Date:
20130927
Docket:
IMM-8827-12
Citation:
2013 FC 995
Ottawa, Ontario,
September 27, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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SUZETTE ALICIA VASSELL-SAMUEL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision rejecting
the applicant’s sponsorship appeal.
Background
[2]
The
Immigration Appeal Division [IAD or the Board] heard the applicant’s case on
August 1, 2012 and made its decision on August 12, 2012. The applicant, Ms.
Vassell-Samuel, had been denied a request to sponsor her husband Mr. Edmondo St
Joseph Samuel for a permanent resident visa in the family class because he was
found to be inadmissible to Canada under section 52(1) of IRPA.
[3]
A
visa officer had determined in February 2012 that a removal order had been
enforced against Mr. Samuel in December 2000 and that he therefore required a
Minister’s written Authorization to Return to Canada [ARC], pursuant to section
226(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR].
[4]
Ms.
Vassell-Samuel appealed on humanitarian and compassionate [H&C] grounds for
special relief, taking into consideration the best interests of Mr. Samuel’s
son who was born in January 2000 from a short relationship with another woman
with whom he continues to share custody in Jamaica. The biological mother
apparently has consented to the son moving to Canada.
[5]
Ms.
Vassell-Samuel had married Mr. Samuel in July 2010 in Jamaica and wished to bring him and his dependent son to Canada.
[6]
The
circumstances of the removal in 2000 were that Mr. Samuel, then aged
twenty-six, had entered Canada as a visitor in 1999 but overstayed his
visitor’s visa when it expired on February 28, 2000 and had worked without a
work permit. On November 17, 2000, he was convicted of assault against a former
girlfriend. On September 28, 2000 a removal order was issued. Mr. Samuel was
deported from Canada on December 19, 2000.
[7]
The
applicant (the appellant before the IAD) met Mr. Samuel in 2006 while visiting Jamaica and a relationship developed. The IAD commented that the couple said they “kept in
touch almost daily”, but incorrectly stated that “during this almost daily
communication with the appellant, the applicant fathered a son who was born on
December 16, 2008 to a woman who is not the appellant.” In fact, Mr. Samuel’s
application form had indicated that his son was born on January 15, 2000.
[8]
In
November 2009, the National Parole Board’s Clemency and Pardons Division
advised Mr. Samuel that he had been awarded a pardon under the Criminal
Records Act for the convictions in 2000. The letter noted that this
signified the intent of Parliament that he should “no longer be made to suffer
any legal disabilities or penalties imposed as a result of a conviction.”
[9]
On
July 3, 2010, Mr. Samuel and Ms. Vassell-Samuel married. On July 14, 2010,
Mr. Samuel applied for permanent residence in Canada, giving false answers to
whether he had ever been ordered to leave the country and whether he had ever been
detained or jailed.
[10]
On
October 12, 2011, Mr. Samuel wrote to Citizenship and Immigration Canada to
request permission to enter Canada, stating his regret for the incidents which
gave rise to his convictions in 2000. A Justice of the Peace who had performed
the marriage provided a reference letter indicating that she had known him for
over 20 years and that he had expressed deep regret for his past mistakes. The Minister
of Citizenship and Immigration indicated that he had paid back all of the
deportation costs incurred on his behalf.
[11]
However,
the IAD found that, given the unexplained false statements in the 2010
application and the seriousness of the domestic assault in 2000, it was not
satisfied that he was remorseful. It stated that Ms. Vassell-Samuel “views the
applicant as a nice person who is gentle, soft-spoken and patient with his
child”, but “that is not the same person that is written about in the FOSS [Field
Operations Support System] notes”. It also found that there was no evidence
that Mr. Samuel had undergone any courses or received any assistance involving
anger management.
[12]
The
Board further found that Mr. Samuel was “doing a fine job of raising his son”
and that the boy was not suffering any hardship by living in Jamaica. In fact, it was in his best interest to remain near his mother and his siblings by
a different father. The Board noted that Ms. Vassell-Samuel had married Mr.
Samuel knowing that he had been deported in the past. It was not satisfied that
there were sufficient H&C considerations to warrant granting special
relief.
[13]
On
September 25, 2012, counsel for Ms. Vassell-Samuel wrote to the immigration
consultant who had represented the applicant in front of the IAD on August 1,
2012. Her counsel stated that “[f]rom a review of the materials it appears that
you failed to competently represent Ms. Vassell-Samuels and her spouse [. . .].
Further you failed to either adequately communicate with Ms. Vassell-Samuel and
her spouse the possible consequences in not calling the spouse to give evidence
or abandoned Ms. Vassell-Samuel’s right to call her spouse without her informed
consent.” Counsel noted that “[t]hese actions appears [sic] to be in
direct conflict with Rules 3.01(1), 3.01(4)(e) and 4.01(c) of the Paralegal
Rules of Conduct [. . .].”
[14]
An
affidavit in the record indicates that the Complaints and Discipline Department
of the Immigration Consultants of Canada Regulatory Council (ICCRC) has confirmed
by telephone that there are no complaints on file against this consultant. The
Regulatory Inquiries of the Law Society of Upper Canada (LSUC) confirmed by e-mail
that she has no past discipline history since public records have been kept
(February 27, 1986) and is not the subject of any current disciplinary
proceedings.
Issues
[15]
The
six issues raised by the applicant are:
a. Did the
Board err in relying on the circumstances surrounding the pardoned prior
convictions to impugn the Mr. Samuel’s character?
b. Did
the Board err in relying on charges which did not result in convictions and on
a police report to impugn Mr. Samuel’s character?
c. Did
the Board breach the applicant’s right to procedural fairness by relying on
omissions in the application for permanent residence to impugn Mr. Samuel’s
character without putting these to the applicant?
d. Did
the Board err in ignoring the period of time since the convictions occurred?
e. Did
the Board base its decision on an erroneous finding of fact that it made
without regard to the material before it?
f. Did
incompetence by Ms. Vassell-Samuel’s representative result in a miscarriage of
justice?
Standard of
Review
[16]
Ms.
Vassell-Samuel has submitted that the first issue (relying
on the circumstance surrounding the pardon) concerns
a question of law and that the third (relying on omissions in the
application for permanent residence to impugn the sponsored spouse) and last (incompetence of the applicant’s representative)
issues are questions of procedural fairness, and thus
that these three issues are reviewable on a standard of correctness.
[17]
The respondent has argued that the first issue is rather a
question of mixed fact and law, being the application of the effect of a pardon
to the particular case, and thus is reviewable on a standard of reasonableness.
It has also argued that the third issue calls for a standard of reasonableness,
given the required judicial deference to “decisions which assess credibility,
provided that the explanations given are rational or reasonable, or
that the evidence on the record permits the Appeal Division to reach, as the
case may be, a negative inference as to the credibility of an applicant” (Singh v Canada (MCI), 2002 FCT 347 at para 18).
[18]
I find that correctness applies to consideration of the first
issue as it stood before the Board in August 2012, although I note that
legislative changes since then have rescinded the National Parole Board’s power
to grant pardons under the Criminal Records Act. As Justice
Tremblay-Lamer explained in Boroumand v Canada (MCI), 2011 FC 643 at
paras 18-19:
18 Determining
the effect of a pardon
on an outstanding application for protection under subsection 112(1) of the
IRPA is largely a question of statutory interpretation. The Supreme Court of
Canada in Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 (Khosa), at paragraph 44, indicated that, "[e]rrors of
law are generally governed by a correctness standard." However, deference
will often result where an expert tribunal is interpreting its own statute (Khosa, above, at paragraph 44; Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at
paragraph 54).
19 Although I accept
that a PRRA officer-and in this case a PRRA coordinator-has significant
experience interpreting and applying sections 112-114 of the IRPA, that
experience does not extend to the interpretation and application of the pardon
provisions found in the Criminal
Records Act. As such, the appropriate standard of review to
apply in this case is correctness.
