Kaur v. Canada (Citizenship and Immigration), 2014 FC 678 : Federal Skilled Worker Refusal Overturned Because Bank Draft Was Unreasonably Rejected as Proof of Settlement Funds

The Federal Court reviewed the refusal of a Federal Skilled Worker application because the applicant had provided a bank draft as evidence of settlement funds.

The Court overturned the refusal because the officer relied on speculation about the source of the funds and did not give the applicant an opportunity to address concerns that she could not reasonably have anticipated.

Key Principle

Settlement funds must be available, transferable and unencumbered by debts or other obligations. However, an officer cannot reject an otherwise acceptable form of proof based solely on speculation about the source of the funds.

Where an officer’s concerns raise questions about the credibility or genuine nature of the applicant’s financial evidence, procedural fairness may require giving the applicant an opportunity to respond.

Background

The applicant applied for permanent residence under the Federal Skilled Worker Class as a restaurant manager.

She had initially provided proof of settlement funds in the form of a term deposit. During processing, the visa officer requested updated proof of funds. The applicant checked the CIC website, determined the required amount and obtained a bank draft for $17,050, slightly above the required amount.

The officer refused the application, finding that the bank draft did not establish that the funds were available or unencumbered.

The officer was concerned that the draft did not identify who purchased it, where the money came from, whether it had been cancelled or whether the applicant had borrowed the funds from a third party.

Court Findings

The Federal Court found that the officer’s concerns were based on speculation rather than evidence.

A bank draft was not inherently incapable of demonstrating available and transferable settlement funds. The Court noted that other forms of financial evidence accepted by CIC could also potentially involve borrowed money or third-party funds. The officer therefore could not reject the bank draft simply because it did not disclose the source of the money.

There was no evidence that the applicant had borrowed the funds. In fact, the applicant stated that she had maintained the money in a fixed deposit specifically to satisfy the settlement fund requirement.

The Court also found a breach of procedural fairness.

The officer’s reasoning effectively questioned whether the funds actually belonged to the applicant. This was a concern that the applicant could not reasonably have anticipated because her earlier term deposit had not raised the same concern.

The officer should therefore have given the applicant an opportunity to explain the source and availability of the funds before refusing the application.

Outcome

The Federal Court allowed the application for judicial review and set aside the refusal. No question was certified.

Case Citation:

Kaur v. Canada (Citizenship and Immigration), 2014 FC 678 CanLII