Date: 19990311
Docket: IMM-485-98
BETWEEN:
REIGO MUTLE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered orally from the Bench
on March 2, 1999, as edited)
McKEOWN J.
[1] The applicant, a citizen of Estonia, seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated 15 January 1998, in which it determined that the applicant is not a Convention refugee.
[2] The issue is whether there was a nexus between the attacks suffered by the applicant and his political activity.
[3] The Board made no overall findings of credibility, which means, as the Board stated, that the applicant"s testimony was "... presumed to be true unless there is reason to conclude otherwise." The Board did make findings with respect to plausibility and also pointed out conflicts with the documentary evidence as the above exception permits.
[4] The Board made the following finding at page 4 of its Reasons:
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That the claimant has a subjective fear is a given in the view of the panel. That that fear has an objective basis related to the claimant"s political opinion has not been established however (in the estimation of the panel) and thus the claim is not made out. The reasoning via which the panel arrived at this conclusion is set out below. |
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The claimant, although he alleges that the individuals (agents) seeking to harm him are Estonian nationalists and/or Estonian criminals cooperating with the police, was not able to speak in any concrete way about nationalists... The panel does not believe the agents of persecution are nationalists interested in the claimant because of his political activity. It similarly does not believe the alleged agents, even if they are criminal elements, are harassing the claimant because of his political opinion. |
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[5] The applicant submitted that since the persons who attacked him sought to extort Komsomol money from him, they must have perceived that he was a former communist and were persecuting him for this political opinion.
[6] The Board responded to this as follows, at page 5:
In the view of the panel, there are thousands of individuals who would be in a position similar to the claimant in present-day Estonia " former employees and/or devotees of the multitude of former Soviet organizations and other bodies that made up the former Soviet-Estonian bureaucracy. The claimant was not a prominent or highly placed individual in the political spectrum. He was asked why he thought he was chosen to be punished six years after the Soviets had ceased to rule in Estonia. He testified to having thought long and hard about why those people might be after him and all he could come up with was that he got in the way for some reason, that he was chosen because of his past political activity in Komsomol. The panel simply cannot accept this explanation; it is too much of a stretch, too implausible for the panel to accept.
The panel believes the claimant to have been the victim of bullying, perhaps criminal thugs seeking to extort money from him.
[7] The Board also found that it could not accept that the attacks were related to the Komsomol activity engaged in by the applicant prior to Estonian independence in 1991. The Board further found that the attacks on the applicant took place some four years after proclamation of the independence of Estonia in the spring of 1991, and that the applicant did not have any problems related to his political opinion during those intervening years. These conclusions were open to the Board. They were not speculation and were based on evidence before the Board.
[8] The applicant also submitted that since one of the three attackers was a police officer, this demonstrated it was state persecution. However, the Board found that the attacks suffered by the applicant were not politically motivated, being of a criminal nature. The identity of one of the attackers as a policeman does not undermine the Board"s conclusion.
[9] The Board further dealt considered the applicant"s claim in light of the broader context of Estonia"s domination by Moscow for approximately 50 years. It stated at page 6:
... Countless people, some of them Russians, but many Estonians would have been employed by Soviet organizations, some more overtly political than others of course, but all bearing the stamp/stain of being associated with the ruling power. We believe that had there been major retribution against such individuals for their political opinion or which might be perceived as their guilt, the documents would reflect this. They do not.
This finding was open to the Board.
[10] The Board stated that it had some concern about the nexus between the attacks suffered by the applicant and his political opinion and decided as follows, again at page 6:
The refugee definition however is very clear. There must be nexus to the grounds. In the case at bar, the panel simply does not find that the claimant has a well-founded fear of persecution in Estonia by reason of his political opinion, either real or perceived. It admits some perplexity over the ads seeking the whereabouts of the claimant but does not feel they establish the required clear link on a Convention ground.
This finding was open to the Board on the evidence.
[11] This is not a case like Zhu v. Canada (M.E.I.), (1994) F.C.J. No. 80, where the motives were mixed. Mr. Justice MacGuigan stated at paragraph 2:
The panel was in error in setting up an opposition between friendship and political motivation. His motives were mixed rather than conflicting. People frequently act out of mixed motives and it is enough for the existence of political motivation if one of the motives was political.
However, in the case at bar, the Board findings excluded state involvement in the persecution.
[12] The application for judicial review is dismissed.
William P. McKeown
JUDGE
OTTAWA, Ontario
March 11, 1999.
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