1508254 (Migration)

[2016] AATA 3442

1508254 (Migration) [2016] AATA 3442 (3 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shaheryar Khan

CASE NUMBER:  1508254

DIBP REFERENCE(S):  BCC2015/939768

MEMBER:Stuart Webb

DATE:3 March 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 03 March 2016 at 3:10pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 June 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 he engaged in conduct not contemplated by the visa, namely that he submitted another’s person’s work as his own in a significant proportion of his assessment. The delegate noted a number of instances where the applicant’s assessments conducted in his Certificate III in Business Administration were copied directly from internet sources without attribution. 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 24 February 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The applicant provided a copy of the delegate’s decision to the Tribunal.

4. 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

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(fa)(ii). 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)

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. 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. In this instance, there was no deferment or temporary suspension of the applicant’s course.

8. Although the matters in Reg 2.43(1D) have been prescribed, it is still open to the Tribunal to have regard to other relevant matters to determine whether s116(1)(fa) applies. This is because s116(1A) states that delegates are not limited to prescribed matters in determining whether they are satisfied about whether s116(1)(fa) applies.

9. The term ‘conduct not contemplated by the visa’ is not defined in the Act and has only been the subject of limited judicial consideration. The Department has provided some guidance in its PAM3 on this consideration.

   Conduct not contemplated by the visa - s116(1)(fa)(ii)

   'Conduct not contemplated by the visa' is not been defined for s116(1)(fa)(ii) purposes but, as with s116(1)(fa)(i) examples, it must relate to the visa holder's status as a student.

   Generally, 'conduct not contemplated by the visa' would be restricted to academic misconduct. As educational institutions will normally have procedures in place for dealing with academic misconduct, it is policy that the conduct should be ongoing or of a serious nature before cancellation under s116(1)(fa)(ii) is considered.

   Five examples of circumstances in which s116(1)(fa)(ii) may apply

   This ground may be used to cancel a visa if the visa holder is:

   •    found to be selling essays on campus or

   •    engaging in academic misconduct such as repeatedly cheating in exams or

   •    involved in serious plagiarism or

   •    receiving payment to attend classes or exams on another student's behalf or

   •    using their provider's resources for private or business purposes.

10. The Oxford dictionary defines plagiarism as ‘the practice of taking someone else's work or ideas and passing them off as one's own’. Wikipedia in providing its explanation of the definition states that it is the ‘use or close imitation of the language and thoughts of another author and the representation of them as one's own original work[1]’.

    [1] taking this definition from the 1995 Random House Compact Unabridged Dictionary

11. Plagiarism is a form of cheating.  The effect of plagiarism has been described as negating real learning, underdeveloping the skills that are being assessed;  or eroding the intellectual integrity of academia, the free exchange of ideas being affected when doubt as to the fundamental capacity of the student, the teacher and the actual learning are created[2]. A further academic describes plagiarism as ‘the most serious offense in academia’.[3] A further view of plagiarism states:

    The practice of plagiarism is a form of academic high treason because it undermines the entire scholarly enterprise. How else do professors decide between a good and a bad student, evaluate a candidate for an academic position, or grant promotion to a fellow faculty member, if not on the basis of the belief that their written work is actually their own work?

    Therefore, plagiarism must be prevented at all levels of academic life from student papers to academic books. Nevertheless, care must be taken whenever one suspects a writer of plagiarism. It cannot be stressed enough that everyone makes a few mistakes and that genuine cases of similar use may occur. Consequently, what must be identified are patterns of behavior, repetitive practices, and clear indications of an attempt to deceive. The following paper attempts to identify plagiarism and show how plagiarists weave their web of deception.[4]

    [2] Academic Honesty and Avoiding Plagiarism

    [3] The Problems with Plagiarism

    [4] The Plague of Plagiarism: Academic Plagiarism Defined, Irving Hexham,

12. There are some comments that plagiarism needs to be considered more broadly. An article by Brian Martin concludes that:

    Plagiarism is often treated like a mortal sin: assumed to happen only rarely and warranting the most extreme penalties when discovered. The reality is different: plagiarism in mild forms is quite common. Plagiarism needs to be understood as a straightforward issue of learning how to give acknowledgements in the fashion expected in a scholarly environment. The main focus should be on learning, not penalties for transgressors[5].

    [5] Plagiarism by university students: the problem and some proposals

13. The Tribunal further notes that there are exceptions to the requirement for attribution. The Tribunal notes that the ‘Harvard Guide to Using Sources’ provides that information which is common knowledge (either to the general public or professionals in the field) does not need to be cited (although it is suggested that citations are used). This guide states:

    the only source material that you can use in an essay without attribution is material that is considered common knowledge and is therefore not attributable to one source. Common knowledge is information generally known to an educated reader, such as widely known facts and dates, and, more rarely, ideas or language. Facts, ideas, and language that are distinct and unique products of a particular individual's work do not count as common knowledge and must always be cited[6].

    [6] Harvard Guide to Using Sources: The Exception: Common Knowledge

14. Plagiarism is obviously seen as a significant issue in academia, and something that should not be tolerated, though the response to the discovery of plagiarism may differ. The Tribunal notes that the TEDI documentation as detailed below names plagiarism specifically as an issue for students[7].

    [7] AAT folios 81, 78, 68, highlighted

15. The Tribunal has considered what the purpose of a student visa is. It is an entitlement provided by the Australian government for a non-citizen or permanent resident to enter and reside in Australia for a temporary period. The visa holder is required to enter Australia and study specified courses within the period provided. The visa holder is entitled to complete their studies, gaining skills and learning, and once completed, obtain a qualification which will assist them in future employment, business or career opportunities. Conditions placed on the grant of the visa require a visa holder to be enrolled in a course, and once the course is commenced, to attend and achieve satisfactory course progress[8]. A lack of academic achievement can lead to visas being cancelled or refused on application.

    [8] Condition 8202

16. Condition 8202 references satisfactory course progress, which requires a visa holder to meet the requirements for completion of the course over a period of time. Course providers assess the visa holder’s knowledge from their studies by asking for evidence of their knowledge. Most course providers do this through assessment, as in the case of the applicant. Assessment can take many forms, including written assignments, exams, or practical demonstrations. In the applicant’s situation, written assignments were required for an assessment of his knowledge. Arising out of these assessments, student visa holders are then considered whether they have satisfied or not satisfied the assessment component, or in the case of the applicant, been determined to be ‘competent’ or ‘not yet competent’ in the units of the course[9]. Once competency in all units has been assessed as achieved[10], the course provider certifies that the visa holder has achieved the requirement for the qualification[11].

    [9] AAT folio 23

    [10] AAT folio 21

    [11] AAT folio 22

17. Plagiarism affects the ability of the course provider to assess the competency of a visa holder in an assignment. Providing someone else’s work and claiming it to be your own is not demonstrating an understanding of the assessment task, but is completing work by using other people’s ideas, words and concepts. Recognising where that work comes from demonstrates research, and adapting attributed work for the purpose of the particular assignment demonstrates understanding (the merit of the adaptation is a matter for the an assessor’s consideration). Copying work and providing it as your own does not demonstrate competency. The Tribunal does not consider that the purpose of student visas is to provide for the completion of assignments by copying work and providing it as your own.

18. Having considered this information, as discussed above, and on reviewing the provisions as provided by s116(1)(fa)(ii), the Tribunal considers it is open to it to consider the applicant’s plagiarism in determining whether the applicant has engaged in conduct not contemplated by the visa.

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

    I came to Australia in February, 2012 to pursue my studies. Right from my growing up years in my home country, a thought that had set in my mind is to be a master of my own business. My ideology in life is to make my own business fortune. I have always been less inclined towards working under supervision. After consulting my family and explaining my interests to them, I decided to study a course specialising in Business Administration and Management. To enhance my skill-set from the basic level, I decided to start my education pursuit from a CERT III level. I also have enrolled in subsequent pathway courses in CERT IV, Diploma and Advanced Diploma of Business. I chose study this course in Technical Education Development Institute in Australia.

    There is a very important reason why I chose Australia for my study pursuits. Australia is a very popular destination for education offering a range of study options. The Australian Education System houses a variety of Institutes with a variety of courses and degrees that makes it much easier for internationals student like me to find the best that suits their interest. The Australian education system holds an impressive international reputation and that is the reason I chose to study in Australia.

