Buksh v Minister for Immigration and Citizenship - Bogus Document Appeal Allowed

Original Word Document (86.5 KB) Federal Court of Australia

Buksh v Minister for Immigration and Citizenship [2026] FCA 478

| Appeal from: | Buksh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 817 |

| File number(s): | WAD 244 of 2023 |

| Judgment of: | COLVIN J |

| Date of judgment: | 22 April 2026 |

| Catchwords: | MIGRATION – appeal from a judgment of the Federal Circuit Court upholding decision of Tribunal refusing visa application – application refused on grounds that bank statement provided was a bogus document – where Tribunal found the statement was genuinely issued by a recognised bank – where the Tribunal had a reasonable suspicion that the bank was in the business of providing fraudulent statements – statutory construction of Public Interest Criterion 4020 of the Migration Regulations 1994 (Cth) – meaning of 'counterfeit' within 'bogus document' in s 5 of the Migration Act 1958 (Cth) – consideration of Arora v Minister for Immigration and Border Protection [2016] FCAFC 35; (2016) 238 FCR 153 – appeal allowed |

| Legislation: | Migration Act 1958 (Cth) s 5

Migration Regulations 1994 (Cth) Sch 4 PIC 4020 |

| Cases cited: | Arora v Minister for Immigration and Border Protection [2016] FCAFC 35; (2016) 238 FCR 153

Buksh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 817

Charlie v Queensland [2025] FCAFC 55; (2025) 309 FCR 345

Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216

Qantas Airways Ltd v Transport Workers' Union of Australia [2023] HCA 27; (2023) 258 CLR 571

Shu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 791

Williams v Toyota Motor Corporation Australia Limited [2024] HCA 38 |

| Division: | General Division |

| Registry: | Western Australia |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 50 |

| Date of hearing: | 14 April 2026 |

| Counsel for the Applicant: | Ms S Frankel |

| Solicitor for the Applicant: | Estrin Saul Lawyers |

| Counsel for the First Respondent: | Mr CM Beetham |

| Solicitor for the First Respondent: | Australian Government Solicitor |

| Counsel for the Second Respondent: | The second respondent filed a submitting notice save as to costs |
ORDERS

| WAD 244 of 202 3 |

| BETWEEN: | FARID BUKSH

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | COLVIN J |
| DATE OF ORDER: | 22 April 2026 |
THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders of Kendall J made on 14 September 2023 are set aside and in lieu thereof it is ordered that:

(a) The decision of the second respondent dated 16 June 2022 is quashed;

(b) The proceedings are remitted to be determined according to law.

(c) The first respondent do pay the applicant's costs.

1. The first respondent do pay the appellant's costs of the appeal such costs to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1 Mr Farid Buksh arrived in Australia in 2019 on a student visa that was valid until 2022. In 2021 he applied for a new student visa. A delegate of the Minister refused to grant the visa on the basis that there was evidence that he had provided a bogus document or false or misleading information in relation to his visa. Mr Buksh sought review in the Administrative Appeals Tribunal. There was a hearing in November 2021. In June 2022, the Tribunal affirmed the delegate's decision. The Tribunal's decision rested upon a finding that it had a reasonable suspicion that an account maintenance certificate from Invest Capital Investment Bank Limited (Certificate) that had been produced in support of his application was a 'counterfeit' and therefore was a bogus document. In consequence, a requirement that there be no bogus document produced in support of the application was not met. The Tribunal also found that the requirement should not be waived.

2 Mr Buksh sought judicial review in the Federal Circuit and Family Court of Australia (Division 2). He alleged that the Tribunal had misconstrued the statutory definition of 'bogus document' in the Migration Act 1958 (Cth). In particular, he said that the Tribunal had applied an incorrect interpretation of the word 'counterfeit' as used in the definition.

3 The Circuit Court dismissed Mr Buksh's application. It did so on the basis that the Tribunal had determined that the Certificate was a document issued for the purpose of representing the funds held by Mr Buksh's father with Invest Capital Investment Bank Limited (ICIBL). Further, as the Tribunal had 'determined that there were grounds to reasonably suspect that the Certificate was not a document issued by ICIBL showing funds genuinely held by [Mr Buksh's] father', there was no error in the Tribunal forming a reasonable suspicion that the document was a counterfeit for the purposes of the definition of bogus document in the legislation: Buksh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 817 at [80]-82. For clarity, the decision by the Circuit Court was not founded upon a conclusion that the Tribunal formed the view that the document had not been issued by ICIBL. There was no such finding by the Tribunal. Rather, the Circuit Court's decision rested on the conclusion that the funds that were shown in the Certificate were not funds held by Mr Buksh's father with ICIBL.