[19]
I find that correctness also applies to the third issue. In Sidhu
v Canada (MCI), 2012 FC 515, at para 38, Justice Russell explained
of a similar issue:
The first issue the Applicant has raised implicates her
opportunity to respond to the case against her (see Dios v
Canada (Minister of Citizenship and Immigration) 2008 FC 1322 at
paragraph 22, Adil v Canada (Minister of Citizenship and
Immigration) 2010 FC 987 at paragraph 17, and Rukmangathan
v Canada (Minister of Citizenship and Immigration) 2004 FC 284 at
paragraph 22). In Canadian Union of Public Employees (C.U.P.E.) v Ontario
(Minister of Labour), 2003 SCC 29, the Supreme Court of Canada held at
paragraph 100 that the "It is for the courts, not the Minister, to provide
the legal answer to procedural fairness questions." Further, the Federal
Court of Appeal in Sketchley v Canada (Attorney General) 2005 FCA 404 at
paragraph 53 held that the "procedural fairness element is reviewed as a
question of law. No deference is due. The decision-maker has either complied
with the content of the duty of fairness appropriate for the particular
circumstances, or has breached this duty." The standard of review with
respect to the first issue is correctness.
[20]
For the last issue, this Court has found that alleged incompetence
by a representative is indeed an issue of procedural fairness, reviewable on a
standard of correctness; see for instance Galyas v Canada (Minister of Citizenship and Immigration), 2013 FC 250, at paras 26-27.
[21]
For
the other three issues, there is agreement that the standard is reasonableness.
See generally Andujo v Canada (Minister of Citizenship and Immigration), 2011 FC 731 at para.22; Akbari v Canada (MCI), 2006
FC 1421 at para 11; Chazaro v Canada (MCI), 2006 FC 966, at para 21.
Analysis
[22]
As
I understood this matter, the issue was whether, taking into consideration the
best interests of a child directly affected by the decision, there were
sufficient H&C considerations to overturn the refusal of an application for
a permanent resident visa made by Mr. Samuel.
[23]
At
paragraph 36 of its decision, the Board found that the best interests of Mr.
Samuel’s son were that he continued to be with his father and near his siblings
and biological mother in Jamaica. No challenge has been made to this finding
which I find reasonable in all the circumstances. Nevertheless, the Board chose
to examine the marriage as a factor and appears to have based its decision
largely on whether Mr. Samuel had turned his life around and was a changed
person from 12 years ago when deported from Canada.
[24]
In
this regard, the Board made some significant errors in its analysis and as
such, the application must be allowed and the decision set aside. My reasons
explaining this decision follow.
1.
Did incompetence by Ms. Vassell-Samuel’s representative result in a miscarriage
of justice?
[25]
I
start with the last of the aforementioned issues, that of the alleged
incompetence of Ms. Vassell-Samuel’s representative, in particular the decision
not to call Mr. Samuel as a witness. I find that the effect of the failure of Mr.
Samuel to respond to certain points impacts on other issues in the case, such
that this question needs to be resolved in advance of their consideration.
[26]
The
requirements for the granting of a new hearing on the grounds of the incompetence
of counsel are set out in Betesh v Canada (MCI), 2008 FC 173 at para 15
as follows:
The applicants acknowledge that they must meet a very strict test
in order to be granted a new hearing based on the incompetence of their
advisor. Justice Marshall Rothstein stated that a new hearing should be granted
only in the most exceptional cases: Huynh v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 642 (T.D.) (QL). Further, they must show
that there is a reasonable probability that the result would have been
different: Shirvan v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J.
No. 1864, 2005 FC 1509. Generally speaking, they must also show that the advisor
was given notice of the allegation of incompetence and a chance to respond: Shirvan, above; Nunez v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 555.
[27]
Ms.
Vassell-Samuel’s previous representative, an immigration consultant, has been
put on notice that her representation was deemed incompetent because:
a. She
failed to canvass the particulars of the spouse’s previous convictions so as to
make a determination as to whether or not to call him as a witness;
b. She
failed to make the applicant aware of the potential negative consequences of
not calling the spouse to give evidence;
c. She
failed to obtain the judge’s reasons for sentencing in the assault case so as to
dispel the negative impression left by the FOSS notes.
[28]
The
former representative indicated that these allegations were untrue and asked
for an affidavit supporting them. Ms. Vassell-Samuel has not provided the
affidavit, which to a certain extent leaves the ball in her court in providing
an opportunity for the consultant to respond. However, I do not think any
failure in this regard would be fatal to the court’s consideration of the issue.
