Sandan v Minister for immigration & Anor

This matter concerned an application for judicial review brought by Sandan, an Indian citizen who had applied for a student visa. The dispute arose from the Migration Review Tribunal's (MRT) decision regarding Sandan's application to extend the time to lodge a substantive application. The case was heard by Antoni Lucev J in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the MRT had committed a jurisdictional error in its consideration of Sandan's application to extend time. This involved determining whether the MRT was required to consider the merits of the substantive application when deciding whether to grant an extension of time, and whether the MRT's failure to do so constituted a failure to exercise its jurisdiction according to law. A related issue concerned the interpretation of the procedural requirements for an extension of time application, specifically whether the absence of a written application and supporting affidavit explaining the delay and demonstrating why the interests of the administration of justice required an extension meant that time could not be extended.

His Honour considered the relevant provisions of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), particularly those governing applications for extensions of time. The Court reasoned that the MRT's obligation was to consider whether to grant an extension of time, and that this consideration did not necessitate a full determination of the substantive application at that stage. The Court found that the wording of the regulations, particularly the use of the word "must," indicated mandatory requirements for an extension of time application, including the provision of evidence explaining the delay and demonstrating the necessity of the extension for the interests of the administration of justice. The Court concluded that the MRT had erred in law by failing to properly consider the application for an extension of time in accordance with the legislative requirements.

The Court ordered that the MRT's decision be set aside and remitted to the MRT for redetermination according to law.