4 Mr Buksh now brings an appeal. He advances a single ground of appeal. It is to the effect that the primary judge erred in failing to find that the Tribunal's decision was affected by jurisdictional error in that the Tribunal misconstrued the part of the definition of bogus document that was concerned with counterfeit documents. In substance, the appeal turns upon whether the primary judge was correct in finding that the Tribunal applied the correct interpretation of the language used in the definition of bogus documents concerning counterfeit documents.

5 As will emerge, the question of statutory construction that arises for consideration is whether the words 'counterfeit document' includes a document that is authentic in the sense that its provenance as a document is genuine but contains information that is not true.

6 The proper approach to be adopted in construing statutory provisions is well settled. The starting point is the text of the statute whilst, at the same time, having regard to its context and purpose. Context should be understood in its widest sense. Words used should be given their natural and ordinary meaning unless otherwise indicated by context or the application of accepted construction principles. If the ordinary meaning is not consistent with the statutory purpose as discerned having regard to the language of the statute considered in context it must be rejected. As to these matters, see the recent summary in Charlie v Queensland [2025] FCAFC 55; (2025) 309 FCR 345 at [27]-32.

7 The parties did not point to any aspect of wider statutory context, statutory history or extrinsic materials as being relevant to the construction task.

8 In the present case, the words to be construed are definitional. They are to be found in the definition in s 5(1) of 'bogus document' which applies to the term when used in the Act unless a contrary intention appears.

9 The relevant definition is as follows:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

10 It may be noted that the definition identifies three separate instances.

11 The issue raised by the appeal concerns the meaning of 'counterfeit' in para (b) of the definition. The language in the definition that is in issue is that which provides that bogus document means 'a document that [the Tribunal standing in the shoes of the Minister] reasonably suspects is a document that…is counterfeit'. The other language in the definition is important context for considering the meaning of the words used, but it is the language just quoted that was the basis for the Tribunal's decision in the present case.

12 Definitional provisions are not operative. Their meaning is to be determined in the context of and for the purposes of a particular operative provision: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at 103; Qantas Airways Ltd v Transport Workers' Union of Australia [2023] HCA 27; (2023) 278 CLR 571 at 80 as applied in Williams v Toyota Motor Corporation Australia Limited [2024] HCA 38 at [70], fn 107 (Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ).

13 Unless there is a contextual reason for a different course, a defined term should be given a consistent meaning throughout the legislation in which it is deployed. There are other provisions in the Migration Act which use the term bogus document, particularly s 91W (concerning the refusal of an application for a protection visa where the applicant produces a bogus document in response to a request by the Minister to produce documentary evidence), s 91WA (concerning the refusal of an application for a protection visa where the applicant provides a bogus document as evidence of the applicant's nationality, identity or citizenship), s 103 (which prohibits the production of a bogus document to the Minister or the Administrative Review Tribunal performing a function under the Act), s 487ZI (concerning forfeiture of bogus documents) and s 487ZJ (concerning seizure of bogus documents). Each of these provisions deploys bogus documents in a similar context to that raised in the present case. The provisions are concerned with instances where a document is used or may be used to support an application for a visa.

14 In the present case, the operative provision was a public interest criterion that was required by the Migration Regulations 1994 (Cth) to be satisfied by an applicant for a student visa of the kind sought by Mr Buksh. The criterion is to be found in PIC 4020 and was expressed in the following terms at the time of the Tribunal's decision:

There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)     the application for the visa; or

(b)     a visa that the applicant held in the period of 12 months before the application was made

15 As to the meaning of the phrase 'information that is false or misleading in a material particular' the criterion states:

information that is false or misleading in a material particular means information that is:

(a)     false or misleading at the time it is given; and

(b)     relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

16 Therefore, the criterion draws a distinction between instances where the applicant has given a bogus document and instances where the visa applicant has given information to the Tribunal that is false or misleading in a material particular.

17 Although the criterion is to be found in the Migration Regulations, there is a note to the Regulations to the effect that terms defined in the Act have the same meaning in the Regulations in the absence of a contrary intention.

18 Relevantly, the criterion that Mr Buksh had to meet was as follows: 'There is no evidence before [the Tribunal] that the applicant has given to the Minister, an officer, or the Tribunal during the review of a Part 5-reviewable decision…a bogus document…in relation to… the application for the visa'.

19 It is the interpretation of the language of the definition of bogus document as deployed in the criterion (and as required to be applied by the Tribunal) that is at the heart of the appeal, particularly the application of the criterion in an instance where there is an issue as to whether there is evidence before the Tribunal that the applicant has given to the Minister or the Tribunal a document that is a bogus document because the Tribunal reasonably suspects it to be 'a document that…is counterfeit'.

