1505503 (Migration)

[2016] AATA 3823

1505503 (Migration) [2016] AATA 3823 (4 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pooi Leng Choo

CASE NUMBER:  1505503

DIBP REFERENCE(S):  BCC2015/886572

MEMBER:Stuart Webb

DATE:4 May 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 04 May 2016 at 8:56am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 April 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1))fa)(ii) on the basis that the applicant engaged in conduct not contemplated by the visa because of identified examples of plagiarism in her assignments. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 22 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent, who did not attend the hearing or provide any submissions. The applicant stated the agent only assisted in lodging the application. The applicant provided a copy of the delegate’s decision to the Tribunal.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(fa)

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. These are not applicable to this matter.

10. The applicant provided the following submission to the Department.

    Good afternoon, when I receive your email on the 15th April 2015 intention to cancel my student visa I was very saddens! Nowadays online searching via the internet is very common we can find any information we want regards to our dallies life, such as news, health, research & etc.

    Looking for the answers from internet is the fastest way to finish my assignments given to me. If I can use the latest technology methods to assist me to finish my assignment why don't we use it? As for the assignments I had done in TEDI College, I think it should be alright as long I can give them the correct answer to the question given to me.

    When I receive your email I knew that I am totally wrong to use this methods to do my assignments. Now I realized I need put in much more effort into it, by reading more academic books in the library, instead of just using information from Internet. If I need to be a good student, in the future I will not copy from the internet use others idea, if I really need it to quote an example from the internet I will highlight it in my assignments that these are others people works and not mine.

    Yes though I had use others peoples idea and works from the internet, it doesn't mean that I did not work hard on my studies, I spends hours & hours looking for information and only use the right information on my assignment.

    From now onwards I will change my way of studying, I will not copied others works I will do it all by myself, if I would go online line to do my research related to my assignment, the information which I had gather it will be only use it for reference and I will not used it in my assignments.

    I really hope that you would give me a chance for the mistake which I had make, I will repent deeply inside my heart that I will not make this mistake again. Please do kindly let me keep on studying in Australia.

11. The Tribunal discussed the applicant’s study history with the applicant. The applicant stated she had arrived in Australia in 2012. She had completed an English course. She then commenced a different course, she could not remember what it was, but was forced to discontinue when the course provider stopped the course. In January 2014 she commenced a 6 month Certificate IV in Frontline Management at Malvern Institute, which she completed. In September 2014 she commenced a Certificate IV in Business Administration at Technical Education Development Institute (TEDI).

12. The Tribunal asked the applicant about her studies. The applicant stated at Malvern Institute she had achieved her qualification in 6 months. She stated that she was told that she could complete work from the internet and hand it in. The applicant stated she did this for the entire course. The Tribunal asked what the applicant had learnt from this course. The applicant stated she had learnt something about serving customers.

13. The Tribunal asked the applicant about her studies at TEDI. The applicant stated that on the first day she was told that she did not have to attend, she could pay her money and receive the certificate. The applicant stated she did not want to do this. She was then told to attend her class, where she was given her assignment and told to complete it. She was not given any tuition, but directed to the computer room. She looked up the internet and copied work directly from websites and put this into her assignment. She stated that all the students did this. She handed the work in without acknowledging where she found the information, or altering it . The Tribunal asked what the applicant had been studying during this time. The applicant stated she did not know. The Tribunal asked her if she understood what she had been copying from the internet. The applicant did not know what she had been writing.

14. The Tribunal stated that it had significant concern that the applicant was not a genuine student. The Tribunal asked why the applicant had conducted herself in this manner and studies in this way. The Tribunal pointed out that the object of learning was to gain knowledge that she could put to good use in the future, the applicant starting she wanted to open a telecommunications business in Malaysia after her studies. The Tribunal asked the applicant what the point of a certificate was if she did not understand what she had studied.

15. The applicant stated that she entered the course. She did whatever her teacher told her. She was not told what she was doing was wrong, she was allowed to continue in the course, and had finished the Malvern Institute course in this manner as well. The applicant stated that the system was strange, it was different to the course she ahd commenced but had not been able to complete, but she had accepted that this was the process. She did not know any better.

16. The Tribunal asked why the applicant did not leave the education provider, given she was not learning. The applicant stated she did not want to affect her visa. She was going to do 6 months then think about transferring. The applicant asked why the applicant had not sought advice about the circumstances. The applicant stated she had an agent at the time, and now has a new one. She did not go to see him.

17. In the delegate’s decision the full provision of s116(1)(fa) was included. The Department cancelled the applicant’s visa pursuant to the provisions of s116(1)(fa)(ii), a provision that the Tribunal considers was open to it on the information before it. Before the Tribunal, the evidence of the applicant demonstrates that the provisions of s116(1)(fa)(i), that the applicant is not a genuine student, provide the ground for the applicant’s visa to be cancelled. The Tribunal raised this with cancellation ground with the applicant at the hearing.

18. The applicant has no idea what she has studied. She has completed one qualification by copying information directly from the internet, without attributing where it has come from. This is plagiarism, academic misconduct. The Tribunal noted that TEDI has a number of policies on its website, including one that deals specifically with ‘cheating and plagiarism[1]’. The Code of Student Behaviour and Student Handbook, available on the website, both provide information on TEDI’s position on cheating and plagiarism. The Student Handbook specifically states:

    [1] P.23V04 Cheating and Plagiarism Policy.

    Cheating and plagiarism in any form is unacceptable and will be treated by an Institute as an extremely serious matter.

    …

    If you use work from other sources without referencing where you found the source, you are plagiarising. Plagiarising is very serious as it is stealing words from another source, and claiming it as your own work. Referencing or sourcing your information is therefore vital! Please ensure you fully source where you found your information and follow the 'Referencing Guide'

    Plagiarising can include:

    ·Copying another student's work

    ·Copying work from a text or source of information without referencing

    At Technical Education Development Institute we take plagiarising seriously. If you plagiarise work, or you give your work to a peer to copy you will have been deemed to have failed the assessment and will be required to face an academic panel to determine if your enrolment should be cancelled[2].

    [2] P16 of TEDI Student Handbook

19. The applicant has admitted that she engaged in plagiarism for the purpose of completing her assessments.

20. Further, in plagiarising her answers to the assessments, the applicant has done this without understanding the words and ideas that she has copied. Information can be gathered from various sites, including text books, teachers and the internet. The art of learning is synthesising/processing that information and answering the question asked using that information. This is what it is to be a student, and successfully learning the concepts, as demonstrated by proper assessment of the answers to the questions, can lead ultimately to the provision of a qualification, a recognition of the successful learning completed by the applicant.

21. The applicant, in her copying of information from the internet, has not understood what she has been copying, and has not learnt from the information she has regurgitated. She has achieved an outcome, one qualification in this manner, and had progressed in a second through this practice.  The Tribunal does not consider that the practice of the applicant, answering questions by engaging in academic misconduct, and not learning from the information she has been copying, demonstrates that she is a genuine student. 

22. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

23. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

24. The Tribunal asked the applicant about her circumstances. Prior to coming to Australia she had been working in telecommunications, she gave up her business to come to Australia to learn more. The Tribunal noted that the applicant had failed to learn in Australia, given her evidence. The applicant stated that she wanted another chance, everyone makes mistakes, she would like to go to a better school. The applicant stated that the most important thing for her in Australia was to improve her English. The Tribunal noted that having resided in Australia for almost four years she would have had the opportunity to improve her English.

25. The Tribunal asked the applicant whether she had applied for a visa once her student visa was cancelled. The applicant stated that her agent had told her she had one. The Tribunal noted that applying to the Tribunal to review a decision to cancel a visa did not provide the applicant with a visa. The Tribunal noted that it was likely that the applicant was unlawfully in Australia, and had been since her visa was cancelled in April 2015. The Tribunal stated it was concerned that the applicant, who had an agent, had been unlawful for this period of time. The Tribunal advised the applicant to contact the Department as soon as possible as she was liable for detention if for some reason she found by Department officers or law enforcement officials. The Tribunal noted that the applicant would be eligible for a Bridging Visa E, given her present application before the Tribunal, though the decision to grant that visa was only available to the Department.

26. The Tribunal asked if the applicant had any compelling circumstances or other relevant information to provide. The applicant stated she had not learnt enough in Australia and did not want to return to Malaysia. She did not raise any hardship returning to Malaysia. She stated she had a boyfriend in Australia who was supporting her.

27. The Tribunal noted that no international obligations were raised by the applicant or anyone else affected by the cancellation of this visa.

28. The Tribunal has considered the circumstances of the applicant. As detailed above, the Tribunal does not accept that the applicant is a genuine student. Her study practices at two education providers have been conducted with admitted academic misconduct, simply copying information to answer questions. The applicant has not learnt from this practice. The applicant has achieved one qualification, and was well on the way to completing a second, while not understanding what she had been studying.

29. The applicant has not raised any hardship or relevant circumstances for the Tribunal to take into account. The applicant has stated that she would like a further chance, however it would appear that the applicant has been to two education providers and conducted herself in the same manner. The applicant has had her opportunity to learn, and has not chosen to take it.

30. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

31. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Stuart Webb
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.