Date: 20040324
Docket: IMM-6572-02
Citation: 2004 FC 452
Toronto, Ontario, March 24th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
NIKOLAY CHSHERBININ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant testified that he is a lawyer, and while practising in Kazakhstan, was persecuted by the Kazakh mafia for exposing their corruption. However, based on the lack of original documents to prove the Applicant's identity, and the fact that fraudulent identity documents can be obtained in Kazakhstan, the Applicant's evidence of identity was rejected by the Board.
[2] Indeed, the Board found that, "[t]herefore, I do not know who the claimant is and I cannot find that he is a citizen of Kazakhstan" (Decision, p.6). In the decision, the Board then goes on to make alternative findings rejecting the Applicant's claim, if in fact, he is who he says he is. I find that this approach is fruitless because, if the identity finding is sustained, the Applicant's claim fails, but if the identity finding is made in error, the Board's decision fails.
[3] In my opinion the identity finding is flawed. In making the finding the Board appears to accept that the Applicant is a lawyer, which is an integral part of his identity, and uses this fact of acquired enhanced knowledge to criticize the Applicant for not providing the necessary identity documents. It is impossible, on the one hand, to reject the Applicant's evidence of identity, while on the other, accept it to bolster a negative identity finding. Having done so in the present case, I find the Board's decision to be patently unreasonable.
ORDER
THIS COURT ORDERS that accordingly, I refer this matter to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6572-02
STYLE OF CAUSE: NIKOLAY CHSHERBININ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 24, 2004
REASONS FOR ORDER
AND ORDER BY : CAMPBELL J.
DATED: MARCH 24, 2004
APPEARANCES:
Mr. Joseph S. Farkas
FOR THE APPLICANT
Ms. Matina Karvellas
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joseph S. Farkas
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040324
Docket: IMM-6572-02
BETWEEN:
NIKOLAY CHSHERBININ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER