2022 FC, 2022 FC 1543

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 AmnestyInternational and the Chilean special investigations unit in the years following their arrival in Canada, I do not agree that the Officererred such that this Court’s intervention is warranted. For the reasons below, and despite the able submissions by counsel for theApplicants, 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.

TheApplicants filed the same memorandum of fact and law dated December 20, 2021, in each file. The Respondent followed suit and filedthe same responding memorandum in each file. As such, a single set of reasons is appropriate for both matters and shall be placed oneach Court file. II. Context [8] From September 11, 1973, through March 11, 1990, Chile was ruled by a military dictatorship, under General Pinochet.

Humanrights 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 intelligencegroup, known as the Joint Command, whose main purpose was to suppress dissent. The clandestine operations carried out by DICARincluded 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. ArduengoNaredo. 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. Shortlythereafter 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 twochildren, 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 onallegations 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 February23, 1979.

In its report, dated October 4, 1978, the RSAC expressed concerns about Mr. Arduengo Naredo’s knowledge of torture andexecution of political adversaries while in DICAR. Following a review of the case in light of information received from Chile, the RSACconsidered that Mr. Arduengo Naredo “"may have been a persecutor of prisoners while a member of the Chilean Intelligence”" and forthese 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 againclaimed refugee status.

The refugee claims were re-examined by the RSAC who determined, in its report dated November 14, 1979, thatthe Applicants did not qualify for protection as Convention refugees by reasons of: (a) "“both [the Applicants] have been active agents ofDICAR over several years, have admitted their participation in detentions and have witnessed incidents of torture and killings. There isindication to believe they have, in fact, participated in the brutalities committed by DICAR”"; and (b) "“it would violate the spirit andintent of

Article 1 of the Refugee Convention and Protocol to grant refugee status to any person who has admitted participating in anofficial 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. TheIAB, in a decision dated November 21, 1980, determined that the Applicants were not refugees. Two sets of reasons were issued, datedFebruary 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 betweenmembers of DICAR was forbidden; (

b) they failed to establish plausible facts upon which to base a fear of persecution; and (

c) that theApplicants "“who by their own testimony, have participated in kidnappings, surveillance and brutality”" are outside the definition of aConvention 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 byreferring to "“would”" be subject to persecution rather than "“a well-founded fear of persecution”" (Naredo v Canada (Employment andImmigration), ). [19] On June 22, 1982, before a redetermination was made, the Applicants withdrew their appeal because they received approval inprinciple 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 Commissionofficials that persons such as the [Applicants], who have been party to acts of human torture, do not deserve the protection of ademocratic institution.”" Consequently, the approval was revoked and immigration officials were informed that a resumption of theinquiry 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 andApril 1985.

The Applicants chose to refuse the right to deal with the matters de novo and consented to the IAB considering thetranscripts 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 andwritten submissions. They were interviewed at the Mississauga CIC on October 30, 1997. On October 14, 1997, the National SecurityScreening Division stated that there are reasonable grounds to believe that the Applicants may be inadmissible for being involved in warcrimes. On November 25, 1997, the officer conducting the H&C examination requested a risk assessment. The Applicants providedadditional submissions on risk on July 9, 1998.

Shortly thereafter, the Applicants’ file was provided to the War Crimes Unit, whichrendered a negative risk opinion on September 11, 1998. The risk assessment was disclosed to the Applicants, who provided furthersubmissions on risk on December 31, 1998. [33] Following the Applicants’ further submissions on risk, a second risk assessment was performed. The second assessment, datedJanuary 15, 1999, resulted in a positive risk assessment on the basis that the Chilean government had shown some interest in the case byhiring a Canadian law firm to track the outcome of the case in Canada.

The Applicants were afforded the opportunity to provide furthersubmissions. [34] On August 5, 1999, the officer refused the applications on H&C grounds. The officer considered the record, including the positiverisk opinion, before concluding that: (

a) if the Applicants were escorted back to Chile and if they faced charges, the Amnesty Lawswould 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 weremembers of the Dicar in Chile, an organization which can be considered one with a single, limited brutal purpose, and, considering theobjectives of the Immigration Act, I am not satisfied that the H & C grounds in this case are sufficient to warrant processing thisapplication 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 allowedthe judicial review on the basis that the decision was unreasonable for having minimized the interests of the Applicants’ children. TheFederal Court found that the officer’s reasons did "“not reflect the ‘attentiveness and sensitivity to the importance of the rights ofchildren, to their best interests, and to the hardship that may be caused to them’ that is required by the Baker decision”". (Naredo vCanada (Minister of Citizenship and Immigration), ).

