Naredo v. Canada (Citizenship and Immigration)

Naredo v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2022-11-14
Neutral citation
2022 FC 1543
File numbers
IMM-1695-20, IMM-1697-20
Decision Content
Date: 20221114
Dockets: IMM-1695-20
IMM-1697-20
Citation: 2022 FC 1543
Ottawa, Ottawa, November 14, 2022
PRESENT: The Honourable Madam Justice Rochester
Docket: IMM-1695-20
BETWEEN:
FERNANDO A. ARDUENGO NAREDO
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
Docket: IMM-1697-20
AND BETWEEN:
NIEVES DEL CARMEN S.M. SALAZAR
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] These are applications for judicial review of two virtually identical humanitarian and compassionate [H&C] decisions [Decisions] rendered by a senior immigration officer [Officer] of Immigration, Refugees and Citizenship Canada [IRCC], dated February 21, 2020, refusing the Applicants’ applications for permanent residence from within Canada H&C grounds.
[2] The present matters have a lengthy and complex history. The Applicants, Mr. Fernando Alfonso Arduengo Naredo and Ms. Nieves Del Carmen San Martin Salazar are citizens of Chile who came to Canada in 1978 as a married couple and claimed refugee protection. Since that time, over four decades, the Applicants have sought to regularize their status in Canada.
[3] While in Chile, the Applicants were members of the intelligence and security branch of the Chilean police force, the Police Intelligence Directorate / Direccion de Inteligencia de Carabineros [DICAR], during the regime of General Augusto Pinochet. The Officer found that DICAR was an organization that committed crimes against humanity and that the Applicants were complicit in DICAR’s activities. The Officer further found that actions taken by the Applicants while they were members of DICAR far outweighed the H&C factors cited by the Applicants. Consequently, the Officer concluded that a waiver of the Applicants’ inadmissibility under paragraph 35(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] was not justified. Paragraph 35(1)(a) of the IRPA provides that a permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24. Those sections encompass genocide, crimes against humanity and war crimes.
[4] The Applicants submit that the Officer breached procedural fairness by not advising the Applicants that inadmissibility under paragraph 35(1)(a) of the IRPA was being contemplated in the context of the H&C applications. The Applicants further submit that it was an abuse of process for the Officer to find the Applicants inadmissible under paragraph 35(1)(a) of the IRPA, (i) rather than have the matter proceed before the Immigration Division for an admissibility hearing, and/or (ii) on the basis of information that has been known to the Minister for decades. The Applicants allege that the Officer erred by finding that paragraph 35(1)(a) of the IRPA applied to the Applicants. Finally, the Applicants argue that the Officer unreasonably assessed the H&C factors by placing undue emphasis on the Applicants’ involvement with DICAR.
[5] The Respondent submits that there is no basis for the Applicants’ allegation that the Officer failed to advise them that inadmissibility under paragraph 35(1)(a) of the IRPA was being contemplated given that the Applicants received correspondence from the Officer specifically to this effect on two occasions. The Respondent further submits that: (i) it is well within the jurisdiction of a decision maker on an H&C application to determine whether an applicant is inadmissible under the IRPA; and (ii) there is no requirement to provide an applicant with an admissibility hearing before the Immigration Division prior to rendering a decision on an H&C application. The Respondent argues that it was not an abuse of process to rely on information known to the Minister for decades because the Minister has consistently shown concern about the Applicants’ activities in DICAR, beginning at the time they arrived in Canada in 1978 and throughout the various proceedings since that time. Finally, the Respondent pleads that the Officer reasonably found that the H&C factors submitted by the Applicants were not sufficient to outweigh the very serious obstacle to their admissibility, being the actions taken by the Applicants while they were members of DICAR.
[6] Having considered the extensive record before the Court, including the parties’ written and oral submissions, as well as the applicable law, the Applicants have failed to persuade me that the Officer’s Decisions were unreasonable. Although aspects of the Decisions could have been more detailed, and I applaud the Applicants having provided information concerning human rights violations to Amnesty International and the Chilean special investigations unit in the years following their arrival in Canada, I do not agree that the Officer erred such that this Court’s intervention is warranted. For the reasons below, and despite the able submissions by counsel for the Applicants, these applications for judicial review are dismissed.
