VC0-02981

RAD File / Dossier de la SAR : VC0-02981 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date(s) of hearing May 28, 2021 Date(s) de l'audience Date of decision September 13, 2021 Date de la décision Panel E. Bobkin Tribunal Counsel for the persons who are the subject of the appeal Kirk T. Karaszkiewicz Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Jennifer Mensink Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss the appeal brought by the Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety (the Minister or the Appellant). I find that the Respondent, XXXX XXXX, is not excluded from refugee protection, pursuant to article 1F(a) of the Convention. I confirm the decision of the RPD that the Respondent is a Convention refugee. [2] The Respondent is a citizen of Iran. He brought a refugee claim on the basis of religion as a Christian convert. The Refugee Protection Division (RPD) accepted that the Respondent had credibly established that he converted to Christianity and found that he was a Convention refugee on this basis. [3] The Minister appeals this decision. The Minister argues that the RPD erred by not considering whether the Respondent was excluded from protection under article 1F(a) of the Convention and not informing the Minister of this issue. The Minister argues that the Respondent's disclosure in his schedule "A" form that he had fulfilled his mandatory military service at XXXX XXXX was sufficient to trigger the requirement to notify the Minister. The Minister also submits new evidence that, it argues, establishes that the Respondent is excluded, including an interview of the Respondent by Canada Border Services Agency (CBSA) and a country report on XXXX XXXX hangings. The Minister argues that the evidence is sufficient to establish that the Respondent is excluded. [4] The Respondent argues that he is not excluded from protection. Specifically, he argues that the documentary evidence about XXXX XXXX is not directly pertaining to him and that the CBSA interview is not reliable. He requested an oral hearing. He argues that the evidence shows a distinction between the XXXX actions at XXXX XXXX and the Iranian Revolutionary Guard Corps' actions at XXXX XXXX, and as he was not a member of the latter, he is not excluded. Alternatively, he argues that he had no choice in the manner of his military service. [5] After reviewing the record, including the new evidence, I determined that the test for an oral hearing was met, and I convened an oral hearing. After the oral hearing, I determined that the test for exclusion is not met, as I find that the Respondent's contribution to crimes against humanity is not significant. DECISION [6] The appeal is dismissed. I confirm the decision of the RPD that the Respondent is a Convention refugee. NEW EVIDENCE AND ORAL HEARING The Minister's evidence is admissible by right and meets the test for an oral hearing [7] When a refugee claimant appeals a negative decision in their refugee hearing, they are required to meet the test under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) if they wish to have any proposed new evidence admitted to the Refugee Appeal Division (RAD). Where the Minister appeals a decision of the RPD (or intervenes in an ongoing appeal), they may submit new evidence as of right. Therefore, I accepted all of the evidence submitted by the Minister which includes: (1) an interview of the Respondent by CBSA; and (2) a report about hangings in Iran. [8] The Respondent did not submit any evidence in response to the Minister's record. [9] In my view, the new evidence on appeal meets the test to hold an oral hearing. Specifically, the interview of the Respondent by CBSA raises a serious issue with respect to the credibility of the Respondent in terms of what his activities were at XXXX XXXX. This issue is central because these activities relate to whether there is a possible exclusion from protection. If I accepted the evidence as proposed by the Minister and had concluded that the Respondent is excluded from protection, this would have justified rejecting the Respondent's refugee claim. Therefore, the test under subsection 110(6) for holding an oral hearing is met, and I convened a hearing. The Respondent's new evidence is inadmissible under rule 29 of the RAD Rules [10] The day before the oral hearing, the Respondent submitted a document regarding the Respondent's "requests in the comprehensive system of the military service organization."1 The Respondent's Counsel submitted that it was a certificate of exemption from combat due to medical condition. The document states that there was a request for medical exemption. [11] The document was submitted well after the perfection of the Respondent's record. Therefore, in addition to meeting the requirements of admission under subsection 110(4) or 110(5) of the IRPA and the case law, it must also meet the test under rule 29 of the RAD Rules. The rule sets out factors for consideration such as: (a) the document's relevance and probative value; (b) any new evidence it brings to the appeal; and (c) whether the person, who is the subject of the appeal, could have provided it with their record, with reasonable effort. [12] In my view, the document does not meet the requirements of rule 