1506131 (Migration)

[2015] AATA 3477

1506131 (Migration) [2015] AATA 3477 (16 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amanda Akabane Marques

CASE NUMBER:  1506131

DIBP REFERENCE(S):  bcc2014/3450688

SENIOR MEMBER:  Antoinette Younes

DATE:16 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 16 October 2015 at 9:41am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 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)(i) on the basis that the applicant is not, or is likely not to be a genuine student. 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 13 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner.  The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.  The applicant was represented in relation to the review by her registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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)(i). 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?

6. 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.

7. 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]).

8. 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. There is no evidence before the Tribunal of any matters relevant to s.116(1A), r.2.43(1C) and (1D).

9. In the decision record provided by the applicant in support of the application for review, it is noted that the applicant’s student visa subclass 572 was cancelled on the basis that:

   a.Whilst on a subclass 572 visa, from 20 October 2014 until 24 April 2015, the applicant had undertaken a Diploma of Management at Crumps International Pty Ltd. Crumps reported that the applicant had not achieved satisfactory course attendance and that her rate of attendance was below the minimum 80%.

   b.From 10 February 2014 until 5 September 2014, the applicant was undertaking the course of certificate IV in marketing at Imagine Education Australia Pty Ltd. On 12 March 2015, the education provider reported that the applicant had not achieved satisfactory course attendance and that her attendance rate was below the minimum 80%.

   c.Crumps provided ‘in class” assessments of the applicant which subsequent to being searched on Google, a significant amount of the applicant’s answers were found, word-for-word on the Internet. A number of examples were outlined in the decision record.

10. Based on the available information, the delegate decided that the applicant is not, and is not likely to be a genuine student and accordingly the visa was cancelled.

11. On 26 March 2015, the applicant provided a response to the notice of intention to consider cancellation under s.116(1). In summary, the applicant stated that:

    a.Imagine Education Australia (attachment) issued a CoE on 9 December 2013 in relation to a certificate IV in marketing.  A further CoE was issued to the applicant on the same day in relation to a diploma of marketing course.

    b.The applicant submitted at least 15 items of assessment which resulted in a confirmation of course completion issued on 1 September 2014.

    c.The applicant was not satisfied with the overall quality of education offered by that institution and decided to leave prior to the completion of the diploma of marketing.

    d.The applicant enrolled at Crumps on 20 October 2014 (attachment). Crumps provided a letter to the applicant dated 21 October “2015” advising that it is compulsory for students to attend their first day for orientation and every assessment day at the end of each month.

    e.At all times, the applicant believed that she had met the satisfactory attendance requirement. Although the applicant is not certain about her rate of attendance in relation to Imagine Education Australia, she considers her rate of attendance to be closer to 80%.

    f.The education provider has issues with record-keeping due to personnel changes and leave. The education provider issued a certificate IV in marketing as the applicant was a genuine student and had satisfied the requirements to be awarded the certificate.

    g.The applicant is a genuine student and her current education provider (EIP/Crumps) confirms that her attendance rate is 100% (attachment). The applicant has submitted all assessments and has successfully completed six units in the course and she is currently up-to-date. She is committed to future studies.

    h.MRT decision 1419593 supports her submissions.

    Material provided to the Tribunal

12. Relevant to the review, the applicant provided the following documents:

    a.Statutory Declaration of the applicant dated 5 May 2015.  In essence, the applicant provided detailed accounts of her experiences at Imagine and Crumps.

    b.Statutory Declaration of the applicant’s partner, dated 5 May 2015, referring, amongst other things, to the applicant being a genuine student.

    c.Complaint to the Commonwealth’s ombudsman about the courses of certificate and diploma in marketing.

    d.Documents from Crumps (English in Paradise/EIP) including written assessments by the applicant, academic results, CoE.

    e.Documents from Imagine including a letter of release dated 20 October 2014, records of results, certificate of qualification, confirmation of course completion, CoE.

    f.Department of education guidelines relating to course progress policy and procedures.

    g.Correspondence to the general manager of Imagine Education in relation to the procedures for recording attendance, confirming that the applicant’s attendance rate was 42.86%.

    h.Correspondence to and from Crumps, including a letter dated 6 May 2015 confirming that the applicant had completed all assessments and to satisfactory standards, and adherence to policies and procedures. The Tribunal notes that in an email of 7 May 2015, Mr Jason Arthur confirmed that ”in regards to the plagiarism concerns, Cameron, Amanda’s trainer, has reviewed the assessment in question and has confirmed that there was adequate referencing at the end of the assessment….”.

    i.Letter dated 4 May 2015 from an un-identified student describing, amongst other things, their negative experience at Imagine Education.

    j.Written submissions dated 12 May 2015 indicating that the applicant had satisfied the attendance requirements for both courses and complied with guidelines. The representative noted that the education providers had not reported the applicant for any breach and information about her attendance and records was only provided to the Department upon request by the delegate.

    k.Written submissions dated 22 July 2015 referring to access to file obtained by the applicant from the Department. It was submitted that there is no evidence in the departmental file of inadequate attendance or performance on the part of the applicant.

    l.The applicant had submitted all assessments required. The assessor had acknowledged the adequacy of the applicant’s referencing and the provision of satisfactory work. The comments about plagiarism are not founded. There are other students in similar circumstances. The case officer has failed to consider the merits of the applicant’s case.

