Wang v. Canada

Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 FCR 682, 2001 FCT 148 (CanLII)

• This decision deals with the scope of the discretion afforded to a removals officer in s. 48(2) IRPA with respect to enforcing removal. Note that s. 48(2) IRPA now says “as soon as possible” rather than “as soon as reasonably practicable”. Please see the most recent case-law citing Wang for updates, as it is not clear what effect the change of language will have.
• This case also deals with the “serious issue” prong of the tripartite test in Toth where the underlying application challenges the failure to defer removal. In these circumstances, the court must look at the likelihood of success rather than the lower test of “not frivolous or vexatious” from RJR.

• Claimant arrived as a visitor in 1997 and overstayed his visa
• He then claimed refugee status and was denied, and later claimed something similar to what is now a PRRA and was denied – no JR of either decision was undertaken
• Didn’t appear for removal when he was supposed to and was arrested
• Then married his current spouse; they applied to have him sponsored and his PR application processed while he remained in Canada on H&C grounds
• Later arrested again on immigration warrant and informed that he would be deported to China in five days. He requested that his removals officer defer removal until the H&C Application was evaluated, but the request was denied.
• He then sought a stay of removal pending JR of the decision refusing to defer removal (this is that decision).

• [8]…The structure of the process allows the applicant to obtain his/her relief on a lower standard on the interlocutory application, notwithstanding the fact that the relief is the same as that sought in the judicial review application. It is this congruence of the relief sought in the interlocutory and the final application which leads me to conclude that if the same relief is sought, it ought to be obtained on the same basis in both applications. I am therefore of the view that where a motion for a stay is made from a removal officer’s refusal to defer removal, the judge hearing the motion ought not simply apply the “serious issue” test, but should go further and closely examine the merits of the underlying application.

• [32] Aside from questions of travel arrangements and fitness to travel, the execution of the order can only be affected by some other process occurring within the framework of the Act since the Minister has no authority to refuse to execute the order. Accordingly, a request for deferral can only be made in the context of some collateral process which might impinge upon the enforceability of the removal order. To put it another way, if the order must be executed regardless of the outcome of the collateral process, what rationale is there for deferral? As a result, it seems to me that the appropriate inquiry is whether the process in question could result in a situation in which the execution of the removal order was no longer mandatory.

[33] Consequently, the expression “to defer” refers to two different concepts. It is used in the sense of a temporal displacement: the execution of the removal order will be deferred until tomorrow. But it is also used in the sense of granting precedence to, or yielding to, some other process. The two senses are related, yet distinct.

[43]This analysis sketches the logical boundaries of the discretion to defer. What are the legal boundaries? The grant of discretion found in section 48 of the Act may not contemplate that deferral is appropriate whenever it could logically make a difference. In fact, the imperative terms of section 48 of the Act suggest otherwise. Furthermore, there is a line of authority to the effect that the mere presence of an outstanding H & C claim, is not grounds for a stay of execution (and by extension, for a deferral). Finally, defining the discretion to defer too broadly risks creating the equivalent of a statutory stay where Parliament declined to do so. What limits are imposed upon the range of available options by the expression “as soon as reasonably practicable”?

[48]It has been recognized that there is a discretion to defer removal though the boundaries of that discretion have not been defined. The grant of discretion is found in the same section which imposes the obligation to execute removal orders, a juxtaposition which is not insignificant. At its widest, the discretion to defer should logically be exercised only in circumstances where the process to which deferral is accorded could result in the removal order becoming unenforceable or ineffective. Deferral for the mere sake of delay is not in accordance with the imperatives of the Act. One instance of a policy which respects the discretion to defer while limiting its application to cases which are consistent with the policy of the Act, is that deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances and where deferral might result in the order becoming inoperative. The consequences of removal in those circumstances cannot be made good by readmitting the person to the country following the successful conclusion of their pending application. Family hardship cases such as this one are unfortunate but they can be remedied by readmission.
Wang in other case-law, especially re: Removal Officer’s scope of discretion in deferring removal:

Tiliouine v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1146 (CanLII), <>

o [10] Pursuant to subsection 48(2) of the Act, removal orders are to be enforced “as soon as possible”. The discretion to defer removal is therefore narrow and limited. However, removal officers do have such discretion where “failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment” (Wang, above at para 48; Baron v Canada (Public Safety and Emergency Preparedness), 2009 FCA 81 (CanLII), [2010] 2 FCR 311, at para 51 [Baron]).
[11] In the context of pending H&C applications, deferral will be justified where such applications are based upon a threat to personal safety (Baron, at para 51). In such context, the Court has ruled that where, as here, there is evidence of irreparable psychological harm resulting from the removal itself, it is not enough for the removal officer to simply examine the availability of health care and treatment in the home country (Sha v Canada (Citizenship and Immigration), 2011 FC 1269 (CanLII), at para 58; Davis v Canada (Citizenship and Immigration), 2011 FC 97 (CanLII), at para 19).
Newman v. Canada (Public Safety and Emergency Preparedness), 2016 FC 888 (CanLII), <>

o [18] Removal officers have a narrow discretion and their authority to defer the execution of a removal order exists only in very limited circumstances arising just prior to the removal date. This was acknowledged by the Federal Court of Appeal in Baron, where Mr. Justice Nadon stated that “it is trite law that an enforcement officer’s discretion to defer removal is limited” (Baron at para 49). Deferral is to be reserved for those cases where “failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment” (Baron at para 51; Wang v Canada (Minister of Citizenship and Immigration), 2001 FCT 148 (CanLII), [2001] 3 FC 682 [Wang] at para 48). An enforcement officer may also exercise his or her discretion to defer when issues relating to the timing of the execution of the deportation order arise, such as factors relating to travel arrangements or fitness to travel, illness, a child’s school year, or a pending birth or death (Baron at para 51; Simoes v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15668 (FC), [2000] FCJ No 936 [Simoes] at para 12). I also emphasize that subsection 48(2) of IRPA expressly states that a removal order must be enforced “as soon as possible.” The Minister has no authority to refuse to execute the order.
[19] Furthermore, no matter how compelling or sympathetic an applicant’s H&C application may be, CBSA enforcement officers are under no duty to investigate H&C factors put forth by an applicant as they are not meant to act as last minute H&C tribunals. The obligation to conduct an H&C assessment properly rests with an officer deciding an H&C application. It is well established that a removal officer is not required to conduct a preliminary or mini H&C analysis and to assess the merits of an H&C application (Shpati v Canada (Minister of Public Safety & Emergency Preparedness), 2011 FCA 286 (CanLII) [Shpati] at para 45; Munar v Canada (Minister of Citizenship & Immigration), 2005 FC 1180 (CanLII) at para 36; Prasad at para 32).