[7] The Applicants filed separate judicial review applications that were heard jointly on the basis of a single certified tribunal record. The Applicants filed the same memorandum of fact and law dated December 20, 2021, in each file. The Respondent followed suit and filed the same responding memorandum in each file. As such, a single set of reasons is appropriate for both matters and shall be placed on each Court file.
II. Context
[8] From September 11, 1973, through March 11, 1990, Chile was ruled by a military dictatorship, under General Pinochet. Human rights violations from this period of military rule included executions, detentions, torture and rape.
[9] As per the record, DICAR played a significant role in intelligence gathering and carrying out arrests as part of a larger intelligence group, known as the Joint Command, whose main purpose was to suppress dissent. The clandestine operations carried out by DICAR included kidnappings, detentions, interrogations, torture, rape and murders.
[10] Mr. Arduengo Naredo was a civilian agent recruited by DICAR in March 1974. He remained a member of DICAR until April 1977.
[11] Ms. Salazar joined the police in January 1975. She was transferred to DICAR in January 1976, where she met Mr. Arduengo Naredo. She remained with DICAR until she retired in April 1977.
[12] On February 25, 1978, approximately ten months after they left DICAR, the Applicants entered Canada as visitors. Shortly thereafter in March, they claimed refugee status.
[13] The lengthy history of the Applicants’ efforts to regularize their status in Canada spans four decades. The Certified Tribunal Record [CTR] is comprised of 19 volumes totalling slightly less than 5,900 pages. Since their arrival in Canada, the Applicants have had two children, who are now adults. Mr. Arduengo Naredo is now in his mid-70s, and Ms. Salazar is in her late 60s.
[14] Given the arguments raised by the Applicants, notably procedural fairness, abuse of process, delay, and a failure to act on allegations of criminal inadmissibility earlier, a detailed history of the Applicants’ claims and proceedings is warranted.
[15] The Applicants’ refugee claims were examined and first refused by the Refugee Status Advisory Committee [RSAC] on February 23, 1979. In its report, dated October 4, 1978, the RSAC expressed concerns about Mr. Arduengo Naredo’s knowledge of torture and execution of political adversaries while in DICAR. Following a review of the case in light of information received from Chile, the RSAC considered that Mr. Arduengo Naredo “may have been a persecutor of prisoners while a member of the Chilean Intelligence” and for these reasons the Applicants were not entitled to refugee status.
[16] The Applicants became the subject of an inquiry hearing on admissibility on June 15, 1979, at which point the Applicants again claimed refugee status. The refugee claims were re-examined by the RSAC who determined, in its report dated November 14, 1979, that the Applicants did not qualify for protection as Convention refugees by reasons of: (a) “both [the Applicants] have been active agents of DICAR over several years, have admitted their participation in detentions and have witnessed incidents of torture and killings. There is indication to believe they have, in fact, participated in the brutalities committed by DICAR”; and (b) “it would violate the spirit and intent of Article 1 of the Refugee Convention and Protocol to grant refugee status to any person who has admitted participating in an official capacity in acts contrary to the principle of the Convention.”
[17] An application for redetermination by the Immigration Appeal Board [IAB], dated March 31, 1980, was permitted to proceed. The IAB, in a decision dated November 21, 1980, determined that the Applicants were not refugees. Two sets of reasons were issued, dated February 2 and 17, 1981. The panel found that: (a) the Applicants had not left DICAR for reasons of suspected disloyalty, rather Mr. Arduengo Naredo was considered a security risk by virtue of his health and Ms. Salazar retired because dating and marriage between members of DICAR was forbidden; (b) they failed to establish plausible facts upon which to base a fear of persecution; and (c) that the Applicants “who by their own testimony, have participated in kidnappings, surveillance and brutality” are outside the definition of a Convention refugee.
