Date:
20060802
Docket:
IMM-4132-06
Citation:
2006 FC 951
BETWEEN:
NUREDDIN SOLMAZ, SULTAN SOLMAZ,
TAYYAR SOLMAZ, FATIH SOLMAZ
(by his litigation guardian,
NUREDDIN SOLMAZ) and KUBRA SOLMAZ (by her litigation guardian, NURREDIN SOLMAZ)
Applicants
and
THE MINISTER OF PUBLIC SAFETY
& EMERGENCY PREPAREDNESS
Respondent
REASONS
FOR ORDER
[1]
These
are the reasons why I stayed the administrative order removing the Solmaz
family from Canada yesterday.
[2]
Mr.
and Mrs. Solmaz, together with three of their four minor children, were found
not to be Convention refugees from Turkey. Thereafter, they went through a Pre-Removal
Risk Assessment (PRRA). The officer determined that there was no more than a
mere possibility of persecution should they return to Turkey, and so ruled against them. That decision is now the subject of an application for
leave and for judicial review under Federal Court docket number IMM-3915-06. Until
the negative PRRA decision was handed down, the Immigration and Refugee
Protection Act (IRPA), and the regulations thereunder, prevented the
authorities from removing the Solmazs from Canada. However, following the
negative PRRA decision, the details of their return to Turkey were assigned to
an enforcement officer who, under Section 48 of IRPA, was required to see to
their removal from Canada “as soon as is reasonably practical”.
[3]
Apart
from the fact that the Solmazs had a pending application for leave and for
judicial review of the negative PRRA decision, they asked the enforcement
officer to defer their removal for a number of other reasons, including the
fact that Mrs. Solmaz was scheduled to undergo a laparoscopic cholecystectomy
on 27 July 2006. This is a treatment for gallstones. Their departure from Canada was scheduled to take place the following day. They also requested a deferment because
of the best interests of their children, the youngest of whom was born in Canada and who is not subject to removal, and alleged irreparable economic harm to them, as well as to
others Mr. Solmaz employed in his business in Toronto.
[4]
In
the interim, for administrative reasons their departure date was moved back to
2 August 2006.
[5]
All
the enforcement officer said in his negative decision was “having considered
your requests, I do not feel that a deferral of the execution of the removal
order is appropriate in the circumstances of this case.”
[6]
The
Solmazs filed an application for leave and for judicial review of that
decision, and in both this docket number and docket number IMM-3915-06, which
relates to the negative PRRA decision, they sought a judicial stay of their
removal pending the outcome of their applications. The motion was heard on 1
August 2006, the day before their rescheduled departure. I dismissed the motion
for a stay in the PRRA matter, but granted a stay pending the outcome of the
application for leave and for judicial review of the decision of the
enforcement officer.
[7]
When
he made his decision, the enforcement officer was on notice that if Mrs. Solmaz’s
medical procedure took place, her specialist surgeon was on record as stating
that she would need one month for post-operative recovery and monitoring.
Although the operation is routine “there are several complications that can
arise from the procedure. Such complications include: bleeding from the liver,
infections, bile duct injury, a morbid complication. Post-operative care is
necessary after the procedure as a medical professional must watch for
jaundice, right upper quadrant pain, epigastric pain, nausea, vomiting, fever
without localising signs, or dyspepsia as indicators of problems secondary to
gallstone disease.”
[8]
However,
he acted on the assumption that Mrs. Solmaz would not undergo the operation. Without
telling her, he conferred with a doctor and was advised that the contemplated
procedure was semi-elective and non-urgent. The procedure was presumably
available in the United States where they were being removed over the short
term, and also in Turkey. However, his notes to file do not indicate that he
consulted with the doctor with respect to post-operative care.
[9]
As
it turns out, the Court was informed that the operation did take place and that
the post-operative examination is scheduled for 8 September 2006.
ANALYSIS
[10]
Mrs.
Solmaz was under no obligation to defer her operation, and it would be patently
unreasonable to deny a post-operative examination by her own doctor. I must
emphasize that this is a case in which the operation had been scheduled prior
to the negative PRRA decision. The circumstances might well have been different
had there been evidence that Mrs. Solmaz was able to manipulate the medical
system in such a way so as to schedule a procedure in order to defer her
removal.
[11]
The
enforcement officer is just that. He is not a doctor and it is not up to him to
decide that Mrs. Solmaz should have deferred the operation. That was a matter
between her and her doctor. Furthermore, the information he obtained from
medical sources was beyond the scope of the record and should have been shared
with the Solmazs so they would have had the opportunity to respond.
[12]
These
are serious underlying issues. Irrespective of the limits upon the discretion
of an enforcement officer to defer removal, medical circumstances is certainly
one reason. The decision not to defer put her at risk of irreparable harm. The
balance of convenience rested with her, and her family.
[13]
Quite
apart from the unfair hearing with respect to the medical operation, the
Solmazs had, through counsel, faxed a letter to the enforcement officer which
contained representations on the other issues mentioned above including the
best interests of the children and irreparable economic harm. That letter was
sent by fax and identified twelve attachments which were being sent by courier.
The decision was made on the basis of the letter, before the attachments were
received. I was asked to assume that the enforcement officer accepted all the
written representations in that letter, and therefore it was unnecessary to
consider the attachments. I am not prepared to make such an assumption. There
is a presumption in these matters that the decision maker has reviewed all the
material. In this case he did not. The audi alteram partem aspect of
natural justice requires that the Solmazs had an opportunity to fully present
their case. It has been said that even God did not remove Adam and Eve from the
Garden of Eden without a full hearing. Who was the enforcement officer to do
otherwise? (The King v. the Chancellor, & c., of Cambridge, (1723) 1 Stra. 557; Cooper v. The Wandsworth Board of Works (1863),
143 E.R. 414 at p. 420; and Matondo v. Canada (Minister of
Citizenship and Immigration) (2005) 44 Imm. L.R. (3d) 225, 2005
FC 416, [2005] F.C.J. No. 509 (QL)).
“Sean Harrington”
Ottawa, Ontario
August
2, 2006
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