Date: 20250507

Docket: IMM-10397-23

Citation: 2025 FC 838

Ottawa, Ontario, May 7, 2025

PRESENT: Mr. Justice McHaffie

BETWEEN:

SANTOKH SINGH

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Overview

[1] The Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada [IRB] held that Santokh Singh was excluded from refugee protection under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees [Refugee Convention]. The RAD found there were serious reasons for considering Mr. Singh was complicit in crimes against humanity due to his membership in a unit of the Indian army that had engaged in such crimes. Mr. Singh now seeks judicial review of the RAD’s decision, claiming it is not justified in light of the applicable factual and legal constraints, including the Supreme Court of Canada’s leading decision on complicity, Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40.

The RAD’s decision set out the framework for the complicity analysis mandated by Ezokola and analyzed in some detail the six non-exhaustive factors described in that decision. Despite this thorough discussion of the factors, I conclude the RAD’s decision does not meet the requirements of a reasonable decision, both because of material errors within the analysis of the factors, and because the RAD did not adequately or materially connect it to the central question in a complicity analysis, namely whether Mr. Singh had made a voluntary, significant, and knowing contribution, not to the Indian army generally, but to its crimes or criminal purpose. Given the Supreme Court of Canada’s emphasis on the need for a voluntary, significant, and knowing contribution to establish complicity, and its confirmation that mere knowledge of, or acquiescence in, crimes against humanity is insufficient to constitute complicity, I conclude the RAD’s decision is untenable in light of the legal constraints upon it.

[2] The application for judicial review will therefore be granted and Mr. Singh’s appeal remitted to the RAD for redetermination.

II. Issue and Standard of Review

[3] The sole issue on this application is whether the RAD’s decision that Mr. Singh was excluded from refugee protection was reasonable: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25; Wardak v Canada (Citizenship and Immigration), 2023 FC 422 at para 33.

[4] A reasonable decision is one that is internally coherent, transparent, intelligible, and justified in light of the relevant factual and legal constraints that bear on the decision: Vavilov at paras 15, 85–86, 99–102. The “factual constraints” that bear on a decision pertain to the facts and evidence before the administrative decision maker. The Court will only interfere with factual findings in exceptional circumstances, but these may arise where a decision maker has fundamentally misapprehended or failed to account for the evidence before them: Vavilov at paras 125–126. The “legal constraints” that bear on a decision include the governing statutory scheme and binding jurisprudence: Vavilov at paras 106, 108, 111–112. In the present case, the legal constraints on the RAD included the Supreme Court of Canada’s decision in Ezokola, which sets out the framework for assessing complicity under Article 1F(a) of the Refugee Convention.

[5] In applying the reasonableness standard of review, the Court’s role is not to simply redo the analysis of an administrative tribunal or undertake its own assessment and weighing of the evidence: Vavilov at para 125; Doyle v Canada (Attorney General), 2021 FCA 237 at para 3. Rather, the Court can only set aside an administrative decision if the applicant has shown that it contains such sufficiently serious shortcomings that the decision as a whole does not exhibit the requisite degree of justification, intelligibility, and transparency: Vavilov at para 100.

III. Analysis

A. The framework for assessing complicity under Article 1F(a) of the Refugee Convention

[6] Section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], provides that a person referred to in Article 1F of the Refugee Convention is not a Convention refugee under section 96 of the IRPA or a person in need of protection under section 97 of the IRPA. Article 1F(a), at issue on this application, provides as follows:

[7] While Article 1F(a) refers to a person having “committed” a crime against peace, a war crime, or a crime against humanity, the Supreme Court in Ezokola confirmed that those who are complicit in crimes against humanity are culpable for having committed those crimes and are therefore excluded from refugee protection under Article 1F(a): Ezokola at paras 1, 7–10, 29. However, the Supreme Court was careful to caution that complicity does not allow for an exclusion based on mere association or passive acquiescence: Ezokola at paras 3, 53, 75, 81–83.

The line between complicity in crimes committed by an organization and guilt by association is drawn based on a determination of whether a person has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose: Ezokola at paras 3, 8, 29, 36, 84. The assessment of complicity therefore involves a determination of whether a person has made (1) a voluntary contribution to the crime or criminal purpose; (2) a significant contribution to the crime or criminal purpose; and (3) a knowing contribution to the crime or criminal purpose: Ezokola at paras 86–90. The evidentiary burden of establishing these elements lies on the Minister as the party seeking the exclusion: Ezokola at para 29.

The Supreme Court set out a series of factors that “may be of assistance” in assessing whether an individual’s conduct meets the actus reus and mens rea for complicity. It enumerated six such factors, namely (i) the size and nature of the organization; (ii) the part of the organization with which the person was most directly concerned; (iii) their duties and activities within the organization; (iv) their position or rank in the organization; (v) the length of time they were in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which they were recruited and their opportunity to leave the organization: Ezokola at para 91. The Supreme Court emphasized, however, that these factors only provide guidance, and that in considering them, the focus must always remain on the person’s contribution to the crime or criminal purpose, and whether it was voluntary, significant, and knowing: Ezokola at paras 92–93.