    Hence, I was very excited and geared up to start my new course as this is the future I have chosen for myself I started my studies at Technical Education Development Institute. On the first day of the Institute, a brief orientation was held. I was excited to see what was in store for me but to my disappointment, my experience with the Institute on the Orientation day had not been what I had expected. On that day all we received was basic Information about the institute such as the foundation and trainers present in the institute. The induction session was lacking in terms of introducing us to student support facilities such as library, extra tutorials, language help etc. We were not given information about the book resources/library of the school and where to find information if we are to do our assessments in School. Our trainer kept affirming that all training materials will be provided to complete assessments. However, the training materials provided suggested various essential reading book titles which none of the students had access to. The school was essentially lacking in housing book resources that can be use and returned. The students had no other means except for referring to resources online. Since my main aim was to concentrate and attain the skills and qualifications, I paid little heed to the lack of information given on the day of the orientation.

    I started my course and I was happy to see that I obtained very good remarks on my assessments from the trainer I have hardly failed any assessment. Most of the assessments conducted in our institute are open book assessments and all we were asked to do is to look up the answers on the internet and write them down on the assessment sheet. As stated previously, the School did not provide any reading materials. They did not provide access to the books prescribed in the essential reading category as well. We were not advised how to source information from an online source and no background information was given in relation to different referencing styles (Harvard, Chicago, AGLC etc.) required for the assignments or the method of portraying a particular answer. Also I had received a competent grade in all of my assignments. Not a single assessor of mine has advised me of any situation involving plagiarism. Till date I have been unaware of any policies and procedures followed by the school in relation to the assignments as we students have not even been provided a handbook stating the requirement guidelines for an assignment. Also certain statements mentioned in the assessments are definitions which the trainers insisted on reproducing it the same way.

    While preparing my assignments I do read and understand my answers. I have performed multiple presentations in relation to these topics and have received good remarks on each of my presentations. However, I believe that there is a very thin line when it comes to deriving texts from an online source in the context of an open book assessment. The training providers who are appointed to deliver the program to us international students must have a formal qualification that enables them to assess a course work efficiently. They must educate us students on plagiarism, copy right infringement, referencing, paraphrasing, and quoting an open source etc as these concepts are far too complex for students who are just starting out with a CERT III in Business. We students rely on the education provider for such guidance and if left to us, we may reproduce contents as we are ignorant about presenting information derived from other sources for assessment purposes. This mistake has happened because of the lack of information from the institute's side and being unaware of the requirements a student must meet to complete an assignment. The trainers in the institute did no favours to me by marking away my assessments as competent when it was flawed to an extent. I had no premise to detect this problem as I had also received positive feed-back from my trainers for the very same assessments. Also, the education system in my home country is less practical and more bookish or theoretical. Students get higher grades when they reproduce definitions and concepts and are encouraged to memorise the contents. I am attuned to this practice after years of high school and was not educated about how the system in Australia is different and warrants individual ideas and thoughts in tests and assessments.

    Hence, I kindly request you to please give me a second chance to successfully complete my course so that I get one step ahead to achieve my goal. I am keen on changing my education provider as well as I was completely blind-sided by the feed-back given to me and was ignorant about the whole thing. I am not a bad student. I am very intent on my education pursuits and I assure you that I would be very careful in completing my future assignments. Hence, I sincerely request you to not cancel my student visa and enable me to full-fill my education pursuits in Australia.

20. The applicant provided a series of documents to the Tribunal. This included an academic transcript of his most recent course, and Certificates of completion for a Cert IV Video and Audio System and Cert III Electronics and Communications courses, conducted at the same course provider as his most recent course. Letters regarding the courses showed that the applicant had commenced at the Technical Education Development Institute (TEDI) on 1 July 2012, and completed his Cert III course on 30/6/2013, and commenced the Cert IV course on 1 December 2013 and completed the course on 15 June 2014[12].

    [12] AAT Folios 17- 23

21. The delegate in their decision stated:

    We have checked a significant sample of [the applicant’s] written assessments and we have found that a significant proportion of his written assessment have been copied word for word from the internet. Copies of his assessments were sent to him by email[13].

    [13] AAT Folio 6

22. The delegate then listed 6 specific examples of text that was taken directly from internet sources (identified by the delegate) that were not attributed to the source in the assessment[14].

