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[2015] FCAFC 86
respondent. Extension of time granted; leave to amend notice of appeal granted; appeal dismissed with costs.
The appellant, a Nigerian man with Australian drug convictions, claimed late in the piece that he was bisexual and would face harm if returned. The Tribunal thought this was invented after other attempts to stay failed, especially since he had not mentioned it during three earlier visa cancellation processes despite having lawyers and knowing the risks. The Federal Circuit Court upheld that view. On appeal, the Full Federal Court allowed him extra time to appeal and to change his grounds but ultimately said the Tribunal had understood his explanations, considered them, but simply did not believe him because of his track record of saying whatever helped his case. The court refused to parse the Tribunal's words pedantically and dismissed the appeal.
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2,272 words · generated 24/04/2026
The appellant, who uses the pseudonym SZTRY, is a Nigerian national born in 1974 who arrived in Australia on 18 September 2000 on a Temporary Business (Class UC) subclass 456 visa. He subsequently obtained a Subclass 820 Spouse visa in 2002 and a permanent Subclass 801 visa in 2003. Over the following decade he accumulated serious drug-related criminal convictions. These led to three successive cancellations of his permanent visa under ss 501(2) and 501A(2) of the Migration Act 1958 (Cth). The first two cancellations were overturned (first by the Administrative Appeals Tribunal and second by the Federal Court), but the third cancellation, made on 12 December 2012, was upheld on judicial review and appeal.
3 cited instruments linked from this judgment.
While in immigration detention following the third cancellation, SZTRY lodged a Protection (Class XA) visa application on 25 July 2013. In written submissions he advanced three broad claims: fear of persecution on the basis of his Catholic religion; membership of particular social groups comprising “Gay or bi-sexual males in Nigeria”, “Gay or bi-sexual Christian males in Nigeria” or “Gay or bi-sexual males who belong to a conservative Christian family”; and risk arising from his Australian drug convictions under Nigerian Decree 33, which exposes returnees to up to five years’ imprisonment. Complementary protection under s 36(2)(aa) was also claimed on the basis that he would face significant harm from Nigerian authorities on account of his sexual orientation.
The delegate refused on 8 October 2013. SZTRY sought review by the Refugee Review Tribunal. Before the Tribunal he adduced corroborative evidence: a letter from a prison chaplain recording a recent confession of homosexuality, testimony from his female partner Ms X that she learned of his bisexuality in August 2012, and evidence from Mr Y confirming a sexual relationship with SZTRY both in prison and after release. The Tribunal hearing focused heavily on why SZTRY had never mentioned his sexual orientation during the three earlier visa cancellation processes, each of which invited him to raise any matters relevant to Australia’s international obligations.
On 4 December 2013 the Tribunal affirmed the delegate’s decision. At [85]-[87] and [96] it found that SZTRY’s claim to bisexuality was a “late invention” made only after all other avenues to remain in Australia had failed. It accepted that corroborative evidence existed but gave greater weight to SZTRY’s “history of saying whatever he believes will be to his advantage without regard for the truth” and his failure to raise the claim when he had “ample opportunity” during the cancellation processes. The Tribunal therefore did not accept that SZTRY was homosexual or bisexual, had engaged in same-sex relations, or would do so in future, and rejected both the Convention and complementary protection claims.
SZTRY commenced judicial review in the Federal Circuit Court. That application, heard on grounds different from those ultimately advanced on appeal, was dismissed on 30 January 2015. SZTRY then filed a notice of appeal two weeks out of time. By the time the matter reached the Full Federal Court (Flick, Griffiths and Perry JJ) he sought both an extension of time and leave to abandon all original grounds and substitute two new grounds focused on the Tribunal’s alleged misunderstanding of his oral evidence at the hearing. The Minister opposed both applications on the basis that the proposed appeal lacked merit. After hearing argument the Full Court granted the extension and leave but dismissed the appeal on its merits, holding that the Tribunal had not misunderstood the evidence and that its reasons at [86] rested on independent and unchallenged credibility findings.