[18] The IAB decision was appealed. In a decision dated December 18, 1981, the majority of the Federal Court of Appeal (MacKay J. dissenting) allowed the Applicants’ appeals on the basis that one of the two sets of reasons issued by the IAB misstated the test by referring to “would” be subject to persecution rather than “a well-founded fear of persecution” (Naredo v Canada (Employment and Immigration), 1981 CanLII 2708).
[19] On June 22, 1982, before a redetermination was made, the Applicants withdrew their appeal because they received approval in principle for their application for permanent residence under the “pre-Chilean visa programme”. By way of letter dated November 8, 1983, the Applicants were informed that the Minister of Immigration [Minister] had studied the case and considered the Applicants’ establishment in Canada and “determined that he quite strongly supported the views of the [RSAC], the [IAB] and senior Commission officials that persons such as the [Applicants], who have been party to acts of human torture, do not deserve the protection of a democratic institution.” Consequently, the approval was revoked and immigration officials were informed that a resumption of the inquiry on removal would continue.
[20] With the IAB’s approval, the Applicants reinstated their appeal, which was heard in a joint hearing over three days in February and April 1985. The Applicants chose to refuse the right to deal with the matters de novo and consented to the IAB considering the transcripts from the previous proceedings along with the testimony of the Applicants during the redetermination. The IAB also noted that the delay in the matter being heard was due to adjournments being requested by the Applicants. In a decision dated April 15, 1985, the IAB found: (a) issues with the Applicants’ credibility; (b) the Applicants did not have a well-founded fear of persecution; and (c) the Applicants’ departure from Chile was substantially motivated by economic considerations.
[21] Following the IAB’s reconsideration, the Applicants filed an application for judicial review in 1985. In January 1986, counsel for the Applicants wrote requesting Minister’s Permits on humanitarian grounds. By that time, the Applicants had two Canadian-born children and had willingly cooperated with Amnesty International, which had sent representatives to interview them. The Applicants received Minister’s Permits on April 15, 1986. Consequently, in September 1986, the Applicants withdrew their judicial review of the IAB decision.
[22] The Applicants’ case had garnered some negative press in 1986, as well as public criticism from members and organizations within the Chilean community, including a statement by the Toronto Chilean Society. On November 13, 1986, the Applicants were informed by an officer in the Canada Immigration Center that processing of the Applicants’ applications for permanent residence was put on hold in order to review the case in more detail and any action on it was suspended for the time being (Naredo v Canada (Minister of Employment and Immigration), [1990] 37 FTR 161 at 165 [Naredo 1990]).
[23] By way of letter dated December 28, 1988, the Applicants were informed that the review had been concluded and that there were insufficient H&C grounds to warrant granting permanent residence from within Canada. Consequently, the letter informed them that the Minister’s Permits issued on April 15, 1986, would not be renewed. The Applicants were informed they had to depart Canada by February 28, 1989. Counsel for the Applicants provided submissions to the Office of the Minister on January 4, 1989, objecting to the decision. The Minister responded, by way of letter dated February 9, 1989, that it was the Minister’s prerogative to reverse a decision to move forward with processing the Applicants’ application for permanent residence from within Canada, which had been based in part on the impression that the Applicants had the support of the Chilean community in Canada. The Minister’s letter confirmed that there would be no further move to extend favourable consideration to the Applicants.
[24] The Applicants did not leave Canada as required by February 9, 1989, and as such a Ministerial Deportation Order was issued in March 1989 on the basis that they lacked temporary resident status or a valid Minister’s Permit. The Applicants were advised that travel arrangements had been made for them to be returned to Chile on July 25, 1989, however, they were not removed because proceedings were launched in the Federal Court seeking to quash the order of deportation and order the Minister to process the applications for permanent residence on the following grounds: (a) the Minister was estopped from deporting them having previously exercised discretion to process their applications; (b) abuse of process; and (c) breaches of sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter] (Naredo 1990 at 162).
