Zhang v. Canada (Citizenship and Immigration), 2018 FC 502 : Court Finds Spouse in Canada Refusal Reasonable Where Evidence Did Not Establish Cohabitation

The Federal Court reviewed a reconsideration decision refusing Chun Tao Zhang’s permanent residence application under the Spouse or Common-Law Partner in Canada class. The officer concluded that Ms. Zhang was not cohabiting with her sponsor, as required by section 124 of the IRPR, and therefore could not benefit from a policy exception to inadmissibility arising from an exclusion order. The Court upheld the interview process and the finding that the evidence did not establish cohabitation.

Key Principle

An applicant under the Spouse or Common-Law Partner in Canada class must establish actual cohabitation with the sponsor. Where an applicant is instructed to bring a certified interpreter but, through counsel, proceeds with an uncertified interpreter without objection, interpretation concerns must generally be raised at the earliest reasonable opportunity. An officer is not required to protect an applicant from choices made by counsel or obtain an express waiver before proceeding.

Background

Ms. Zhang, a Taiwanese citizen, entered Canada as a visitor and began a relationship with Yu Kei Cheun in February 2015. They married in November 2015, and she applied for inland spousal permanent residence in May 2016.

She later received a two-year work permit prohibiting employment in sex-trade-related businesses. In August 2017, she was caught during an enforcement operation engaging in sex work, resulting in an exclusion order for violating her work permit conditions.

At her September 2017 immigration interview, Ms. Zhang attended with her sponsor, counsel, and an interpreter selected by counsel. Although the interview notice required a certified interpreter, the interpreter was not certified. The interview proceeded without objection. On reconsideration, the officer concluded that Ms. Zhang was not cohabiting with her sponsor and therefore did not qualify for the policy exception.

Court Findings

• Interpreter Issue Did Not Breach Procedural Fairness

The Court rejected the argument that the officer should have stopped the interview after discovering the interpreter was uncertified. Counsel had selected the interpreter, remained present throughout the interview, and did not request an adjournment or object. Interpretation problems were raised only later during judicial review. A client is generally bound by decisions made by counsel, and the officer was not required to interfere with that relationship.

• Evidence Reasonably Supported Non-Cohabitation

The officer relied on credibility concerns, Ms. Zhang’s limited knowledge of the claimed home address, her absence during numerous site visits, and clothing found where she was arrested. The officer also questioned how her sponsor could have been unaware of her sex work if they were genuinely cohabiting. The Court found nothing unreasonable in this assessment.

• Later Cohabitation Did Not Resolve Earlier Concerns

At reconsideration, Ms. Zhang and her sponsor were living at his parents’ home. However, the officer reasonably gave this limited weight because living there was a condition of her release by CBSA. The earlier period of separation had also not been satisfactorily established as brief. Without proven cohabitation, the policy exception was unavailable.

Outcome

The Federal Court dismissed the judicial review. It found no procedural unfairness in proceeding with the interpreter chosen by counsel and no unreasonable error in the conclusion that Ms. Zhang failed to establish cohabitation. No question was certified.

Case Citation:

Zhang v. Canada (Citizenship and Immigration), 2018 FC 502 (CanLII)