29. First, the Respondent's response about his efforts to obtain the document was not satisfactory. He stated that it was difficult to obtain but that he could not remember when he asked his friend to obtain it, but it was "about a couple months ago."2 The hearing was held May 28, 2021, which would have put the request in approximately late March 2021. The Respondent filed his record on March 8, 2021. It is not clear why the Respondent did not make a request for this document before filing his record. This is particularly so, given that the Minister's record was filed September 14, 2020. At this time, the issue of exclusion was raised, and the question of what the Respondent did in his military service was live. I do not find the Respondent's explanation, that obtaining the document took time, satisfactory given when the Minister filed their record. [13] Second, the document has little probative value. The Respondent submits that this document corroborates his evidence that he did not carry a weapon because of a medical exemption. However, the document is not probative of this allegation. As noted above, the document states that the Respondent requested a medical exception, but it does not make clear whether this was granted, and if so, what the exception was. The document merely states "status: 11:43" which leaves it unclear as to whether the exception was granted. There is no information as to what a medical exception entails based on this document. Therefore, I find that the document has very little relevance and probative value. [14] I acknowledge that the document offers some new evidence, as it is the only corroborating document about the military service, but I find that this is outweighed by the factors discussed above. Therefore, the document is inadmissible. Even if I had admitted the document, it would not have changed the outcome of the appeal. As described above, the document does not explain what duties the Respondent is exempted from (if any) and, therefore, has no impact on the decision. Additionally, as will be explained below, the Respondent's alleged medical exemption had no bearing on my ultimate decision. THE ROLE OF THE RAD [15] Generally, the role of the RAD is to look at all of the evidence and decide if the RPD made the correct decision.3 There is an exception to this where the RPD made a credibility finding based on oral evidence in which it had a meaningful advantage. This case is unusual in that the issues on appeal were not considered by the RPD. The RPD did not raise the issue of exclusion; the Minister did not intervene at the RPD, and no findings were made on exclusion by the RPD. [16] The Minister argues that this was an error. The Minister argues that the evidence before the RPD was sufficient to trigger the RPD's obligation to notify the Minister of exclusion and that the RPD's failure to do so was an error. The evidence which was before the RPD was the Respondent's statement: "XXXX, Mandatory military at XXXX XXXX".4 Given the brevity of the information in the record, I query whether this was an error. [17] In my view, this is not determinative, and I need not answer this question to determine this appeal. This is because the Minister submitted new evidence on appeal which, I find, raised the possibility of exclusion, and necessitated a hearing, which was held. As the RAD has the jurisdiction to hold a hearing in certain instances, to consider exclusion, and to conduct an independent assessment, I can fully consider this issue on appeal. In my view, even if the RPD had not erred based upon the information in the record, the new evidence gives the RAD jurisdiction to overturn or confirm the appeal. In essence, the RPD's decision may not be incorrect based upon the evidence on the record before the RPD, but it may be rendered erroneous by new evidence brought forward on appeal. This is analogous to situations where the Minister appeals based on new evidence that a claimant has citizenship in another country, or a claimant appeals based on a change in country conditions which post-dates the RPD's decision. [18] As these issues were not dealt with before the RPD, I am not deferring to the RPD but, rather, conducting an independent assessment of the record as it stands before me. BACKGROUND [19] The Respondent was a XXXX in the Iranian army, as required by the country's obligation to perform mandatory military service. The Respondent was in the army from approximately XXXX 2008 to XXXX 2010,5 according to his evidence (although he is not entirely clear on the dates). During that time, he fulfilled basic training at the Kachooyi barracks in Karaj where he learned how to disassemble and reassemble weapons.6 The Respondent testified that the training also included parading (marching), but he did not take part in this because he had a medical exemption from combat duty. The Respondent testified that the Kachooyi barracks serves to train XXXX for the prison system, and as a result of this, he was sent to serve at XXXX XXXX. His testimony was that his duties involved the following: (1) cleaning the living quarters and cafeteria; (2) guarding the prison: this involved keeping watch and securing the prison perimeter, although the Respondent testified that he did not use a gun but, rather, a