[25] On July 24, 1990, the Federal Court dismissed the application finding that: (a) the Minister was entitled, upon learning more, to refuse to extend or cancel a Ministerial Permit; (b) the Minister, like her predecessors, had considered the Applicants for the exemption and rejected them; (c) the arguments of estoppel and legitimate expectations must fail; (d) the Minister had not acted unfairly; and (e) the Applicants have no legal rights to remain in Canada. Justice Muldoon stated that “what truly appears to be the sticking point as between the government and the applicants is their criminal conduct, in terms of Canada’s view of criminal conduct, while they were willing members of DICAR in Chile”, before proceeding to analyze in detail the conduct that was admitted by the Applicants while relying on provisions of the Criminal Code, RSC 1985, c C-46 (Naredo 1990 at 169-173). The Federal Court also noted the volume of material in the record and rejected the Applicants’ arguments about the long delay on the part of the Minister to bring this matter to a head.
[26] The Applicants appealed. On June 6, 1995, the Federal Court of Appeal dismissed the appeal finding that: (a) the motions judge correctly determined that promissory estoppel did not assist the Applicants; (b) the Minister was entitled to issue deportation orders without a hearing, as fairness was satisfied because the Applicants had the opportunity to make submissions in writing, which they availed themselves of; and (c) having Canadian-born children did not confer on the Applicants any Charter rights to remain in Canada. In its reasons, the Court of Appeal noted that it did not necessarily adopt the motion’s judge characterization of the Applicants’ conduct in Chile as this was not relevant to the issue on appeal.
[27] The Applicants appealed to the Supreme Court who refused the leave to appeal on January 11, 1996 (198 NR 397, Docket no 24820).
[28] A decision of an immigration expulsion officer was communicated to the Applicants on January 22, 1996, wherein the officer determined that the Applicants’ deportation orders were to be executed on February 13, 1996, by removal of the Applicants to Chile.
[29] On January 31, 1996, the Applicants and their children commenced proceedings in the Federal Court. The Applicants sought judicial review of the decision of the immigration expulsion officer. The Applicants’ children commenced both an application for judicial review and an action relating to the deportation orders and the officer’s refusal to hear their submissions during the Applicants’ removal interview. The Applicants and their children brought three motions on the three related matters before the Federal Court seeking stays of the deportation orders, while the Respondent brought a motion to strike in one of the children’s’ motions. Judgment was rendered orally on February 5, 1996, staying the execution of the deportation orders until such time as the Applicants’ applications for leave and judicial review were heard, and postponing the rest of the motions sine die.
[30] On May 29, 1997, the Federal Court rendered judgment on the Applicants’ application for judicial review of the immigration expulsion officer’s decision. The Federal Court declined to set aside the officer’s decision or declare certain provisions of the Immigration Act to be of no force and effect by virtue of sections 7 and 12 of the Charter. The Federal Court did, however, stay the deportation orders to permit the Applicants to submit, within 45 days, an application to stay in Canada on H&C grounds. The Federal Court considered that such an application permitted the Applicants to raise their “concerns regarding events that may have occurred that have changed their situation into one in which there is risk”.
[31] As to the proceedings filed by the Applicants’ children, the application for leave and judicial review was dismissed and the action was struck for disclosing no reasonable cause of action, and a subsequent appeal was discontinued.
[32] On July 11, 1997, the Applicants filed applications for permanent residence on H&C grounds, including extensive materials and written submissions. They were interviewed at the Mississauga CIC on October 30, 1997. On October 14, 1997, the National Security Screening Division stated that there are reasonable grounds to believe that the Applicants may be inadmissible for being involved in war crimes. On November 25, 1997, the officer conducting the H&C examination requested a risk assessment. The Applicants provided additional submissions on risk on July 9, 1998. Shortly thereafter, the Applicants’ file was provided to the War Crimes Unit, which rendered a negative risk opinion on September 11, 1998. The risk assessment was disclosed to the Applicants, who provided further submissions on risk on December 31, 1998.
