Public Interest Criteria 4020 and what constitutes a “bogus document”
Have you been invited to comment on alleged bogus information or documentation that you have provided in support of your visa application? If this is in relation to a document that was genuinely issued, the recent court case of Buksh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 817 may be helpful to you, as that the Department may not actually have grounds to find that this is a “bogus document”, even if it potentially contains incorrect information.
In Buksh, the applicant, Mr Farid Buksh applied for a Student (Subclass 500) visa in 2021 which was refused under Public Interest Criteria (PIC) 4020, on the basis that he had provided a bogus document or false or misleading information in relation to his visa.
Mr Buksh applied for merits review of his Student visa application to the Administrative Appeals Tribunal (as the Administrative Review Tribunal was then known), and his review application was heard by the Tribunal in November 2021. In June 2022, the Tribunal affirmed the refusal of his Student visa application, based on a reasonable suspicion that an account maintenance certificate from Invest Capital Investment Bank Limited (“Certificate”) provided in support of his application was a 'counterfeit' and therefore was a bogus document.
In this regard, the Certificate was issued on the letterhead of ICIBL, dated and endorsed with the seal of ICIBL, and affixed with two authorised signatures. The Certificate stated:
“This is to certify that [Mr Buksh's father] bearing CNIC # [redacted] is maintaining following Account(s) with the bank.”
The Certificate then set out account details and a balance as of 29 December 2020, further stating “The above mentioned amount can be withdrawn at client on discretion at any time. The conduct of this account(s) is to our satisfaction.”.
The Tribunal conducted its own assessment of the Certificate and essentially found that whilst bank accounts referred to in the ICIBL Certificate and documentation do exist virtually, the funds did not belong to Mr Buksh or his father, and that the funds had been loaned by a third party recommended by the bank’s head office verification officer for a fee.
In this regard, the Tribunal’s findings included that:
there was reasonable suspicion of fraudulent activity occurring, as per the Department of Home Affairs’ findings 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 was 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, and the Tribunal accepted that business activity associated with ICIBL occurs at the address in Lahore identified on the Certificate; and
due to features of the Certificate issued to Mr Buksh’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, there was reasonable suspicion that the Certificate 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 Mr Buksh’s father with ICBL on 30 December 2020, therefore reflecting the Macquarie Dictionary definition of counterfeit, i.e. that it was “[m]ade to imitate, and pass for, something else; not genuine: counterfeit…”.
Mr Buksh sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (FCFCOA), on the grounds that the Tribunal had misconstrued the statutory definition of “bogus document” in the Migration Act 1958 (Cth) by incorrectly interpreting the word “counterfeit”. At first instance, the primary judge at the FCFCOA dismissed Mr Buksh’s judicial review application, and upheld the Tribunal’s findings that:
the Certificate was issued for the purpose of representing the funds held by Mr Buksh's father with Invest Capital Investment Bank Limited (ICIBL); and
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.
Mr Buksh subsequently appealed the FCFCOA’s decision to the Federal Court of Australia (Federal Court), on the grounds that the primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error, as the Tribunal misconstrued the part of the definition of “bogus document” that was concerned with counterfeit documents.
On appeal, the Federal Court noted that the main question was 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, i.e. 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.
The Federal Court reviewed the Tribunal’s decision, and stated that read in context, the Tribunal’s conclusion rests upon a view as to what was represented by the Certificate, as opposed to being whether the Certificate itself was a document of the kind it purported to be. The Tribunal further stated that there is a material distinction 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, ultimately finding that even where the contents of an authentic document may contain non-genuine representation about a matter, the lack of genuineness as to the contents does not make the document a counterfeit document.
For reasons including that the Certificate was genuinely issued by ICIBL, the Federal Court found that the Tribunal’s decision was affected by jurisdictional error, and therefore quashed the Tribunal’s decision, ultimately remitting Mr Buksh’s matter back to the Administrative Review Tribunal for determination.
Why this case helps visa applicants
The Department of Home Affairs has generally treated documents with inaccuracies and inconsistencies as being “bogus documents”, which in light of the Federal Court’s decision in Buksh, appears to be an overly broad and legally incorrect approach.
Going forward, the Department may need to draw a clearer distinction between bogus documents (i.e. forged, fabricated and/or altered documents) and documents containing incorrect information (i.e. genuinely issued documents with inaccurate or disputed information), such that they may not be able to refuse as many visa applications for failure to satisfy PIC 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) (“the Regulations”), and should instead be refusing some of these visa applications under other grounds e.g. for failure to satisfy regulatory criteria contained in Schedule 2 of the Regulations.
Whilst the refusal of a visa application, regardless of the grounds of refusal, would be understandably distressing, the refusal of a visa application under PIC 4020 generally comes with a 3-year exclusion period (during which a visa applicant cannot be granted another visa except in limited circumstances), whereas the refusal of a visa application for Schedule 2 reasons would not trigger such an exclusion period. This means that the refusal of a visa application for failure to meet Schedule 2 criteria may in fact be more favourable than refusal of a visa application under PIC 4020.