B. Mr. Singh’s application for refugee protection

[8] Mr. Singh served in the Indian army from his voluntary enlistment in July 2001 to his retirement in November 2018. For reasons that will become apparent below, it is worth noting that all of this time was spent with the 6^th Battalion of the Sikh Regiment [the 6^th Sikh], except for a posting to the 350 Infantry Brigade [350 Brigade] from September 2011 to November 2014.

[9] In February 2019, members of a gang tried to recruit Mr. Singh to assist them by training their men in the use and repair of weapons. Out of fear, he told them he was leaving on vacation with his family but would help them on his return. Mr. Singh and his family left his village, but later learned the gangsters had been asking after him and said they would kill him when they saw him. Efforts to obtain police assistance led to the police harassing his family instead of pursuing the gangsters, and alleging that Mr. Singh was using his military training to train Sikh militants.

[10] Mr. Singh, his wife, and two children fled to Canada in June 2019. They filed an application for refugee protection in February 2020. The Minister intervened, submitting that Mr. Singh was excluded from refugee protection under section 98 of the IRPA and Article 1F(a) of the Refugee Convention on the basis that he was complicit in crimes against humanity committed by the Indian army. The Minister did not allege that Mr. Singh personally committed any crimes against humanity.

C. The RPD’s decision

[11] After a hearing conducted in June and July 2022, the Refugee Protection Division [RPD] of the IRB granted the refugee claims of Mr. Singh’s wife and children. However, it agreed with the Minister that Mr. Singh was excluded for having been complicit in crimes against humanity committed by the Indian army.

[12] In reaching this conclusion, the RPD considered objective evidence regarding the conduct of members of the Indian army, particularly in domestic counter-insurgency operations and during the army’s participation in the United Nations Organization Mission in the Democratic Republic of Congo [MONUC]. The RPD was satisfied that the evidence indicated that the Indian army had committed crimes against humanity during these operations. It reviewed documents found in the IRB’s National Documentation Package [NDP] for India and documents filed by the Minister, and made the following findings:

• A 2021 report by the United States Department of State [USDoS] indicated that the Indian military has troops stationed in conflict areas such as the state of Jammu and Kashmir, that these troops are actively engaged with separatists and terrorists, and that there were reports that government security forces committed extrajudicial killings and enforced disappearances, and mistreated, tortured, or killed prisoners in custody.

• A 2009 USDoS report similarly indicated that there were credible reports of government forces committing arbitrary or unlawful killings in Jammu and Kashmir, and in states in Northeast India.

• A Human Rights Watch [HRW] report on events from 2021 indicated that security forces operate with impunity and are granted statutory immunity from prosecution in Jammu and Kashmir and several northeastern states pursuant to the Armed Forces Special Powers Act [AFSPA].

• A 2005 Amnesty International report on the AFSPA indicated that abuses were a feature of daily life in Jammu and Kashmir and Northeast India, facilitated by the AFSPA, with calls for the AFSPA to be amended or repealed to enable prosecution of members of the armed forces who commit acts of sexual violence against women.

• Reporting from 2011 showed that Indian peacekeepers from the 6^th Sikh had sexually exploited women and fathered about a dozen children during the MONUC peacekeeping operation in the Democratic Republic of Congo [DRC], with the 6^th Sikh consequently being sent back to India. A Court of Inquiry was ordered against 12 officers and 39 soldiers from the 6^th Sikh, which led to the indictment and discipline of three soldiers and an officer.

• Extensive objective evidence showed that Indian armed forces have committed crimes against humanity during the decades long conflict in Jammu and Kashmir. The primary military operation in this region is Operation Rakshak, which has been in effect from 1989 and continues today, and which has a purpose of restoring peace in the region. Eight HRW reports between 1993 and 2021 address abuses committed by “security forces” in Jammu and Kashmir. A 2019 report from the United Nations High Commissioner for Human Rights indicated that 1,081 civilians were killed by security forces in extra-judicial killings between 2008 and 2018, including 71 in 2018.

• Arunachal Pradesh, one of the states in Northeast India, was the site of abuses by security forces, with a 2008 HRW report indicating that many civilians had been the victims of violence by both militants and security forces.

[13] Based on the extensive evidence of extra-judicial killings, arbitrary detentions, torture of detainees, and rape committed by the Indian armed forces, the RPD found that the Indian military had committed crimes against humanity, including during MONUC, in Jammu and Kashmir, and in Northeastern India.

[14] I open a parenthesis to note that the only evidence on the record in respect of the MONUC operation is that referred to above, namely that members of the 6^th Sikh fathered children in the DRC after having “sexually exploited” local women. No details are set out in the evidence regarding the nature of the “exploitation,” although the incident is referred to as a “sex scandal” rather than as a criminal or sexual assault scandal. There is also no evidence regarding the nature of the indictments or discipline against the one officer and three soldiers, although the article cited by the RPD regarding the indictments refers to MONUC as being “the only mission where troops can be prosecuted for sex with prostitutes.” It appears the RPD (and later the RAD) concluded from this evidence that rape/sexual violence had occurred, and implicitly concluded that it was “widespread or systematic,” and thus a crime against humanity: Mugusera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paras 128, 151–160. Mr. Singh does not contest these findings on this application for judicial review.

[15] The RPD next considered Mr. Singh’s knowledge of the Indian army’s crimes, making a number of adverse findings about his credibility. It did not accept Mr. Singh’s evidence that he was unaware of crimes against humanity committed by members of the Indian army during the army’s participation in the MONUC peacekeeping operation and in domestic counter-insurgency operations. Nor did the RPD accept Mr. Singh’s assertion that his principal duties were operating the unit canteen and serving in the Sikh temple, and that he was not actively involved in combat or counter-insurgency operations. It found Mr. Singh had sought to mislead the RPD in respect of his duties, his involvement in counter-insurgency operations, his knowledge of crimes against humanity committed in those operations, and the timing of his promotions.

[16] Based on its findings regarding Mr. Singh’s credibility and his role in the Indian army and its review of the factors set out in Ezokola, the RPD found there were serious reasons for believing that Mr. Singh was complicit in those crimes. It therefore found he was excluded from refugee protection by operation of section 98 of the IRPA.

[17] Mr. Singh appealed to the RAD. On that appeal, Mr. Singh did not challenge the finding that members of the Indian army committed crimes against humanity. His appeal was directed to the RPD’s conclusion that he was complicit in those crimes.

D. The RAD’s decision

[18] On August 1, 2023, the RAD dismissed Mr. Singh’s appeal, confirming the RPD’s decision that he was excluded from refugee protection because there were serious reasons for considering he was complicit in crimes against humanity due to his service in the Indian army.

[19] As the RPD had done, the RAD set out the Supreme Court of Canada’s framework for analysis from Ezokola, including the requirements for a voluntary, significant, and knowing contribution to the crime or criminal purpose, and the factors to consider in determining complicity. The RAD then set out the facts that were uncontested on the appeal. This included Mr. Singh’s voluntary membership in the Indian army between 2001 and 2018 as a general duty infantry soldier with the 6^th Sikh and the 350 Brigade (the RAD uses the term “350^th battalion” but it appears 350 Infantry Brigade or 350 Brigade is the correct name). It was also uncontested that during his tenure with the 6^th Sikh, Mr. Singh participated in the MONUC operation from September 2008 to July 2009; and that during his career, he was promoted from Sepoy to Lance Naik, to Naik, and ultimately to Havildar (ranks equivalent to, respectively, Private, Lance Corporal, Corporal, and Sergeant).

[20] The RAD then addressed three factual issues on which the RPD had found Mr. Singh to lack credibility: (1) the nature of his duties in the army; (2) the timing of his promotions; and (3) his knowledge of crimes against humanity. The RAD confirmed the RPD’s findings on each of these issues.

[21] With respect to Mr. Singh’s duties, the RAD agreed with the RPD’s findings that Mr. Singh was a combat soldier who served in counter-insurgency operations and not simply a soldier who worked in the canteen and the Sikh temple. In addition to the Indian army’s participation in MONUC, which Mr. Singh agreed he had been part of from September 2008 to July 2009, the RAD concluded Mr. Singh, as part of the 6^th Sikh, had participated in Operation Falcon, a counter-insurgency operation in Arunachal Pradesh, from June 2006 to September 2008; Operation Rakshak, a counter-insurgency operation in Jammu and Kashmir, from July 2009 to June or August 2010; and a further counter-insurgency operation (either Falcon or Rakshak) from December 2014 to June 2015.

[22] The RAD similarly agreed with the RPD’s credibility finding based on inconsistencies in Mr. Singh testimony regarding the timing of his promotions from Sepoy to Lance Naik and from Naik to Havildar, and its resulting adverse effect on Mr. Singh’s credibility generally.

[23] The RAD further agreed that Mr. Singh was not credible in claiming he was unaware of the abuses committed by the Indian army. Although Mr. Singh had not admitted knowledge, it found that Mr. Singh likely had knowledge of the abuses taking place in the three areas: 1) conflict areas such as Jammu and Kashmir; 2) the DRC, where India participated in MONUC; and 3) the Northeastern states of India, and in particular Arunachal Pradesh.

[24] Having addressed these factual matters, the RAD examined the six factors outlined by the Supreme Court in Ezokola to assess whether Mr. Singh was complicit in crimes against humanity committed by the Indian army.

[25] The RAD considered the size and nature of the organization weighed in favour of Mr. Singh, as the Indian army was a legitimate organization rather than one with a strictly criminal purpose, and one that had more than 1.25 million members. The RAD also noted that the 6^th Sikh had 750 to 800 members but considered that the first Ezokola factor is focused on the organization as a whole, rather than the part of the organization the claimant was most concerned with.

[26] The part of the organization Mr. Singh was most directly concerned with was the 6^th Sikh, with about three years spent in the 350 Brigade. The RAD accepted that the 6^th Sikh had a favourable reputation, while little evidence was presented in respect of the 350 Brigade. The RAD commented that on this factor, the Supreme Court’s focus was on the “reputation of the particular part of [the] organization and whether a claimant chose to associate him-or herself with that part.” The RAD found that it was not clear that the 6^th Sikh’s favourable reputation was “such that it would have been perceived as a unit that was not involved in the crime or criminal purpose of the Indian army.” It therefore found that Mr. Singh’s association with the 6^th Sikh (and the 350 Brigade) did not make it any more or any less likely that Mr. Singh was complicit in crimes against humanity.

[27] With respect to Mr. Singh’s duties and activities within the Indian army, the RAD found that Mr. Singh’s role as a combat soldier who participated in two counter-insurgency operations provided a link between his use of force and the crimes against humanity committed by the Indian army, making it more likely that he would have been complicit in those crimes than if he had engaged in duties that did not involve the use of weaponry.

[28] With respect to the question of position or rank, the RAD noted that while a Havildar may not be a high ranking overall in the Indian army, it is higher than that of Sepoy, Lance Naik, or Naik. It found that when Mr. Singh was Havildar, he was more likely to know of the Indian army’s crimes against humanity than a Sepoy, Lance Naik, or Naik. Similarly, it concluded that when Mr. Singh was Naik or Lance Naik, he was more likely to know of the crimes than those of lower rank. It found that given his three promotions, Mr. Singh would have given orders to inferior ranking soldiers, with effective control over them. However, given concerns about the evidence regarding the timing of his promotions, the RAD drew no conclusion on the speed of his rise through the ranks.

[29] With respect to the length of time Mr. Singh spent in the Indian army, the RAD found that Mr. Singh would have known about the Indian army’s commission of crimes against humanity in its counter-insurgency operations in Jammu and Kashmir since before his enlistment and thus throughout his 17-year army career, about its crimes during the MONUC operation for at least seven years before his departure from the army, and about its crimes in the Northeastern states for as long as twelve years before his departure from the army. It found that the fact that Mr. Singh remained in the army for a considerable period, including after knowing of the crimes against humanity, made it “easier to establish complicity” than if he had served for a shorter period.

[30] Finally, the RAD felt it did not need to consider the mode of recruitment and opportunity to leave since it impacts on the voluntariness requirement, as it was undisputed that Mr. Singh joined the army voluntarily and could have left at any time.

[31] The RAD acknowledged that Mr. Singh’s knowledge of the Indian army’s crimes against humanity was insufficient to make him complicit. However, considering the factors above—in particular Mr. Singh’s duties, his participation in counter-insurgency operations, the promotions that would give him more information about the crimes and the ability to give orders to lower-ranking soldiers, and the length of time he spent in the military after discovering it was committing crimes—the RAD concluded Mr. Singh made a significant contribution to the Indian army’s crimes against humanity and that he knew of the crimes, including that his conduct would assist in the furtherance of the crimes. It recognized that many of the findings were made based on the objective evidence rather than Mr. Singh’s testimony, but that “it was left with no alternative but to make factual findings based on the record” since Mr. Singh failed to tell the truth about his duties.

E. The RAD’s decision is unreasonable

[32] As set out above, the RAD’s analysis of the various factors described in Ezokola was detailed. However, for the following reasons, I conclude the RAD’s decision that there are serious reasons for considering Mr. Singh complicit in the crimes against humanity committed by the Indian army did not meet the requirements of a reasonable decision because it did not conform to the legal constraints bearing on the decision: Vavilov at paras 99, 101, 105.

[33] I reach this conclusion based on the RAD’s analysis, even accepting its findings regarding Mr. Singh’s credibility and his role in the Indian army. I therefore do not need to address Mr. Singh’s arguments regarding the reasonableness of those findings, and in particular the RAD’s treatment of his testimony and corroborative evidence. I should not be taken as expressing a conclusion on those findings.

(1) The crimes against humanity found to have been committed by the Indian army

[34] As noted above, there was no allegation Mr. Singh himself committed or was involved in a crime against humanity. Rather, the allegation is that his role in the Indian army was sufficient to amount to complicity in the crimes against humanity committed by other members of the Indian army. As the Supreme Court of Canada emphasized, the focus of the complicity analysis must be, and must remain, on the actual role played by an individual, and whether they made a voluntary, significant, and knowing contribution not just to the organization found to have committed a crime against humanity, but to the crime or criminal purpose of the organization: Ezokola at paras 84–90, 92, 100.

[35] It is therefore important to identify the nature of the crimes against humanity in which Mr. Singh is alleged to have been complicit, before considering the role he is said to have played in them.

[36] The RAD adopted the RPD’s findings with respect to the crimes committed by the Indian army in these operations in the following language:

[The RPD] found that the Indian security forces and/or military forces were responsible for a number of abuses which had taken place in three areas: 1) in “conflict areas,” such as Jammu and Kashmir; 2) in the Democratic Republic of Congo (DRC), where India participated in the United Nations Organization Mission in the Democratic Republic of Congo (MONUC); and 3) in the North[eastern] states, in particular Arunachal Pradesh. It concluded that “the Indian military has committed crimes against humanity, including during its participation in the MONUC, in Jammu and Kashmir, and in Northeastern India,” and referred to “extra-judicial killings, arbitrary detentions, torture of detainees, and rape.” It held that the abuses committed by the Indian Army in conflict zones during the relevant period were massive and widespread.

[Emphasis added; footnotes omitted.]

