Federal Court Overturns Exclusion of Claimant from Refugee Protection Due to Insufficient Analysis

Date: 20260121 Docket: IMM-24288-24 Citation: 2026 FC 86 Toronto, Ontario, January 21, 2026 PRESENT: The [NAME]: [NAME] Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

JUDGMENT AND

REASONS [ 1 ] This is an application for judicial review of a decision by the Refugee Appeal Division [[NAME]] dated November 29, 2024, refusing the claim for refugee protection of the Principal Applicant, [NAME] [Applicant], under sections 96 and 97(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ]. The [NAME] agreed with the Refugee Protection Division [[NAME]] that there were serious reasons for considering that the Applicant voluntarily made a knowing and significant contribution to the commission of crimes against humanity while serving as a member of the [NAME], the national police force in Chile. As a result of this finding, the Applicant was excluded from refugee protection pursuant to Article 1F(a) of the [NAME]’ Convention relating to the Status of Refugees [ Convention ] and section 98 of the IRPA . [ 2 ] While the Applicant’s wife and son are also named as applicants in this proceeding, the [NAME]’s decision vis-à-vis their claims for refugee protection is not at issue on this application. [ 3 ] The Applicant argues that the [NAME]’s decision is unreasonable because the [NAME] simply rubber-stamped the [NAME]’s findings without engaging in an independent assessment of the evidence, as is apparent from the [NAME]’s one-page analysis of the applicable legal test as established by the Supreme Court of Canada in [NAME] v Canada (Citizenship and Immigration) , 2013 SCC 40, [2013] 2 SCR 678 . Specifically, the Applicant asserts that: (a) the [NAME] provided no analysis as to how it came to the conclusion that the Applicant made a “significant” contribution to the [NAME]; (b) the [NAME] misstated one branch of the test by simply concluding that the Applicant had knowledge of the crimes, whereas the test requires the [NAME] to consider whether his contribution to the crime was made knowing that it would further the criminal purpose of the national police force; (c) the [NAME] failed to analyze whether the Applicant had the requisite intent to further the crimes of the national police force, as required by test set out in [NAME] , before concluding that he made a knowing and significant contribution to the criminal purpose of the police force; and (d) the [NAME] failed to assess whether the Chilean national police force has a legitimate purpose or to engage with the distinction between legitimate and illegitimate activities carried out by the national police force; and (e) the [NAME] erred by finding that the Applicant had not challenged the [NAME]’s credibility findings and then not properly addressing the Applicant’s challenge thereto. [ 4 ] The sole issue for determination is whether the [NAME]’s finding that the Applicant is excluded from refugee protection pursuant to Article 1F(b) of the Convention is reasonable. [ 5 ] The parties agree and I concur that the applicable standard of review is that of reasonableness. When reviewing for reasonableness, the Court must take a “reasons first” approach and determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified [see [NAME] v Canada (Citizenship and Immigration) , 2023 SCC 21 at paras 8, 59]. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker [see Canada (Minister of Citizenship and Immigration) v [NAME] , 2019 SCC 65 at paras 15, 85]. [ADDRESS] will intervene only if it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency [see [NAME] v Canada (Citizenship and Immigration) , 2020 FC 418 at para 11]. [ 6 ] Subsection 107(1) of the IRPA requires the [NAME] to accept a claim for refugee protection “if it determines that the claimant is a Convention refugee or person in need of protection” . Otherwise, the claim shall be rejected. A Convention refugee is defined at section 96 of the IRPA and a person in need of protection is defined at section 97 of the IRPA . [ 7 ] However, the IRPA explicitly identifies certain classes of persons who are excluded from these definitions. Section 98 of the IRPA states that a person referred to in Article 1E or Article 1F of the Convention is not a Convention refugee or person in need of protection. With this provision, Parliament incorporated the exclusion clauses of the Convention and, at the refugee status determination stage, specifically extended the application of the exclusion clauses to a “person in need of protection” as defined in section 97 of the IRPA . [ 8 ] The relevant exclusion clause in the case at bar is Article 1F(a) of the Convention which reads as follows: Article 1 – Definition of the term “refugee” Article premier. – Définition du terme "réfugié" […] […] F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : (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; a) Qu’elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l’humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; [ 9 ] The burden of proof on an assessment under Article 1(F)(a) of the Convention lies with the Minister and the applicable standard of proof applicable is “serious reasons for considering,” which lies somewhere between “mere suspicion” and the civil standard of balance of probabilities [see [NAME] , supra at para 101]. [ 10 ] As confirmed by the Supreme Court of Canada in [NAME] v Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 at paragraph 119, a crime against humanity is committed when each of the following four elements is satisfied:

1. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);

2. The act was committed as part of a widespread or systematic attack;

3. The attack was directed against any civilian population or any identifiable group of persons; and 4. The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack. [ 11 ] In this case, the Applicant does not challenge the finding that crimes against humanity were committed by the [NAME] against the Mapuche people. According to the reasons of the [NAME], an Indigenous people in Chile known as the Mapuche are under threat from mining, forestry and hydroelectricity, and the Mapuche have been fighting to regain control of their lands. The [NAME] were sent to the area to control the crowds and stop the Mapuche from occupying the land to prevent the work undertaken by large foreign companies. Human rights organizations have documented the extensive and numerous violations committed against the Mapuche people by the [NAME] during the period of time the Applicant was a member of the [NAME]. The [NAME] found that these human rights violations included persecution against the Indigenous people, severe deprivation of their physical liberty through arbitrary arrest and detention, torture and other forms of cruel and inhumane or degrading treatment intentionally causing great suffering or serious injury to body or to mental or physical health. [ 12 ] In addition to being committed directly, crimes against humanity can also be committed by complicity [see [NAME] , supra at paras 1–2 ], which is the allegation in this case. [ 13 ] In order to find a person complicit in crimes against humanity under the framework set out in [NAME] , there must be serious reasons for considering that they have voluntarily made a significant and knowing contribution to the crime or criminal purpose of the group alleged to have committed the crime [see [NAME] , supra at paras 29, 77, 84]. [ 14 ] At paragraph 91 of [NAME] , supra , the Supreme Court of Canada set out the following list of factors to determine whether an individual has voluntarily made a significant and knowing contribution to a crime against humanity or to a group’s criminal purpose: (i) the size and nature of the [NAME]; (ii) the part of the [NAME] with which the refugee claimant was most directly concerned; (iii) the refugee claimant’s duties and activities within the [NAME]; (iv) the refugee claimant’s position or rank in the [NAME]; (v) the length of time the refugee claimant was in the [NAME], particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the [NAME]. [ 15 ] While these factors provide guidance, the focus must always remain on the individual’s contribution to the crime or criminal purpose, as guilt by mere association is not part of the legal framework to apply [see [NAME] , supra at paras 3, 92]. A careful examination of the specific facts of each case is required — a highly contextual inquiry that examines the facts in light of the context and the specific evidence about the individual’s involvement [see [NAME] v Canada (Citizenship and Immigration) , 2025 FC 1341 at para 32]. [ 16 ] While the Applicant has argued the [NAME] committed several errors in its [NAME] analysis (as detailed above), I am satisfied that the portion of the [NAME]’s reasons that considered whether the Applicant’s contribution was “significant” was flawed and, thus, renders the decision unreasonable. [ 17 ] For a contribution to be significant, the individual’s contribution does not have to be directed to “specific identifiable crimes” but can be directed to “wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary” [see [NAME] , supra at para 87]. The contribution need not be substantial or essential, but only significant [see [NAME] , supra at para 56; [NAME] v Canada (Public Safety and Emergency Preparedness) , 2019 FC 1550 at para 26]. [ 18 ] As recognized by the Supreme Court of Canada in [NAME] , given that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of contribution must be carefully assessed [see [NAME] , supra at para 88]. [ 19 ] In situations where the [NAME] at issue is multifaceted in nature — that is, where the [NAME] has both legitimate and criminal purposes — the link between an individual’s contribution and the