N v. Canada

The author of the communication is N, a national of Chile born in 1947. He submits that by deporting him to Chile, the State party would violate his rights under articles 6 (1), 7, 12 (4), 13, 17 (1) and 23 (1) of the Covenant. He is represented by counsel. The Optional Protocol entered into force for Canada on 19 August 1976.

On 21 April 2023, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State party to refrain from deporting the author to Chile while his case was under consideration by the Committee.

On 26 April 2024, the State party requested to lift the interim measures. On 21 June 2024, the Committee, acting through its Special Rapporteurs, denied the State party’s request. The author remains in Canada.

From 1974 to 1977, the author worked for the security branch of the federal police intelligence service (DICAR) in Chile. He makes the following assertions. He wanted to resign when he learned that DICAR was responsible for human rights abuses but felt he would be in danger if he tried to do so. His then-wife, who was also a national of Chile and a member of DICAR, resigned from her post after their marriage. Shortly after her resignation, the author was dismissed from DICAR because he had been caught destroying records relating to an individual who had been wrongfully detained. After his dismissal, attempts were made to kill him and his then-wife.

On 25 February 1978, fearing for their lives, the author and his then-wife fled to Canada. In Canada, the couple had two sons who were born in 1978 and 1980 and have always lived in Canada. In November 2012, the author and his then-wife divorced. In December 2012, he married a national of Canada.

For over 45 years, the author has been pursuing various processes to remain in Canada. On approximately 13 separate occasions, the author’s allegations of risk have been assessed by independent Canadian decision-makers, who determined that the author would not face a risk upon removal to Chile. As described below, the domestic decisions include two redeterminations of the Immigration Appeal Board (1980 and 1985), two determinations on humanitarian and compassionate applications (1999 and 2020), and a decision on deferral of removal (2023).

On 15 March 1978, the author applied for refugee status in Canada, alleging that he had left Chile as a result of attempts to intimidate, harm and kill him in Chile. He claimed to have knowledge of human rights abuses committed by specific officials who would imprison and possibly kill him if he returned to Chile. On 3 August 1978, the Refugee Status Advisory Committee decided that the author was not entitled to refugee status, based on his involvement in DICAR. It also determined that the author was complicit in the torture and killings committed by DICAR. It further noted that the author had not experienced any difficulty in obtaining a Chilean passport and leaving the country despite his claims of persecution by the military regime.

On 15 June 1979, the author was subject to an inadmissibility hearing before the Refugee Status Advisory Committee. He was heard under oath and again presented a claim of refugee status. The Advisory Committee re-examined his refugee claim. In its decision of 14 November 1979, the Advisory Committee noted that the author had admitted having participated in and witnessed acts of torture and killings by DICAR. The Advisory Committee considered that it would violate the spirit and intent of article 1 of the Refugee Convention and its Protocol to grant refugee status to an individual who admitted participating in an official capacity in acts contrary to the principle of the Refugee Convention. Further, the Advisory Committee found that the author would not qualify for protection as a Convention refugee based on Canada’s Immigration Act of 1976. A representative of the U.N. High Commissioner for Refugees was present at the hearing and agreed with the decision of the Advisory Committee.

In 1980, the author appealed against the negative asylum decision of 1979 to the Immigration Appeal Board. On 1, 3 and 4 October 1980, the Board held a full hearing. In a decision of 21 November 1980, the Board determined that the author was not a refugee. The Board found many inconsistencies with respect to the author’s claim that DICAR officers considered him to be a threat because of his knowledge of their abuses. The Board noted that the author had completely omitted material information in his initial statements (made under oath) which he later provided during a hearing. Also, he had incorrectly stated the basis of his dismissal by DICAR. The Board found that the author had not left DICAR for reasons of suspected disloyalty but rather had been dismissed because he was considered a security risk on account of his health. The Board also considered that the author had failed to establish plausible facts upon which to base a fear of persecution and noted that DICAR had known that the author had planned to leave Chile. He had used his Chilean passport to leave the country and had left without any difficulty. The Board further considered that the author was outside the definition of a Convention refugee as, by his own testimony, he had participated in kidnappings and brutality.

The author sought review of the decision of the Board. In 1981, the Federal Court of Appeal set aside the latter decision and remanded the matter back to the Board for a redetermination as to whether the author was a refugee. Accordingly, the Board reopened the asylum proceedings and scheduled a hearing for 13 July 1982.

Following a subsequent appeal by the author, the Federal Court of Appeal remanded the asylum case back to the Immigration Appeal Board for a new assessment, finding that the Board had misstated the test for Convention refugee status. Specifically, the Board had examined whether the author would be subject to persecution in Chile, rather than examining whether he had a well-founded fear that he would be persecuted there.

For the reason described in paragraph 2.11 below, in 1982, the author withdrew his asylum application, but applied in 1984 to the Immigration Appeal Board to reopen it. In the same year, the Board granted the author’s request for redetermination. On 20 February, 9 April and 11 April 1985, the Board heard the author. During the hearings, the author was assisted by a Spanish interpreter and was represented by his current counsel. On 15 April 1985, the Board rejected the author’s application for redetermination. The Board again noted various issues with the author’s credibility. In addition, the Board did not accept the author’s claim that he had left Chile because of a fear of persecution by DICAR. The Board noted that the author was the only civilian member of DICAR at the time of his entry and devoted as much as 40 hours per week to his unpaid position there. After joining DICAR, his bakery was doing well financially. For example, the author had received a contract to supply bread at the DICAR political prison camp at Tres Alamos, Chile. He was also able to purchase a station wagon, which was considered a luxury, as the author noted that only 10% of people in Chile could afford to purchase a vehicle. In contrast, after DICAR dismissed the author in 1977, DICAR’s benefits to the author ended. His bakery business declined and he wound up having to sell it and his house. In addition, his wife was unemployed after leaving DICAR in April 1977 and was pregnant with the couple’s first child. The Board concluded that the couple’s departure from Chile was substantially motivated by economic considerations, and not from any fear of persecution as alleged by the author.

The author filed an appeal against the decision of the Immigration Appeal Board to the Federal Court of Appeal, but later withdrew it.

Meanwhile, on an unspecified date, the then-Minister of Employment & Immigration announced a landing policy for Chileans who had been in Canada before a certain date. The author, through his counsel, applied for a landing permit under that policy. The author maintains that during that process, he fully disclosed his prior involvement with DICAR. The author alleges that his counsel informed him that he would receive a Minister’s landing permit in Canada if he withdrew his application for redetermination before the Immigration Appeal Board. Subsequently in 1982, the author withdrew that application (see para. 2.9 above).

In a letter of 8 November 1983, the Office of the Minister of Employment & Immigration informed the author that his case had been personally reviewed by the Minister, who had determined that the author would not receive a landing permit because he had participated in acts of torture and did not deserve the protection of a democratic institution. The Office of the Minister indicated that the decision reflected the principle and intent of article 1 of the U.N. Convention Relating to the Status of Refugees and its Protocol. The Office of the Minister indicated that the author’s inquiries would proceed and that should removal orders be issued, he would be allowed time to arrange his affairs and to seek admission to a third country.

In 1986, the author and others made representations to a subsequent Minister (the Minister of State for Immigration), requesting him to issue a Minister’s permit and process his application for permanent residence on humanitarian and compassionate grounds. On 15 April 1986, the Minister issued the author a Minister’s permit for temporary residence which would expire on 24 January 1989, in order to allow time for the processing of his pending application for permanent residence on humanitarian and compassionate grounds. The Minister later maintained that when the permit had been issued, he had not been informed about the nature of the author’s involvement in DICAR. Public criticism from the Canadian Chilean community over the author’s case emerged after the press published information about it. On 13 November 1986, an immigration officer informed the author that the processing of his application for permanent residence was suspended. On 28 December 1988, the Minister of State for Immigration informed the author that the permit would not be renewed after the expiration date, and that he was required to leave Canada by 24 January 1989.

On 5 July 1989, the immigration authorities handed the author a deportation order. As a result, he filed an application to the Federal Court to revoke the deportation order and to order the Minister to process his application for permanent residence on humanitarian and compassionate grounds. He argued, inter alia, that he had been guaranteed a Minister’s Permit, that he had provided information about human rights violations by the Chilean Government to Amnesty International, and that the Canadian police had confirmed that his life would be in danger in Chile. On 24 July 1990, the Federal Court dismissed the application, noting that there was no evidence that a senior immigration official had guaranteed the author a Minister’s permit. The author had not submitted an affidavit to it. There was no evidence of a police investigation into the author’s safety upon return to Chile, only speculation. The Minister had been entitled to refuse to grant the author a permit after learning about the author’s conduct as a DICAR member.⁴

4. F.C.J. No. 647. ↩

The Federal Court considered that the previous favourable decision of the Minister to grant a temporary permit was extraordinary, given that the other Ministers and tribunals who had examined the author’s situation had decided that he did not deserve humanitarian and compassionate consideration. The Court considered that subsequent Minister’s decision not to grant the author a permit was lawful, and that there was no obligation to distort the system to accommodate the aberrant favourable decision of 1986. The Court stated that even the Minister who had made the favourable decision had receded from his initial position once he learned of the revulsion in the community over the author’s dark deeds for DICAR. The Court further noted that the author had made inconsistent statements as to the number of people who had been killed in operations in which he had participated with DICAR.

The Federal Court cited various legal standards and observed that aiding and abetting torture was barbaric and inherently criminal and that culpability for torture extended to those who watched it being carried out. It stated that apart from sympathy for the couple’s then-minor children, it had no compelling basis on which to afford the couple relief. The Federal Court concluded that the author had no legal right to remain in Canada.

In 1993 and 1994, while in Canada, the author provided statements to the Chilean authorities to assist them in prosecuting senior police officials in Chile for human rights violations that occurred when the author had been a member of DICAR. He states that he cooperated with the Chilean authorities despite fearing that the police officials would harm him if he returned to Chile.

In a reasoned decision of 6 June 1995, the Federal Court of Appeal dismissed the author’s appeal against the negative decision of the Federal Court. It considered that the deportation order had been lawfully issued, and that the fact that the author’s children were born in Canada did not confer on him a right to remain in Canada. On 11 January 1996, the Supreme Court dismissed both the author’s application for leave to appeal against the latter decision, and his request for a stay of execution of the deportation order.

On 22 January 1996, the author was informed that he was to be deported on 13 February 1996. On 31 January 1996, he contested the decision and on 5 February 1996, the Federal Court stayed the deportation order until it could hear his application for leave and judicial review. On 29 May 1997, the Federal Court stayed the author’s deportation order for 45 days, to allow him to submit an application on humanitarian and compassionate grounds (also known as an H&C application). The decision was based on new facts which the author alleged, concerning his declarations to the Chilean police in 1993 and 1994. He claimed that he had provided to the Chilean police in those years information on human rights abuses committed by DICAR.

On 11 July 1997, the author filed an H&C application, arguing, inter alia, that his home, family and children were in Canada. He was given an opportunity to provide further information in response to an initial assessment by the War Crimes Unit; this prolonged the proceedings. The War Crimes Unit determined that there was less than a mere possibility of risk for the author if he were returned to Chile. In 1999, the application was rejected. However, in 2000, the Federal Court granted the author’s request for redetermination, and the case was sent back for another review.

The second H&C application (redetermination) process took several years, as the author requested additional time to submit more information. On 14 January 2004, 23 January 2006, 21 October 2006 and 12 August 2008, he provided five lengthy submissions consisting of thousands of pages of materials. On 16 November 2012, the author’s H&C application was again rejected. The H&C officer noted that the author had taken part at least two dozen incidents of torture using electric devices, forcing individuals’ heads under water, and burning cigarette butts on individuals’ bodies.

The author again sought judicial review, and in 2013, the parties agreed that the application would again be redetermined, by a different H&C officer. On 27 July 2014, the author provided documentation to support his third H&C application. In 2015, 2018 and 2019, the author submitted additional information to supplement his claims. He requested numerous extensions, all of which were granted.

In 2020, the H&C application was again rejected in a decision of 55 pages with respect to the author. The H&C officer evaluated the author’s admissibility to Canada and considered his health, family status and years of continuous residence in Canada. The officer found that because of his DICAR activities, he would be inadmissible to Canada for security reasons. The officer evaluated the author’s admissibility to Canada and considered the 1990 Report of the Chilean National Commission on Truth and Reconciliation, which documented the human rights abuses during Chile’s military regime. The officer found that the author had participated in the following activities: he drove DICAR officers to locations where DICAR officers shot and killed individuals; he escorted DICAR officers to kidnap individuals; and he witnessed individuals being tortured and wrote down the tortured individuals’ statements. That officer also found that the author had kidnapped a parent who was tortured by electric shocks while the parent’s child watched. On 14 November 2022, the Federal Court rejected the author’s related application for judicial review in a reasoned decision.

In November 2012, the author and his then-wife divorced. On 11 December 2012, the author married a national of Canada. On 8 February 2013, she applied to sponsor the author in Canada. On 17 April 2014, the author was informed that there were no records on file confirming that he had temporary or permanent residence status in Canada.

On 21 September 2007, the author submitted a first PRRA application. His deportation was stayed while the application was being determined. On 17 September 2012, the application was denied in a reasoned decision. Following the author’s application for judicial review, the parties agreed that the PRRA application would be redetermined.

In January 2014, the author submitted a second PRRA application. It was suspended while the author’s third H&C application was being considered, and was subsequently reopened. On 13 April 2023, the author received an instruction to report for deportation. He then applied for an administrative deferral of removal. It was then deemed unnecessary to evaluate the same allegations of risk in the second PRRA application.

deferral of removal decision

In 2023, an immigration officer rejected the author’s application for deferral removal on the basis of, inter alia, his health issues. The officer made the following observations. The Canadian Border Service Agency would provide the author with a medical escort to travel to Chile. The author had not shown that he would be unable to access healthcare in Chile. He had ample time to arrange for medical care, housing and other personal affairs in Chile. His removal to Chile would not expose him to unusual or undeserved hardship.

The author did not apply for leave and judicial review of his negative deferral of removal decision.

The author claims that by deporting him to Chile, the State party would violate his rights to life with dignity and freedom from ill-treatment under articles 6 (1) and 7 of the Covenant. Born in 1947, the author is an older person, shows signs of dementia, and has Parkinson’s disease, diabetes and periods of depression. In Chile, he would not have access to the doctors who have been treating him for years. While he has family that lives in Chile, he has stated that he cannot rely on them for support. There is little chance that he would live long enough to be able to return to Canada. The author, his former wife, their sons, and the author’s current wife have suffered greatly because of the uncertainty surrounding the author’s removal.

The removal of the author would violate his right to re-enter under article 12 (4) of the Covenant, because Canada is his own country. He has lived there for more than four decades, has abided by the law there, and has never been charged with a crime. His Canadian wife and adult children were born in and live in Canada. Given his health condition, it is unclear whether he will be able to return to Canada, absent an authorization from the State party.

The removal of the author would also violate article 13 of the Covenant. With respect to the issue of his inadmissibility, he has never had the opportunity to argue his case before an independent and impartial decision maker. That issue was decided by the immigration officer who decided on his application for permanent residence. There was no inadmissibility hearing before the Immigration Division, as required by domestic legislation. The author has not been treated fairly, as there were lengthy delays in the domestic proceedings.

The removal of the author would arbitrarily interfere with his right to family life, in violation of articles 17 (1) and 23 (1) of the Covenant. In addition to the reasons stated in paragraph 3.2, no compelling reasons exist to deport him. His alleged complicity in human rights violations has not been proven and occurred nearly four decades ago. He has assisted government authorities in their efforts to prosecute those responsible for violations of human rights. The State party’s successive Ministers have granted and denied him residence permits, in conflicting and unexplained decisions. The long delay in alleging that the author is inadmissible to Canada was not reasonable or necessary.

In its observations of 26 April 2024, the State party considers that the communication is inadmissible because the author failed to exhaust domestic remedies (as he did not apply for judicial review of the decision of the Canadian Border Services Agency, dated 18 April 2023, to deny his request for deferral of removal),⁵ and because his claims are insufficiently substantiated. Over the past 45 years, the author has sought to regularize his status in Canada and has commenced over 20 proceedings for that purpose. The State party’s decision-makers have repeatedly and thoroughly considered the alleged risks to the author, have determined that the author’s account in relation to a fear of persecution in Chile is not credible, and have found that he would not be at risk of irreparable harm upon return to Chile.

5. See para. 6.2 for further developments. ↩

During the 16-year military dictatorship (1973 to 1990) of Augusto Pinochet in Chile, DICAR played a significant role in gathering intelligence concerning political targets. The clandestine operations carried out by DICAR included the kidnapping, detention, interrogation, rape and murder of the military regime’s political targets.

In 1974, when he was 27 years old, the author joined DICAR as a civilian member. Initially, he drove his bakery vehicle as a cover for DICAR and transported political targets to DICAR’s secret prisons for DICAR’s clandestine interrogations. The author had met his then-wife through DICAR, as she was a police officer and had transferred to DICAR.

During the three years when the author worked for DICAR, he was personally involved in at least 18 incidents involving torture and was aware of more than 10 deaths committed by DICAR. The author assisted with DICAR’s raids of political targets’ homes and workplaces. He was armed with a gun which he aimed at the political targets, to keep them in place while DICAR conducted raids. The author also escorted DICAR officers to kidnap individuals and drove those individuals to locations where the author knew they would be tortured and possibly murdered. The author witnessed DICAR officers torturing the political targets of the military regime through the use of electricity (electric shocks), water (by simulated drowning) and physical beatings. The author wrote down the answers of those individuals while they were being tortured. The author, as part of a DICAR team, went to a taxi union office to kidnap the union president. The union president was with his young boy, and the young boy was also kidnapped. The union president was handcuffed, blindfolded, and interrogated with electrical shocks, and the DICAR kidnappers forced the union president’s boy to witness his father’s torture.

The author stated to a Canadian domestic official that he was appalled by DICAR’s practices. However, it was noted that the author’s objection was not with the use of torture, but with the fact that his then-wife (also a DICAR member) had to be present to witness the use of torture.

Since the author’s arrival in Canada in 1978, his activities in DICAR have been a persistent issue in his domestic proceedings. Because of those activities, he has not been able to obtain permanent resident status, as he was determined to be inadmissible to Canada.

The communication is in essence a complaint that the author cannot obtain Canadian permanent resident status and he is simply unhappy with the outcome. All of the evidence submitted has been reasonably assessed by Canadian decision-makers, for the reasons explained above. He was repeatedly found to not be at risk upon return to Chile. The decisions were not clearly arbitrary, erroneous or unjust. With respect to article 12 (4) of the Covenant, Canada is not the author’s own country. He had lived in Chile for 31 years before arriving in Canada. He has retained Chilean nationality and has family ties in Chile. His situation is not a case where permanent residence status or citizenship have been wrongfully or arbitrarily withheld from him.

Regarding the author’s claim under article 13 of the Covenant that he lacked the opportunity for judicial review of his inadmissibility, his inadmissibility was determined by an H&C officer during the author’s third H&C decision of 21 February 2020. The author’s current allegations in his communication about his inadmissibility are the same allegations which he raised to the Federal Court in his application for judicial review of his third H&C decision. In its decision of 2022, the Federal Court explained its reasons for rejecting the author’s claims regarding inadmissibility and independent review and did not find a reviewable error in the H&C officer’s determination.

