Perils of using the wrong form – one form can make or break you
A recent case through the Federal Circuit Court of Australia highlights the importance of using the correct version of a form in any application.
The court was asked to assess whether there was a jurisdictional error when the Migration Review Tribunal refused the application for review because the wrong application form was used.
The applicant claimed that the wrong form was used because the migration agent overlooked the new changes and proceeded with the application for review using the old design of the form.
Despite the forms having substantially the same information and only differing in the section where you can enter your passport numbers, the Federal Circuit Court took the view that the Migration Review Tribunal did not err.
The court found that the applicant used the wrong form to apply for a review, meaning the Migration Review Tribunal's jurisdiction was not activated and as such there can be no jurisdictional error. Further to that, there is only jurisdictional error if the Tribunal:
- identifies a wrong issue;
- asks a wrong question;
- ignores relevant material; or
- relies on irrelevant material
None of the above conditions had occurred as the Migration Review Tribunal had no power to review the decision.
The court acknowledges that in applying the law and regulation as such in this case, it can be overly harsh on applicants but rule of law needs to be upheld until that said law is proven to be wrong, which in this case has not been proven.
What does this mean for you?
Simply put: Only use the correct version of the form for all applications.
Although this is about an application to the Migration Review Tribunal, it demonstrates that the court's view is quite strict and that they cannot do anything for simple mistakes made by the applicant or migration agent. They are in fact, unwilling to as they're bound to apply the laws and regulations as they stand.
Although most visa applications can be applied for online there are still paper applications that require the use of many different forms.
What is clear is that form designs change all the time, usually to include new information that the Department wishes to obtain or are updated to reflect new policies.
These forms may look the same and may contain exactly the same information but whether they were changed for a reason or not, make sure you check that you have the correct and most up to date version of the form or risk something like this case potentially happening to you.
For the most up to date forms you should only download them from the Department website. Do not rely on forms your mates sent you or that you have found online through forums.
Go straight to the horse's mouth here
If you are using a migration agent you should ask them if they are using the most current and up to date forms as you can see from this case that the migration agent 'overlooked' the changes and used the old form that got the applicant into this mess in the first place.
As migration agents and as part of our own internal review processes, we go through the application with a fine toothed comb and a magnifying glass, scrutinising every piece of document that we send off because we understand the gravity of not doing this.
Full judgement can be found here.