Ling, Y. v Senator Bolkus, N - [1994] FCA 33

3 3

JUDGMENT No. ........ ........ . J ,..,.

IN THE FEDEFIAL COURT OF AUSTKRLlA )
\
AUSTRALIAN CAPITAL TERRITORY i

1 NO. ACT G 104 of 1993
DISTRICT REGISTRY
1
GENERAL DIVISION

BETWEEN: YANG LING
AND: SENATOR NICK BOLKUS, Minister
for Immigration and Ethnic
Applicant

Af f airs
Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Neaves J.
DATE OF ORDER

10 February 1994 l 1 FEB 1994
WHERE MADE Canberra
THE COURT ORDERS THAT:

36 of the Federal Court Rules.
1. The motion notice of which was given on 25 January
1994 be dismissed.

2. The application filed on 16 November 1993 be dismissed.
3. The applicant pay the costs of the respondent of and incldental to the application and the motion, including any reserved costs.

Note: Settlement and entry of orders is dealt with in Order

IN THE FEDERAL COURT OF AUSTRALIA )
1

AUSTRALIAN CAPITAL TERRITORY 1 No. ACT G 104 of 1993
DISTRICT REGISTRY
GENERAL DIVISION 1

BETWEEN: YANG LING
AND: SENATOR NICK BOLKUS, Minister
for ~mmlgration and Ethnic
Applicant

Af f airs
Respondent

CORAM: Neaves J.
m: 10 February 1994
REASONS FOR JUDGMENT

This is a motion on notice on behalf of Yang Ling ("the applicant") for an order extending the time within which to make an application under the A d m i n i s t r a t i v e D e c i s i o n s ( J u d i c i a l R e v i e w ) A c t 1977 (Cth) ( "the Judicial Review Act") for an order of review in respect of the decision made by a delegate of Senator Nick Bolkus, the Minister for Immigration

not have the status of a refugee within the meaning of the and Ethnic Affairs, ("the respondent") that the applicant does

Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967.

It appears that the decision sought to be reviewed was made on 16 April 1993 and was communicated by a letter of that date sent to the applicant by certified mail on 19 April 1993. The Court was informed that, by virtue of the provisions of reg.173(2) of the Migration Regulations, being Statutory Rules 1989 No.365 as amended, and reg.8.2 of the Migration (1993) Regulations, service of the letter is to be taken to have been effected on the applicant 5 working days after the date of posting, that is to say on 27 April 1993. It also appears that, following receipt of that letter, no request was made by the applicant pursuant to s.13(1) of the Judicial Review Act for a statement in writing setting out the findings on material questions of fact and the other matters

referred to in that provision. It follows that, applying s.11

of the Judicial Review Act, the prescribed perlod within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1994] FCA 33
Decision Date: 10 Feb 1994

CaseChat Overview and Summary

In the matter of Yang Ling v Senator Nick Bolkus, Minister for Immigration and Ethnic Affairs, Yang Ling sought an extension of time to lodge an application under the Administrative Decisions (Judicial Review) Act 1977 for a review of the decision made by a delegate of Senator Bolkus that Yang Ling did not have the status of a refugee. The decision was made on 16 April 1993 and Yang Ling's application for review was not lodged until 16 November 1993. The court was required to determine whether an extension of time should be granted. The court found that Yang Ling had failed to provide an acceptable explanation for the delay and that it was not in the public interest to allow the application to proceed. The motion for an extension of time was dismissed and the application for review was also dismissed. Yang Ling was ordered to pay the costs of the respondent.

Orders