BKQ16 v Minister for Immigration and Border Protection

The appellant, a Sri Lankan national, appealed the Federal Circuit Court's decision to affirm the Administrative Appeals Tribunal's refusal of his protection visa application. The Tribunal had denied the appellant's request for an adjournment of the hearing following the Tribunal's reconstitution, which led to the appellant attending the hearing without representation. The appellant also argued that the Tribunal had failed to exercise its jurisdiction due to errors in the factual findings relevant to the credibility assessment. Additionally, the appellant sought leave to amend his notice of appeal to include a new ground of appeal that was not raised before the Federal Circuit Court.

The court was required to determine whether the Tribunal's refusal to grant an adjournment was unreasonable, and if the Tribunal had exercised its jurisdiction properly by making the relevant factual findings. The court also had to consider the principles governing the amendment of a notice of appeal when a ground was not initially raised in the Federal Circuit Court.

The court found that the refusal of the adjournment was unreasonable given the appellant's efforts to secure representation and the fact that the hearing was the second one following the Tribunal's reconstitution. The court further held that the Tribunal had failed to exercise its jurisdiction due to errors in the factual findings, leading to an incorrect assessment of the appellant's credibility. The court granted the appellant leave to amend his notice of appeal to include the new ground concerning the adjournment, as the principles governing such amendments allowed for flexibility in exceptional circumstances.

The appeal was allowed. The Federal Circuit Court's orders were set aside, and the matter was remitted to the Administrative Appeals Tribunal, differently constituted, for redetermination. The parties were directed to agree on appropriate costs orders for the appeal and the hearing before the Federal Circuit Court. If no agreement was reached by a specified date, the matter of an appropriate lump sum for the appellant's costs would be referred to a Registrar for determination.