[29]
With
respect to the failure to obtain the judge’s reasons for sentencing to dispel
the negative impression left by the FOSS notes, I find that the consequences of
any failure of this nature would depend on the content of the judge’s reasons
and likely the statement of facts accompanying the guilty plea, which are unknown.
Moreover, as shall be seen below, the FOSS statement could not be entered into
evidence. No prejudice therefore arises from the failure to have the guilty
plea statement. I note however, that if the statement described more serious
conduct than was provided by Ms. Vassell-Samuel to the Board, her situation
would have been more advantageous by not having the court statement. It could
have been used against Mr. Samuel in the context of his not testifying. Given
his pardon, he had no onus to bring it forward.
[30]
With
respect to any alleged negligence in not calling Mr. Samuel, the starting point
is to determine the appropriate standard of conduct that should be imposed on
an immigration consultant in advising a client whether a party or witness
should testify. No expert evidence was led on this issue, without which the
appropriate standard is far from clear. It is certainly not the same standard
of care as required of a lawyer at the hearing. Having decided to engage a
consultant, the client cannot seek to measure his competence by that of a
lawyer.
[31]
That
is not to say that there are not aspects of the standard imposed on an
immigration consultant similar to those of a lawyer (see Brown v Canada (MCI), 2012 FC 1305). The issue is whether the alleged negligent conduct falls
within the lower standard of care or is a matter that should be understood to
fall only within the lawyers’ professional norms.
[32]
The
decision whether to call a witness entails a large discretionary component
involving a variety of factors depending on all the circumstances and is
therefore in some respects challenging for experienced lawyers. As well, no jurisprudence
was provided on the nature of circumstances attaching liability to a lawyer for
not calling a witness. The matter apparently was discussed with the client and
little in the way of evidence has been provided about the nature of those
discussions, except an allegation that Ms. Vassell-Samuel should have been
advised of the consequences of not calling her spouse.
[33]
In
Valle Lopes v Canada (MCI), 2010 FC 403, where counsel completely failed
to file final written submissions, this was not considered sufficient to prove
incompetence resulting in a material difference in the outcome and a
miscarriage of justice. In the present case, the applicant acknowledges that
she and her former representative weighed the pros and cons of calling the
spouse as a witness, and that the applicant ultimately accepted the
representative’s advice not to do so. I am not satisfied that Ms.
Vassell-Samuel has demonstrated incompetence on the part of her representative
at the hearing.
[34]
In
addition, I do not find that Ms. Vassell-Samuel has met the high onus of
demonstrating that she was substantially prejudiced by an error on the part of counsel,
or that this prejudice flowed from the actions or inactions of counsel, or that
the prejudice brought about a miscarriage of justice (Shirvan v Canada (MCI),
2005 FC 1509, at para 20). Ms. Vassell-Samuel argues that the majority of the
IAD’s decision was premised on the spouse not having been called to answer
questions regarding the previous convictions and the omissions in his
application forms. It is to be recalled that Ms. Vassell-Samuel complains that
she was not advised of the Board’s intention to use the incorrect information
on the application form against Mr. Samuel. It is difficult therefore to blame
the representative for not considering this issue in not calling Mr. Samuel.
[35]
Regarding
the FOSS notes, as already presaged and will be explained below, I find that
the Board erred in using the notes for any purpose in the absence of Mr.
Samuels testifying. Had he been called there is some scope for him to have been
cross-examined using the notes. In the circumstances therefore, the likely
prejudice to the appellant’s case lay more in calling him than not.
Accordingly, I reject the applicant’s submission that any conduct of her
representative has resulted in a miscarriage of justice.
2. Did
the Board err in relying on the circumstances surrounding the pardoned spouse’s
prior convictions to impugn his character?
3. Did
the Board breach the applicant’s right to procedural fairness by relying on
omissions in the application for permanent residence to impugn the sponsored
spouse’s character without putting these to the applicant?
4. Did
the Board err in relying on charges which did not result in convictions and on
a police report to impugn the sponsored spouse’s character?
