Cao (Migration) - [2018] AATA 1192

Cao (Migration) [2018] AATA 1192 (15 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Yanhong Cao
CASE NUMBER:  1701773
DIBP REFERENCE(S):  BCC2015/886293
MEMBER:Brendan Darcy
DATE:15 March 2018
PLACE OF DECISION:  Melbourne
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 15 March 2018 at 9:45am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit Court remittal – Tribunal did not adequately allow applicant opportunity to comment on adverse information – Whether the applicant engaged in conduct not contemplated by the visa – Academic plagiarism – Conduct amounts to conduct not contemplated – Consideration of discretion – Genuine reasons for studies – Plagiarism undertaken not extensive
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116(1)(fa)(ii), 116(1A), 119, 359A
Migration Regulations 1994, 2.43(1C) & (1D), Schedule 8, Condition 8202
CASES
MIMIA v Hou [2002] FCA 574
Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574
Tian v MIMIA [2004] FCA 216
Weerakoon v MIMIA [2005] FMCA 624

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 May 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).
The delegate cancelled the visa under s.116(1)(fa)(ii) on the basis that that she engaged in conduct not contemplated by the visa, namely that she submitted another’s person’s work as her own in a significant proportion of her assessments. The delegate noted a number of instances where the applicant’s assessments conducted in her Diploma of Management at Technical Education Development Institute (TEDI) 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.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant initially applied to the Tribunal to have the delegate’s cancellation decision reviewed on 29 May 2015 with the delegate’s decision record attached. The applicant first appeared before the Tribunal on 3 May 2016 to give evidence and present arguments. On 20 June 2016, the Tribunal affirmed the decision to cancel the applicant’s’ subclass 572 student visa.
The applicant successfully appealed to the Federal Circuit Court as a judicial officers found jurisdictional error by the Tribunal falling to comply with s.359A as it did not provide the applicant with an opportunity to comment on response to further examples that the Tribunal had identified where the applicant had provided responses to assignment question that were substantially copied from the internet without attribution sources, which it considered was the reasons, or part of the reason, for affirming the decision under review, on 1 February 2017
For a second time, the applicant appeared before the Tribunal on 6 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.
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
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)(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) - not a genuine student
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.
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.
The delegate recorded that the applicant provided the following information to the Department, which was summarised.
"I recognized I have referenced some idea and knowledge from websites and library. The reason was I have failed assignment once, and the first time I was totally done the assignment without any reference. However my teacher is not satisfy with it and requested to repeat. I have discussed this issue with teacher, he suggest my assignment need to be more professional and if I need more help can reference from the website."
"I have done it again, and this time the teacher did not asking repeat. So, I thought my assignment can be pass with reference from website. And my teacher did not say anything about it." "As a student we also need to learn study skill from teacher and school that is why we need to be educated."
`If this is not allowed, then please tell me how to do it without just say No. I need to find out the way of transferring knowledge from hard copy to my own knowledge."
she has not yet completed her Diploma and:
"if you think my assignment is not satisfy, then I can do it again. If just simply cancel my visa, I do not think that is the best way and fair for me."
The delegate reviewed a series of assessments provided by the applicant as part of her Diploma of Management at Technical Education Development Institute (TEDI). The delegate in their decision listed a series of answers provided by the applicant in these assessments, and provided the internet sites where these answers were sourced in full or significant amounts without attribution. The delegate considered that the applicant should have known about the policies of TEDI with respect to cheating and plagiarism; had completed other courses and should have known from these studies that this practice was inappropriate; had copied; and was not properly undertaking the process of study. The delegate took limited account the applicant’s response, including the claimed instruction from the teachers. The delegate determined to cancel the applicant’s visa.
In her response to the NOICC dated 5 May 2015, the applicant did not agree that the grounds were made out. (The visa was cancelled on 29 May 2015).
During the first hearing, the Tribunal confirmed the information as provided by the delegate with respect to the materials online and the assessments. The Tribunal determined that a significant proportion of other assessments were substantially copied from the internet without attribution. At this hearing, the applicant insisted that she had not been in breach of s.116(1)(fa(ii) and stated that she had not plagiarised in her assessments.
However, at the subsequent hearing (following a federal court remittal), the applicant was asked a number of questions about what is plagiarism and whether it amounted to academic misconduct. She described plagiarism as cheating and that it was a serious matter amounting to academic misconduct. Having put a great deal of information under s.359A, she admitted to submitting plagiarised responses claiming to be confused about the expectation on her and due the pressure of undertaking so many assignments. She admitted to signing a separate cover sheet to all the assignments with student declarations (I declare that the work submitted is my own and has not been copied or plagiarised from any person or source” when it put to her under s.359A.[1]
[1] DIBP Folio 40
The applicant elaborate at the latter hearing that she had undertaken research and that she was learning. She added that was not been treated fairly by her education provided as she passed her course work without being disciplined academically and that she had taken to not referencing her work from the internet as she had failed an earlier assessment.
The applicant provided some further evidence to the Tribunal regarding her previous studies in Children’s services. She stated she completed the Diploma of Management at TEDI, and was enrolled in the Advanced Diploma of Management at TEDI but had not begun those studies.
She also submitted a written statement to the Tribunal to consider on the day of the scheduled hearing on 6 September 2017 admitting that plagiarism had been undertaken and further arguments not to cancel her visa.[2]
[2] AAT Folio 82-84
Unlike her response to the Department and her oral evidence at the initial

