Punniamoorthy v. Canada ( Minister of Employment and Immigration )
A-860-91
Robertson J.A.
28/1/94
8 pp.
Appellant, citizen of Sri Lanka, claiming refugee status on ground well-founded fear of persecution by Liberation Tigers of Tamil Eelam (LTTE)-Board rejecting testimony concerning 1989 encounter with two men who threatened to shoot him, and kidnapping of uncle, without reasons -- Rejecting claim of well-founded fear of persecution as (1) no credible, trustworthy evidence persons threatening appellant LTTE members; (2) since released after two days in custody because of intervention of former classmate and senior officer of LTTE, reasonable to infer LTTE satisfied appellant not spy; (3) no credible and trustworthy evidence appellant's uncle abducted by LTTE -- Appellant requesting Court to exercise discretion under Federal Court Act, s. 52(c)(i) to declare him Convention refugee -- Appeal allowed on consent, matter remitted for rehearing by differently constituted panel -- Review of cases dealing with application of s. 52(c)(i) -- Whether s. 52(c)(i) applies depending on type of issue before Court -- S. 52(c)(i) jurisdiction exercised when evidence "so clearly conclusive" that only possible conclusion claimant Convention refugee: Nadarajah v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 394 (C.A.) -- If sole issue pure question of law, which is ultimately decided in favour of claimant, claimant will be declared Convention refugee -- Court will not invoke s. 52(c)(i) when factual matter involving conflicting evidence central to refugee determination or claimant's credibility -- Not necessary for Board to make positive findings of credibility before Court will exercise jurisdiction under s. 52(c)(i) -- Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. 199 (F.C.A.) only decision detracting from foregoing analysis -- Continuing to be recognized to extent requires boards to provide adequate reasons concerning adverse findings of credibility -- Weight of authority leading to conclusion highly improbable claimant will be declared Convention refugee if Board making overall negative assessment with respect to credibility, or when Board disbelieving aspects of claimant's case central or critical to making refugee determination -- Board's failure herein to give reasons for disregarding appellant's testimony error of law -- Fact dealing with matter of credibility critical to refugee claim sufficient reason for caution in exercising discretion under s. 52(c)(i) -- Failing to give adequate reasons for rejecting testimony not establishing truth of what was said -- Evidence herein not "so conclusive" as to warrant application of s. 52(c)(i) -- Federal Court Act, R.S.C., 1985, c. F-7, s. 52(c)(i).