[36]
The
appellant argues that pursuant to section 5 of the Criminal Records Act,
the effect of a pardon is that the conviction it applies to should no longer
reflect adversely on a person’s character, which she argues has occurred here. That
provision, as it read until its repeal on June 13, 2012, by the Safe Streets and Communities Act, SC 2012, c 1, stated:
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Effect
of pardon
5. The
pardon
(a) is evidence of the fact that
(i) the Board, after making inquiries, was
satisfied that the applicant for the pardon was of good conduct, and
(ii) the conviction in respect of which the
pardon is granted should no longer reflect adversely on the applicant’s
character; and
(b) unless the pardon is subsequently
revoked or ceases to have effect, requires the judicial record of the
conviction to be kept separate and apart from other criminal records and
removes any disqualification or obligation to which the person so convicted
is, by reason of the conviction, subject by virtue of the provisions of any
Act of Parliament — other than section 109, 110, 161, 259, 490.012, 490.019
or 490.02901 of the Criminal Code, subsection 147.1(1) or
section 227.01 or 227.06 of the National Defence Act or section
36.1 of the International Transfer of Offenders Act — or of a
regulation made under an Act of Parliament.
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Effacement de la
condamnation
5. La
réhabilitation a les effets suivants :
a) d’une part,
elle établit la preuve des faits suivants :
(i) la Commission, après avoir mené les
enquêtes, a été convaincue que le demandeur s’était bien conduit,
(ii) la condamnation en cause ne devrait
plus ternir la réputation du demandeur;
b) d’autre
part, sauf cas de révocation ultérieure ou de nullité, elle entraîne le
classement du dossier ou du relevé de la condamnation à part des autres
dossiers judiciaires et fait cesser toute incapacité ou obligation — autre
que celles imposées au titre des articles 109, 110, 161, 259, 490.012,
490.019 ou 490.02901 du Code criminel, du paragraphe 147.1(1) ou
des articles 227.01 ou 227.06 de la Loi sur la défense nationale
ou de l’article 36.1 de la Loi sur le transfèrement international des
délinquants — que la condamnation pouvait entraîner aux termes d’une
loi fédérale ou de ses règlements.
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[37]
It
is not possible to separate the issues of relying on circumstances surrounding
a pardon, resort to the FOSS notes, and relying on omissions in Mr. Samuel’s
application for permanent residence, such that I will treat them together.
[38]
I
find that the Board did not rely upon Mr. Samuel’s convictions. Rather, when
faced with what it thought were inconsistencies between his application for
permanent residence and his statements to Ms. Vassell-Samuel about the
circumstances underlying his convictions, the Board concluded that it could go
behind the convictions and consider the underlying events.
[39]
Thus,
in paragraph 32 of its reasons, the Board justifies its conclusion that Mr.
Samuel has not matured and is not remorseful regarding his criminal conduct for
which he was convicted because of the false statements in his application and
because he did not dispute the serious nature of the domestic assault described
in the FOSS notes due to his failure to testify.
[40]
The
applicant’s first submission is that the Board breached procedural fairness in
referring to the false statements in the application when they had not been
raised during the hearing, nor otherwise drawn to her attention.
[41]
On
the side of the Board’s rationale, I note that it was Mr. Samuel’s application that
contained the error and therefore it was his requirement to provide an
accounting for the error on the face of the document. The fact that Ms.
Vassell-Samuel could have provided an explanation for the omission would not
impose an obligation on the Board to raise the matter in light of Mr. Samuel
not testifying. There is no reason for the Board to have thought that Ms.
Vassell-Samuel could comment on a document to which Mr. Samuel was the signatory
and responsible for its contents.
[42]
Nevertheless,
I am in agreement that there has been a failure of procedural fairness. The
problem arises from the respondent failing to give notice of the omission in
the application or taking it up in any fashion during the hearing. When the
appellant is not aware of a significant issue in the case that had to be met,
either by way of evidence presented or argument by the adverse party,
procedural unfairness occurs which cannot be remedied by the fact that the
decision-maker raises the issue after the hearing. The failure of the spouse to
testify is not relevant to this issue. If the Board wished to rely on the point
after the hearing, it was required to give notice to the complainant.
Otherwise, it has acted unilaterally to favour one party who did not give
notice of the issue, while also denying the other a chance to respond.
[43]
There
is an equally serious problem with the Board’s justification in attributing to
Mr. Samuel the conduct described in the FOSS notes on the basis of his failure
to testify. This issue only came about because Ms. Vassell-Samuel testified in
chief about Mr. Samuel’s description of the facts underlying his assault and
obstruction conviction. Upon comparing this version with that in the FOSS
notes, the Board concluded that Mr. Samuel had not reformed and was not
remorseful.
