Jesus Rodriguez Hernandez v. Minister of Public Safety and Emergency Preparedness

(Federal) (Civil) (By Leave)




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Charter of Rights and Freedoms - Right to life, liberty and security of the person - Immigration law - Inadmissibility and removal - Inadmissibility under s. 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling - What is the standard of review in respect of the Immigration Division of the Immigration and Refugee Protection Board’s interpretation of the scope of s. 37(1)(b)? - What is the scope of s. 37(1)(b)? - Is s. 7 of the Charter engaged in the inadmissibility process before the Board?

Mr. Hernandez is a 43-year-old Cuban national who left Cuba for the United States in 2001, fearing persecution because of his participation in democratic movements opposing the policies and practices of the Cuban government. He was granted asylum in the U.S. in 2001.

In 2003, Mr. Hernandez returned to Cuba to assist his family to leave the country and enter the U.S. While in the U.S., he and two others bought a boat and left Florida for Cuba, purportedly to pick up family members. Forty-eight Cuban nationals boarded the vessel. They were later apprehended 80 to 100 km from the U.S. coast. American authorities convicted Mr. Hernandez of the offence of alien smuggling. He was subject to deportation from the U.S.

Following his release from prison, after serving a sentence of 12 months and 1 day, Mr. Hernandez came to Canada, where he made a refugee claim. Mr. Hernandez was found inadmissible under s. 37(1)(b) for having engaged in people smuggling.

Lower Court Rulings

November 12, 2013
Federal Court of Appeal

A-563-12, 2013 FCA 262
Appeal allowed; application for judicial review dismissed