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 ofupdated 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 toa 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. ArduengoNaredo and Ms. Salazar had separated and commenced new common-law relationships. As a result, counsel for the Applicants requestedthat the files be separated and individual decisions be rendered for Mr. Arduengo Naredo and Ms.

Salazar, albeit they agreed to beinterviewed together should one be scheduled. In 2006, in light of the change of marital status it was requested that individual decisionsbe issued but that the applications be processed, assessed and considered at the same time. Consequently, various volumes of the fileswere 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 onSeptember 17, 2007.

On October 18, 2008, the PRRA application forms were submitted, with the written submissions and the fullsubmission package following in November 2008. Additional exchanges took place between CIC and counsel for the Applicants, thatwere also aligned with the processing of the H&C applications redetermination. In the Decisions currently under review, the Officerstates 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 warcrimes, and thus Mr. Arduengo Naredo and Ms.

Salazar’s cases were monitored by the Crimes Against Humanity and War CrimesSection of the Department of Justice and the Ontario War Crimes Unit. The aforementioned

section of the Department of Justice and theRoyal 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 officerhighlighted previous actions described by Mr. Arduengo Naredo while he was a member of DICAR, along with the earlier findings ofthe IAB that: Naredo took

part in at least two dozen incidents of torture which he says were always commenced by the use of electricdevices. Sometimes these "interrogations" were augmented by placing the suspect's head under water or butting lightedcigarettes on the subject's whole body. Naredo says that his whole team of four persons, including himself, participated ineach of the incidents of torture, although he himself at no time applied any force to any of the detainees but merely acted as aguard 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 inDICAR, 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 noaction has ever been taken against the applicant does not negate his actions during the Pinochet era.

The actions of theapplicant in question are not from a third party or a rumour; the applicant himself disclosed the information. I am notsatisfied 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 oranywhere else in the world. However, taking into account the applicant's actions during his membership with DICAR, I findthat the incidents described by the applicant to be greatly disturbing.

I am not persuaded that the applicant's establishment inCanada 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: 1 . 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? 2 . 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? 3 . 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? 4 . Was the Officer’s finding that paragraph 35(1) (

a) of the IRPA applied to the Applicants unreasonable? 5 . Did the Officer unreasonably assess the H&C factors by placing undue emphasis on the Applicants’ inadmissibility? 6 . 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 a wide variety of factors to show hardship, with such commonly raised factors including establishment in Canada, ties to Canada, the consequences of separation from relatives, the best interests of the children [BIOC], and health considerations ( Rainholz at para 16 ). [ 65 ] It bears mention that under subsection 25(1) of the IRPA , the Minister " “may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of [ IRPA ]” " , " “other than under

section 34 , 35 or 37 ” " , " “if the Minister is of the opinion that it is justified by [H&C] considerations relating to the foreign national, taking into account the [BIOC] directly affected.” " As noted above, paragraph 35(1) (

a) of the IRPA provides that a permanent resident or foreign national is inadmissible 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 ” " . [ 66 ] Currently, an officer is not permitted to grant an exemption under

section 25 from the criteria under

section 35 of the IRPA , however, at the time the present H&C applications were first filled, no such restriction was in place. Hence why, in the Decisions, the Officer found the Applicants inadmissible under paragraph. 35(1)(

a) but nevertheless addressed the H&C factors raised by the Applicants and weighed them against the actions taken by the Applicants while they were members of DICAR. A. The finding of inadmissibility under paragraph 35(1)(

a) of the IRPA by the Officer rather than by the Immigration Division [ 67 ] The Applicants allege that any determination on admissibility ought to have been brought before the Immigration Division. As detailed above, the CBSA had decided not to proceed with a report seeking an admissibility hearing.

The Applicants submit, therefore, that the Officer did an " “end-run” " around the admissibility hearing provisions of the IRPA by determining the question of admissibility in the context of the H&C applications. [ 68 ] The Respondent submits that there is no requirement that an applicant shall be sent to the Immigration Division for a determination on admissibility prior to rendering a decision on an H&C application.

The Respondent states that it is well within the jurisdiction of an officer on an H&C application to determine whether an applicant is inadmissible under the IRPA , and relies on Guzelian v Canada (Immigration, Refugees and Citizenship) , 2021 FC 460 [ Guzelian ]. The Respondent submits that the Applicants are already inadmissible to Canada, have removal orders in effect, and thus there was no need to have a report prepared under

section 44 of the IRPA and proceed with an admissibility hearing before the Immigration Division. Practically speaking, there was no necessity in doing so because the Respondent did not need to seek a removal order on the basis of inadmissibility under paragraph 35(1) (

a) of the IRPA . [ 69 ] I find that the Respondent was not obliged to bring the matter before the Immigration Division. Subsection 44(1) of the IRPA provides that an " “officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.” [ " Emphasis added]. If the Minister considers that the report is well founded, then pursuant to subsection 44(2) of the IRPA " “the Minister may refer the report to the Immigration Division for an admissibility hearing.” " [Emphasis added]. The language of

section 44 is permissive, and the Applicants are unable to refer me to an authority that imposes such an obligation upon an officer or on the Minister. [ 70 ] As to whether the Officer was entitled to consider the issue of the admissibility of the Applicants, I find that the Officer was. An officer considering an H&C application has the jurisdiction to determine whether an applicant is inadmissible under the IRPA . By way of example, in Guzelian , Justice Richard G.