The Certificate

20 The Certificate was issued on the letterhead of ICIBL. It was dated and endorsed with the seal of ICIBL and two authorized signatures were affixed. It was headed 'SUBJECT: Account Maintenance Certificate'. It stated:

This is to certify that [Mr Buksh's father] bearing CNIC # [redacted] is maintaining following Account(s) with the bank.

21 The Certificate then set out account details and a balance as at 29 December 2020.

22 The Certificate then stated:

The above mentioned amount can be withdrawn at client on discretion at any time. The conduct of this account(s) is to our satisfaction.

23 There was a footer to the Certificate that identified office addresses and a telephone number.

24 For the purpose of the hearing before the Tribunal, it was put to Mr Buksh that it had been established by an investigation that whilst bank accounts referred to in ICIBL documentation do exist virtually, the funds do not belong to student visa applicants or their sponsors and the funds have been loaned by a third party recommended by the bank's head office verification officer for a fee. Further, it was put that the Certificate provided by Mr Buksh contained features that were common with documents issued by ICIBL the subject of the investigation. As to these matters, see paras 24 and 25 of the reasons. Therefore, the relevant aspect of the case that Mr Buksh was asked to address did not concern the authenticity of the document as an account maintenance certificate as issued by ICIBL. Rather, it concerned the characteristics of the account referred to in the Certificate.

25 There were other aspects of the case before the Tribunal concerning whether the ICIBL operated from the physical address and used the telephone number. The Tribunal made findings to the effect that ICIBL did operate from the physical address and that the telephone number could be used to contact ICIBL.

The relevant reasoning of the Tribunal

26 Significantly for present purposes, the applicant considered both the 'bogus document' and the 'false or misleading in a material particular' limbs of the criterion. However, the Tribunal's decision was based on its formation of a reasonable suspicion that the Certificate was a bogus document. The relevant reasoning is to be found at paras 78 to 87 of the Tribunal's reasons.

27 The Tribunal commenced by recording its view as to the nature of the activities conducted by ICIBL. At para 79, the Tribunal said:

The applicant’s representative has submitted that whilst he was recently in Pakistan he was informed that previously some of the educational consultants in Pakistan have been involved in fraudulent activities including editing documents issued by ICIBL on computer programs and presented to UK or other consulates. This appears to be information consistent with the Department’s finding that ICIBL operates as a ‘ghost’ bank in the context of account maintenance certificates being provided to students from Pakistan applying for Australian student visas, where the funds do not exist or do not belong to the student or sponsor, and arrangements were made by a third party, where the applicants were referred to or put in touch with the third party who made the arrangements by the head office verification officer at ICIBL. The Tribunal accepts that there is a reasonable suspicion of this fraudulent activity occurring, as this is the result of what the Tribunal is satisfied was a comprehensive investigation by the Department, aspects of which the Tribunal has not been at liberty to discuss in these reasons.

28 Then at para 81, the Tribunal said:

The Tribunal is satisfied that the non-banking licence provided in association with the review is an indicator that ICIBL is recognised as a NBFC by official regulatory authorities in Pakistan. The Tribunal accepts that business activity associated with ICIBL occurs at the address in Lahore identified on the [Certificate].

29 It is apparent from these paragraphs that the Tribunal reached the view that ICIBL is a real entity that actually operates and is recognised in Pakistan as a non-banking financial institution. Further, ICIBL operates from the address specified on the Certificate. Also, ICIBL issues account maintenance certificates. It does so at the request of persons identified in the certificates. The Tribunal's reasonable suspicion as to fraud was not that the certificates as issued were not certificates of ICIBL issued in respect of those referred to in the certificates but that the issuing of the certificates was part of a fraud because the funds as stated in the certificates did not exist or did not belong to the student or sponsor referred to in the certificate. That is to say, the contents of the certificates were false or misleading.

30 The Tribunal then turned to the terms of the definition of bogus document and said at para 82:

The Tribunal, after considering the arguments put forward at hearing and in the submissions received, along with the documentary evidence provided in support of these arguments, is satisfied there are grounds to have a reasonable suspicion that the [Certificate] issued to the applicant’s father on 30 December 2020 is a bogus document.