Regarding articles 17 and 23 of the Covenant, if the author is removed from Canada, he can maintain contact with his spouse and adult children (aged 43 and 45) by telephone and internet, and through their visits to Chile. There is no evidence that his deportation would irreparably sever his family ties. The Committee has found that the mere fact that certain family members are entitled to remain in a State party’s territory does not necessarily mean that requiring other family members to leave involves arbitrary interference. For the aforementioned reasons, the communication is also without merit.

In comments of 6 June 2024, the author reiterates his arguments and submits a statement from his current wife, dated 30 May 2024. She makes the following statements. The author’s health has continued to deteriorate, and he has sudden transient ischemic attacks almost every day and sometimes more than once a day. He also has Alzheimer’s disease/dementia, diabetes and essential tremors. An MRI in November 2023 showed that he has microangiopathy and brain atrophy. The author’s wife is the only person who cares for him on a daily basis and there is no one to do so in Chile. She does not speak Spanish. Neither she nor the author’s sons are willing to move to Chile. In Chile, the author only has distant relatives who would not assist him. The author is not close to his brother in Chile, who is also older and ill. The author cannot manage on his own and is unable to advocate for himself. The author is now 76 and his wife is 77. His removal would break up his family.

Without support systems, removing an elderly person in poor health with memory issues from their home to a strange place is traumatic and life-threatening. The author would die if he were removed to Chile. His removal would be cruel and disproportionate. His involvement in the Chilean police intelligence unit took place about 50 years ago. Canada let him stay in its territory for many years. The author is not claiming that he would be denied health care in Chile. Rather, he claims that his state of health is very poor, and removal would destroy the quality of life that he presently has and would likely jeopardize his health.

The author has denied involvement in the crimes of the Chilean police under Pinochet. He fears reprisals from police officers who viewed him as a traitor. He cooperated with the Chilean authorities in the 1990s. Those whom the author implicated in wrongdoing could be retired now, if they have not passed away. While their careers would no longer be on the line, they could try to exact revenge to stop the author from speaking out.

The State party never held a hearing before an immigration judge to determine if the author’s conduct in Chile was a crime against humanity or a war crime.

With respect to article 12 (4) of the Covenant, Canada has become the author’s own country. He is disaffected from Chile. He has intended to remain in Canada and has been attempting, from the time of his arrival in Canada, to regularize his status in the country.

Regarding articles 17 and 23 of the Covenant, the author is not capable of using the telephone or internet without assistance, and his family is unfamiliar with Chile and does not wish to visit him there. His sons have work obligations in Canada. The author requires daily family assistance.

In its additional observations of 4 October 2024, the State party provides new information regarding its position that the author has failed to exhaust domestic remedies which, if granted, would allow him to remain in Canada. On 12 April 2023, the author applied to the Canada Border Services Agency for deferral of removal. Two days later, before the decision on the application was issued, the author submitted the present communication with a request for interim measures.

On 18 April 2023, the Canadian Border Services Agency denied the author’s application for deferral of removal. On the same date, the author applied to the Federal Court for leave and judicial review of the negative decision. On 19 April 2023, the author filed a motion to the Federal Court to stay his removal. Two days later, on 21 April 2023, the author’s removal was cancelled owing to the Committee’s request for interim measures. Thereafter, the author withdrew his motion to the Federal Court to stay his removal. Furthermore, on 25 April 2023, the author discontinued his application for leave and judicial review to the Federal Court of the negative decision on his application for deferral of removal.

In addition, the author has not exhausted domestic remedies because he presented new evidence in his comments which he has not submitted to domestic decision makers, who have not had an opportunity to assess it. The new evidence consists of the statement of the author’s wife, a printout of the author’s prescribed medication, and a chart established by the author’s wife listing the times on which the author allegedly had transient ischemic attacks in April and May 2024.

The communication remains manifestly ill-founded. The author minimizes his crimes. In 1990, his current counsel stated to the Federal Court that there were no criminal grounds for not admitting him to Canada. In response, the Federal Court stated, “[I]t is with distinct incredulity that the Court greets counsel’s plea […]. Even barbarians and terrorists know full well that torturing and aiding and abetting torturers are barbaric and inherently criminal.”

In his comments, the author continues to minimize his involvement and criminal responsibility in DICAR. For example, in 121 instances, he refers to DICAR as the police, and casts himself as an innocent witness and bystander. That portrayal is irreconcilable with his participation in the brutal rape, kidnapping, interrogation, torture and murder of political dissidents.