Mosley considered the issue of whether a finding by an officer that an applicant was inadmissible underparagraph 35(1)(a), in the context of an H&C application, was reasonable.

At no point in time was there any question that the officer in Guzelian had jurisdiction to render a decision on inadmissibility in the context of the H&C application, rather the issue was whether the decision was reasonable based on the evidence before the officer. [ 71 ] In addition, in Subramaniam v Canada (Citizenship and Immigration) , 2020 FCA 202 [ Subramaniam ], when considering the difference between when inadmissibility arises in the context of PRRA applications as compared to when it arises in the context of an H&C application, the Federal Court of Appeal found that it was clear that an officer considering an H&C application may render a determination on inadmissibility: [31] There is, admittedly, a crucial difference on how and when inadmissibility arises in the course of processing a PRRA (subsection 112(3)) and an H&C application ( subsection 25(1) ).

Within the context of the former, inadmissibility “is a status that the applicant acquired prior to his request for a PRRA” ( Tapambwa , at para. 58). For the purposes of subsection 25(1) , however, it is clear that an applicant may be inadmissible either as a result of a prior inadmissibility finding, or of a

determination reached by an H&C officer . [Emphasis added.] [ 72 ] The Applicants plead that the Officer assumed the role of the Immigration Division and bypassed the statutory process for rendering a determination on inadmissibility under

section 35 of the IRPA . The Applicants have, however, been unable to point the Court to any authority precluding the Officer from rendering the determination. Instead, the authorities cited by the Applicants relate to: (

i) a motion seeking to stay admissibility proceedings before the Immigration Division ( Oberlander v Canada (Public Safety and Emergency Preparedness) , 2021 FC 294 ); and (ii) duplicate proceedings, namely vacation proceedings before the RPD commenced in parallel with an appeal from a decision by the Immigration Division on admissibility ( Thambiturai v Canada (Solicitor General) , 2006 FC 750 ). [ 73 ] During the hearing, the question arose as to whether there was a practice of referring such cases to the Immigration Division, such that the Applicants’ cases ought to have been determined by the Immigration Division on the basis of an established practice of doing so.

There was no common ground that such practice exists, nor have I been referred to any authority relating thereto. Accordingly, I do not find that there was any such practice that supports the Applicants’ position on this point. [ 74 ] The Applicants plead that for allegations as serious as those under paragraph 35(1) (a), it was an abuse of process to determine the issue in the context of an H&C application, and it ought to have been referred to the Immigration Division where the Applicants would have been provided with a fair oral hearing and an opportunity to respond.

I will deal with the issues of the right to be heard and the ability to adduce evidence in the next two sections of this judgment. I note, however, that as the issue of admissibility was determined in the context of an H&C application, the burden fell on the Applicants to demonstrate they were not inadmissible, which differs from an admissibility hearing conducted under

section 45 of the IRPA . As stated by Justice Mosley in Guzelain : [20] The general principle is that the burden of proof falls on the party who seeks the exclusion, as recognized by the Supreme Court of Canada in Ezokola v Canada (Citizenship and Immigration) , 2013 SCC 40 at para 29 [ Ezokola ]. Such would be the case, for example, should a report had been made against the Applicant under IRPA s 44 and an admissibility hearing conducted under IRPA s 45.

In that case, the burden would rest with the government. [21] This Court has held, however, that where an applicant seeks to have the Minister exercise discretion under s 25, it falls on the applicant to demonstrate that he is not inadmissible: Ahmed v Canada (Citizenship and Immigration) , 2020 FC 791 at paras 68-74 citing Kumarasekaram v Canada (Citizenship and Immigration) , 2010 FC 1311 . [ 75 ] In addition, had the matter proceeded before the Immigration Division there would have been an oral hearing.

In contrast, an H&C application is a paper-based process and applicants are not entitled to expect an interview ( Singh v Canada (Citizenship and Immigration) , 2022 FC 339 at para 33 ).

