant, the individuals in the 2nd troop would not have been able to procure their secondary weapons. Also, but for his work passing documentation on operational status or personnel to different parts of the command structure, operations and operational capacity would have been hindered. The RPD found that, apart from his other administrative duties, the procurement of weapons and assistance to operations represented a significant contribution to the operational work of the Gendarmerie in Hakkari.
[27] In relation to Mugla, the RPD found that the Applicant was actively completing forensic examinations of devices and completing reports for the public prosecutor and, on at least one occasion, was forced to change a report to include falsified evidence. The RPD therefore found that the Applicant made a significant contribution to the falsification of evidence carried out by the Gendarmerie at Mugla. Its finding that the Applicant’s contributions in Hakkari and Mugla were significant weighed in favour of his exclusion.
H. Defences
[28] In relation to Hakkari, the RPD noted the Applicant’s defence argument that he wanted to make a complaint about a commanding officer who was racist towards him, and that he didn’t make complaints about the crimes he saw or heard about because the people to whom he would make the complaint were already aware of the crimes, he did not wish to be viewed as a problem, and he thought that he may be perceived as supportive of the PKK because of his Kurdish ethnicity. The RPD did not find these explanations to be sufficient or to represent a reasonable defence to his actions in Hakkari.
[29] With respect to Mugla, the RPD accepted the Applicant’s explanation that his involvement in the report with falsified evidence took place while he feared for his life. However, the RPD found that this explanation did not provide a defence for how he came to be serving in Mugla, given that he voluntarily renewed his contract with the Gendarmerie while knowing that they were committing crimes against humanity. The RPD found that, while the Applicant’s fears for his life were a mitigating factor and reasonably explained his involvement in the falsified report, they were not a complete defence to his opting to serve with the Gendarmerie in Mugla or his participation in earlier files there.
[30] The RPD also noted the Applicant’s counsel’s submissions that the Applicant opposed the abuses against Kurds that he witnessed and that he did not participate in combat or himself commit or witness torture. The Applicant’s counsel also mentioned specific instances of abuse that the Applicant was not aware of. The RPD noted that a finding that a claimant was complicit in crimes against humanity does not require that the claimant participated in combat or in any of the crimes directly. The RPD further noted that a claimant’s lack of knowledge of some crimes does not negate what he knew about others. The RPD therefore rejected these defence arguments.
I. Conclusion on complicity
[31] In conclusion, the RPD restated its findings that the Applicant’s contributions to the Gendarmerie were voluntary, knowing and significant. Although the RPD accepted that the Applicant was not actively engaged in committing the kinds of abuses documented throughout the objective evidence and witnessed by him, it found that his continued voluntary service with the Gendarmerie in Hakkari and Mugla, including through completing paperwork for operations, procuring weapons, and completing evidence reports, represented a significant and knowing contribution to crimes against humanity committed by the Gendarmerie. The RPD therefore found the Applicant excluded from refugee protection.
IV. Issue and Standard of Review
[32] The sole issue for the Court’s determination is whether the Decision is reasonable. As is implicit in that articulation, that issue (involving assessment of the Applicant’s arguments surrounding the merits of the Decision) is subject to the reasonableness standard of review as explained by the Supreme Court of Canada in Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65.
V. Analysis
[33] The Applicant argues that the RPD failed to analyse his exclusion in accordance with the guidance provided by Ezokola. He submits that the RPD incorrectly applied the “serious reasons”
threshold applicable to Article 1F(a), misapplied the legal standard of complicity set out in Ezokola, and misapplied the “significant contribution”
test prescribed by that authority.
[34] Ezokola explains that the test for complicity requires serious reasons for considering that a refugee claimant has voluntarily made a significant and knowing contribution to the relevant organization’s crimes or criminal purpose (at para 84). The threshold of “serious reasons for considering”
requires more than suspicion but less than proof on a balance of probabilities (Vasquez v Canada (Citizenship and Immigration), 2014 FC 782 at para 52). The Applicant emphasizes the explanation in Ezokola that the required complicity analysis leaves no room for guilt by association or passive acquiescence (at paras 81, 85).
[35] With respect to the Applicant’s knowledge of the Gendarmerie’s crimes or criminal purpose, the Decision identifies the Applicant’s testimony as to examples of crimes against humanity that he was aware the Gendarmerie had committed, principally while he was posted in Hakkari but also during his posting in Mugla. The Applicant challenges the RPD’s reliance on this knowledge, arguing that it does not demonstrate knowledge of crimes being committed by his particular unit in Hakkari.
[36] However, I note that it is clear from the Applicant’s testimony that the falsification of evidence of which he was aware during his posting in Mugla was conducted by his unit. With respect to Hakkari, I also agree with the Respondent’s submission that the Decision expressly referenced the Applicant’s testimony that his base in Hakkari was responsible for establishing security in the region it covered and preventing the PKK from acting there, including averting danger stemming from the Turkey/Iraq border. Further, in its identification of the human rights violations committed by the Gendarmerie, the RPD expressly referenced casualties and human rights abuses in Hakkari. Indeed, the Decision notes that the Applicant’s counsel’s written submissions acknowledged that the Applicant was exposed to human rights abuses against Kurdish people committed by Turkish securities forces as part of his service in Hakkari and Mugla.