[37] The RAD found in particular that Mr. Singh had participated in (1) the Operation Falcon counter-insurgency operation in Arunachal Pradesh from June 2006 to September 2008; (2) the MONUC peacekeeping operation from September 2008 to July 2009; (3) the Operation Rakshak counter-insurgency operation in Jammu and Kashmir from July 2009 to June or August 2010; and (4) either Operation Falcon or Operation Rakshak from December 2014 to June 2015.

[38] Three matters are worth noting with respect to these findings. First, the references by the RPD and the RAD to “extra-judicial killings, arbitrary detentions, [and] torture of detainees” can only have pertained to the counter-insurgency operations, rather than the MONUC peace-keeping operation. As set out above, there was no evidence before the RPD or the RAD of extra-judicial killings, arbitrary detentions, or torture of detainees in connection with the MONUC operation.

[39] Second, in respect of the counter-insurgency operations, the RPD and the RAD refer to a number of crimes and abuses committed by the Indian army and/or “security forces” in Jammu and Kashmir, and in Northeastern states including Arunachal Pradesh. The reference to “security forces” derives from the various objective documents cited by the RPD in respect of the crimes against humanity being committed in those regions. In some cases, this appears to refer to police forces or other security and paramilitary forces rather than the Indian army, although the term is also used more broadly to include the army. This does not affect the broader conclusion by the RPD, adopted by the RAD, that the Indian army committed crimes against humanity. However, particularly when addressing the question of complicity as a result of a person’s contribution to the crime or criminal purpose of an organization, it is important to be clear about the organization in question and not to attribute to it (or to the person) the acts of other organizations.

[40] Third, as a related point, the RAD summarized the RPD’s findings as being that “during the time [Mr. Singh] worked for the Indian army, crimes against humanity were committed, including by the two units he served with […]” [emphasis added]. However, the RPD made no findings that the 350 Brigade had committed crimes against humanity, or that they had done so while Mr. Singh was with the Indian army or with the 350 Brigade. The RAD did not make any additional factual findings in respect of the 350 Brigade. Mr. Singh’s involvement in the three counter-insurgency operations and the MONUC operation referred by the RAD arose while he was part of the 6^th Sikh. I will return to the findings as they pertain to the 6^th Sikh further below.

[41] The crimes against humanity committed by the Indian army in which Mr. Singh is said to have been complicit are thus the extra-judicial killings, arbitrary detentions, torture of detainees, and rape occurring in two counter-insurgency operations (Operation Falcon and Operation Rakshak), and rape/sexual violence that was found to have occurred during the MONUC operation. While a finding of complicity is not necessarily dependent on a claimant having been physically present at a time or in a place at which crimes against humanity or other crimes occurred, the RAD’s findings of complicity were expressly based on the fact that Mr. Singh was involved in the foregoing counter-insurgency and peacekeeping operations, during which crimes against humanity were found to have occurred. Put another way, the RAD did not identify other crimes against humanity committed by the Indian army, and did not suggest that Mr. Singh’s conduct or actions during other periods of his military service constituted a voluntary, significant and knowing contribution to the crimes committed in those operations.

(2) The analysis of the Ezokola factors

(a) The second Ezokola factor and the 6^th Sikh

[42] As set out above, the RAD addressed the fact that Mr. Singh was a member of the 6^th Sikh in its analysis of the second Ezokola factor, which considers “the part of the organization with which the refugee claimant was most directly concerned.” The RAD quoted the Supreme Court of Canada’s discussion of this factor from paragraph 95 of Ezokola, which reads as follows:

The part of the organization with which the refugee claimant was most directly concerned. This factor may be relevant if particular parts of the organization were known to be involved with the crime or criminal purpose. For example, where only one part of the organization in question was involved in the crime or criminal purpose, a claimant’s exclusive affiliation with another part(s) of the organization may serve to exonerate him or her for the purpose of art. 1F(a).

[43] The RAD interpreted this passage, and the nature of the second factor, in the following terms:

In its elaboration of the significance of the part of an association a claimant was most directly concerned with, the Supreme Court appears to focus on the reputation of the particular part of [the] organization and whether a claimant chose to associate him- or herself with that part. Where they choose to exclusively associate with a part of an organization with a reputation for committing crimes, they may be more likely to be complicit in their crimes; where they sought to associate with a non-criminal part of the organization, that may weigh in their favour.

[Emphasis added.]

[44] In my view, this reading does not reasonably reflect the Supreme Court’s discussion of this factor in Ezokola. The focus of the factor is not the reputation of the particular part of the organization and the claimant’s choice to associate with that part. It is the involvement of that part of the organization in the crime or criminal purpose. The Supreme Court states that the factor may be relevant if particular parts of an organization were “known to be involved with the crime or criminal purpose.” This refers to the knowledge of the decision maker, not the claimant. The Supreme Court does not refer to either the reputation of the organization or the choice to be associated with such a reputation.

[45] The Supreme Court makes this clear in the example it gives: if a claimant is exclusively affiliated with a part of an organization that was not involved in the crime or criminal purpose, this may exonerate them from a finding of complicity: Ezokola at para 95. This exoneration is based not on the claimant’s decision to associate with a part that has a good reputation, but on the fact that the part with which the claimant is affiliated was not involved in the crimes. Conversely, the fact that a claimant was affiliated with a part of an organization that was directly involved in the commission of crimes against humanity may support a finding of complicity, even if the reputation of that part did not reflect this. This is not to say that the question of reputation, and a claimant’s choice to be associated with a reputation, will always be irrelevant. But reputation is not the focus of this factor, as the RAD concludes.