While it is clear in the context of this judicial review that the Applicants would no doubt have preferred that the matter proceed to an admissibility hearing as opposed to being determined in the context of the H&C application, as that process may have had certain procedural advantages for them, I am not persuaded that a failure to proceed with an admissibility hearing before the Immigration Division constituted an abuse of process. [ 76 ] In addition, there is an inconsistency in the Applicants’ position.

On October 25, 2019, when providing submissions to the Officer on the issue of inadmissibility under paragraph 35(1) (

a) of the IRPA , in response to the procedural fairness letters dated November 30, 2018, May 21, 2019, and July 11, 2019, the Applicants objected to the possibility of admissibility proceedings, stating, " “[i]t is now far too late to commence proceedings on the basis of allegations which are more than four decades old.” " It is therefore somewhat challenging for the Applicants to now argue that the Officer or the Respondent erred and ought to have prepared a report pursuant to

section 44 of the IRPA with a view to referring them to an admissibility hearing, when at the time the Applicants’ submissions to the Officer opposed such proceedings and argued that they should not be commenced. [ 77 ] The Applicants have also pleaded that the issue of inadmissibility under

section 35 of the IRPA involves consideration of duress, and by not referring the matter to the Immigration Division they were thus deprived of the right to a full and fair defence and to lead evidence on duress. I disagree. As discussed in detail in

Section VI(

B) below, the Applicants were provided with ample notice that inadmissibility under

section 35 was being contemplated by the Officer. They were not precluded from leading evidence and filing any material that spoke to the issue of inadmissibility and specifically, duress. [ 78 ] The topic of duress has been raised in the past by the Applicants. The 2012 H&C Decision reflects that, noting, " “the applicant states that he was forced into joining the organization” " .

In the Decisions at issue, the Officer considered the issue of the dilemma faced by members of such organizations, namely whether such a member either acquiesces or denounces and faces the possibility that they or their family may be severely punished. In considering that issue, the Officer addressed the submissions from the Applicants as to why they stayed and felt helpless to leave. The Applicants had the opportunity to adduce evidence on this point, and did so. Consequently, the Officer turned his mind to the issue and dealt with it based on the record before him.

Had they wished to provide further evidence, they were not precluded from doing so. I therefore find that they were not deprived of a right to make submissions or submit evidence in their defence by virtue of the fact that this matter was not referred to the Immigration Division for an admissibility hearing. [ 79 ] Finally, the Applicants submit that on a number of occasions the Respondent made the decision not to proceed with an admissibility inquiry after having considered it.

In particular, in 1988, the Applicants state that the decision not to proceed was made on the basis that it would have been time consuming and senior immigration officials believe it would have been difficult for the Minister to prove criminality allegations. The Applicants note that more recently, in 2016, CBSA Enforcement considered whether to hold admissibility hearings.

The Applicants submit that this " “end-run” " around the admissibility provisions by the Officer is all the more egregious because it is a deliberate litigation choice and the Officer was aware that there had been previous decisions not to convoke an admissibility hearing before the Immigration Division. [ 80 ] The Respondent reiterates that there was no obligation on their part to prepare a report under

section 44 and then have the Applicants sent to the Immigration Division for a determination on admissibility. [ 81 ] The evidence relied upon by the Applicants from 1988 are comprised of two pieces of correspondence dated November 22 and

December 1, 1988, entitled " “Memorandum to the Minister” " and " “Fernando Alfonso Arduengo and Spouse, … Removal Procedures for Minister’s Permit Holders IS 10.53 Immigration Manuals” " , respectively. In

summary, the Memorandum to the Minister notes the negative media attention, a prior decision to land being based on misinformation, the findings of the Immigration Appeal Board and the Federal Court, a recommendation that sanctuary should not be offered " “to persons who have taken

part in the persecution of their own nationals” " , and a consideration that there was no procedural fairness issue on the basis that the RSAC twice determined that they were not refugees, as did the IAB in 1980 and 1985. Two options were proposed: (

i) process the Applicants’ applications for permanent residence; or (ii) allow the Minister’s Permits to expire and request they leave Canada, and should they fail to do so, authorize Ministerial Deportation Orders. The Minister selected the second option. [ 82 ] As to the December 1, 1988, memorandum, it noted the Minister’s decision that the Applicants should be removed from Canada, as they admitted to having been former members of DICAR and having " “participated in, and witnesses, the torture of Chilean citizens” " .

The memorandum concluded that " “given the [Applicants’] length of time in Canada, Ministerial Deportation Orders would be the more viable and expedient approach” " , and provided recommendations as to the procedure to follow. The memorandum also canvassed in detail proceeding " “to removal via the inquiry process” " , noting that the Applicants were originally reported and sent to an immigration inquiry in 1978 for lack of an immigrant visa under the prior Act, and continued in 1979 under the Act in force at the time. The memorandum then canvassed reporting the Applicants and having an inquiry for: (

i) expired visitors permits; (ii) lacking an immigrant visa at a port of entry; (iii) for continuing to work without a permit; (iv) failing to comply with the requirements of the Act or any orders lawfully given under the Act; and (

v) reasonable grounds to believe that a crime against humanity has been committed outside Canada. The memorandum highlighted the challenges for each of the options for reporting the Applicants.

For the last option, the memorandum noted that it would be difficult to establish the allegation in the report and would no doubt result in considerable delay before the inquiry could be concluded. [ 83 ] In short, in 1988, a memorandum to the senior legal counsel in Immigration Legal Services recommended that Ministerial Deportation Orders would be the better approach rather than reporting the Applicants and holding inquiry hearing under a number of different paragraphs of the Act in force at the time, including those addressing crimes against humanity.

I agree with the Applicants that in the 1988 memorandum, the drafter of the memorandum was of the view that establishing the allegation in the report would be difficult and the process would be time consuming. [ 84 ] Where my view differs from the Applicants’ view, however, is in relation to the effect of the Respondent, in 1988 and 2016, having considered the option of reporting the Applicants and proceeding to an admissibility hearing, but deciding not to move forward with that option.

It is clear from the record that much time and effort has gone into the Applicants’ immigration and refugee proceedings in Canada, both on the part of the Applicants and on the part of the Respondents. This is even more so given the length of time the Applicants have spent in Canada. It is understandable that both parties would spend time considering the options available to them, evaluating the strengths and weaknesses of those options, and selecting their courses of action accordingly.

I do not find that the Respondent should be faulted for having engaged in this process. [ 85 ] Nor do I find that the fact that the Respondent considered the option of reporting the Applicants and having an admissibility hearing in 1988 and 2016, somehow, creates an obligation on the part of the Respondent to proceed with such a report and an admissibility hearing. As I have found above, the Respondent was not under an obligation to bring the matter before the Immigration Division.

Accordingly, the fact that the Respondent considered doing so, but then did not, does not constitute an abuse of process or result in the Officer having conducted an " “end-run” " around the admissibility hearing provisions. B. 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? [ 86 ] The Applicants plead that it was unfair for the Officer to not make it clear that he was going to make a finding of inadmissibility under

section 35 of the IRPA . The Applicants submit that the Officer advised that he was making a " “security assessment” " in the context of determining the H&C applications, not that he would be making a determination on inadmissibility that would impact the H&C decision. The Applicants argue that it was unfair of the Officer not to make it clear he would determine the Applicants admissibility under

section 35 when the only grounds of inadmissibility brought before him were the removal orders issued for the failure to leave Canada when required to do so (i.e., lack of status). [ 87 ] The Respondent pleads that the Applicants were expressly informed that inadmissibility under

section 35 of the IRPA by reason of their activities with DICAR was being considered. The Respondent states that while the Officer also mentioned a security assessment, this term is used for inadmissibility and is not inconsistent with conducting an analysis under

section 35 of the IRPA . Furthermore, the Respondent submits that the Applicants submissions in response to the Officer indicate that they were well aware that inadmissibility under paragraph 35(1) (

a) of the IRPA was being considered. [ 88 ] Having considered the exchanges between the Applicants and the Officer, the Applicants have failed to convince me that there was a breach of procedural fairness. I agree with the Respondent that in his letter dated November 30, 2018, the Officer specifically informed counsel for the Applicants that inadmissibility to Canada under subsection 35(1) of the IRPA on the basis of association and employment with DICAR was a concern and that updated submissions regarding this alleged inadmissibility were welcome.

In the same letter, the Officer had also invited updated submissions on the applications, including employment, volunteer work, health, studies, finances, country conditions and any other information. [ 89 ] On December 20, 2018, counsel for the Applicants requested an extension within which to " “file submissions as to admissibility” " . On February 28, 2019, the Applicants filed updated documentation and counsel’s submissions.

The submissions focused on the Applicants joining DICAR, the reasons they left, their assistance to the Chilean prosecutions unit, and the fact that there has not been a finding that the Applicants were inadmissible because of their activities in DICAR.

[ 90 ] On May 21, 2019, the Officer wrote to counsel for the Applicants informing them that he would be relying on portions of the Rettig Report, and provided the Applicants with the opportunity to file further submissions. On July 10, 2019, counsel for the Applicants responded: (

i) querying what portions of the Rettig Report were relevant to the Applicants; (ii) providing comments on the Rettig Report generally; (iii) making submissions as to the Applicants’ involvement with DICAR and the steps they have taken to assist the Chilean authorities since leaving Chile; and (iv) reiterating that the Applicants have not been charged with or convicted of a criminal offence or had a security certificate issued against them. [ 91 ] On July 11, 2019, the Officer replied attaching extracted sections from the Rettig Report entitled, " “Evidence of the Use of Torture by the Chilean Government in the 1970s” " .

