When will the court not invoke s. 52(c)(i) of the Human Rights Code in a refugee application?

This court will not invoke s. 52(c)(i) when the factual matter involves conflicting evidence which is central to the refugee determination or the claimant's credibility. The decision in Cheung v. Canada (Minister of Employment and Immigration), supra, is illustrative of this point. There, the court was' asked to consider whether the Chinese policy of forced sterilization of women grounded a well-founded fear of persecution. An important factor in the court's decision to exercise its discretion under s. 52(c)(i) was that no factual problems nor questions regarding the claimant's credibility required resolution.

This is not to suggest that it is necessary for the board to make positive findings of credibility before this court will exercise its jurisdiction under s. 52(c)(i). In Mahathmasseelan v. Canada (Minister of Employment and Immigration), supra, this court felt justified in declaring the claimant to be a Convention refugee because the inconsistencies in her testimony, although not insignificant, were not central to her claim. Moreover, this court expressly noted that while the board made findings with respect to inconsistencies, which affected the claimant's credibility, it did not find a total absence of credibility (at p. 37).