[46] Based on its erroneous interpretation of the Supreme Court’s elaboration of the second factor, the RAD’s analysis was limited to the question of whether Mr. Singh had voluntarily associated himself with part of the Indian army that had a particular reputation or perception. It undertook no assessment of whether the 6^th Sikh was actually involved in the crimes against humanity that were the subject of the inquiry, and no assessment of whether this involvement, or the extent of it, indicated that Mr. Singh made a significant and knowing contribution to those crimes or to the criminal purpose of the Indian army.

[47] In this regard, a distinction must be drawn between the MONUC operation and the counter-insurgency operations.

[48] As discussed above, the actions during the MONUC operation that were found to constitute crimes against humanity were clearly committed by members of the 6^th Sikh. However, the RAD did not assess how the fact that an inquiry involving 51 soldiers, none of whom were Mr. Singh, and the discipline of four of them, out of a regiment of 730 to 800 soldiers, led to the conclusion that he had made a significant contribution to the crimes against humanity the RPD and RAD found to have been committed in the DRC. This is particularly so given that Mr. Singh was a Sepoy during this operation, as discussed further below.

[49] With respect to the counter-insurgency operations, the RAD found that the 6^th Sikh had been involved in the counter-insurgency operations in Jammu and Kashmir (Operation Rakshak) and in Arunachal Pradesh (Operation Falcon), during which crimes against humanity had been committed. However, again, the RAD conducted no analysis of whether the 6^th Sikh, or soldiers of the 6^th Sikh, were involved in those crimes. The extent of its analysis under this factor was that it was unclear that the 6^th Sikh would have been “perceived as a unit that was not involved in the crime or criminal purpose of the Indian army.” Later, the RAD relied simply on Mr. Singh’s participation in counter-insurgency operations and his awareness of crimes against humanity in these operations.

[50] In my view, such an analysis leaves out the very consideration the Supreme Court raises under the second factor: if Mr. Singh had been exclusively affiliated with a part of the Indian army that had not been involved in crimes against humanity, then that might serve to exonerate him for purposes of Article 1F(a): Ezokola at para 95. While the RAD elsewhere briefly referenced the RPD’s conclusion that the 6^th Sikh had committed crimes against humanity, it did not engage with the question.

[51] In this regard, it is perhaps worth noting that the basis on which the RPD concluded that the 6^th Sikh, or members of that battalion, committed crimes against humanity during its participation in counter-insurgency operations, is far from clear. It appears that having concluded that the Indian army committed crimes against humanity in its counter-insurgency operations in Jammu and Kashmir and in Arunachal Pradesh, and that the 6^th Sikh had participated in those counter-insurgency operations as a combat unit, the 6^th Sikh must itself have been involved in crimes against humanity. Yet, as Mr. Singh points out, there was no direct evidence showing that the 6^th Sikh was involved in crimes against humanity in these operations, either during Mr. Singh’s tenure or otherwise.

[52] This may be contrasted with other army units, which are expressly identified in the objective evidence as having been involved in such crimes. Indeed, the Minister expressly contended at Mr. Singh’s RPD hearing that he had participated in Operation Rakshak as a member of the Rashtriya Rifles, an elite counter-insurgency unit expressly identified in the objective evidence as being involved in crimes against humanity. The RPD rejected that contention as being unsupported by any of the evidence regarding Mr. Singh’s military service.

[53] In any event, the RAD’s assessment of whether Mr. Singh was complicit in the crimes against humanity during these operations bypassed any consideration of whether his unit was involved in them. Nor did the RAD analyze whether and how, if members of the 6^th Sikh were involved in crimes against humanity during the counter-insurgency operations, Mr. Singh’s role in that unit amounted to a significant contribution to those crimes or to the criminal purpose of either the battalion or the Indian army. This question is central, given that the 6^th Sikh, like the Indian army of which it is a part, is a legitimate military organization engaged in legitimate military operations, and not one with a limited criminal purpose.

[54] In this latter regard, the RAD also gave no consideration to the size of the 6^th Sikh as a battalion. The RAD considered the size and nature of the Indian army as a whole in assessing the first Ezokola factor, but did not consider the size and nature of the 6^th Sikh under either the first or second Ezokola factor. Yet, for the same reasons that the size and nature of the organization as a whole is relevant to the question of complicity, the size and nature of the part of the organization is also relevant. The purpose of the Ezokola factors is to assist in the assessment of whether a claimant has made a voluntary, significant, and knowing contribution to a serious crime. It seems clear that, even if a claimant is associated with a part of an organization known to have been involved with the crime, the degree to which this points to a conclusion of complicity will depend on the size and nature of the part of the organization. This is particularly the case in a vast organization with legitimate purposes, such as the Indian army, that may have subdivisions or parts that are themselves very large.

[55] For the foregoing reasons, I conclude that the RAD’s analysis of the second Ezokola factor—an important factor in the context of Mr. Singh’s involvement with a particular unit of the Indian army—is unreasonable in light of the relevant legal constraints on the decision.

(b) The third Ezokola factor and Mr. Singh’s duties

[56] The foregoing error had impacts on the RAD’s assessment of the third Ezokola factor, addressing Mr. Singh’s duties and activities within the organization. The RAD concluded that Mr. Singh was a combat soldier who participated in the Operation Rakshak and Operation Falcon counter-insurgency operations, as well as in MONUC. It found that this participation in counter-insurgency operations provided a link between his use of force and the crimes against humanity committed by the Indian army. Again, however, it did so without addressing an important aspect of that link, namely whether the evidence showed that Mr. Singh’s military unit was itself involved in crimes against humanity during Operation Rakshak and/or Operation Falcon, such that Mr. Singh’s role in the unit might have constituted a significant contribution to those crimes. Nor did the RAD address how Mr. Singh’s role as a combat soldier during the MONUC peacekeeping operation provided a link to the particular sexual crimes found to have been committed by the 6^th Sikh in that theatre.

(c) The fourth Ezokola factor and Mr. Singh’s ranks

[57] In elaborating on the fourth Ezokola factor, the Supreme Court of Canada discussed three ways in which a claimant’s position or rank within an organization could affect the question of complicity. First, a high rank might indicate knowledge of the organization’s crime or criminal purpose. Second, a rapid ascent through the ranks could evidence support of the organization’s criminal purpose. Third, a claimant’s position or rank could give them effective control over those directly responsible for criminal acts: Ezokola at para 97.

[58] The RAD addressed each of these aspects. It first found Mr. Singh would have been more likely to know about the Indian army’s crimes against humanity based on his ranks and promotions. This finding was perhaps unnecessary, since the RAD concluded Mr. Singh knew of the Indian army’s crimes against humanity in Jammu and Kashmir even before joining the army, and that he knew about the abuses during the MONUC operation at the time of that operation, when he was a Sepoy.

[59] The RAD drew no conclusions from the speed of Mr. Singh’s promotions, as there was nothing to indicate whether promotion from Sepoy to Havildar over a career of 17 years was an extraordinary ascent or an ordinary one.

[60] With respect to the third aspect, though, the RAD found it likely that Mr. Singh would have given orders to soldiers of inferior rank to him from the time he was promoted beyond Sepoy, and thus would have had “effective control over the soldiers who were subordinate to him.” The RAD considered this to be a factor in support of a finding of complicity.

[61] I find the RAD’s analysis of this factor to be unreasonable in two related respects.

[62] First, while the RAD concluded that Mr. Singh would have had effective control over soldiers who were subordinate to him, it did not consider whether he had “effective control over those directly responsible for criminal acts” [emphasis added]: Ezokola at para 97. The RAD made no findings regarding the involvement in criminal acts of those over whom Mr. Singh was said to have had authority (or, indeed, whether anyone in Mr. Singh’s unit was involved, as discussed above). Nor did it explain how the simple ability to give orders to inferior soldiers in an organization that did not have an exclusively criminal purpose supported a finding of complicity.

[63] A claimant does not need to have been in a direct supervisory capacity over those who commit crimes against humanity in order to be complicit in them: Canada (Citizenship and Immigration) v Kurt, 2022 FC 1347 at para 29. However, where the ability to give orders or exercise supervisory authority is invoked as a factor supporting a finding of complicity, there must be some connection between that authority and the crimes against humanity. The RAD did not identify such a connection, simply making the finding that Mr. Singh could give orders to inferior soldiers and had effective control over subordinates, and then ending its analysis.

[64] Second, and as a related matter, the RAD did not connect its discussion of Mr. Singh’s ranks or promotions to the crimes against humanity in which he was alleged to have been complicit. As stated above, the RAD found Mr. Singh had participated in (1) the Operation Falcon counter-insurgency operation from June 2006 to September 2008; (2) the MONUC peacekeeping operation from September 2008 to July 2009; (3) the Operation Rakshak counter-insurgency operation from July 2009 to June or August 2010; and (4) either Operation Falcon or Operation Rakshak from December 2014 to June 2015.

[65] During the first three of these postings, it is uncontested that Mr. Singh held the lowest rank of Sepoy. The RAD’s observations about Mr. Singh’s promotions, ranks, and authority to give orders can have had no application in respect of these operations. The RAD presents no analysis of how Mr. Singh’s rank of Sepoy during these operations supported a conclusion that he was complicit in crimes against humanity perpetrated by others within the Indian army.

[66] Further, while there was uncertainty regarding the timing of Mr. Singh’s promotion from Naik to Havildar, the RAD made no finding that Mr. Singh held the rank of Havildar during the fourth operation in 2014–2015, referring only to a diploma certificate that shows he held that rank in March 2017. Mr. Singh’s evidence that he held the rank of Naik when he was with the 6^th Sikh in 2014–2015 appears to have been accepted. In other words, while the RAD relied on the fact that Mr. Singh held the rank of Havildar, he did not hold that rank during any of the operations the RAD’s complicity analysis was based on. While the RAD made the inference that Mr. Singh would have been able to give orders to those of lower rank than him, it made no findings or inferences regarding the extent of such an ability at the rank of Naik, the rank Mr. Singh held during the final operation at issue in the RAD’s complicity analysis.