    [14] AAT Folio 5-6

23. The Tribunal has reviewed and confirmed the veracity of the references as cited by the delegate in their decision. The Tribunal has also identified a number of other examples where the applicant has provided responses to assignment questions that are wholly or substantially copied from unattributed internet sources[15]. The Tribunal considers that the applicant’s assignments have a significant number of answers that are wholly or substantially derived from other sources without attribution. The Tribunal discussed these with the applicant at the hearing.

    [15] DIBP Folio 46, DIBP 47, DIBP 51,

1. The Tribunal raised the issue of plagiarism with the applicant directly. The Tribunal identified that plagiarism was the practice of taking someone else’s’ work and using it as your own, with no attribution or reference. The Tribunal identified to the applicant that a number of his responses in his assignments were wholly or substantially copied from internet sources without attribution, which constituted plagiarism. The Tribunal noted that plagiarism is a serious matter in terms of education, as qualifications arise out of the successful completion of assignments and tests designed to assess whether a person understands the subjects that had been taught.

2. The applicant did not deny he had plagiarised his assignment work. The applicant stated he was encouraged to find the answers to the assignment questions on the internet. He stated that he submitted the work and his teachers said nothing, making no negative comments on the work he had done certainly not identifying any issues with copying or plagiarising work. He was not aware he was plagiarising, and that it was so serious it could affect his visa. The applicant stated that the school and teacher should have been more proactive and raised this at the first instance, they did not. He never received any warnings about his work from the school. He had in fact received positive feedback, as indicated on the front of the assignments. The applicant’s agent stated that the teacher or school should have warned him if it was a concern.

3. The Tribunal notes that the applicant’s plagiarised answers demonstrate that the applicant does not understand the nature of the questions. In a question ‘When would you use a Foam Fire Extinguisher (Pictured Below)[16], the applicant has answered ‘Foam extinguishers contain a concentrate mixed with water which produces foam when discharged. The normal capacity of this type of extinguisher is 9 litre’. The italicised element of the answer is a direct copy of information found at The Tribunal notes that the applicant’s written copied answer does not actually answer the question, as the applicant has described what is a foam fire extinguisher, but not when one would be used. This demonstrates directly the concern with plagiarism in an academic answer, the applicant is not demonstrating any knowledge, he is in fact wrong, but he has chosen to copy an answer from a source he believes is correct. The issue is not that the applicant was wrong in his answer, but that by plagiarising a response he is demonstrating that he has no understanding of the question and answer itself. He has searched the internet for ‘fire foam extinguisher’, found a site, and copied the answer from the data on that page. Ironically, the correct answer was in the next sentence of the copied material and in the material at the top of the page. The applicant’s plagiarism demonstrates he does not understand what he is being asked. The competency assessment that has been made is based on his responses, which is reliant on his copied text, rightly or wrongly.

   [16] Q6, DIBP folio 51

4. The applicant stated that he was not aware of plagiarism because he was from a 3^rd world country (Pakistan). The applicant stated that they taught differently in Pakistan, it was more practical work. However the Tribunal found an article online which discussed directly the identification in Pakistan of the issue of plagiarism.

   Plagiarism in Pakistan has increased with the improvement in quality of higher education and it is, therefore, one of the biggest challenges for universities and the Higher Education Commission (HEC)[18].

   [18] Plagiarism in Pakistan | PU Gujranwala Campus: Steps against plagiarism discussed

5. The Tribunal noted that this demonstrated that plagiarism was an issue in Pakistan, and that educators are seeking to do something about it. The applicant’s agent sought to distinguish this as the article discussed higher education, and not lower levels of education in Pakistan that the applicant had completed. The Tribunal does not accept this submission, the Tribunal considers that concerns about copying other people’s work and claiming it as your own, without attribution is found in all levels of Pakistani education, and is not accepted at lower levels of Pakistani education system. The Tribunal does not accept the claim that the applicant was unaware of plagiarism because he came from Pakistan.

6. The applicant claimed that he had completed two courses at TEDI without issue. The Tribunal does not have any testing documentation that the applicant completed in those two IT related courses. The applicant claimed that these two courses were very practical, and it was the business administration course that was more text based. He had no issues completing the first two courses. He did not know he could not copy.  

7. The Tribunal discussed with the applicant the expectations of the course provider with his work and its assessments. The Tribunal noted that the course provider’s website had a section that provided the policies and procedures of the curse provider[19]. Included in these policies was a Code of Student Behaviour Policy and an Assessment Policy and Guidelines. The Student Behaviour Policy had the following relevant sections:

   1.1 The purpose of this procedure is to outline the system used for ensuring students meet the behaviour requirements of the Institute.