[33] Following the Applicants’ further submissions on risk, a second risk assessment was performed. The second assessment, dated January 15, 1999, resulted in a positive risk assessment on the basis that the Chilean government had shown some interest in the case by hiring a Canadian law firm to track the outcome of the case in Canada. The Applicants were afforded the opportunity to provide further submissions.
[34] On August 5, 1999, the officer refused the applications on H&C grounds. The officer considered the record, including the positive risk opinion, before concluding that: (a) if the Applicants were escorted back to Chile and if they faced charges, the Amnesty Laws would ensure that due process would be applied in their case, and there would be no or little risk of inhumane treatment, torture or death; and (b) even though the positive factors in the matter were accepted, “after considering the actions of [the Applicants] while they were members of the Dicar in Chile, an organization which can be considered one with a single, limited brutal purpose, and, considering the objectives of the Immigration Act, I am not satisfied that the H & C grounds in this case are sufficient to warrant processing this application from within Canada on an exceptional basis”.
[35] The Applicants sought judicial review of the H&C decision on a number of grounds. On August 3, 2000, the Federal Court allowed the judicial review on the basis that the decision was unreasonable for having minimized the interests of the Applicants’ children. The Federal Court found that the officer’s reasons did “not reflect the ‘attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them’ that is required by the Baker decision”. (Naredo v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15973). The matter was therefore sent back for redetermination.
[36] The redetermination took several years, during which a number of exchanges took place concerning the file and several rounds of updated submissions were filed. Notably, on January 14, 2004, January 23, 2006, October 21, 2006, and August 12, 2008. By that time, the file was comprised of thousands of pages of material and contained over 80 letters and affidavits in support. Indeed, when referring to a request for further time in 2008 in order to provide updated submissions, the Applicants stated, “[a]s your office is aware, the files for [the Applicants] are lengthy and complicated …”.
[37] In addition, during that time, the Applicants separated and ultimately divorced. In 2004, counsel had notified CIC that Mr. Arduengo Naredo and Ms. Salazar had separated and commenced new common-law relationships. As a result, counsel for the Applicants requested that the files be separated and individual decisions be rendered for Mr. Arduengo Naredo and Ms. Salazar, albeit they agreed to be interviewed together should one be scheduled. In 2006, in light of the change of marital status it was requested that individual decisions be issued but that the applications be processed, assessed and considered at the same time. Consequently, various volumes of the files were split and sent to different locations. By 2008, the files were in the process of being considered separately by two different members.
[38] Furthermore, and in parallel, a Pre-Removal Risk Assessment [PRRA] application was provided to Mr. Arduengo Naredo on September 17, 2007. On October 18, 2008, the PRRA application forms were submitted, with the written submissions and the full submission package following in November 2008. Additional exchanges took place between CIC and counsel for the Applicants, that were also aligned with the processing of the H&C applications redetermination. In the Decisions currently under review, the Officer states that on November 28, 2008, the PRRA application was refused.
[39] In addition, and in parallel, Mr. Arduengo Naredo was listed on the national consolidated report of war crimes and possible war crimes, and thus Mr. Arduengo Naredo and Ms. Salazar’s cases were monitored by the Crimes Against Humanity and War Crimes Section of the Department of Justice and the Ontario War Crimes Unit. The aforementioned section of the Department of Justice and the Royal Canadian Mounted Police also investigated the Applicants.
[40] On November 14, 2012, Mr. Arduengo Naredo’s H&C application was again refused [2012 H&C Decision]. The officer highlighted previous actions described by Mr. Arduengo Naredo while he was a member of DICAR, along with the earlier findings of the IAB that:
Naredo took part in at least two dozen incidents of torture which he says were always commenced by the use of electric devices. Sometimes these "interrogations" were augmented by placing the suspect's head under water or butting lighted cigarettes on the subject's whole body. Naredo says that his whole team of four persons, including himself, participated in each of the incidents of torture, although he himself at no time applied any force to any of the detainees but merely acted as a guard or as a witness to the statements made by the detainees.