[37] The Applicant also argues that he was not personally aware of all the human rights abuses that the Decision canvases as having been committed by the Gendarmerie. However, the Applicant advanced a similar argument before the RPD, and I agree with the RPD’s reasoning that the Applicant’s lack of knowledge of some crimes does not negate what he knew about others, especially in light of his testimony that he would not be surprised by human rights violations beyond the ones he heard about, given the many human rights violations occurring across Turkey.
[38] I find the RPD’s analysis of the Applicant’s knowledge to be intelligible and reasonable.
[39] In relation to voluntariness, the RPD found that the Applicant remained in the Gendarmerie after having seen and heard evidence of crimes against humanity and also voluntarily renewed his contract with that knowledge. The Applicant challenges the reasonableness of the RPD’s reliance on his remaining with the Gendarmerie in Hakarri, prior to the renewal of his contract and his move to Mugla, because he explained in his BOC narrative that he was threatened when his commander thought that he intended to resign.
[40] However, the BOC narrative indicates that these threats were made by his commander in Mugla. The Decision explains that, when the RPD asked the Applicant why he stayed in the Gendarmerie in Hakarri and later renewed his contract, he testified that he had been told that his assignment was temporary and that he would be reassigned to a western province to work on cybersecurity tasks. I find nothing unreasonable in the RPD’s conclusion that this was not a sufficient explanation of the Applicant’s continued work for the Gendarmerie in light of his knowledge of crimes committed by that organization.
[41] The Applicant also emphasizes that a finding of voluntariness is not a substitute for the required analysis as to whether the Applicant made a significant contribution to the advancement of the Gendarmerie’s crimes or criminal purpose. I agree with that position and will therefore turn to the RPD’s analysis of that component of the Ezokola test.
[42] As the Applicant’s role with the Gendarmerie did not involve supervisory responsibilities, he notes the explanation in Ezokola that, unless an individual has control or responsibility over individuals committing crimes, the individual cannot be complicit simply by remaining in their position without protest (at para 81). However, the Supreme Court made this point in the context of the principle that criminal liability does not attach to omissions unless an individual is under a duty to act. In my view, this jurisprudence does not assist the Applicant. As explained below, the RPD’s analysis as to his contribution did not turn on omissions or acquiescence but rather on his role having supported those in the Gendarmerie who were directly engaged in committing the crimes.
[43] The Applicant emphasizes the large size of the Gendarmerie, the fact that his role in Hakkari involved administrative tasks rather than combat, and the RPD’s acknowledgement that the falsification of evidence in which it found him to have been involved in Mugla was done under duress. In that context, he argues that the Decision does not explain how the Applicant’s performance of his role in the Gendarmerie represented a significant contribution to its crimes or criminal purpose.
[44] I agree with the Respondent’s submission that, while the Applicant’s decision to renew his contract with the Gendarmerie and his resultant exposure to pressure to falsify evidence contributed to the RPD’s exclusion finding, the focus of its analysis was upon the Applicant’s role in Hakkari. In relation to that role, the RPD noted the Applicant’s involvement in administrative tasks such as completing paperwork for personnel issues like vacation days, changes of marital status, health changes, promotions, requests for reassignments, and tracking the presence or absence of staff. However, the RPD also noted the Applicant’s interface with other groups in the internal tasks team, including the intelligence movement group and logistics group, as well as the Applicant’s role in handling requests for secondary (personal) weapons.
[45] Against that backdrop, the RPD conducted an analysis as to whether the Applicant’s roles and actions amounted to a significant contribution to the Gendarmerie’s crimes and criminal purpose. In concluding that the Applicant’s contributions were significant and weighed in favour of his exclusion, the RPD considered his role in the procurement of secondary weapons but also reasoned that, but for his work in dealing with and conveying documents on operational status for personnel to different parts of the command structure in Hakkari, the Gendarmerie’s operations and operational capacity would have been hindered. This reasoning is grounded in the evidence and intelligible and, as the Respondent submits, it is not the Court’s role in judicial review to re-weigh the evidence.
[46] Finally, I note the Applicant’s argument that the RPD failed to properly consider his Kurdish ethnicity, which was a core element of his refugee claim, and how that may have impacted his alleged complicity in the human rights violations committed against his own ethnic group. While the Ezokola factors are non-exhaustive, I agree with the Respondent that the Applicant has not made a compelling case that the Applicant’s ethnicity was a relevant factor that the RPD was obliged to assess.
[47] In conclusion, I find that the RPD reasonably concluded that the Applicant made the requisite significant contribution because his role, although not a combat position, nevertheless supported those who were directly engaged in human rights violations.
VI. Conclusions
[48] As I therefore find that the Decision is reasonable, this application for judicial review must be dismissed. Neither party proposed any question for certification for appeal, and none is stated.
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