   3.4 The Student Code of Behaviour requires the following rights and expectation to be respected and adhered to at all times.

   ·    The expectation that students will not engage in copyright breaches, cheating or plagiarism

   [19] AAT Folio 81,

8. The Code of Student Behaviour Policy is a signed document. The Tribunal put adverse information to the applicant pursuant to s.359AA of the Act pertaining to this policy. The Tribunal produced a student induction checklist as created by TEDI, which states that the applicant was made aware of all the policies of the institute during the orientation. This included an Information Topic on ‘Ethics and Standards of TEDI’, which included ‘Equal Opportunity; Student Code of Conduct; Duty of Care; and Plagiarism & cheating.’ The applicant had initialled this section and signed that he understood the information mentioned above on 1 July 2012[20]. The Tribunal noted that it was relevant as it showed the applicant was put on notice and aware that plagiarism was not permitted as part of his TEDI education.

   [20] AAT Folio 68

9. The applicant initially acknowledged he had seen the document. He stated he had signed it, but did not recall initialling on the side of the document. The applicant stated the school had ticked the sides. The Tribunal identified that it was the applicant’s initials ‘SK’, and not a tick.  The applicant then stated that the signature was questionable. The Tribunal provided copies of the applicant’s signature that were similar to the signature on the code of student behaviour. The applicant also stated that he was required to sign a lot of documents and he could not recall signing all of them. he could not recollect being told about plagiarism at the school. The applicant stated that the schools processes were weak. The applicant’s agent spent some time disparaging the education provider, including that complaints had been made about it and that it had been audited outside of the ordinary cycle of audits.

10. The Tribunal questioned why the school would provide a fraudulent document pertaining to the applicant. The Tribunal asked why they would initial a document and sign it when requested by the Tribunal to provide some information. The applicant stated he was not aware of the policies regarding plagiarism. The applicant stated that he had approached TEDI but they had said they could not help him. The Tribunal noted that as his visa had been cancelled, this position was not unreasonable as there was no further education assistance that could be provided while he was not entitled to study. The Tribunal expressed its concern about the claim that TEDI would act inappropriately or fraudulently with the applicant’s records. The Tribunal does not accept that TEDI created a document showing that the applicant signed an acknowledgement of the code of behaviour. The Tribunal does not accept that there is any reason for TEDI to manufacture a document for the Tribunal as claimed by the applicant. While there are valid criticisms of TEDI, as detailed below, the Tribunal does not accept that this is one of them. The Tribunal finds that the applicant was informed about the issue of plagiarism by TEDI and signed and initialled the acknowledgement that he had received this information.

11. The Tribunal also identified that there was further information about plagiarism and that it was not acceptable at the course provider. The Assessment Policy and Guidelines Policy[21] provided the following information.

    Irregularity for the purposes of student examination or other legitimate assessment processes

    The unauthorised use or attempted use by or for any student of any means to gain unfair advantage in any examination, test, assignment, essay or other work, the assessment of which forms part of the final assessment. It includes any action taken by a student which would constitute an unfair advantage or intentionally fraudulent attempt to demonstrate competency in an examination or assessment context which forms part of a final assessment. An irregularity includes misconduct and plagiarism.

    [21] AAT Folios 78-80

12. The applicant stated he did not know about these policies. The Tribunal identified them readily from a perusal of the applicant’s course provider’s website, the course provider he had attended for a significant period of time and for all of his study in Australia.

13. The Tribunal consider that the policies of TEDI clearly raise the issue of plagiarism and that it was not permitted. The Tribunal does not accept the claim that the applicant was unaware of the policies regarding cheating and plagiarism. His signed document demonstrates that on arrival at the school he was informed of the policies. The Tribunal accepts that the applicant may not have taken much notice of these policies, but does not accept he was ignorant of the fact that cheating and copying was against the rules of the school. The Tribunal considers the applicant knew what he was doing was not permitted pursuant to the official policies of the course provider.

