Nguyen v. Canada (Citizenship and Immigration), 2024 FC 790 : Federal Court Clarifies That Shared Residence Alone Does Not Establish Common-Law Cohabitation

In Nguyen v. Canada (Citizenship and Immigration), 2024 FC 790, the Federal Court allowed judicial review of a refusal of permanent residence under the Spouse or Common-Law Partner in Canada Class (SCLPC). The Applicant was excluded under paragraph 125(1)(d) of the Immigration and Refugee Protection Regulations (IRPR) because her sponsor had not declared her as his common-law partner in his previous permanent residence application. The Court found that the Officer misconstrued the evidence, failed to properly determine whether the couple remained in a conjugal relationship during their claimed separation, and provided unintelligible reasons.

Background

The Applicant and her sponsor, both Vietnamese citizens, had lived together in Canada since November 2019. They claimed that they separated between January and May 2021 but continued living in the same residence because neither could afford to move out. During this period, they stated that they lived together as “old friends.” They later reconciled and married on February 14, 2022.

In May 2021, the sponsor applied for permanent residence under the Temporary Resident to Permanent Resident pathway and identified the Applicant as his former common-law partner. After becoming a permanent resident, he sponsored her under the SCLPC. The Officer nevertheless found that the couple had been cohabiting in a conjugal relationship since November 2019 and therefore became common-law partners in November 2020.

Key Principles

• Living Together Is Not Necessarily Cohabitation

The Court emphasized that sharing a residence does not automatically establish common-law cohabitation. Relying on Walia v Canada, the Court noted that cohabitation involves a “marriage-like” relationship characterized by factors such as financial interdependence, sexual and personal behaviour, mutual household responsibilities, and an expectation of continued mutual dependency.

• Subjective Intentions and Objective Factors Must Both Be Considered

Under M v H and Chen v Canada, determining whether parties are in a conjugal relationship requires consideration of both their subjective intentions and objective indicators, including shared shelter, sexual and personal behaviour, services, social activities, economic support, children, and societal perception.

Court Findings

• The Officer Misconstrued the Evidence

The Court found that neither the Applicant nor her sponsor stated that they were “cohabiting” during the breakup period. Rather, they expressly described themselves as living together as “old friends.” The Officer therefore misconstrued the evidence by treating their shared residence as an admission of continued conjugal cohabitation.

• The Officer Failed to Analyze the Nature of the Relationship

Although there was evidence of some financial commingling, the Officer did not examine the other relevant factors to determine whether the parties continued to have a conjugal relationship during the separation. The Court held that the Officer needed to determine the precise nature of the relationship during that period rather than equating shared residence with cohabitation.

• The Reasons Were Unintelligible

The Officer simultaneously stated that the couple may have broken up and that they were not common-law partners during that period, while also relying on documents showing their continued residence together. The Court could not determine whether the Officer accepted that a breakup occurred or concluded that the breakup did not interrupt the common-law period. Because this was central to the exclusion under paragraph 125(1)(d), the reasons were insufficiently transparent and intelligible.

Outcome

The Federal Court allowed the application for judicial review and referred the matter back to a different decision-maker for redetermination. No question for certification arose.

Case Citation:

Nguyen v. Canada (Citizenship and Immigration), 2024 FC 790 (CanLII)