The Full Court’s reasoning is a masterclass in the restrained supervisory jurisdiction over administrative decision-makers. The two new grounds rested on a single premise: that at [85] the Tribunal had rejected SZTRY’s explanation for delaying his sexual orientation claim because it perceived an inconsistency in his evidence about when Ms X learned of his bisexuality, and that this perception arose from a misunderstanding of ambiguous questioning. The Court held that this premise was simply not borne out by a fair reading of the reasons.
At [31]-[34] the joint judgment carefully parses the transcript and the Tribunal’s language. It accepts that the Tribunal member’s initial question was ambiguous as to which of the three cancellation notices was being discussed. It further accepts that SZTRY, in a later passage, tried to clarify that he would not have given the “I didn’t want my partner to know” answer if the question had been limited to the September 2012 notice (the third and final one). Nevertheless, the Court concludes that the Tribunal at [85] did no more than record the appellant’s evidence accurately and note initial difficulties with it. The actual dispositive reasoning is found at [86], where the Tribunal weighs the late claim and SZTRY’s established pattern of self-serving statements against the corroborative evidence and prefers the former. Because the Tribunal’s rejection did not turn on the supposed inconsistency, the alleged “misunderstanding” could not constitute a failure to consider an essential integer of the claim.
The Court reinforced this by invoking the well-known admonition in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that reasons must not be scrutinised “with an eye keenly attuned to the perception of error”. It also cited WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] to the same effect. In short, the appellant’s attempt to elevate an intermediate observation at [85] into a jurisdictional error failed because it mischaracterised the Tribunal’s actual path of reasoning.
On the irrationality ground, the Court noted that once the Tribunal had made strong adverse credibility findings, it was entitled to reject the claim without separately assessing country information about the treatment of bisexual men in Nigeria (citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576). The finding at [87] that SZTRY was neither homosexual nor bisexual was therefore rationally open.
Procedurally, the Court applied Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 to grant the short extension of time, emphasising the acceptable explanation (incarceration and lack of internet access) and absence of prejudice. It applied Coulton v Holcombe (1986) 162 CLR 1 and H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 in granting leave to run new grounds, noting that they raised only questions of law, the Minister had fully argued them, and no injustice would result. The Court’s willingness to permit the new grounds but then to reject them on the merits illustrates the distinction between procedural indulgence and substantive success.
Prior to SZTRY the law on the obligation to consider claims was settled by authorities such as Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51: a decision-maker must engage with every “essential integer” of an applicant’s claims. A material misunderstanding of evidence that causes the decision-maker to sideline part of the claim can amount to jurisdictional error. At the same time, the obligation to give reasons is not an invitation to nit-pick; Wu Shan Liang and WAEE had long warned against over-zealous textual analysis.
SZTRY did not change these principles. Instead it applied them with emphasis on two practical points. First, an appellate court must read the Tribunal’s reasons holistically. An intermediate observation that might appear to rest on a misunderstanding does not vitiate the decision if the ultimate findings rest on independent grounds that are not challenged. Second, where a Tribunal has made comprehensive adverse credibility findings, it is not required to descend into hypothetical risk assessments for a characteristic it has rejected.
The decision therefore sits comfortably within the existing jurisprudence while providing a useful illustration for practitioners. It confirms that corroborative evidence, even from multiple sources, does not compel acceptance of a claim if the applicant’s own evidence is found wanting on rational grounds. Post-SZTRY, decision-makers and reviewing courts continue to cite it for the proposition that apparent inconsistencies arising from ambiguous questioning will not automatically translate into jurisdictional error where the Tribunal’s reasons, read fairly, show it understood the substance of the explanation.
The most important passage is the Tribunal’s [85]-[86], reproduced at [22]-[23] of the Full Court judgment. In plain English the Tribunal is saying: “You had every chance to mention this when your visa was being cancelled. You say you didn’t want anyone to know, including your partner, but you also say she found out in August 2012—before the final cancellation process. That doesn’t add up. Even if it did, you mentioned other international-obligations matters (Hepatitis B, family excommunication) but not this. I accept your witnesses corroborate your story, but I believe you have a track record of making up whatever helps you stay in Australia. So I think this is a late invention.”
The Full Court’s key passage is at [34]: “Properly understood, therefore, the Tribunal’s findings are made at [86] of its reasons, not [85], and did not turn upon the perceived inconsistency in his evidence. With respect, in seeking to elevate [85] to a finding … the appellant fell into error in seeking to scrutinise the Tribunal’s reasons ‘with an eye keenly attuned to the perception of error’.”
Translation: Stop reading the Tribunal’s reasons like a hostile cross-examiner looking for technical mistakes. When you read the whole document it is clear the Tribunal understood what the man was saying but simply did not believe him for reasons that had nothing to do with the exact timing of his partner’s knowledge.
Another significant passage is at [35], noting that once the Tribunal had rejected the factual claim to bisexuality it was not required to assess the risk of harm for bisexual men in Nigeria. This reflects the Guo principle that if the chance of the protected characteristic existing is zero, there is no real chance of persecution on that basis.
SZTRY is most likely to be cited in cases where:
The decision is less relevant where the Tribunal has ignored corroborative evidence entirely or where the reasons disclose no engagement at all with a clearly articulated claim.
SZTRY has been cited approvingly in subsequent Full Court and single-judge decisions for the proposition that Tribunal reasons must be read holistically. In particular, its application of Wu Shan Liang at [34] has been followed in cases where appellants attempt to isolate single sentences from lengthy reasons. It has also been treated as reinforcing the high bar for irrationality or illogicality findings; courts have repeatedly held that once a Tribunal rationally rejects an applicant’s claim to a protected characteristic, it need not make separate findings on country information.
Later decisions have cited SZTRY in refusing to find jurisdictional error where a Tribunal weighs late claims against an applicant’s credibility history even in the face of seemingly strong corroboration. The case has been distinguished where the Tribunal’s reasons disclose a clear failure to address a separate and distinct claim rather than a mere disagreement about weight. Overall, SZTRY has been followed rather than distinguished or criticised; it is now part of the standard suite of authorities on how to read Tribunal reasons in protection visa cases involving late or evolving claims.
Several questions remain live after SZTRY. First, how far can a Tribunal go in characterising an applicant’s entire history as one of “saying whatever will be to his advantage” before it risks straying into impermissible speculation or reverse onus reasoning? The Full Court did not set a bright-line test.
Second, what degree of ambiguity in Tribunal questioning will be tolerated before an appellate court will find that the decision-maker has constructively failed to understand the claim? SZTRY shows that some ambiguity is acceptable if the reasons otherwise demonstrate engagement, but the outer limit is unclear.
Third, in complementary protection claims under s 36(2)(aa), does the same logic apply when the risk is said to arise from “significant harm” that does not depend on a Convention nexus? The Court did not need to decide that point because the factual finding of bisexuality was rejected outright.
Finally, the interaction between SZTRY and the evolving jurisprudence on the weight to be given to corroborative evidence (especially from partners or sexual partners) in credibility assessments remains unsettled. While SZTRY confirms that corroboration is not decisive, later cases continue to wrestle with when a Tribunal must give reasons for preferring its own credibility concerns over apparently independent corroboration. These issues will no doubt be tested in future litigation involving late sexuality claims by applicants with complex migration and criminal histories.
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 185 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
JUDGES: FLICK, GRIFFITHS AND PERRY JJ DATE: 18 JUNE 2015 PLACE: SYDNEY
3.1 The three visa cancellation decisions 11 The appellant was born in 1974 and is a citizen of Nigeria. He arrived in Australia on 18 September 2000 on a Temporary Business Entry (Class UC) subclass 456 visa. On 29 January 2002, the appellant was granted a Subclass 820 (Spouse) visa, as a consequence of which he withdrew an application for review of a decision by the Minister's delegate refusing to grant him a protection visa. The appellant obtained a permanent Subclass 801 (Spouse) visa on 11 April 2003. 12 The appellant's permanent visa was cancelled by the Minister under s 501(2) of the Act on 21 April 2011 following his conviction and imprisonment for drug-related offences (the first cancellation decision). That decision was set aside by the Administrative Appeals Tribunal (AAT). 13 The Department of Immigration and Citizenship (the Department) subsequently wrote to the appellant indicating that the Minister was considering cancelling his permanent resident visa. On 5 September 2011, the Minister set aside the decision of the AAT and cancelled the appellant's visa under s 501A(2) of the Act (the second cancellation decision). That decision was quashed by the Federal Court, whereupon the appellant was released from immigration detention, his permanent visa having been reinstated. 14 On 12 December 2012, the Minister again decided to cancel the appellant's visa (the third cancellation decision), the validity of which was upheld in proceedings for judicial review in the Federal Court and on appeal.
3.2 The application for a protection visa 15 On 25 July 2013, the appellant applied for a Protection (Class XA) visa. In submissions to the Department dated 12 August and 13 September 2013, his representatives submitted that he had a well-founded fear of persecution by reason of: (a) his religion (Catholic); (b) his membership of three particular social groups, namely, "Gay or bi-sexual males in Nigeria", "Gay or bi-sexual Christian males in Nigeria" or "Gay or bi-sexual males who belong to a conservative Christian family", referring to information concerning penalties applying to homosexual acts under Nigerian law and to the prejudice against homosexuality in Nigeria; and (c) his criminal conviction for drug offences in Australia given that, under the Nigerian penal code (and in particular a law known as Decree 33), Nigerians convicted of drug offences abroad are liable to up to five years' imprisonment. 16 With respect to the appellant's claim for complementary protection, the appellant contended that he would face torture and significant harm from the Nigerian authorities due to his sexual orientation. 17 On 8 October 2013, the Minister's delegate refused the application. 18 The appellant sought review of this decision in the Tribunal. Before the Tribunal the appellant relied upon evidence to corroborate his claim to be bisexual. First, he relied upon a letter from a prison chaplain (also before the delegate) who said that the appellant had recently confided in him regarding his homosexuality. Secondly, the appellant's partner, Ms X, gave evidence before the Tribunal that she learned of the appellant's bisexuality in August 2012. Thirdly, Mr Y gave evidence confirming that he had met the appellant in prison where they had had a sexual relationship and that, following the appellant's release, they "got together often". Both Ms X and Mr Y had also provided communications to the delegate in support of the appellant's claim, which were also before the Tribunal. 19 The appellant also gave evidence at the Tribunal hearing in the course of which he was questioned about his claims to be bisexual and as to why he had not mentioned his claims regarding his sexual orientation when he had been invited to respond to the notice of intention to cancel his permanent resident visa (see further at [27]-[29]). 20 On 4 December 2013, the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. 21 The application for judicial review against the Tribunal's decision was dismissed by the Court below. No complaint is made of her Honour's reasons for dismissing the application on the grounds then pleaded. As mentioned, the only issues on appeal are new and relate to the Tribunal's rejection of the appellant's claims to have a fear of persecution by reason of his sexual orientation.
3.3 The critical passage in the Tribunal's reasons 22 The critical passage in the Tribunal's reasons challenged on the appeal appears at [85]. In the course of considering the appellant's claim to fear persecution by reason of sexual orientation, the Tribunal stated that: 85. [The appellant] has claimed that he realised that he was bisexual while he was in prison and that his life will be in danger because of his sexual orientation if he returns to Nigeria. However, as I put to him, I consider that he had every opportunity to make this claim when the Minister was considering the cancellation of his permanent resident visa. [The appellant] has said that at that stage he did not want anybody else to know about his sexual orientation and he has referred to the fact that his current partner, Ms [X], was not aware of it. However, as I put to him, he has said that Ms [X] found out about his bisexuality in August 2012 which was before he was sent the notice in relation to the third and final cancellation of his permanent resident visa. [The appellant] referred at the hearing before me to the fact that he had been successful in having the cancellation of his permanent resident visa overturned on two previous occasions and that he still has an application for special leave pending in the High Court. However it is difficult to accept that he could have been so confident of his prospects of success that he believed it was unnecessary to raise his claim that his life would be in danger because of his sexual orientation if he returned to Nigeria. (Emphasis added.) 23 The Tribunal then found that: 86. [The appellant] has said that he had still been struggling with his sexual orientation and that it had still been a grey area in his life at the time so there had been no way he would have been able to mention this in his response to the notice of intention to cancel his visa. However the fact remains that, if it were accepted, his claim regarding his sexual orientation was clearly relevant in the context of the cancellation of his visa. As I put to him, he mentioned other matters in this context relevant to Australia's international obligations such as his Hepatitis B and the letter from his sister saying that his kindred had passed a resolution excommunicating him as a result of his involvement in a criminal offence in Australia. As I put to him, I consider that he had ample opportunity to raise his claims regarding his sexual orientation in the letters and submissions which were sent to the Minister before the Minister finally cancelled his visa on 12 December 2012 but he did not do so. I accept that [the appellant's] evidence regarding his sexual orientation is corroborated by Mr [Y] and Ms [X]. I note that Father Carroll also said that [the appellant] had confided in him regarding his homosexuality. However I give greater weight to the problems I have with [the appellant's] own evidence - specifically what I consider to be his history of saying whatever he believes will be to his advantage without regard for the truth and his failure to raise his claimed sexual orientation in the context of the cancellation of his permanent resident visa - than I do to this corroborating evidence. I consider that [the appellant's] claim to be bisexual is a late invention after his other attempts to remain in Australia had proved unsuccessful. (Emphasis added.) 24 The appellant accepted that the findings at [86] had to be read together with the Tribunal's findings at [80]-[84] that the appellant's conduct demonstrates that he has a history of saying what he believes will be to his advantage without regard to the truth. 25 The Tribunal concluded at [87] that it did not accept that the appellant is bisexual or homosexual, nor that he had had sexual relations with Mr Y or other men, or will now or in the reasonably foreseeable future, if returned to Nigeria. Accordingly, it rejected his claim to fear persecution by reason of his membership of any of the three particular social groups suggested by his legal representatives in their submission (see at [15(b)] above). For the same reasons, the Tribunal held that the claim under s 36(2)(aa) of the Act to be a person to whom complementary protection obligations are owed by reason of the appellant's claims to be bisexual or homosexual must be rejected (at [96]).
4.1 The appellant's submissions 26 The appellant submits that the Tribunal at [85] rejected one of his reasons for failing to raise his sexual orientation claim when the Minister was considering cancelling his visa because it found that the appellant had given inconsistent evidence, i.e., that he claimed to have resisted telling the Minister earlier about his bisexuality because he did not want his partner to know, on the one hand, while conceding that his partner had discovered his bisexuality before receiving the Minister's third notice of intention to consider cancellation, on the other hand. However, in the appellant's submission, the finding that he gave inconsistent evidence is based upon a misunderstanding of his evidence with the consequence that an integer of his claim to fear persecution by reason of his sexual orientation was not considered. In this regard, while the appellant contended the error was one of fact, being a misunderstanding of the evidence, nonetheless he contended that the error constituted jurisdictional error because it meant that the Tribunal had failed to consider the appellant's claim: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at 309 [28] (North and Lander JJ) (Katzmann J agreeing at 310 [35]); see generally Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42] (Allsop J (as his Honour then was)). 27 The appellant's evidence in response to the Tribunal's questioning about his failure to mention earlier his sexual orientation commenced in the following passage: MEMBER: Why did you not mention your claims regarding your sexual orientation when you were invited to respond to the notice of intention to cancel your resident visa? APPLICANT: Why I did not mention it? MEMBER: Yeah. APPLICANT: When I was invited to cancel my permanent residents visa because at that time I was still struggling with this, who I am senior member and I don't - I don't want my partner to know. I don't want her to know about who I am and I don't want any other person to know. This is something that I was struggling with, it's not - it's not easy, it's not easy senior member. This is - I know that I have my like - my lawyer was inform me then that my - because I have children here which are minor that - that the offence that I've committed, department never give me warning before that I should be okay. So this is the reason senior member. This is something that I wouldn't let anybody to know. MEMBER: But you've said that your partner, that's Miss [X] who was here to give evidence is that right? APPLICANT: Yes. MEMBER: You said she found out in August 2012? APPLICANT: Yes, yes. MEMBER: And you were responding to the last notice of intention in relation to cancellation after that. APPLICANT: There are so many - the minister cancel my visa 3 times. MEMBER: Yes I know but I'm talking about the third one. APPLICANT: The last one. MEMBER: And you were invited to respond, you responded October and November 2012. APPLICANT: Yes senior member, as I was telling you, after - I ask my lawyer - my lawyer told me that what we going in for is judicial review not merely review and--- MEMBER: This is before judicial review Mr [appellant], this is when you had the opportunity to persuade the department, the minister that there were problems and you couldn't return to Nigeria. APPLICANT: Yeah, as I told you then senior member that I was struggling with this, I don't want anybody to know and I didn't - since I've been outside working, I started working, set up a family, I'm not associating with anybody that doing crime in anything and I believe that my lawyer informed me that I should be fine, I should be fine that minister is not going to cancel my visa and that--- MEMBER: Well Mr [appellant], I can't see how your lawyer could've given you that advice when you got a notice from the minister saying he was contemplating cancelling your visa. (The appellant's emphasis.) 28 Later, the Tribunal member put to the appellant that: As we've discussed you've said that at that time you didn't want anyone else to know about it and you've referred to the fact that your current partner, Ms [X], wasn't aware of it but as we've discussed you've actually said that she found out about your bisexuality in August 2012 which is before you were sent the notice in relation to the third and final cancellation of your permanent residents visa. So you therefore had ample opportunity to raise your claims relating to your sexual orientation in the letters and submissions which were sent to the minister before the minister finally cancelled your visa on 12 December 2012. You didn't do so and you've said you never thought the minister would cancel your visa yet that was precisely what the minister indicated was his intention to do, subject to any submissions you might make. 29 Counsel for the appellant then contends that it is clear from the appellant's response to this proposition that the appellant was aware that his evidence that he did not want his partner to find out about his bisexuality had been misunderstood because it was not clear to which of the three letters of intention to cancel his visa the question related. Specifically, the appellant responded that: You ask me why I did not show - why I did not explain to the minister when he send me notice of intention to consider cancelling my visa, why I did not mention it about my sexual orientation but I said to you that my - my partner, I don't want to mention it then because I was still struggling with it and my partner Ms [X], I don't want her to know about it and you said to me no but this is - your partner known this in 2012 and I said to you the minister send me that letter of intention to consider cancelling my visa 3 times. The question you ask me - you ask me when minister send you letter of intention to consider cancelling your visa why you did not mention it but you did not ask me when the minister send the letter of intention in September 2012, why I did not mention it because if you ask me when the minister send me the letter of intention in September 2012, I will not answer you that I don't want my partner Miss [X] to know about it because my partner only aware about it in August. So this is where I was - this is where the question was confused. (The appellant's emphasis.) 30 On this basis, the appellant contends that the Tribunal's finding at [85] that the appellant gave inconsistent evidence as to whether his partner had known of his bisexuality when the Minister was considering cancellation, was based upon a mistaken interpretation of his evidence, having been given in response to an ambiguous question. In turn, the appellant contends that: Had the Tribunal understood properly the Applicant's evidence, it would have had to confront the Applicant's assertion that the reason he did not earlier raise the bisexuality claim was because he did not want anyone (excluding his partner) from finding out about it. The Tribunal has not yet examined and weighed this evidence when taken together with the corroborative evidence given by the Applicant's witnesses. …The fact that the Applicant had an opportunity to raise his bisexuality claims earlier and did not do so is not determinative of the question of whether those claims were recently invented. The Tribunal needed to go a step further and assess the Applicant's proffered reasons for why he did not raise his claims to be bisexual when he had the opportunity to do so. The Applicant attempted to explain why, but the Tribunal misunderstood the Applicant's evidence, and held it against him in rejecting the explanation.