[67] Again, the context is important. The allegation is that Mr. Singh was complicit in crimes against humanity committed by the Indian army in the DRC and in counter-insurgency operations in the states of Jammu and Kashmir and Arunachal Pradesh, not simply by virtue of his knowledge of those crimes, but by virtue of having made a voluntary, significant and knowing contribution to them. In my view, it was an error in this context for the RAD to have drawn negative conclusions generally based on assertions about Mr. Singh’s ranks and promotions without consideration of the timing of those promotions and his ranks at the various times he was found to have been involved in operations during which the crimes against humanity occurred.

[68] I therefore conclude that the RAD’s analysis of the fourth Ezokola factor was also not reasonable in light of the applicable legal constraints.

(3) The ultimate question of voluntary, significant, and knowing contribution

[69] These concerns about the RAD’s analysis of the Ezokola factors flow into its overall conclusion on complicity. The RAD recognized that mere knowledge of the crimes against humanity committed by the Indian army was insufficient to make a finding of complicity. It nonetheless found based on the relevant factors—Mr. Singh’s duties including his participation in counter-insurgency operations, his promotions and ranks, and the length of time spent in the military after discovering it was committing crimes—that he had made a significant contribution to the Indian army’s crimes against humanity and that he knew that his conduct would assist in the furtherance of the crimes.

[70] In reaching this conclusion, however, the RAD did not identify what it considered Mr. Singh’s “significant contribution to the Indian army’s crimes against humanity” to have been. The contribution appears to be related to Mr. Singh’s duties as a combat soldier during counter-insurgency operations in which those crimes occurred. Yet the RAD did not find that the counter-insurgency operations themselves were criminal or had a criminal purpose, and did not identify what contribution Mr. Singh made not to the legitimate purposes of the Indian army and its counter-insurgency operations but to its crimes or criminal purposes. Nor did the RAD explain the basis for its conclusion that Mr. Singh knew that whatever contribution he was said to have made would assist in the furtherance of the crime or criminal purpose.

[71] As the Supreme Court of Canada emphasized, the degree of a claimant’s contribution must be carefully assessed, since contributions of almost every nature to a group could be characterized as furthering its criminal purpose: Ezokola at para 88. The requirement of a “significant” contribution to the crime or criminal purpose is therefore critical to prevent an unreasonable extension of the notion of complicity: Ezokola at para 88.

[72] In the present case, the RAD’s conclusion of complicity was effectively based on its findings that Mr. Singh was a soldier in the Indian army for a long period while he had knowledge of its crimes against humanity, that he was a combat soldier during operations where crimes against humanity were committed, and his rank during those operations. Given that Mr. Singh held the lowest rank of Sepoy during three of the four operations, and only a slightly higher rank during the fourth, the RAD did not adequately and reasonably explain how either his rank or the other factors (which amount to little more than knowledge and being a soldier in operations where others committed crimes against humanity) constituted a “significant contribution” to the crime or criminal purpose, as opposed to simply guilt by association.

[73] While the factors presented in Ezokola are of assistance in determining whether there has been a voluntary, significant, and knowing contribution, it is not sufficient to review the factors and then simply make a general conclusion that on the basis of the factors, the claimant made a significant and knowing contribution to a crime or criminal purpose and thus was complicit in a crime against humanity. In the present case, having erred in its analysis of some of the Ezokola factors, the RAD also failed to provide a cogent justification of its conclusion on the central question at issue, namely whether Mr. Singh made a voluntary, significant, and knowing contribution to the crimes against humanity committed by, or the criminal purpose of, the Indian army.

[74] I therefore conclude that the RAD’s decision that Mr. Singh is excluded from refugee protection is unreasonable and must be set aside.

IV. Conclusion

[75] For the foregoing reasons, the application for judicial review is allowed. The RAD’s decision finding Mr. Singh to be excluded from refugee protection by operation of section 98 of the IRPA and Article 1F(a) of the Refugee Convention is set aside, and Mr. Singh’s appeal of the RPD’s decision is remitted to the RAD for redetermination by a different tribunal member.

[76] Neither party proposed a question for certification. I agree that no question meeting the requirements for certification arises in the matter.

JUDGMENT IN IMM-10397-23

THIS COURT’S JUDGMENT is that

1. The application for judicial review is allowed. The decision of the Refugee Appeal Division dated August 1, 2023, finding the applicant to be excluded from refugee protection is set aside, and the matter is remitted to the Refugee Appeal Division for redetermination by a different tribunal member.

“Nicholas McHaffie”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-10397-23
STYLE OF CAUSE:	SANTOKH SINGH v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Montreal, Quebec
DATE OF HEARING:	October 10, 2024
JUDGMENT AND REASONS:	MCHAFFIE J.
DATED:	May 7, 2025

APPEARANCES:

Mohamed Amine Semrouni	For The Applicant
Patricia Nobl	For The Respondent

SOLICITORS OF RECORD:

Bertrand, Deslauriers Avocats Montreal, Quebec	For The Applicant
Attorney General of Canada Montreal, Quebec	For The Respondent