baton because of his medical exemption. He also testified that other guards of his rank were carrying guns during their watch shifts; (3) accompanying prisoners to court, mainly family court or supreme court; and (4) acting as a XXXX XXXX (5) which involved cleaning, receiving rations, distributing goods, archiving files and cutting the ropes which were used in executions. [20] He also testified that he witnessed executions and that, although he never brought any prisoners to be executed, other XXXX of his rank did. The Minister's arguments [21] The Minister submits that the Respondent is excluded. The Minister argues that objective evidence establishes that torture is commonly used at XXXX XXXX as is mass execution, and detention occurs under horrific living conditions. The Minister also argues that the evidence shows that hangings, including hangings of political prisoners, took place during the time that the Respondent worked at XXXX. The Minister submits that these acts constitute crimes against humanity. [22] The Minister argues that the Respondent's actions are sufficient to establish that he directly committed these crimes or, in the alternative, that he was complicit in them. The Minister submits that the Respondent was evasive and inconsistent about his duties, but there are serious reasons to consider that the Respondent directly participated in crimes against humanity, including murder. This is based upon the actions that the Respondent admitted to performing, which included: transporting detainees, guarding the prison, and providing ropes for executions. The Minister argues that, given the notoriety of XXXX XXXX, it is unlikely that the Respondent was unaware of the crimes being committed. [23] Alternatively, the Minister submits that the Respondent is complicit in crimes against humanity because his duties facilitated hangings, and he was aware of the criminal acts that took place at XXXX XXXX. The Minister argues that the Respondent took no steps to be re-assigned and that he has not demonstrated that he would have been in danger of imminent harm greater than the harm he inflicted. The Minister therefore submits that the Respondent meets the test for complicity. The Respondent's Submissions [24] The Respondent submits that to find him excluded would be to make a finding of guilt by association which is not permissible. The Respondent submits that the Minister has broadly defined the organization in question here and that the Respondent was a member of the Iranian army, but the human rights abuses in XXXX XXXX are carried out by the Iranian Revolutionary Guard Corps (Sepah or IRGC). The Respondent was not a member of this organization. The Respondent submits that there is no evidence that the Iranian army, a very large organization with non-criminal purposes, was involved in human rights abuses in XXXX XXXX. The Respondent argues that the section of the prison he was employed in is separate from that where political prisoners were held, abused and executed. [25] The Respondent also submits that his tenure in the army was brief and was bounded by his compulsory service and that he deferred his service as long as possible and then left as soon as he was finished. Based upon this, the Respondent submits that he did not make a significant contribution to criminal acts. [26] The Respondent also submits that he had no choice in the assignment that he had, and if he refused to continue service, he could be put in prison as punishment. ANALYSIS [27] The decision to exclude refugee claimants from protection under article 1F(a) of the Convention is based upon the premise that international criminals should not be afforded refugee protection. In Ezokola, the Supreme Court made clear that criminal responsibility extends beyond direct perpetrators of a crime to those who are, by their actions, complicit.7 However, the actions must be (among other things) a significant contribution. In this instance, while I find that the Respondent's actions contributed to crimes against humanity, I do not find that these contributions meet the threshold of significant. Therefore, I find that the Respondent is not excluded, and I confirm the RPD's decision that he is a Convention refugee. The Law [28] Section 98 of the IRPA sets out that a person referred to in section F of Article 1 of the Refugee Convention is neither a Convention refugee nor person in need of protection. Article 1F(a), which is the relevant provision in this case, states that: The 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 crime. [29] The Supreme Court of Canada has confirmed that the standard of serious reasons to consider is lower than that of a balance of probabilities but higher than mere suspicion.8 Notably, an individual need not have physically committed the crime but can be excluded where they are complicit in the crime. The Supreme Court of Canada has held that an individual is complicit when they "voluntarily made a significant and knowing contribution to the organization's crime or criminal purpose."9 The Supreme Court has set out a list of factors to consider in this analysis including: (1) the size and nature of the organization; (2) the part of the organization with which the refugee claimant was most directly concerned; (3) the