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digest of the week - “ ‘People smuggling’ disregards motive”

2012 CarswellNat 4784

Rodriguez Hernandez v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court
Judgment: December 4, 2012

Immigration and citizenship | Exclusion and removal | Inadmissible classes | Organized crime

Claimant was convicted of alien smuggling for attempting to unlawfully assist relatives to enter United States — Claimant was not motivated by profit — Claimant applied for refugee status in Canada but was found inadmissible by reason of organized criminality under s. 37(1)(b) of Immigration and Refugee Protection Act — Claimant applied for judicial review — Application granted — Board's interpretation that "people smuggling" in s. 37(1)(b) did not include element of profit motive was incorrect — Terms "people smuggling" in s. 37(1)(b) and "human smuggling" in s. 117 were different and therefore had different meanings — There was plausible reason for distinguishing between two types of smuggling — Person convicted of human smuggling or its equivalent for humanitarian reasons was still inadmissible for serious criminality under s. 36(1)(b) of Act — Term took its meaning from context of other activities listed in s. 37(1)(b) that are done for profit and that were also listed in United Nations Convention against Transnational Organized Crime and in Protocol.

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