The Officer further confirmed that he had all 18 volumes of files in the matter, and had inventoried all of their contents and “marked for reference their submissions, lawyers’ letters and the relevant documentation concerning events in Chile.” The Officer provided a further extension for submissions. [ 92 ] On October 25, 2019, the Applicants filed further submissions highlighting: (

i) the cooperation of the Applicants with NGOs and authorities; (ii) that it was dangerous to defect and flee Chile; (iii) the fact that they have not been made the subject of adjudication or admissibility hearings on grounds of criminality or involvement in international crimes; and (iv) that the Applicants have been remorseful about what involvement they had with DICAR and that neither had been aware of what they were getting into. [ 93 ] The foregoing exchanges satisfy me that the Officer had highlighted that inadmissibility under

section 35 of the IRPA was an issue, provided the Applicants with the materials not in their possession that he intended to rely upon, and provided multiple opportunities for them to make submissions on the issue. The responses provided by the Applicants demonstrate that they were aware that inadmissibility under

section 35 of the IRPA was being considered by the Officer. [ 94 ] The Applicants plead that the original H&C application was made in 1997 to address the risks the Applicants would face should they return to Chile, in conjunction with their establishment and the best interests of their children. The Applicants submit that it was unfair to add a new ground of inadmissibility that was not part of the H&C application, and that the Officer ought to have made it clear he was doing so. [ 95 ] While it is clear that the Applicants object to inadmissibility under

section 35 of the IRPA being considered by the Officer, I nevertheless find that they had sufficient notice that it was an issue. Consequently, there was no breach of procedural fairness by the Officer. C.

Was it an abuse of process for the Officer to find the Applicants inadmissible, and thus refuse the H&C applications, based on information known to the Minister for decades? [ 96 ] The Applicants plead that the facts and allegations that formed the basis for the finding of inadmissibility have been known to the Respondent for more than 40 years, yet no steps were taken to advance allegations of inadmissibility on those grounds. Consequently, the Applicants plead that asking them do defend themselves more than 40 years later is unfair and an abuse of process.

The Applicants rely on Beltran , in which Justice Sean Harrington found that it was abusive to issue an opinion that Mr. Beltran, a successful refugee claimant, was inadmissible after the authorities had been aware of his situation for 22 years. The Applicants submit that the delay is on the extreme end of unreasonable. [ 97 ] The Applicants submit that they disclosed their past in DICAR when they arrived in 1978, and since that time have been living peacefully in the community, establishing homes and families, and raising their children.

To raise these allegations of criminality now constitutes inordinate delay, and thus an abuse of process. The Applicants argue that the prejudice caused by this delay is apparent, as they have lived with the stigma associated with a lack of status in Canada since 1978. [ 98 ] The Respondent submits that the Applicants’ reliance on Beltran is misplaced. In Beltran , the Court found that " “it is completely wrong for the Government to keep information up its sleeve for 20 years” " and then to use it to find a person inadmissible. The Court found that Mr.

Beltran has lost the opportunity to answer the case against him. The Respondent pleads that, unlike in Beltran , the Minister has consistently shown concern about the Applicants’ involvement in crimes against humanity and that the Applicants have had the opportunity to address the issue on multiple occasions.

In particular, the Respondent notes that both the RSAC and IAB made findings of fact about the Applicants’ involvement in crimes against humanity following processes during which the Applicants participated. [ 99 ] The Respondent submits that, in light of all the circumstances of the case, the delay was not inordinate and has been explained by the Officer in his Decisions.

Furthermore, the Respondent argues that there is no evidence in the record of prejudice suffered by the Applicants as a result of any delay in processing their H&C applications. [ 100 ] I find that the Applicants have failed to demonstrate an abuse of process by the Officer in finding the Applicants inadmissible based on information known to the Minister for decades. First, the issue of the Applicants’ activities while members of DICAR has remained a live issue throughout the various steps and proceedings over the past four decades.