The State party denies the veracity of the author’s allegations of errors in the domestic decisions (including procedural unfairness and inordinate delays) and emphasizes that they are part of the author’s strategy to minimize and deflect from his role in DICAR. The author’s strategy is illustrated by four examples. First, his allegation that he lacked access to an admissibility hearing is disingenuous. During his H&C application process, in a letter of 25 October 2019, the author argued against having an admissibility hearing. In contrast, the author now argues that the H&C officer erred by not referring the author for a hearing on admissibility. In any event, such a hearing was unnecessary to remove the author from Canada. That is because in 1988, he was informed that his temporary Minister’s Permit (issued in 1986) would not be renewed and that he was required to leave Canada by 1989.

Second, while the author now alleges that he has Alzheimer’s disease / dementia, he has failed to provide any medical report from his doctor with respect to a diagnosis of that nature. In fact, the author’s latest psychiatrist’s report makes no mention of dementia but indicates that the author has an adjustment disorder with anxiety, with “some possibly mild neurocognitive problems” and “age-appropriate cognitive decline”. The psychiatrist’s report also states that the author has normal behaviour, thinking, concentration and intellectual ability and no other serious psychiatric symptoms. The psychiatrist concluded that “[i]t does not appear that [the author] requires ongoing psychiatric management at this time.”

Third, the author is incorrect in his argument that the authorities unduly prolonged the domestic procedures. When it evaluated that claim, the Federal Court noted that it was the author who had initiated well in excess of 20 proceedings to remain in Canada, and that it was he who had used every possible procedural step to remain in Canada. The Federal Court thus concluded that the Minister of Citizenship and Immigration could not be faulted for steps taken over the past 40 years to address the author’s activities in DICAR. The Federal Court noted that the author’s “complaint is in essence not that the matter has not been resolved sooner, but rather that it has not been resolved in [his] favour.”

Fourth, the author vexatiously and frivolously alleges that certain decision makers lacked the impartiality and ability to determine his claims. If the author had a concern about the institutional capacities of the decision makers, he should have raised his concerns at the domestic level instead of using the Committee as a tribunal of fourth instance. The Committee has consistently stated that it is generally for the tribunals and decision-makers of States parties to evaluate facts and evidence and that important weight should be given to the assessments conducted by the State party, unless the evaluation by domestic decision-makers was manifestly arbitrary or amounted to a denial of justice. The material relied on by the author does not substantiate such a finding.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee notes the State party’s position that the communication is inadmissible because it is manifestly ill-founded. The Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant (para. 12). It is generally for organs of States parties to the Covenant to review or evaluate facts and evidence to determine whether a risk of irreparable harm exists.⁶ Considerable weight should be given to the assessment conducted by the State party unless the evaluation was clearly arbitrary or erroneous or amounted to a denial of justice.⁷

6. For example, C v. Sweden (CCPR/C/141/D/3307/2019), para. 8.6; J. v. Sweden (CCPR/C/140/DR/2936/2017), para. 7.5; Z v. Denmark (CCPR/C/137/DR/2795/2016), paras. 6.5 and 6.8; F and G. v. Denmark (CCPR/C/119/D/2530/2015), para. 8.2. ↩
7. Ibid. ↩

Concerning the author’s claim that his physical health would place him at risk of irreparable harm if he were deported, including because he would not have family support, the Committee notes that in the communication, the author stated that he had Parkinson’s disease, and that that diagnosis has not been indicated in medical documentation provided to the Committee. Regarding the author’s mental health, the Committee notes his claim that he has Alzheimer’s disease/dementia. The State party’s authorities observed that the author had not provided any medical documentation that indicated such a diagnosis and that the documentation he had provided indicated that he did not have dementia. The Committee considers that the documented health issues of the author (cognitive impairment, essential tremor, diabetes mellitus type 2, age (78 years), possible high cholesterol) do not in and of themselves substantiate that he would face irreparable harm upon deportation to Chile or would be unable to access health care in Chile, taking into account his family circumstances. The Committee considers that the author has not sufficiently substantiated that there was error or arbitrariness in the State party’s assessment of whether it would, by removing him to Chile, expose him to a real and personal risk of a violation of articles 6 (1) or 7 of the Covenant on account of his state of physical or mental health.

The Committee further notes that the State party’s authorities evaluated the author’s claim that if removed to Chile at present, he would still face a risk of reprisals from police who viewed him as a traitor. The author did not provide details about his claim that he faced risks to his life in the 1970s. The State party’s immigration authorities, after hearing the author, observed that he had been able to obtain a passport and lawfully leave Chile in 1978 without encountering problems, shortly after leaving DICAR. The immigration authorities did not find the author’s allegations of a risk of persecution by the Chilean authorities to be credible and considered that he had left Chile for economic reasons.⁸ The Committee also notes that nearly a half-century has passed since the author’s involvement with DICAR. It further notes the State party’s authorities’ finding that the Amnesty Law of 1978 in Chile would severely limit any risk of harm to the author. The Committee considers that he has not substantiated his claim that the State party’s assessment of his allegations that he would be killed or subjected to ill-treatment in Chile was clearly arbitrary or erroneous or amounted to a denial of justice. Accordingly, the Committee considers that the claims under articles 6 (1) and 7 of the Covenant are inadmissible under article 2 of the Optional Protocol.