    FINDINGS AND REASONS

13. There is extensive evidence before the Tribunal indicating that the education providers did not report the applicant for poor or inadequate attendance, and that both providers responded to requests from DIBP. The applicant gave evidence that she believed that although her attendance rate could have been under 80% at imagine education Australia, she stated that she believed that her attendance was in accordance with the education provider’s guidelines. The Tribunal asked the applicant what she thought her attendance rate was and the applicant stated that as she did not keep records, she does not know what her rate was. She stated that she did not know of the 80% attendance requirement because this was not noted on her visa grant. She stated that Imagine has issues with record-keeping and she does not know how attendance records are kept by the institution. She confirmed that she had attended what she was required to attend.

14. In relation to Crumps, the applicant gave evidence that the course was presented to her as a performance-based course and not attendance. She believed that she was only required to attend on assessment days and not all class times. Crumps’ student handbook explains the expectations in terms of attendance and confirmed the expectation of performance based assessment. She stated that her attendance rate was never raised with her as an issue.

15. The Tribunal discussed with the applicant the concerns in relation to allegations of plagiarism in the assessments at Crumps. The applicant stated that she had referenced the assessments at the end of each assessment paper and that this was accepted by the institution. She stated that she had confirmed that this was acceptable with the trainer.

16. The Tribunal notes that the applicant has provided evidence confirming that the trainer was satisfied that the assessments were completed in accordance with guidelines and policies.

17. On balance, in consideration of the evidence as a whole, the Tribunal finds that the applicant’s attendance at both institutions was below 80% and consequently, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists.

18. 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

19. 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’.

20. The applicant has provided extensive documentation and information to the Tribunal confirming that neither education providers had reported the applicant for attendance. The Tribunal notes that the applicant’s performance in the courses that she had undertaken was satisfactory. The Tribunal accepts the evidence that the applicant genuinely believed that her attendance rate was consistent with the providers’ expectations.

21. In relation to the claimed plagiarism, the Tribunal explored this issue extensively with the applicant in the course of the hearing. The Tribunal notes that the relevant assessments had been referenced at the end of the documents. The Tribunal recognises that plagiarism is a very serious matter and whilst the Tribunal acknowledges that from an academic point of view, the applicant’s manner of referencing may not be the most academically appropriate way, given the education provider’s conclusions that the assessments complied with policies and guidelines, the Tribunal is satisfied that, the suggestion of plagiarism is not supported by information from the education provider. On the basis of the available information, the Tribunal is not satisfied that the applicant’s manner of citation should be adversely taken into consideration in this review.

22. On balance, the Tribunal is satisfied that the applicant has contacted herself in a manner consistent with being a student.

    Degree of hardship that may be caused

23. The Tribunal appreciates that the cancellation of the visa would cause the applicant a certain degree of hardship such as not being able to pursue or complete further studies.  The Tribunal notes the applicant’s evidence that although currently she is not studying, she does have intentions to pursue further studies in Australia. The Tribunal has also taken into account the fact that the applicant is 25 years of age and that she has invested substantial sums of money and time in her studies and career advancement.

24. On the basis of the available information, the Tribunal is satisfied that the applicant would pursue further studies. Overall, looking at the circumstances cumulatively, the Tribunal is satisfied that there is a degree of hardship that would outweigh the reasons to cancel the visa.

    Circumstances in which ground of cancellation arose

    As outlined above, the applicant’s attendance rate was lower than expected. The Tribunal is persuaded by the applicant’s explanations.

    Past and present conduct of the visa holder towards the department

25. The applicant’s conduct towards the Department is noncontroversial; she responded to the notice.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

26. This is not a breach of the holder of a subclass 457 visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

27. The applicant is not in detention and she would be expected to comply with the conditions of any subsequent visa granted.

    Whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be any consequential cancellations.

    Whether any international obligations would be breached as a result of the cancellation

29. There is no evidence before the Tribunal and the applicant is not claiming that there are any international obligations that could be breached as a result of the cancellation.

    The impact on any victims of family violence

30. There is no evidence before the Tribunal that there is any victim of domestic violence or that there would be any such impact.

    Any other relevant matters raised by the visa holder

31. In consideration of the evidence as a whole the Tribunal has concluded that the applicant’s intention has been consistent with the reasons she was granted the visa. In essence and for those reasons, the Tribunal is satisfied that the favourable exercise of discretion in this matter is appropriate.

32. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Antoinette Younes
    Senior 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.