Second, the Applicants have failed to demonstrate that they meet the applicable test set out in Abrametz for whether a delay in administrative proceedings amounts to an abuse of process. [ 101 ] First, having reviewed all 19 volumes spanning the time from when the Applicants first arrived in Canada to the present day, it is clear that the Applicants’ activities while in DICAR became an issue shortly following their arrival and have remained so to this day. A detailed

summary of the steps taken and the various proceedings over the past four decades is found in

Section II (Context) of this judgment. [ 102 ] Concerns were expressed by the RSAC, who examined and refused the Applicants’ refugee claims in February 1979, as to Mr. Arduengo Naredo’s knowledge of torture and execution of political adversaries while at DICAR. 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 forprotection as Convention refugees by reasons of: (a) "“both [the Applicants] have been active agents of DICAR over several years, haveadmitted their participation in detentions and have witnessed incidents of torture and killings. There is indication to believe they have, infact, participated in the brutalities committed by DICAR”"; and (b) "“it would violate the spirit and intent of

Article 1 of the RefugeeConvention and Protocol to grant refugee status to any person who has admitted participating in an official capacity in acts contrary tothe principle of the Convention.”" [103] The IAB in 1980 determined that the Applicants are outside the definition of a Convention refugee, and that "“by their owntestimony, have participated in kidnappings, surveillance and brutality”". The panel further found that the Applicants had not left DICARfor reasons of suspected disloyalty, rather Mr. Arduengo Naredo was considered a security risk by virtue of his health and Ms.

Salazarretired because dating and marriage between members of DICAR was forbidden, and that they failed to establish plausible facts uponwhich to base a fear of persecution.

The IAB decision was successfully appealed on the basis that the IAB misstated the test by referringto "“would”" be subject to persecution rather than "“a well-founded fear of persecution”" (Naredo v Canada (Employment andImmigration), ). [104] In 1982, approval in principle for permanent residence under a "“pre-Chilean visa programme”" was revoked by the Minister onthe basis 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.”" [105] In 1985, the IAB’s reconsideration found:

a) issues with the Applicants’ credibility; (

b) the Applicants did not have a well-foundedfear of persecution; and (

c) the Applicants’ departure from Chile was substantially motivated by economic considerations. [106] The Applicants received Minister’s Permits in 1986, but in 1988, the Applicants were informed that it had been concluded thatthere were insufficient H&C grounds to warrant granting permanent residence from within Canada, and as such the Minister’s Permitswould not be renewed. The issue again was the Applicants’ past.

The Applicants did not leave Canada as required, and as such aMinisterial Deportation Order was issued in March 1989. [107] Proceedings were unsuccessfully brought in the Federal Court in order to quash the Deportation Order and force the Minister toprocess the application for permanent residence. The Federal Court noted that the sticking point as between the Applicants and theMinister was the conduct of the Applicants while they were members of DICAR in Chile (Naredo 1990 at 169-173).

The Federal Courtof Appeal denied the appeal, and the Supreme Court refused leave. [108] In 1996, after leave to the Supreme Court was refused, an expulsion order was communicated to the Applicants.

The Applicantssought judicial review of the expulsion officer’s decision, which was denied, however, the Federal Court provided a 45-day stay topermit the Applicants to lodge an application on H&C grounds. [109] In 1999, the officer refused the H&C application, finding that even though there were positive factors "“after considering theactions 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 aresufficient to warrant processing this application from within Canada on an exceptional basis”".

The Applicants sought judicial review ofthe decision, which was successful on the basis that the decision was unreasonable for having minimized the interests of the Applicants’children. [110] A number of other steps were taken, and in parallel Mr. Arduengo Naredo was listed on the national consolidated report of warcrimes and possible war crimes, and Mr. Arduengo Naredo and Ms. Salazar’s cases were monitored by the Crimes Against Humanityand War Crimes

Section of the Department of Justice and the Ontario War Crimes Unit. [111] In 2012, Mr. Arduengo Naredo’s H&C application was again refused. The officer highlighted previous actions described by Mr.Arduengo Naredo while he was a member of DICAR, and concluded: I have taken into consideration the applicant's actions in Chile when he was a member of the Secret Police. The fact that noaction has ever been taken against the applicant does not negate his actions during the Pinochet era.

The actions of theapplicant in question are not from a third party or a rumour; the applicant himself disclosed the information. … I am not making a finding on whether the applicant is inadmissible for any crime committed in Canada or in Chile oranywhere else in the world. However, taking into account the applicant's actions during his membership with DICAR, I findthat the incidents described by the applicant to be greatly disturbing.

I am not persuaded that the applicant's establishment inCanada or the positive factors in his request for an exemption are sufficient to overcome his actions undertaken while hewas 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 dozenincidents of torture; actions that included but was not limited to kidnappings, forcible confinement and torture. … [112] In the context of the present redeterminations, the submissions filed in 2014 note that "“[t]he issue in Mr. Arduengo’s case hasalways been his past involvement with the Chilean police intelligence agency, the DICAR, under the Pinochet regime.”" This was not adeparture of the Applicants’ previous position, as their submissions for the prior H&C redetermination also raise the issue of theiractivities while in DICAR.