14. The applicant and his agent both blamed TEDI for its failings. The applicant was critical of the services it provided. The applicant’s agent stated that it was poorly run and did not adhere to its own policies. It was submitted that it had the words on paper, but did not follow them in practice.  Both the applicant and agent sought to blame the school, for its failure to follow procedures when plagiarism was alleged, and the teachers, for not discovering and advising the applicant about the consequences of plagiarism. It was submitted that the applicant was never warned about this conduct, he had in fact received good reports about his work.

15. The Tribunal accepts that some criticism of TEDI is valid. The Tribunal is not aware of any warning provided the applicant about his conduct in completing assignments in the manner that he has. His plagiarised answers were not identified or corrected on the assignment copies as seen by the Tribunal. In completing his work it was not marked on the documentation that his answers were being copied from elsewhere without appropriate attribution. Given the lack of warning, formal or informal, the applicant continued his practice of copying work without attribution from the internet. The applicant stated he would have stopped this if he had known.

16. At the hearing the Tribunal noted the inconsistency in the applicant’s evidence regarding his displeasure as to his course provider. The applicant had been very critical of the course provider in his written statement, criticising the services that were provided, the lack of books and resources. The Tribunal noted that the applicant had an extensive history of studying at this course provider, and had chosen to re-enrol on two occasions in courses at this provider. He was enrolled to study further courses there. This did not demonstrate that the applicant was not happy with the course. The applicant and his agent stated that the applicant could not leave the course provider, he was booked into 3 courses and was not permitted to leave. The agent correctly identified that students face difficulties if they have not completed six months of the principal course (the main course of study they are undertaking), that it is not easy to leave. The Tribunal agreed with this, but noted that the applicant had changed from his initial IT related courses and had commenced a series of business administration courses. The Tribunal identified that the applicant could have sought, and received permission to change course providers if he had requested to do so. He had not done so, he had persisted with TEDI and had, on his evidence, commenced a Cert IV course in Business Administration shortly before he had had his visa cancelled. The Tribunal considers that the continued study at TEDI demonstrates the applicant’s acceptance of the conditions he found there, and the resources and teaching methods in the courses he had studied and completed were satisfactory to him. The Tribunal does not accept this criticism of the course provider by the applicant.

17. The Tribunal has considered the applicant’s attribution of blame for his predicament to his course provider, that the lack of warning or comment on his work led to his continuing to work in the manner he was doing successfully. The Tribunal does not accept that the course provider is to blame for the applicant’s plagiarism and subsequent visa cancellation. The Tribunal considers that the applicant is responsible for the work that he provides in his class. That his work was not identified as plagiarism by his teachers does not absolve the applicant of the responsibility for the plagiarism in the first instance. He copied work without attribution, passing it off as his work. He did the internet research and copied from sites without acknowledgement. The Tribunal does not accept that the applicant was not aware that this practice was not permitted, the Tribunal considers that copying of other people’s work is well known to be something that is not permitted.

18. The Tribunal identified in the applicant’s written response his statement that ‘We were not advised how to source information from an online source and no background information was given in relation to different referencing styles (Harvard, Chicago, AGLC etc.) required for the assignments or the method of portraying a particular answer’.  The Tribunal asked the applicant what he knew of such referencing styles. The applicant stated he knew of Oxford and Harvard. He could not identify the features of either referencing styles, and was ignorant completely of what AGLC[22] meant.  The applicant’s agent stated that they had not been assisting the applicant at the time this letter was written to the Department. The applicant’s lack of knowledge regarding these reference styles yet inclusion in the written response is further concern to the Tribunal about the applicant’s study and written work. The Tribunal acknowledges that plagiarism is not a relevant matter in submissions to it or the Department, yet it demonstrates that the applicant was including answers or responses to matters which he has little actual knowledge about. The applicant’s lack of understanding as to what referencing styles are demonstrates the problem caused by copying information from sources without understanding what it actually refers to. Limited confidence can be had in the completed assignment that the applicant has completed yet cannot understand the answers that he has given, the example of the written submission to the Department makes this point directly.

    [22] Australian Guide to Legal Citation

19. The applicant’s plagiarism is not one of taking an idea or concept and claiming it as his own. The applicant has chosen to repeatedly answer questions in his assignments by taking materials from internet sites and using them as his answer, without acknowledging the source of the information. The Tribunal accepts that some items are fairly straightforward questions, but the applicant has chosen to get an answer from internet sources without referencing it. The Tribunal does not consider that the answers are common knowledge, but that the applicant has had to search for the answer and provided it as his own. It is the repeated nature of this plagiarism that is serious, the repeated provision of unattributed responses that enabled the applicant to receive a competent mark in the units of his course.

