2022 FC, 2022 FC 1397

Date: 20221012 Docket: IMM-2782-21 Citation: 2022 FC 1397 Halifax, Nova Scotia, October 12, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:ABAYOMI OLUMIDE OGUNDIRANApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent REASONS AND JUDGMENT [1] Mr.

Abayomi Olumide Ogundiran (the “Applicant”) seeks judicial review of the decision of an Officer (the “Officer”)refusing his application for permanent residence pursuant to the “Pathway for Health Workers” program, developed pursuant to theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). [2] The Applicant, a failed refugee claimant from Nigeria, worked 821.5 hours for a health care provider in Brampton, Ontario. [3] In the decision, the Officer rejected the application on the grounds that the Applicant “was given a stipend and was notengaged in paid employment for work performed as a Home Support Worker”. [4] The Applicant, relying on the description of “work” in a document published by the Government of Canada from “HelpCentre”, published online at <https://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1288&top=17>, argues that the Officerunreasonably denied his application since his activities fall within the definition of “work” and the stipend meets the requirements of“paid” employment. [5] The Minister of Citizenship and Immigration (the “Respondent”) submits that the “Pathway” policy requires payment for thework performed, as a qualifying condition, and that a “stipend” is not payment.

He relies on

section 4(

c) of the policy that provides asfollows: c. for greater certainty, periods of work in a designated occupation must be paid unless the applicant was doing an internship that isconsidered an essential part of a post-secondary study program or vocational training program in one of the designated occupations, or aninternship performed as part of a professional order requirement in one of the designated occupations. [6] The decision of the Officer is reviewable on the standard of reasonableness, following the decision in Canada (Minister ofCitizenship and Immigration) v.

Vavilov, 2019 SCC 65 , [2019] 4 S.C.R. 653 (S.C.C.). [7] In considering reasonableness, the Court is to ask if the decision under review "bears the hallmarks of reasonableness —justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bearon that decision"; see Vavilov, supra at paragraph 99. [8] In Vavilov, supra at paragraph 98, the Court said the following about the need for transparency in reasons: [98] […] In Alberta Teachers, this Court also reaffirmed the importance of giving proper reasons and reiterated that “deference under thereasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification fortheir decisions, and when courts ground their review of the decision in the reasons provided”: para. 54.

Where a decision maker’srationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision willgenerally fail to meet the requisite standard of justification, transparency and intelligibility. [9] In my opinion, the Applicant’s reliance upon the definition of “work” in the “Help Centre” document is misplaced.

There isnothing to suggest that this document is a policy related to the “Pathway” program. [10] I note that the “Pathway” policy refers to paid employment but the Officer does not explain why a stipend does not meet thisrequirement. [11] This failure, in my opinion, means that the reasons lack transparency. It follows that the reasons do not meet the standard inVavilov, supra. [12] Accordingly, the application for judicial review will be allowed, the decision will be set aside and the matter remitted toanother officer. There is no question for certification.

JUDGMENT in IMM-2782-21 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter is remitted to another officer for redetermination. There is no question for certification. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2782-21 STYLE OF CAUSE: ABAYOMI OLUMIDE OGUNDIRAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE BETWEEN TORONTO, ONTARIO AND OTTAWA, ONTARIO DATE OF HEARING: OCTOBER 11, 2022 REASONS AND JUDGMENT: HENEGHAN J.

DATED: OCTOBER 12, 2022 APPEARANCES : Linda Kassim FOR THE APPLICANT James Todd FOR THE RESPONDENT SOLICITORS OF RECORD : Lewis & Associates Barristers and Solicitors Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT