Chsherbinin v. Canada (Minister of Citizenship and Immigration)
Court headnote
Chsherbinin v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2004-03-24 Neutral citation 2004 FC 452 File numbers IMM-6572-02 Decision Content 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 hi…
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Chsherbinin v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2004-03-24 Neutral citation 2004 FC 452 File numbers IMM-6572-02 Decision Content 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
Source: decisions.fct-cf.gc.ca