31 The Tribunal then set out its reasons for that conclusion.

32 It began by stating 'the view' that it had reached that the Certificate did not come within para (a) or (c) of the definition of bogus document. As to those aspects of the definition, the Tribunal said at para 83:

In making this finding [that is, the bogus document finding] the Tribunal has taken the view that the certificate was issued with respect to… the father of the applicant. The Tribunal has not taken the view that the certificate was obtained because of a false or misleading statement, whether or not made knowingly. In making this latter finding the Tribunal has placed weight on the evidence given by the applicant as to his father’s active involvement in requesting the [Certificate] and in all interactions with the person from ICIBL associated with the [Certificate]. The Tribunal has also in part placed weight on aspects of the Department’s investigations into ICIBL which s 375A(2)(b) of the Act restricts discussion of in this decision. As a consequence the definition of a bogus document, as defined by s 5(1)(a) and s 5(1)(c) is not met.

(emphasis added)

33 As has been mentioned, a feature of the reasoning, and the proceedings before the Tribunal, was that there was certain information before the Tribunal concerning an investigation into the operations of ICIBL that was not made known to Mr Buksh. However, he was given an opportunity to respond to what the Tribunal considered to be 'the gist of the information': see paras 24 to 29 of the Tribunal's reasons. In the result, these aspects of the procedure do not assume significance for the outcome of the appeal. However, they explain references in the Tribunal's reasons to information that is not discussed in the reasons.

34 The Tribunal then turned to the term 'counterfeit'. It observed, correctly, that the term was not defined in the Act or the Regulations: para 84. It then set out the Macquarie definition for 'counterfeit' which was said to be 'pertinent and applicable'. The Tribunal did not comment upon the definition or explain any view as to the meaning of the criterion (or the reference to bogus document, and hence counterfeit, in the criterion). It simply proceeded to apply an unstated view as to the meaning of the term counterfeit document. So, it is necessary to infer from the Tribunal's reasoning the interpretation that it applied.

35 The key reasoning in that regard was at para 85 where the Tribunal said:

Due to the features of the [Certificate] issued to the applicant’s father on 30 December 2020 and the circumstances in which it was obtained which are consistent with factors of concern identified in the Department’s investigations, the Tribunal has formed the view that there is a reasonable suspicion that the certificate issued with respect to the balance of funds in an ICIBL account held in the name of [Mr Buksh's father] can be described as a document that is made to imitate and pass for, something else other than a genuine representation of funds held by the applicant’s father with ICIBL on 30 December 2020. It therefore reflects the first aspect of the Macquarie Dictionary definition of counterfeit. In forming this view the Tribunal has considered the submissions made and evidence provided by the applicant to refute the contention the ICIBL AMC is not genuine. The Tribunal is not persuaded by this evidence and submissions.

(emphasis added)

36 The first aspect of the Macquarie Dictionary definition to which reference was made by the Tribunal was as follows:

Adjective 1. Made to imitate, and pass for, something else; not genuine: counterfeit coin.

37 The emphasised language is revealing. Read in context, especially the earlier findings as to the activities of ICIBL, the Tribunal's conclusion rests upon a view as to what was represented by the Certificate, not upon a view as to whether the Certificate itself was a document of the kind it purported to be.

38 There is a material distinction to be drawn between (a) information within a document that is not genuine in the sense that it is false or otherwise misrepresents the true position; and (b) a document which itself is not a genuine document. In a sense, a counterfeit document is false or misleading. It purports to have the characteristics of an authentic document. It misleads as to its authenticity as a document. However, it is not the false or misleading nature of the contents of the document that make it counterfeit, it is the fact that it is not the kind of document that it purports to be that give the document its counterfeit character.

39 Put another way, the contents of an authentic document may contain contents that are not a genuine representation about a matter. The lack of 'genuineness' as to the contents does not make the document a counterfeit document.

40 The ordinary meaning of the use of the adjectival term 'counterfeit' when applied to a document is to describe a document which purports to be a kind of document that it is not. This meaning is supported by the context provided by the rest of the language used in paragraph (b) of the definition of bogus document, namely 'or has been altered by a person who does not have authority to do so'. The provision is concerned with whether the document is a true document not whether its contents are true.

41 Put in terms of the dictionary definition referred to by the Tribunal a counterfeit document is a document that is made to imitate and pass as being a genuine document. It is a fake or replica.

42 In the present case, the respect in which the Certificate was said to lack genuineness was its representation of funds held by the applicant’s father with ICIBL on 30 December 2020. That form of reasoning betrayed the application by the Tribunal of an incorrect understanding of the meaning of the term counterfeit as used in the definition of bogus document as deployed in the criterion that Mr Buksh had to meet. For the Tribunal to proceed on the basis of an incorrect interpretation of the meaning of the provision that was to be applied by the Tribunal in making its decision and which marked out the extent of its lawful decision making power was to make a jurisdictional error.