refugee claimant's duties and activities; (4) the refugee claimant's position or rank in the organization; (5) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group's crime or criminal purpose; and (6) the method by which the refugee claimant was recruited and the refugee claimant's opportunity to leave the organization.10 [30] The Court has also directed that, in assessing this test, the requirement for voluntariness encompasses the defence of duress. The Court has been clear that refugee claimants are not to be excluded based upon "guilt by association" or "passive acquiescence." Mere affiliation with a criminal organization will not suffice to find an individual complicit and excluded. Crimes against humanity occur at XXXX XXXX [31] The Respondent argues that any crimes against humanity committed at XXXX XXXX were limited to the IRGC which has control over the wards where political prisoners are kept such as XXXX XXXXand XXXX XXXX.11 He argues that, as he was not a member of the IRGC and did not work in these wards, his actions cannot constitute crimes against humanity or amount to complicity in crimes against humanity. I do not find this argument persuasive for several reasons. [32] First, IRGC is a branch of the Iranian military and, therefore, is part of the same organization that the Respondent was part of.12 The Respondent argues that it is a separate group from the Iranian army,13 but this is not borne out by the evidence. Admittedly, where there is a large organization, there can be branches with criminal purposes and others with legitimate purposes, but the mere fact that the IRGC controls certain parts of the prison is not determinative. Moreover, as will be discussed below, the Respondent was directly concerned with a part of the army tasked with working in prisons, which was involved in criminal acts. [33] Second, some of the Respondent's activities furthered the objectives of the prison overall and, therefore, contributed to the actions in XXXX XXXXandXXXX XXXX. For example, the Respondent was a XXXX XXXX for the prison generally. He testified that he was a XXXX at different locations, including generally monitoring traffic in and out of the prison.14 This action, of securing the prison generally, contributes to the actions in all of the wards of the prison, as the goal is to prevent prisoners from escaping. The question, which I will discuss below, is whether the Respondent's actions significantly contributed to crimes against humanity taking place by virtue of these activities. [34] Third, there is evidence of rights violations that go beyond the actions of the IRGC in XXXX XXXXand XXXX. First, there is evidence of torture which extends beyond the wards containing political prisoners. While the United States Department of State (US DOS) report cited by the Minister emphasizes torture being used in XXXX XXXXandXXXX XXXX, which are reportedly controlled by the IRGC, the report emphasizes that "there were credible reports that security forces and prison personnel tortured and abused detainees and prisoners throughout the year."15 The language notes that this is particularly so in XXXX XXXXandXXXX XXXX, but not exclusively so. [35] Further, another report discussing the use of the death penalty in Iran notes that "torture is widely used against suspects after their arrest and in the pre-trial phase in order to extract a confession."16 The report also states that death row prisoners are subjected to torture, as are prisoners arrested for drug offences, as well as prisoners arrested for rape and murder.17 This includes reports of beatings by staff of XXXX XXXX other than IRGC members, including the prison chief.18 Torture is a crime against humanity, pursuant to the Rome Statute of the International Criminal Court.19 [36] Similarly, the Respondent speculates that there were no political prisoners executed in the area he worked in when he was working at XXXX XXXX and that this happened in the separate wards described above. However, there is no objective evidence to support this. In fact, the objective evidence about hangings at the time in which the Respondent worked at XXXX XXXX is that there were mass hangings occurring which included hangings of political prisoners, who had undergone torture.20 The article discussing mass hangings makes no differentiation between the hangings of political prisoners and non-political prisoners. I find this article establishes that political prisoners were executed along side other prisoners in hangings at XXXX XXXX during the time the Respondent worked there, when he admitted to cutting ropes used in executions. The Rome Statute explicitly defines persecution of a group based on political grounds is a crime against humanity. [37] Additionally, even if the Respondent was only involved in executions of non-political criminals, it does not mean that these executions did not constitute crimes against humanity. The Rome Statute also defines as a crime against humanity: "imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law."21 The Respondent admitted that he was aware that drug offenders and juvenile offenders were executed at XXXX XXXX in the time that he worked there.22 According to the International Covenant on Civil and Political Rights, death sentences shall not be imposed for crimes committed by those under 18 and may only be imposed for the most serious crimes, which generally is seen not to include drug offences.23 Therefore, I find that these executions constitute a crime against humanity as defined above in the Rome Statute. This is particularly so when combined with the evidence of the torture of death row prisoners, described above. [38] For these reasons, I reject the Respondent's argument that he cannot be held responsible for crimes against humanity because he was not a member of the IRGC and did not work in the wards where political prisoners were kept. I find that the evidence establishes that the actions listed as crimes against humanity committed at XXXX XXXX in the Rome Statute include: torture; persecution of a group based on political grounds, and imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. The evidence also establishes that these crimes occurred broadly at XXXX XXXX, including in the time that the Respondent worked there. The Respondent's broad argument is rejected. As instructed by Ezokola, I must consider the Respondent's specific actions and whether they meet the legal test for exclusion. [39] The last component to consider in determining whether these actions constitute crimes against humanity is that these actions must be committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. This has been interpreted to mean that these acts must occur "pursuant to or in furtherance of a State or organizational policy to commit such attack" and that this means that the State or organization actively promotes or encourages the attack.24 In my view, this requirement is met. [40] With regard to the imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, the use of the death penalty in the manner described above is specifically prescribed by Iranian law. Therefore, I find this satisfies the policy requirement. With regard to torture and persecution of a group based on political grounds, these are not occurring pursuant to law. While torture of political prisoners, or otherwise, is prohibited in the constitution, the US DOS reports that it is prevalent, particularly in pre-trial detention as well as in detention of political protesters.25 Further, corporal punishment, which the government calls punishment and not torture, is legally permitted and includes "flogging, blinding, stoning and amputation."26 Given that torture remains widespread, and the government has not addressed this, and given that punishments akin to torture remain legal, I find that there is a state policy to commit the crimes of torture and persecution based on political grounds. [41] Therefore, I find that crimes against humanity occur at XXXX XXXX. Respondent's actions should be analysed under the complicity framework [42] The Minister submits that the Respondent himself committed crimes against humanity in the "imprisonment and murder of a civilian population identifiable by its political opposition to the government of Iran." In my view, the Respondent's actions do not constitute commission of these crimes directly. There is no evidence to establish that the Respondent directly committed any of these crimes, and the Minister has not explained what evidence would meet this threshold. [43] The onus to establish serious reasons for considering is on the Minister. Meeting this onus requires precision in identifying exactly what crimes it is alleged that the Respondent had committed and showing what evidence meets the requisite threshold. I cannot base my decision on suspicion. I do not find that the Minister has met the onus to establish direct commission of crimes against humanity. [44] Therefore, I will examine the Respondent's actions under the framework of complicity set out by the Supreme Court of Canada. The Respondent's actions do not constitute a significant contribution [45] The Supreme Court has held that a significant contribution need not mean a contribution which is directed to specific and identifiable crimes but could be actions directed to the common design of the organization. Determining this will require assessing the degree of the contribution, bearing in mind the Court's caution that almost any act in furtherance of a group could further its criminal purpose, and the contribution must be carefully assessed to determine if it is significant.27 For the following reasons, I find that the Respondent's actions do not constitute a significant contribution. The parties' arguments [46] The Minister argues that the Respondent's duties included working at a watchtower, transporting prisoners, menial tasks, including cleaning and managing supplies and cutting rope for hangings. The Minister also notes that the Respondent witnessed executions and knew that prisoners were transported to XXXX XXXX to be executed. The Minister argues that the Respondent was evasive about his duties and that there was a material inconsistency about why he did not carry a firearm. The Minister also argues that the Respondent acknowledged that other individuals of his rank transported prisoners for the purpose of being executed, and there is no explanation as to why the Respondent would not have done this. The Minister argues that, given the prevalence of imprisonment, torture