20. The Tribunal has considered this information and submissions by the applicant. The Tribunal does not accept the shifting of blame by the applicant and his agent to the education provider for the acceptance of the plagiarised work and failure to reprimand him for handing in this work. The Tribunal considers that the applicant was aware of plagiarism, that it was not permitted, and has repeatedly conducted himself in such a manner that he has relied on plagiarism to complete the assignments that have been part of his final assessment for the course. The applicant has done this repeatedly over his business administration course assignments. The Tribunal considers this to be serious plagiarism. The Tribunal considers that this serious plagiarism is conduct not contemplated by the visa.

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(ii) 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

22. 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’.

23. The Tribunal discussed the applicant’s circumstances with him. His mother is unwell and the applicant has visited her during his studies in Australia, but she wants him to continue his studies in Australia and she is worrying about him. His mother wants him to do higher education. His father has a shoe manufacturing business, the applicant intends to return to Pakistan at the end of his studies to take over the business. He needs more business related studies to assist in this goal. The applicant stated that he is a genuine student, he has completed 3 courses and is enrolled in a number of other courses related to business administration. He now wanted to enrol in a Bachelor of Business course, though he has not done so because of the cancellation. He tried twice to recover his study rights on his BVE with the Department while his visa was cancelled, but was refused. 

24. The Tribunal has considered the circumstances of the applicant. The Tribunal notes that the applicant has achieved 3 qualifications in Australia before his visa was cancelled. The Tribunal has no information regarding the assignment and work he completed as part of the two IT related courses, and makes no comment on these qualifications. However the Tribunal has been able to review a series of works completed by the applicant in his third course, and identified a consistent practice of copying work from internet sites and using that information unattributed in his own assignments. This has not been picked up by his course provider or teachers, they have marked his work as a successful completion of the task. That it has not been picked up does not place the education provider or his teachers in a good light, their failures have permitted the applicant to continue in this manner unchecked for some period of time. 

1. However the lack of personal responsibility for this activity by the applicant and by his agent is of significant concern to the Tribunal. Unchecked, it would appear that the applicant would have continued to copy work from other sources and use that as part of his own. In responding to the NOICC of the Department, the applicant has again referenced information that he does not understand. This is one of the significant reasons as to why plagiarism is considered such a significant issue in education. Beyond the issue of ownership and credit for an idea, concept or answer to a question, plagiarism defeats the demonstration by a student of their knowledge of a subject area, the assignment designed to allow the student to show their understanding of what they have been taught. In referring to reference styles in his response to the NOICC, the applicant has not understood what these styles are or are used for, the applicant could only name two and not identify the nature of these styles. The applicant does not understand what he is writing. He is receiving passing marks and ultimately a qualification completing work that is not his, and is thus not demonstrating his competent knowledge for the course. This is a significant concern to the Tribunal.

2. The Tribunal notes that the applicant has qualifications in Australia. He has the opportunity to work in Pakistan in the family business. While his sick mother will be disappointed in the applicant not achieving further qualifications, the Tribunal notes that the applicant had only ever been enrolled in vocational courses, and never a higher degree. His statement that she wants him to do higher education is not demonstrated in his actual enrolments, he has completed post-secondary qualifications and did not have an enrolment in a higher degree level courses. The Tribunal places limited weight on the family expectations of his studies.

3. The qualifications that the applicant has achieved in Australia, and his stated intention of returning to Pakistan to work in the family business leads the Tribunal to conclude that the hardship that will apply to the applicant on return to Pakistan will be minimal. The applicant has the opportunity to work in Pakistan, and could seek to further his education in Pakistan, should he want to. 

4. The applicant states he is a genuine student. The Tribunal does not accept that plagiarism demonstrates this genuine nature. The Tribunal considers that this is the significant factor in this matter.  

5. There are no other compelling or compassionate circumstances raised by the applicant. No international obligations are relevant in this case.

6. The Tribunal does note that there are no other issues identified regarding the applicant’s compliance with conditions of his visa or in his past and present behaviour with the department. The Tribunal places some weight on this aspect of the applicant’s circumstances.

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

   DECISION

8. 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.

   
   

[17] AAT folio 74