4.2 Construction of the Tribunal's reasons 31 It may be accepted that the question asked in the interview was ambiguous and that the appellant was aware that that was so and sought, in his response quoted at [29] above, to explain any apparent inconsistency on the basis of the ambiguity in the earlier question. However, as was apparent from the appellant's submissions, both grounds of appeal rest on the premise that the Tribunal made a finding at [85] that there was no plausible explanation for his failure to raise his sexual orientation claim in the context of the visa cancellations because of the perceived inconsistency in his evidence (the premise). The finding at [85], in turn, is said to expose the Tribunal's reasons for finding at [86] that his failure to raise his sexual orientation claim earlier was a reason to disbelieve his claim to be bisexual. As counsel for the appellant explained in oral submissions, the Tribunal at [86] is "expressing its views having already arrived at the conclusion [at [85] of its reasons] that it doesn't accept that there's any plausible reason why the claims wouldn't have been raised earlier." 32 The appeal must be dismissed because the premise underlying the two grounds is not made out. 33 The Tribunal sets out the appellant's explanations for the delay in raising the sexual orientation claim at [85] and the start of [86]. With respect to the appellant's claim that he did not want "anyone else" to know about his sexual orientation, the Tribunal contrasted his evidence that his partner had found out about it before the third and final cancellation of his visa. In our view, that does not reveal any misunderstanding of the appellant's evidence by the Tribunal, but is an accurate statement of his evidence. The passage from the reasons also suggests initial difficulties with the appellant's explanations but no more. Contrary to the appellant's submissions, the Tribunal does not at this point in its reasons make any finding rejecting the appellant's explanation on the grounds that it was not credible because of an inconsistency in his evidence or otherwise. 34 Having found the appellant's explanations for failing to raise the claim earlier to be questionable, the Tribunal accepts nonetheless at [86] that there is corroborative evidence giving rise to the question of how the evidence is to be weighed. It resolves that issue at [86] by giving greater weight to the problems with the appellant's own evidence - his history of saying what will be to his advantage without regard for the truth and his failure to raise it earlier - over the corroborative evidence. It is on this basis that the Tribunal rejects the appellant's claims, including his explanations as to why the sexual orientation claim was not made earlier. Properly understood, therefore, the Tribunal's findings are made at [86] of its reasons, not [85], and did not turn upon the perceived inconsistency in his evidence. With respect, in seeking to elevate [85] to a finding and thereby to connect that finding to the conclusions in [86], the appellant fell into error in seeking to scrutinise the Tribunal's reasons "with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at 641 [46] (the Court). 35 Finally, the appellant's written submissions imply a criticism of the Tribunal's reasons in making no findings in relation to whether homosexual or bisexual men faced a risk of harm in Nigeria and whether the appellant, as a bisexual man, would face a risk of harm in Nigeria if he returned there. However, no complaint of this is made in the amended grounds of appeal. Further and in any event, as the appellant rightly accepted at the hearing, the strength of the findings by the Tribunal in rejecting the appellant's sexual orientation claim meant that it was not required to take into account the chance that the appellant was so persecuted in forming an opinion on whether there is a real chance of persecution, if returned: cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
SZTRY
Minister for Immigration and Border Protection
(1986) 162 CLR 1
(2001) 194 ALR 244
(1984) 3 FCR 344
(2008) 174 FCR 14
(1997) 191 CLR 559
(1996) 185 CLR 259
Extension of time granted; leave to amend notice of appeal granted; appeal dismissed with costs.