criminal purpose may be more tenuous [see [NAME] v Canada (Citizenship and Immigration) , 2024 FC 1333 at para 29; [NAME], supra at para 94; Canada (Citoyenneté et Immigration) v [NAME] , 2021 FC 993 at paras 30–32]. Here, the [NAME] have a legitimate purpose as Chile’s national police force, which legitimate efforts include the enforcement of court orders (amongst other police work). However, the [NAME] also have a well-documented criminal purpose of human rights abuses against the Mapuche people, including during the enforcement of court orders. [ 20 ] While it was certainly open to the [NAME] to agree with the [NAME]’s conclusion that the Applicant made a significant contribution to the criminal purpose of the [NAME], the [NAME] was obligated to provide an internally coherent and rational chain of analysis for this finding, one that is justified in relation to the facts and law that constrain it [see Canada (Citizenship and Immigration) v Huruglica , 2016 FCA 93 at para 103; [NAME] v Canada (Citizenship and Immigration) , 2024 FC 1827 at paras 57–68; [NAME] , supra at paras 15, 85]. [ 21 ] However, a review of the [NAME]’s reasons in relation to its significant contribution finding demonstrate that no careful assessment was made regarding the Applicant’s degree of contribution towards the [NAME]’ criminal purpose. The [NAME]’s one-line reference in its reasons to the fact that the [NAME] have a legitimate purpose cannot be characterized as an intelligible grappling with the delineation between the Applicant’s contribution towards the [NAME]’ legitimate police work (which included controlling the Mapuche protests) and the group’s criminal purposes. A proper [NAME] analysis required the [NAME] to assess, among other factors, whether the specific duties performed by the Applicant (including those that are not necessarily in and of themselves criminal) amount to a significant contribution to the [NAME]’ crimes or criminal purpose [see [NAME] , supra at para 28]. Yet, the [NAME]’s reasons contain no meaningful assessment of the evidence (inconsistent as it was between the [NAME] hearings and the Applicant’s port of entry interviews) regarding the Applicant’s duties and conduct relating to the enforcement of court orders and evictions against the Mapuche people. Based on the foregoing, I find that the [NAME] never grappled with the evidence nor engaged with the distinction between the Applicant’s contribution to legitimate versus illegitimate activities of the [NAME]. The [NAME] simply concluded that the Applicant’s responses to questions asked at port of entry demonstrate that there are serious reasons for considering that his actions made a significant contribution to the crimes committed against the Mapuche. The [NAME] was obligated to explain the basis for the finding that the Applicant’s contribution was significant, which it failed to do. As such, I find that the portion of the [NAME]’s decision regarding the “significant contribution” element of the complicity test fails to exhibit the degree of justification, intelligibility and transparency required of a reasonable decision. [ 22 ] I am satisfied that this shortcoming in the [NAME]’s reasons is sufficient to render the [NAME]’s decision vis-à-vis the Applicant unreasonable. The portion of the [NAME]’s decision regarding the Applicant’s wife and son is not impacted by this determination. [ 23 ] Neither party raised a question for certification and I agree that none arises.

JUDGMENT in IMM-24288-24 THIS COURT’S

JUDGMENT is that: The portion of the decision of the [NAME] dated November 29, 2024, that excluded [NAME] from refugee protection pursuant to Article 1F(a) of the Convention is hereby set aside and the matter shall be remitted for redetermination by a different panel of the [NAME]. The parties proposed no question for certification and none arises. “[NAME]” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-24288-24 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: JANUARY 19, 2026

JUDGMENT AND

REASONS: [NAME] J. DATED: JANUARY 21, 2026 APPEARANCES: [NAME] For The ApplicantS [NAME] For The Respondent SOLICITORS OF RECORD: [NAME], Ontario For The ApplicantS Attorney General of Canada Toronto, Ontario For The Respondent