[41] The officer considered the risk alleged by Mr. Arduengo Naredo, should he be returned to Chile, stemming from his membership in DICAR, along with his establishment in Canada and the hardship associated with leaving Canada. The officer acknowledged Mr. Arduengo Naredo’s submission that he has not been charged with a criminal offence in Chile or Canada, but concluded as follows:
I have taken into consideration the applicant's actions in Chile when he was a member of the Secret Police. The fact that no action has ever been taken against the applicant does not negate his actions during the Pinochet era. The actions of the applicant in question are not from a third party or a rumour; the applicant himself disclosed the information. I am not satisfied that I have been presented with sufficient evidence to conclude that he was not a party to the incidents as described.
I am not making a finding on whether the applicant is inadmissible for any crime committed in Canada or in Chile or anywhere else in the world. However, taking into account the applicant's actions during his membership with DICAR, I find that the incidents described by the applicant to be greatly disturbing. I am not persuaded that the applicant's establishment in Canada or the positive factors in his request for an exemption are sufficient to overcome his actions undertaken while he was a member of the DICAR.
I reiterate my contention that the granting of an exemption in an H&C context is for exceptional consideration and was not meant to shield one from prosecution or due process under the law. Moreover, the fact that the applicant has not been charged with any offence does not absolve the applicant of his actions committed while a member of the DICAR.
I have given significant weight to the applicant's actions while he was a member of the DICAR. He took part in two dozen incidents of torture; actions that included but was not limited to kidnappings, forcible confinement and torture. While I acknowledge that the applicant states that he was forced into joining the organization, I note that he remained with DICAR for a period of four years. I am not satisfied that he has presented sufficient evidence of any concerted attempts that he made to leave the organization. He stated under oath that he was expelled from DICAR for refusing to fulfill orders. I find that these actions do not weigh in his favour and his establishment and length of time in Canada, while significant, does not overcome the atrocities committed during his membership with the DICAR.
[42] The same officer who rendered the 2012 H&C Decision also conducted a PRRA and determined that Mr. Arduengo Naredo would not face a risk should he be returned to Chile [2012 PRRA Decision]. Mr. Arduengo Naredo had pleaded that he faced a risk due to his involvement in DICAR, and in particular, that he would face reprisals from individuals who took part in the atrocities he witnessed. The officer was not satisfied that recent objective evidence supported Mr. Arduengo Naredo’s allegation that people who committed crimes during the Pinochet regime were involved in the current Chilean government and remain interested in harming him. She found the determinative issue to be the availability of state protection. The officer considered that if Mr. Arduengo Naredo “were to face charges for his actions that took place during his years in DICAR, the documentary evidence satisfies me that the application would receive due process in the legal system in Chile.”
[43] Mr. Arduengo Naredo sought judicial review of both the 2012 H&C Decision and the 2012 PRRA Decision. Following discussions between the parties, it was agreed that the matters would be redetermined. As a result of the agreement between the parties, on December 13, 2013, the Federal Court ordered that both matters be redetermined before different officers. Subsequently, the PRRA process was put on hold pending the redetermination of the H&C applications.
[44] On January 27, 2014, counsel for the Applicants provided further documentation and submissions to the CIC. The submissions state, inter alia, that:
The issue in Mr. Arduengo’s case has always been his past involvement with the Chilean police intelligence agency, the DICAR, under the Pinochet regime. …
There has not been a formal determination of whether Mr. Arduengo could have been considered complicit in the crimes committed by DICAR officers. While I do not think he was complicit, particularly given his defection early in the years of the Pinochet regime, if this is the view then please permit him to seek a finding that he has been rehabilitated. From his defection to the present time, he has been remorseful about his past contact with the military – sorry he ever unwittingly got drawn into it.
[45] On March 31, 2014, the Applicants’ files were transferred from other offices to the Backlog Reduction Office in Vancouver (now HMID-Vancouver). On November 9, 2015, the files were assigned to a C3 Security Officer. As a result, on November 16, 2015, procedural fairness letters were sent to counsel for the Applicants seeking updated information. On December 18, 2015, counsel for the Applicants provided further information, including in relation to Mr. Arduengo Naredo’s health.