and execution of political prisoners at XXXX XXXX, it is unlikely that the Respondent is not complicit in the crimes that took place there. [47] The Respondent argues that the size of the organization suggests that he did not have a significant contribution to the crimes or criminal purpose. He argues, pursuant to Ezokola, that where an organization is multifaceted or heterogenous (i.e., performing both legitimate and criminal acts), the link between the contribution and criminal purpose "will be more tenuous."28 The Respondent argues that there is no evidence of human rights abuses conducted by the Iranian Army, that the army is large, and its principal purpose "one may assume" is national defence.29 [48] I will consider these submissions with regard to the factors set out in Ezokola. The Ezokola Factors [49] The size and nature of the organization: The Iranian army is a large organization with approximately ten different branches under the "Regular Forces", "IRGC" and "Law Enforcement forces".30 The organization is heterogenous with many purposes. As of 2019, the armed forces numbered approximately 525,000 troops, of which approximately 250,000 were conscripts.31 [50] The part of the organization with which the refugee claimant was most directly concerned: The Respondent was part of the regular forces of the army, which makes up approximately 350,000 people.32 However, from this broader group, the Respondent was assigned to work in XXXX XXXX, and this is the part of the organization with which the Respondent was most directly concerned. I do not have any evidence on how big this group is. [51] The refugee claimant's duties and activities: The parties agree that the Respondent's duties included working at a watchtower, transporting prisoners to court, menial tasks, including cleaning, filing and managing supplies and cutting rope for hangings. The Minister argues that the Respondent was inconsistent about why he did not carry a weapon. I agree that the Respondent, in his initially interview, did not mention his medical exemption, and this is, to some extent, inconsistent with his later testimony. However, he consistently testified that there were other soldiers carrying weapons but that he carried a baton.33 This portion of his testimony was consistent, and I therefore accept that the Respondent carried a baton, on a balance of probabilities. [52] The Minister also argues that the Respondent was evasive about his duties. I agree that the Respondent had difficulty testifying about his time at XXXX XXXX; he was emotional in his testimony about how difficult working there was. I cannot draw from this the conclusion the Minister is asking, which is to infer that the Respondent did more than he testified to. I find this because when I look at the testimony on the whole, I find that the Respondent was relatively candid. When the Respondent was initially called in to be interviewed by CBSA, he was informed only that there was limited information about his military service.34 He had no idea, as in the RAD hearing, that he could face exclusion from protection. In that interview, he was very candid. He offered details of his duties which were incriminating, including that he cut the rope used in hanging. Therefore, I do not find that the Respondent minimized his involvement. [53] I accept the duties as outlined by the Respondent. I agree with the Minister that there is evidence of torture at XXXX XXXX and that there were likely guards who had to transport prisoners to torture, but I find that there is no evidence to show that the Respondent did this. [54] The majority of the Respondent's duties were relatively menial. I find most concerning that he cut the ropes for executions. In regard to this duty, I note that the Respondent did not bring the ropes to the execution or take place directly in executions.35 While this duty is evocative, it was part of the Respondent's menial responsibilities that he did as a storage soldier. [55] The refugee claimant's position or rank in the organization: The Respondent was an ordinary soldier of the lowest rank. [56] The length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group's crime or criminal purpose: The Respondent was in the army for only approximately two years, which is not a particularly lengthy amount of time.36 His time in the army was this length because this is the requirement for conscription in Iran. The Respondent testified that he had heard of torture at XXXX XXXX even prior to being in the army. [57] The method by which the refugee claimant was recruited and the refugee claimant's opportunity to leave the organization: The Respondent was recruited by conscription. He testified that he did not want to do army service, and he deferred his service until he could not. [58] The Respondent left the army as soon as his mandatory service was over. He testified that he felt he had no choice in the matter and could not leave or even ask for different duties. The Respondent testified that he made one attempt to ask for different duties. He testified that he was exempt from combat due to his medical issue, and as a result of this, he was not supposed to be a guard at the prison but that "they didn't go for it."37 When asked what this meant, he said that he told a commander once at the beginning of service that he was exempt from combat, and he was told that, if he kept talking too much, his military service would never end.38 He testified that he took this as a threat, given what he knew about XXXX XXXX and the army and that insubordination is not permitted. However, it seems that this comment is consistent with documentary evidence that evasion or desertion from duty can result in additional mandatory military service, as I will discuss below.39 [59] In terms of the Respondent's belief that he would not be able to object to his service or his duties, the evidence on this is mixed. For example, there is evidence that men who refuse military service are ineligible for government jobs and not hired for high paying jobs40 and that they cannot get a passport and require special permission to leave the country, and they may not be able to get a driver's licence.41 There is also evidence that draft evaders can be prosecuted and will have to continue military service upon return and that evasion can result in an additional three to six months of service or criminal prosecution from six months to two years.42 Finally, there is evidence that conscripts may face a few days of solitary confinement if they either go "AWOL" or disobey orders from superiors.43 [60] However, on the other hand, there is evidence that there is a possibility to buy out of military service, though it may only be available to wealthy individuals,44 that the penalty for desertion differs based upon the circumstances of the case, and it is unknown whether Iranian authorities actively pursue and prosecute draft evaders and deserters.45 [61] Significantly, there is also evidence that conscripts are mistreated. Documentary evidence shows that conditions for most conscripts are poor, including low pay, insufficient food, distressing or stressful working environments, and there have been reports of physical and psychological abuse of conscripts by commanding officers or other conscripts which has led to self-harm and suicide.46 The Respondent alluded to this. He testified that he had nightmares for a long time and that his service affected him negatively, and he felt that he had no control or influence over what happened.47 [62] The Respondent also testified that he felt he would be imprisoned in a prison worse than XXXX XXXX or would have to remain in the military should he refuse his duties. He testified that, at the time he was in the army, the political situation in Iran was difficult and, as a result, conscripts were often not even allowed to go home on their allowed leave and were expected to be on standby at all times. In my view, this evidence tends to support the Respondent's position that he felt unable to ask for different duties and that, at the time he was in the army, insubordination was less likely to be tolerated. Balancing the factors [63] The Respondent played a small role in a large organization, in which he was involuntarily conscripted. He had no authority, and many of his tasks were menial. He felt a great deal of pressure to comply with his orders, although he did not take many steps to avoid any specific duties. [64] Most of the roles the Respondent played contributed broadly to the functioning of the prison: cleaning, filing, providing supplies, even securing the perimeter. I find these have a very low degree of contribution to the crimes occurring at XXXX. It is concerning that the Respondent cut rope that was used in hangings. However, the Respondent was effectively "a cog" in a large machine. Had he not cut the rope, another soldier would have. Just as not all prison guards had to transport prisoners to executions or torture, not all prison guards worked in the XXXX where the Respondent did. The Respondent had no seniority, no command authority and was simply following orders in the context of a military regime where he could face penalties for failing to do so. Moreover, the order to cut the ropes itself was not manifestly unlawful, nor would the Respondent have known it was unlawful, given the complex legal matrix around capital punishment, as discussed above.48 [65] In considering the question of duress in crimes against humanity, Judge Cassese of the International Criminal Tribunal for the former Yugoslavia notes that considering whether the crime would "in any case" be perpetrated by other persons can be relevant to the analysis.49 This is not directly on point with the legal test here, as I am considering significant contribution, and not duress, but I find this guidance helpful, and I find it tends to suggest a lower degree of contribution for this activity. [66] I also find this case similar to that of Mahmood, where the Federal Court upheld the decision of the Immigration Appeal Division not to exclude a soldier in the Iraqi prison system, in which torture is widespread and in which the person in question voluntarily joined the army and voluntarily complied with orders to transport prisoners to prisons where they were likely tortured.50 In that case, the Court reiterated the guidance from Ezokola that evaluating complicity is highly contextual and that, in each case, the most significant of the six factors will vary.51 [67] In this case, I find the most significant factors