43 The parties referred to the reasoning in Arora v Minister for Immigration and Border Protection [2016] FCAFC 35; (2016) 238 FCR 153 where the Court considered the same criterion as was relevant to Mr Buksh's visa application. The issue raised in that case was whether, on a proper construction of the criterion, it would not be met if the visa applicant had given a bogus document regardless of whether its contents were false or misleading in a material particular. The contention advanced was that the words 'false or misleading in a material particular' qualified each of bogus document and information. The Full Court (Buchanan, Perram and Rangiah JJ) determined that the words did not qualify bogus document. In doing so, their Honours said at [15]:

Properly construed there is no requirement in PIC 4020(1) that the falsity of a bogus document should be relevant to the criteria that the Minister is considering. [The criterion] and the definition in s 5 address separately the falsity, respectively, of information (in PIC 4020(5)) and bogus documents (in s 5). Each has its own particular regime. The definition of 'bogus document' in s 5 is not concerned with the truth or otherwise of statements but with the reliability of documentation. It would be a most unworkable outcome if the Minister could not rely on the fact that a document was counterfeit but had to consider, in turn, whether the statements contained in it were, in any event, correct and otherwise relevant to the matters he had to consider. As a matter of formality, it is the definition of 'bogus document' in s 5 which will apply unless 'the contrary intention appears'. For the reasons just given, the contrary intention does not appear and the concept of a 'bogus document' is not subject to the gloss suggested by Mr Arora.

(emphasis added)

44 The approach of the Full Court is consistent with the view I have expressed, albeit that the Court was concerned with a different argument in that case. See also Shu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 791 at [32]-[34].

45 Also of significance as a matter of immediate context is the terms of para (c) of the definition of bogus document. It applies where the Minister reasonably suspects a document 'was obtained because of a false or misleading statement, whether or not made knowingly'. Significantly, the definition does not refer to an instance where the document itself is false or misleading as to its contents. Rather, a more confined application of the notion of false or misleading is applied, namely the procurement of the document by making a false or misleading statement. It is conduct of a kind that would mean the document lacks authenticity.

46 A similar observation may be made in respect of the alternative stated in para (b) of the definition of bogus document which refers to a document that 'has been altered by a person who does not have authority to do so'. Again, the focus is upon the authenticity of that which is depicted by the document. The language does not extend to an instance where the document is altered in a way that makes it false or misleading (whether with or without authority as to the content of the document).

47 These distinctions are reflected in the terminology of the criterion itself. As was noted at the outset of these reasons, the criterion differentiates between an instance where a bogus document has been given and an instance where information that is false or misleading has been given.

The relevant reasoning of the primary judge

48 The primary judge found that para (b) of the definition of bogus document (that is, the paragraph concerned with counterfeits) 'is concerned with a document that is said to be genuine but is not genuine because the document is not actually what it claims to be': at [80]. That statement could not be criticised. However, his Honour then went on to say: 'This is essentially what the Tribunal determined here - that is, that the [Certificate] was a document that was issued for the purpose of representing the funds held by [Mr Buksh's] father with ICIBL as at 30 December 2020'. Respectfully, that further step was in error. For reasons I have given, the fact that the document might be said to contain a representation about funds held that might not be 'a genuine representation' did not make the document a counterfeit. It was not a basis upon which to conclude that the Certificate was not the document that it claimed to be. A finding that the document represented something that was not genuine in the sense that it was false (even fraudulently false) did not make it a counterfeit. It was not a basis upon which to conclude that the Certificate was a fake version of a genuine document. It did not make the document one that was made to imitate or pass for being an account maintenance certificate issued by ICIBL.

49 The conclusion by the Tribunal that the Certificate was a counterfeit, as upheld by the primary judge, was based upon two findings: (a) the Certificate represented that the account referred to in the Certificate had particular characteristics, namely that the funds referred to were funds of Mr Buksh's father held with ICIBL and (b) the Tribunal formed a suspicion that the funds had been loaned by a third party. As has been explained, a conclusion of that kind proceeds upon a misapprehension as to the meaning of the term counterfeit document in the definition of bogus document as applied by the criterion.

Conclusion and orders

50 For those reasons, the appeal ground has been made out and the appeal must be upheld. In lieu of the decision by the primary judge there should be orders quashing the Tribunal's decision. Orders by way of mandamus were also sought. No submissions were advanced as to why it might be expected that a decision would not be made. The decision that is now required to be made is by the Administrative Review Tribunal. The costs of the appeal should follow the event. Having succeeded, Mr Buksh should also be awarded the costs of the review application in the Circuit Court.

| I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. |
Associate:

Dated: 22 April 2026