By way of example, in their 2006 submissions, they submit "“the Arduengos have been effectively sanctionedfor more than 23 years because of allegations that they have personally committed human rights violations … they face deportationbecause of these allegations …”". [113] As detailed in

Section VI(

B) above, the exchanges with the Officer and the submissions by the Applicants in 2018 and 2019, alldealt with the issue of the Applicants’ activities while they were members of DICAR. [114] Based on the foregoing, it is clear that the Applicants’ activities while they were members of DICAR have remained a live issue,

including in all of their refugee proceedings and in each H&C decision that has been rendered. The fact that this has been the " “sticking point” " and the main issue between the Applicants and the Minister has been previously noted by this Court ( Naredo 1990 at 169) and by the Applicants themselves in numerous H&C submissions. This differs significantly from the situation in Beltran , where Mr.

Beltran had refugee status, the government kept " “information up its sleeve for 20 years” " , and then initiated admissibility proceedings. [ 115 ] The Applicants plead it was abusive for the Officer to rely on evidence that has been in the possession of the Minister for 42 years given no steps were taken to advance allegations of inadmissibility on these grounds. Given the record before me, I disagree. The allegations that formed the basis of the Officer’s determination of inadmissibility have been raised at each step, including all three H&C decisions.

It bears remembering that the vast majority of the evidence relied upon was information that the Applicants had themselves provided. Given the two prior H&C decisions and the procedural fairness letters, it can hardly be said that the Respondent was not advancing these allegations prior to the present H&C Decisions, or that the information was kept " “up its sleeve” " . Moreover, as dealt with in

Section VI(

A) of this judgment, above, the Respondent had no obligation to advance these allegations only in the context of an admissibility hearing before the Immigration Division. As the Respondent has pleaded, not only was there no obligation to do so, there was no practical need to, as the Applicants have no status - they are not convention refugees nor permanent residents. [ 116 ] Turning now to the applicable test as set out in Abrametz (para 101 ) , to determine if a delay amounts to an abuse of process: 1. First, the delay must be inordinate.

This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case; and 2. Second, the delay itself must have caused significant prejudice; 3. When these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute.

(1) Inordinate Delay [ 117 ] The Applicants plead that there are two periods at issue.

First, the delay tied to " “the failure to provide a fair opportunity in accordance with the statutory framework of IRPA to address before the Immigration Division the Applicants’ admissibility in light of their past involvement with the Chilean police and their defection from it.” " The Applicants submit that their inadmissibility is a complex legal issue and the delay spans some forty years. [ 118 ] Second, the Applicants raise the time frame for the delay in the H&C applications, originally filed in 1997, for a total of 23 years by the time of the Decisions at issue (including the redeterminations in between).

The Applicants submit that the " “H&C application is not complex” " and the current processing time is said to be 20 months. [ 119 ] The Applicants submit that the Minister has not provided any explanation for the delays and that such delays were not the responsibility of the Applicants. [ 120 ] The Respondent submits that the Supreme Court has determined that the fact that a process has taken considerable time does not itself amount to inordinate delay, and one must consider the processing time in light of all the circumstances of the case ( Abrametz at paras 50-51 ). The Respondent refers to the

section titled “Applicants’ Immigration History in Canada in the Decisions,” a

section that is four pages long for each Applicant, which the Respondent submits provides a full and detailed explanation of the processing time, demonstrating that, given the fact of the case, the delay is not inordinate. [ 121 ] The Supreme Court instructs that when determining whether a delay is inordinate, a court should consider a non-exhaustive list of contextual factors, including: (

a) the nature and purpose of the proceedings; (

b) the length and causes of the delay; and (

c) the complexity of the facts and issues in the case. Having considered the contextual factors, and conducted an in-depth and detailed review of the history of the various proceedings involving the Applicants since 1978 as contained in the 19-volume record, I do not find the delay to be inordinate. [ 122 ] As to the longer time frame of over 40 years to which the Applicants refer, it bears highlighting that during that period there have been well in excess of 20 proceedings commenced by the Applicants, including the various refugee claims, judicial reviews, appeals, actions, PRRAs, and H&C determinations. A detailed history is provided in

Section II (Context) of this judgment. The Applicants complain about the 40-year delay, but a careful review of the record demonstrates the following. First, there has been steady progress in what are complex cases with voluminous records. Second, it is the Applicants who have availed themselves of possibly every procedural step open to them in order to remain in Canada over the past 40 years. This was certainly within their right to do, and they should in no way be faulted for that.

Equally true, however, is that the Respondent should not be faulted for the fact that those steps have taken time and that over 40 years later, the issue of the Applicants’ activities while in DICAR and their continued efforts to regularize their status in

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