are the Respondent's rank; the length of time he was in the organization; and the method of recruitment. I find that, given the country evidence on the treatment of conscripts, these factors outweigh the Respondent's duties, which were largely administrative and menial in nature, but for the cutting of the ropes for executions, as discussed above. I find that the duties the Respondent participated in contributed to the crimes against humanity, but given the factors discussed, I do not find the degree of contribution to be significant. [68] For these reasons, I find that the Respondent is not excluded from protection. The RPD's inclusion analysis is not challenged [69] The RPD found that the Respondent had credibly established that he was a Christian convert. The RPD found that Christian converts in Iran face a serious possibility of persecution on a Convention ground (religion). The RPD found that there was no state protection and internal flight alternative for the Respondent. [70] These findings are not challenged on appeal, and, reviewing the record, I find that they are correct, and I agree with them. Therefore, I find that the Respondent meets the test for Convention refugee status. CONCLUSION [71] For the foregoing reasons, I find that the Respondent is not excluded from protection. [72] The appeal is dismissed. I confirm the RPD's determination that the Respondent is a Convention refugee. (signed) Erin Bobkin E. Bobkin September 13, 2021 Date 1 Exhibit P-2, Respondent's Application for Extension to File and Perfect, May 27, 2021. 2 RAD Hearing Testimony. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 4 Exhibit RPD-1, RPD Record, at p. 67. 5 Exhibit RPD-1, RPD Record, at p. 67. 6 RAD Hearing Testimony. 7 Ezokola v. M.C.I., 2013 SCC 40; [2013] 2 S.C.R. 678, para. 1. 8 Ibid., Ezokola, [2013] 2 S.C.R. 678. 9 Ibid., Ezokola, [2013] 2 S.C.R. 678, para. 84. 10 Ibid., Ezokola, [2013] 2 S.C.R. 678, para. 91. 11 Exhibit P-3, Respondent's Post-Hearing Submissions, June 16, 2021, at pp. 4-5. 12 NDP for Iran (April 16, 2021), item 8.1, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) IRN104809.E, at p. 1. 13 Exhibit P-3, Respondent's Post-Hearing Submissions, June 16, 2021, para. 20. 14 RAD Hearing Testimony. 15 NDP for Iran (April 16, 2021), item 2.1, United States, Department of State, "Iran - Country Reports on Human Rights Practices for 2020", March 30, 2021, at p. 8. 16 NDP for Iran (April 16, 2021), item 9.5, Iran Human Rights; Together Against the Death Penalty, "Annual Report on the Death Penalty in Iran 2019", 2020, at p. 22. 17 Ibid., NDP for Iran (April 16, 2021), item 9.5, at p. 22. 18 Ibid., NDP for Iran (April 16, 2021), item 9.5, at p. 56. 19 Rome Statute, Article 7 1.(f) rs-eng.pdf (icc-cpi.int) 20 Exhibit M-2, Minister's Appellant's Record, at p. 29. 21 Rome Statute, Article 7 1.(e). 22 RAD Hearing Testimony. 23 Supra, endnote 16, NDP for Iran (April 16, 2021), item 9.5, at p. 60; and International Covenant on Civil and Political Rights, Part III, Article 6 (2) https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx 24 Rome Statute, Article 7(2)(a); and M.P.S.E.P. v. Verbanov (F.C., no. IMM-2232-20), Grammond, May 28, 2021, 2021 FC 507, at paras 19-20. 25 Supra, endnote 15, NDP for Iran (April 16, 2021), item 2.1, at pp. 8-9. 26 Ibid., NDP for Iran (April 16, 2021), item 2.1, at pp. 9-10. 27 Ezokola v. M.C.I., 2013 SCC 40; [2013] 2 S.C.R. 678, paras. 87-88. 28 Exhibit P-3, Respondent's Post-Hearing Submissions, June 16, 2021, para. 21. 29 Exhibit P-3, Respondent's Post-Hearing Submissions, June 16, 2021, para. 23. 30 NDP for Iran (April 16, 2021), item 8.3, UK Home Office, "Country Policy and Information Note - Iran: Military service, Version 2.0", April 2020, at p. 12; and item 8.1, IRB, RIR IRN104809.E, March 28, 2014, at p. 1. 31 Ibid., NDP for Iran (April 16, 2021), item 8.3, at p. 12. 32 Ibid., NDP for Iran (April 16, 2021), item 8.3, at p. 12. 33 Exhibit M-2, Minister's Appellant's Record, at p. 38. 34 Exhibit M-3, Minister's Reply Submissions, May 12, 2021, at p. 3. 35 RAD Hearing Testimony. 36 Exhibit P-3, Respondent's Post-Hearing Submissions, June 16, 2021, paras. 37-39. 37 RAD Hearing Testimony. 38 RAD Hearing Testimony. 39 Supra, endnote 30, NDP for Iran (April 16, 2021), item 8.3, at p. 10. 40 Supra, endnote 30, NDP for Iran (April 16, 2021), item 8.1, at p. 10. 41 Ibid., NDP for Iran (April 16, 2021), item 8.1, at p. 10. 42 Supra, endnote 30, NDP for Iran (April 16, 2021), item 8.3, at p. 10. 43 Ibid., NDP for Iran (April 16, 2021), item 8.3, at p. 25. 44 Ibid., NDP for Iran (April 16, 2021), item 8.3, at p. 20. 45 Ibid., NDP for Iran (April 16, 2021), item 8.3, at p. 22. 46 Ibid., NDP for Iran (April 16, 2021), item 8.3, at p. 9. 47 RAD Hearing Testimony. 48 Article 33 of the Rome Statute; and S.14 of the CAHWCA. 49 Erdemovic - Judgement - Separate and Dissenting Opinion of Judge Cassese (icty.org) at para. 12 50 Canada (Minister for Public Safety and Emergency Preparedness) v. Mahmood (F.C., no. IMM-924-20), Manson, July 28, 2021, 2021 FC 800. 51 Ibid., M.P.S.E.P. v. Mahmood, 2021 FC 800, at para. 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-02981 RAD.25.02 (January 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January 2020) Disponible en français