[46] During that period, CIC shared information on the matter with the Canada Border Services Agency [CBSA] Enforcement, who was considering the question as to whether the Applicants were barred from section 96 Refugee Protection in the PRRA process. Furthermore, in 2016, CBSA Enforcement also considered whether to convoke the Applicants to admissibility hearings to determine whether they were described under subsection 35(1) of the IRPA. As a result, action on the Applicants’ files at HMID-Vancouver was put on hold until CBSA Enforcement decided whether to hold admissibility hearings for Mr. Arduengo Naredo and Ms. Salazar. On April 26, 2018, after CBSA Enforcement decided not to convoke admissibility hearings for the Applicants, 18 volumes of the Applicants’ files were returned to HMID-Vancouver.
[47] On November 30, 2018, the Officer who rendered the Decisions at issue, wrote to counsel for the Applicants: (a) informing them that he now had carriage of the files; (b) providing them with an opportunity to submit updated submissions; (c) noting that Mr. Arduengo Naredo may be inadmissible under subsection 35(1) of the IRPA by reason of his association and employment with DICAR; and (d) stating that “[u]pdated submissions regarding this alleged inadmissibility are also welcome”.
[48] In December 2018, counsel for the Applicants requested an extension “to file submissions as to admissibility” until February 28, 2019, which was granted. Updated submissions for both Applicants were filed accordingly.
[49] On May 21, 2019, the Officer wrote to counsel for the Applicants informing them that he would be relying on portions of the 1990 Rettig Commission Report “Report of the Chilean National Commission on Truth and Reconciliation” [Rettig Report], disclosing the Rettig Report to them, and providing an opportunity to make submissions on it.
[50] On July 10, 2019, counsel for the Applicants responded and: (a) queried what portions of the extensive and lengthy Rettig Report did the Officer consider relevant to the Applicants; (b) provided submissions on portions of the Rettig Report; (c) provided submissions on the Applicants’ involvement with DICAR, and the subsequent assistance they provided to Amnesty International and the Chilean Police; and (d) sought to confirm that the Officer had the previous submissions and supporting documents in the file.
[51] On July 11, 2019, the Officer replied: (a) attaching an extract of materials from the Rettig Report entitled, “Evidence of the Use of Torture by the Chilean Government in the 1970s”; (b) confirming that he had all the files, 18 in number; and (c) providing the Applicants with an extension until the end of September 2019, in order to make further submissions.
[52] On October 25, 2019, the Applicants filed further submissions. Among other things, the Applicants noted that they were not mentioned in the Rettig Report and that they “have not faced allegations or criminality or involvement in human rights abuses …They were not made the subject of an adjudication or admissibility hearing on the grounds of criminality or involvement in international crimes. It is now far too late to commence proceedings on the basis of allegations which are more than four decades old.”
[53] On February 21, 2020, the Officer rendered the Decisions, refusing the Applicants’ applications for permanent residence on H&C grounds.
III. The Decisions Under Review
[54] In short, the present H&C applications were first filed on July 11, 1997, but given the steps, rejections, proceedings, and redeterminations, detailed in the section above, the reassessments that form the basis of the present proceedings are dated February 21, 2020. As also noted above, the Officer had the 18 volumes of files relating to the Applicants and the applications at issue. The resulting Decisions are lengthy, with the decision on Ms. Salazar’s application totalling 53 pages and the decision pertaining to Mr. Arduengo Naredo totalling 55 pages.
[55] In summary, the Officer found reasonable grounds to believe that the Applicants were inadmissible under paragraph 35(1)(a) of the IRPA for their complicity in crimes against humanity while they were members of DICAR, the intelligence arm of the Chilean Police force during the regime of General Augusto Pinochet. The Officer concluded that the H&C factors raised by the Applicants did not justify a waiver of their inadmissibility.
[56] The portions of the Decisions that are relevant to the issues raised in these applications for judicial review shall be dealt with in Section VI (Analysis) of this judgment, below.
IV. Issues and Standard of Review
[57] The Applicants raise a number of issues, which I reformulate as follows:
Was it an abuse of process for the Officer to address the question of the Applicants’ inadmissibility under paragraph 35(1)(a) of the IRPA rather than have the matter proceed before the Immigration Division for an admissibility hearing?
Did the Officer breach procedural fairness by not advising the Applicants that inadmissibility under paragraph 35(1)(a) of the IRPA was being contemplated in the context of the H&C applications?
Was it an abuse of process for the Officer to find the Applicants inadmissible, and thus refuse the H&C applications, based on information that has been known to the Minister for decades?
Was the Officer’s finding that paragraph 35(1)(a) of the IRPA applied to the Applicants unreasonable?
Did the Officer unreasonably assess the H&C factors by placing undue emphasis on the Applicants’ inadmissibility?
Should one or more questions be certified?
[58] The first three issues relate to procedural fairness and abuse of process. Such issues in administrative contexts have been considered reviewable on a correctness standard or subject to a “reviewing exercise … ‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied” (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [Canadian Pacific]). The focus of the reviewing court is essentially whether the procedure followed by the decision maker was fair and just (Canadian Pacific at para 54; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35).
[59] As to the remaining two issues, the applicable standard of review is one of reasonableness as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). 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” (Vavilov at para 85).
[60] It is the Applicants who bear the onus of demonstrating that the Officer’s Decisions are unreasonable (Vavilov at para 100). For the reviewing court to intervene, the challenging party must satisfy the court that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”, and that such alleged shortcomings or flaws “must be more than merely superficial or peripheral to the merits of the decision” (Vavilov at para 100).
V. Further Submissions on the Issue of Abuse of Process
[61] In the context of their submissions on abuse of process, the Applicants relied on Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe] and Beltran v Canada (Citizenship and Immigration), 2011 FC 516 [Beltran]. Blencoe dealt with the issue of abuse of process in the context of administrative delay. In Beltran, a decision addressing the issue of abuse of process in the context of an admissibility hearing, this Court relied on Blencoe.
[62] Subsequent to the hearing of this matter, the Supreme Court rendered its decision in Law Society of Saskatchewan v Abrametz, 2022 SCC 29 [Abrametz]. In Abrametz, the Supreme Court addressed in detail Blencoe and the applicable test for whether a delay in administrative proceedings amounts to an abuse of process. Consequently, the Court provided the parties with an opportunity to file further submissions in light of the decision in Abrametz, of which they availed themselves.
VI. Analysis
[63] Prior to considering each of the issues identified above, a brief consideration of the nature of H&C relief under section 25 of the IRPA is warranted. An exemption under subsection 25(1) of the IRPA is an exceptional and discretionary remedy (Huang v Canada (Citizenship and Immigration), 2019 FC 265 at paras 19-20; Fatt Kok v Canada (Citizenship and Immigration), 2011 FC 741 at para 7). Subsection 25(1) of the IRPA provides the Minister with the discretion to exempt foreign nationals from the ordinary requirements of that statute and to grant permanent resident status to an applicant in Canada if the Minister is of the opinion that such relief is justified by H&C considerations. The H&C discretion is a flexible and responsive exception that provides equitable relief, namely to mitigate the rigidity of the law in an appropriate case (Rainholz v Canada (Citizenship and Immigration), 2021 FC 121 at paras 13-14 [Rainholz]).
[64] H&C considerations are facts, established by evidence, that would excite in a reasonable person in a civilized community the desire to relieve the misfortunes of another provided these misfortunes warrant the granting of special relief from the otherwise applicable provisions of the IRPA (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 13, 21 [Kanthasamy]). Subsection 25(1) has been interpreted to require an officer to assess the hardship that an applicant will experience upon leaving Canada. In an application for H&C relief, an applicant may raise