[44]
The
Board adverted to police notes being notorious for presenting just one side of
events, no doubt being aware of Justice Mosley’s comments in Rajagopal v
Canada, 2007 FC 523 at para 43 that police notes “are not findings of fact
reached by the court that convicted the applicant and imposed sentence.” The Board
nevertheless stated that “it [police notes] can be different [facts underlying
the guilty plea], but usually it’s similar”. If by this comment the Board assumed
that it could rely on the notes for the proof of their contents, it was in
error. The best evidence of the circumstances underlying the conviction was that
which was read into the record with the guilty plea. The onus was on the
respondent to produce these or other reliable documents if it wished to use
them to go behind the pardoned conviction. Those not being before the Board,
the matter should have stopped there.
[45]
The
fact that Mr. Samuel did not testify cannot be used to justify the report being
used to prove the truth of its contents. The police report has no factual value
standing on its own without a witness to put it in as evidence or back it up in
some fashion. Had Mr. Samuel testified and had the report been put to him, he might
have admitted the truth of its contents, making it evidence for that purpose.
The more likely scenario however, would have been a complete denial of its
contents, in which case it would have no value to prove the truth of its
contents. Otherwise, if it was used to attempt to undermine Mr. Samuel’s
credibility, Mr. Samuel could have rejected of the truth of its contents with
impunity. The Minister was in no position to prove otherwise the accuracy of the
contents of a document created some twelve years ago.
[46]
The
Board relied heavily on the significant inconsistencies between the version of
what Ms. Vassell-Samuel related Mr. Samuel told her about the circumstances of
his conviction and that contained in the FOSS report to conclude not only that
Mr. Samuel was not prepared to admit the truth of his past history, but that
“he’s a scary guy and he may even need anger management help”. This evidence
was crucial to the Board’s findings that Mr. Samuel had not matured, was not remorseful
and was “not the same person” (as described by Ms. Vassell-Samuel or the
letters of recommendation). In my view, there is no foundation for these
findings from the police report and Mr. Samuel’s failure to testify.
[47]
With
the rejection of the foundation to go behind the convictions, I further find
that the Board violated section 5 of the Criminal Records Act by
referring to Mr. Samuel’s conviction in respect of which a pardon
was granted in a manner that reflected adversely on his character.
5.
Did the Board base its decision on an erroneous finding of fact that it made
without regard to the material before it?
[48]
The
Board stated in its reasons that in 2008, two years after the applicant met her
sponsored spouse, he fathered a son with another woman. This was incorrect. As
was set out in the materials, the spouse’s son was born eight years earlier, in
2000 and presumably is the child whose best interests are those being
considered in this matter.
[49]
The
respondent accepts that there was a factual error with respect to the
sponsoree’s son, but argues that it was only given little weight, that the bona
fides of the marriage were not contested, and that the mistake was not
material. It argues that the Court should exercise its discretion to refuse
relief regarding inconsequential errors; particularly when a result is
inevitable, an error may not require a decision to be set aside.
[50]
The
Board’s reasons convey concern that Mr. Samuel has not changed from his
previous character despite the pardon and the letter of recommendation. Indeed,
the appellant complains with some justification that no consideration has been
given to the number of years that have passed since 2000 when Mr. Samuel was convicted
of the assault. In these circumstances, Mr. Samuel’s respect and caring for Ms.
Vassell-Samuel would normally be undermined by him having another child with
another woman when in a relationship with the appellant. It is part of the
narrative that the Board relies upon to ask Ms. Vassell-Samuel whether she
thinks Mr. Samuel might be using her to come to Canada. Having a child by
another woman while courting the appellant surely would be seen as probative
evidence to support the conclusion that Mr. Samuel had not changed his ways. This
was therefore a significant mistake of fact.
[51]
For
all of the foregoing reasons, I am not satisfied that the Board’s decision was
justified or reasonable in so far as it was based upon the Board’s negative conclusions
about Mr. Samuel’s character and moral qualities.
[52]
Accordingly,
the application is allowed and the Board’s decision is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is allowed.
“Peter Annis”
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