Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (1999) 168 ALR 407
Outcome: cited
is clear from a consideration of the Tribunal's reasons that detailed consideration was given to the claims made by the appellant in the documentation lodged in support of his protection visa application of 2 April 1998 and the oral evidence given in support of his application at each Tribunal hearing (21 June 2000 and 20 July 2007). The Tribunal having evaluated that material identified a number of inconsistencies which it describes as significant. It was open to the Tribunal to weigh the impact of the perceived inconsistencies and the appellant's explanation of them. The Tribunal was not satisfied that a loss of memory and the suffering of stress provided a compelling explanation for the inconsistencies. The Tribunal accepted that the passage of time might affect an individual's capacity to recall all relevant details relating to the particular claims. However, the Tribunal was not satisfied that this explanation was an answer to the inconsistencies the Tribunal identified. The conclusion that the appellant could not be believed in the light of those inconsistencies and that the appellant was not reliable and thus his claims were untrue represents a finding of fact as to credibility, squarely within the fact-finding role of the Tribunal ( Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (1999) 168 ALR 407 per McHugh J at [67]). Plainly, the Tribunal's findings were open to it for the reasons identified by it. There is no error of law or jurisdictional error on the part of the Tribunal in reaching those conclusions. In reaching its decision on 2 November 2007 the Tribunal was plainly influenced by the inconsistencies it identified between the detailed statement of facts and circumstances lodged by the appellant with his application for a protection visa on 2 April 1998 and oral evidence given before the Tribunal, particularly on 20 July 2007. That evidence consisted of the appellant's recollection on that day of events that had occurred throughout his life but particularly events from 1994 until his departure from Bangladesh to Australia in March 1998. The oral evidence also consisted of the appellant's recollection or lack of recollection of events that he described in his detailed statement of 2 April 1998 concerning the events surrounding the death of his father's brother (step-brother) and events of harassment of his father which were said to have resulted in his becoming almost crippled in 1989. By 20 July 2007, 9 years had elapsed since the formulation of his written statement of 2 April 1998, 34 years had elapsed since the events of 1973 when his father was said to have been jailed and treated badly and 18 years had elapsed since the events in 1989 when his father was said to have been almost crippled by a beating. Although it is not clear from the written statement precisely when the appellant says his uncle was killed, it seems to have occurred after August 1995 and probably after mid-1997 when, according to the appellant, contrived criminal charges were brought against the appellant. In describing why authorities would not be able to protect him he said in his written statement: If the protection and other facilities from the authority would [be] available in Bangladesh my uncle would not be killed brutally and the killers would not move around freely. Accordingly, by the time the appellant gave evidence on 20 July 2007, either 12 years or 10 years had elapsed since the events concerning the contended brutal killing of his uncle had taken place.