8. See para. 2.9. ↩

Regarding the author’s claim under article 12 (4) of the Covenant, the Committee recalls that a State party must not, by depriving individuals of their nationality or expelling them to other countries, arbitrarily prevent those individuals from returning to their own countries.⁹ As to the question of whether Canada is the author’s own country, the Committee notes that the author arrived in Canada at the age of 31 and has been able to build ties in Canada over several decades because he has filed a large number of claims to avoid deportation. His first and second refugee claims were denied in 1978 and 1979, shortly after his arrival. The Federal Court noted that while the author could not be faulted for availing himself of the multiplicity of domestic mechanisms to seek protection and raise new, additional claims, the State party’s immigration authorities could not be faulted for allowing him to do so. The State party has never granted to the author a status which could justify his belief that he has a right to permanently remain in Canada, has the same rights as nationals or permanent residents of Canada, or would be for other reasons entitled to consider Canada his own country. Accordingly, in light of the aforementioned elements, the Committee considers that the author has not sufficiently substantiated that Canada is his own country within the meaning of article 12 (4) of the Covenant. That claim is thus inadmissible under article 2 of the Optional Protocol.

9. Falzon v. Australia (CCPR/C/140/D/3646/2019), para. 7.4. ↩

With regard to articles 17 (1) and 23 (1) of the Covenant, the Committee notes that the State party’s authorities thoroughly examined the author’s family-related claims on multiple occasions. They found, inter alia, that the difficulties that his deportation would cause him and his family were outweighed by the acts he had committed in DICAR, which rendered him inadmissible to Canada. The Committee recalls that the mere fact that certain members of the family are entitled to remain on the territory of a State party does not necessarily mean that requiring other members of the family to leave involves such interference.¹⁰ The Committee notes that the author’s children are in their 40s and that the author married his current wife, a national of Canada, in 2012, at a time when his removal proceedings were ongoing. He was aware at that time that he had no regular residence status in Canada. The Committee considers that while the author disagrees with the State party’s conclusions, he has not sufficiently substantiated that those conclusions were clearly arbitrary or erroneous. Those claims are therefore inadmissible under article 2 of the Optional Protocol.

10. For example, Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 8.7. ↩

Regarding the author’s claim under article 13 of the Covenant that the domestic proceedings (including surrounding the issue of his inadmissibility) were unfair, the Committee recalls that that provision directly regulates only the procedure and not the substantive grounds for expulsion.¹¹ The Committee observes that over the past 45 years, the State party’s authorities have conducted numerous risk assessments and have determined at least a dozen times that there was no real risk for the author upon return to Chile. In 1979, the year after he entered Canada, the Refugee Status Advisory Committee issued a reasoned decision in which it noted that the author had admitted participating in acts of torture and killings by DICAR and considered that refugee status could not be granted to an individual who admitted having participated in an official capacity in acts contrary to the principle of the Refugee Convention. A representative of the U.N. High Commissioner for Refugees was present at the hearing and agreed with the decision of the Advisory Committee.

11. General comment No. 15 (1986) on the position of aliens under the Covenant, para. 10. ↩

The author sought and obtained review of the determinations of inadmissibility by the Refugee Status Advisory Committee and the H&C officer. The Federal Court issued a reasoned decision in which it confirmed the decision of the H&C officer. The Committee further notes that during the H&C process in 2019, the author argued against having an admissibility hearing.

In response to the author’s claim that the State party has delayed the proceedings and should have deported him years ago if it wished to do so, the Committee notes that the State party handed him a deportation order on 5 July 1989. He was informed that travel arrangements had been made for him to be removed to Chile on 25 July 1989. However, he then filed subsequent claims to remain in Canada.

The Committee observes that in a decision of 24 July 1990, the Federal Court responded to the author’s claim that there had been delays in the proceedings. It noted that had the proceedings been expedited, the author would likely have raised two additional claims: that the relevant Minister had scorned the voluminous correspondence between her and the author and his counsels, and that the author would not have had enough time to apply to reopen his abandoned claims. After filing additional claims and appeals, the author received another deportation order, which was to have been executed on 13 February 1996, but it was stayed by a court order until the author’s application for judicial review could be determined. In 2022, the Federal Court again responded to the author’s claim that the authorities had delayed the proceedings and stated that after a careful review of the record, it had made the following findings. There had been steady progress in what were complex cases with voluminous records. It was the author who had availed himself of possibly every procedural step available in order to remain in Canada. That was certainly within his right, and he should not be faulted for continuously attempting to regularize his status in Canada. However, the immigration authorities should not be faulted for it, either. The author’s complaint was in essence not that the matter had not been resolved sooner, but rather that it had not been resolved in his favour.

In addition, the Committee notes that after the author filed his initial H&C application in 1997, he requested numerous extensions and filed numerous additional submissions and requests for redetermination over the course of many years, thus prolonging the proceedings. In view of the elements above, the Committee considers that the author’s claim that the State party’s authorities should have deported him earlier is incongruous with his pursuit of numerous procedures and claims to avoid deportation.

While the author now denies involvement in the crimes of the Chilean police under Pinochet, the Committee notes his admission during the domestic proceedings in 1978 and 1980, when he stated that he had been involved with DICAR in approximately 18 to 19 incidents of torture and in many kidnappings, including with the use of a firearm to coerce targeted individuals. The Committee also recalls that the Federal Court noted the author’s changing statements on the extent of his involvement in acts of torture and killing.¹²

12. Paragraph 2.15 (citing the decision of the Federal Court). ↩

In view of the foregoing, the Committee considers that the author’s claim under article 13 of the Covenant is inadmissible under article 2 of the Optional Protocol because it is insufficiently substantiated.

In the light of its findings, the Committee does not deem it necessary to examine other grounds of inadmissibility.

The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;

In this case, we respectfully disagree with the Committee’s decision to declare the author’s complaint, N, inadmissible. On the contrary, for us, his complaint is admissible, and the facts constitute a violation of several rights protected by the Covenant, including the right to privacy and family life (Art. 17 of the Covenant).

There is no doubt that the sovereignty of the State presides over access to and residence in its territory. This is why the International Law Commission’s Draft on Expulsion of Aliens recognises the State’s right of expulsion (Art. 3)¹³. However, the ILC also recognises that States have obligations under international law (Art. 5), including the obligation to respect human dignity (Art. 13). As this Committee and other human rights bodies have stated very clearly, the walls of sovereignty give way when the deportation of a person constitutes, for example, inhumane treatment or affects family life¹⁴.

13. A/69/10 (2014). ↩
14. General Comment No. 15, para. 5. ↩

This is the case here, which in Canada reflects a Kafkaesque process, attributable to the state, not to the author of the communication. His residence has been refused in thirteen proceedings, but the subsequent expulsion has not been carried out. This situation has created legitimate expectations and objective vulnerability for N because of his age, family circumstances, health and personal ties to Canada.

The State’s power to expel persons must be interpreted over time because there is a link between regularisation and human rights¹⁵. As we know, time is relevant for law (tempus regit actum; non-retroactivity; historical injustices). If it is relevant for things (usus capere; acquisitive prescription...), it is also relevant for individuals.

15. Report of the UN Special Rapporteur on Human Rights of Migrants (A/HCR/53/26, 2023). ↩

In the present case, the author has lived in Canada for 45 years and is 78 years old, ill and elderly, married twice, once to a Canadian, with children, and with long-standing roots. Canada has tolerated his stay in the country for almost half a century, without expelling him within a reasonable time. Canada’s passive behaviour, its acquiescent silence (qui tacet consentire si potuisset ac debuiset) has changed the State’s legal obligations towards this vulnerable person. If decades ago it could have expelled or even extradited him if requested, today his expulsion constitutes inhuman and degrading treatment, as it breaks his family ties, his bound with what is de facto his country, among other violated rights.

The Assembly of the Council of Europe in the Resolution of 27 February 2001 on the non-expulsion of long-term immigrants urges governments to recognise the residence of migrants for five years. In the case of N, we are talking about a period of 45 years. This situation keeps him in a legal limbo in which his full rights are illusionary. This person’s roots are removed with Canada once they have already been implanted, and this unduly prevents him from having and enjoying his rights.

This is a very exceptional case, due to the long period of time involved, but it is not unique. International jurisprudence is sensitive to observing the violation of human rights in similar cases, such as the Mortlock v. USA case of 25 July 2008, in which the Inter-American Commission on Human Rights found a violation of Article XXVI of the American Declaration of Human Rights and Duties (deportation to Jamaica from the USA), and in which the USA halted the deportation.

N’s deportation after 45 years living in Canada with the knowledge of the authorities, without having been deported long before, would be disproportionate, unnecessary and unreasonable. His bond with Canada is so deep that his removal would violate Article 12 of the Covenant (arbitrary deprivation to be in one’s own country). The thirteen procedures that have prevented the regularisation of his residence and non-removal have not prevented him from becoming increasingly entrenched in Canada, so that his deportation would constitute an inhuman or degrading act contrary to article 7 of the Covenant, which is also contrary to articles 17 and 23 as it would be a disproportionate and unreasonable interference with his private life and family, taking into account his age, health and other circumstances of the case.

In short, the expulsion violates N’s human dignity as a basic pillar of the edifice of human rights. His actions during the dictatorship in Chile cannot be used by Canada as a justification for deportation. As indicated above, the author has not been prosecuted for crimes against humanity or other offences either in Chile or in Canada and his extradition has not been requested.

In conclusion, we consider that the complaint is admissible and that the decision to expel him after 45 years of life in Canada is in contradiction with the State’s obligations under articles 7, 12 and 17 of the Covenant.