Tribunal hearing, the applicant admitted that she had plagiarised in a registered course in which she had been enrolled as outlined in the decision record and she expressed remorse.
The Tribunal has considered the law relating to s116(1)(fa)(ii). The Tribunal has sought to determine the meaning of this cancellation power. The Migration Act 1958 (the Act) provides a number of grounds pursuant to which visas can be cancelled. Section 116(1)(fa) is one of the certain grounds specified in s.116 of the Act. It states:
116(1)(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa
The terms ‘genuine student’ and ‘engaged … in conduct not contemplated by the visa’ are not defined in the Act. There is also no case law on the specific meanings of the provisions of 116(1)(fa).
The Tribunal has considered the provisions of 116(1)(fa) and the text of Explanatory Memorandum[3]. The ‘amendments’, including the establishment of the ‘general power[4]’ of 116(1)(fa), were introduced to directly respond to a court ruling that affected the operation of Condition 8202, relating to maintaining enrolment and course progress and attendance as supervised by the education provider. 116(1)(fa) provided alternative provisions to the ‘new version of Condition 8202’ introduced at the same time, ‘where the holder is no longer a genuine or continuing student’.
[3] Migration Legislation Amendment (Overseas Students) Bill 2000
[4] Explanatory Memorandum point 2
The Tribunal considers that Parliament was clear in its legislative intent in introducing the new version of condition 8202 and the introduction of the general power provision of s116(1)(fa). That these two amendments to the Act were introduced at the same time is relevant, as they share some common features in their operation, providing two alternate ways in which the conduct of a student in their academic pursuit can be reviewed, and if necessary, lead to a cancellation of the student visa. Condition 8202 has been subsequently amended again, but the purpose remains the same. Breaching condition 8202 leads to the power to cancel under s116((1)(b), while 116(1)(fa) is a separate ground, and the ground in s.116(1)(fa) does not cut across or qualify s.116(1)(b).[5] It provides alternative preconditions to the cancellation powers and not cumulative ones.[6]
[5] MIMIA v Hou [2002] FCA 574 (Conti J, 8 May 2002) at [32], Tian v MIMIA [2004] FCA 216 (Mansfield J, 12 March 2004) at [32].
[6] Weerakoon v MIMIA [2005] FMCA 624 (Smith FM, 20 April 2005) at [8].
Condition 8202 requires a student to be enrolled in a registered course[7], and achieve satisfactory course progress[8] and attendance[9]. The course progress and attendance provisions of 8202(3) require the education provider to take some form of action, including notifying the student visa holder of non-compliance with either course progress or course attendance requirements. This is achieved by the issuance of adverse certification, by the education provider, of a specified kind. 8202(3) imports requirements from the Education Services for Overseas Students Act2000 (ESOS Act), in particular s19[10], and the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code), in this instance Standard 10, monitoring course progress, and Standard 11 – monitoring attendance. Standard 10 discusses the monitoring, recording and assessing of the course progress of each student for each unit of the course; that education providers have policies and procedures in place for such purposes; and implement an intervention strategy for any student ‘who is at risk of not meeting satisfactory course progress requirements[11], including where ‘the student has failed or is deemed not competent in 50% or more of the units attempted in any study period’.
[7] 8202(2)
[8] 8202(3)(a)
[9] 8202(3)(b)
[10] 19 Giving information about accepted students
[11] National Code, Standard 10.5
Condition 8202(3) requires this intervention strategy to be followed when the education provider issues the adverse certificate regarding not meeting satisfactory course progress requirements. Condition 8202(3) clearly leads to the onus on taking action as to the student’s academic progress and attendance on the education provider. This is the purview of the education provider. Where a breach of condition 8202 occurs, the education provider notifies the Department of Immigration, and the Department can consider whether to cancel the student visa pursuant to the powers under s116(1)(b), that the visa holder has not complied with a condition of the visa.
The Tribunal considers that Parliament was clear in its legislative intent in introducing the new version of condition 8202 and the introduction of the general power provision of s116(1)(fa). That these two amendments to the Act were introduced at the same time is relevant, as they share some common features in their operation, providing two alternate ways in which the conduct of a student in their academic pursuit can be reviewed, and if necessary, lead to a cancellation of the student visa. Condition 8202 has been subsequently amended again, but the purpose remains the same. Breaching condition 8202 leads to the power to cancel under s116((1)(b), while 116(1)(fa) is a separate ground, and the ground in s.116(1)(fa) does not cut across or qualify s.116(1)(b).[12] It provides alternative preconditions to the cancellation powers and not cumulative ones.[13]
[12] MIMIA v Hou [2002] FCA 574 (Conti J, 8 May 2002) at [32], Tian v MIMIA [2004] FCA 216 (Mansfield J, 12 March 2004) at [32].
[13] Weerakoon v MIMIA [2005] FMCA 624 (Smith FM, 20 April 2005) at [8].
Relevantly, 116(1)(fa) does not reference the education provider, the ESOS Act or the National Code. S 116(1)(fa) provides the Minister for Immigration with the opportunity to act directly on concerns as to the conduct of the student visa holder, whether they are ‘a genuine student’, ‘in literal compliance with the visa conditions … yet has not conducted himself or herself as a genuine student for instance in relation to behaviour at lecturers, and is occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’[14], or has engaged or is engaging in conduct not contemplated by the visa.
[14] Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 at [32]
The Tribunal considers that the Explanatory Memorandum intends for 116(1)(fa) to operate in relation to the conduct of the student visa holder as a student, be they a ‘genuine student’, or engaging in conduct, as a student, not contemplated by the visa. The Tribunal considers that this provision provides the Minister with the power to consider directly the student visa holder’s activities, including in the conduct of their studies, without reference to the education provider or provisions of Condition 8202. This includes allegations of academic misconduct by a student visa holder. 116(1)(fa) can be used by the Minister irrespective of the actions of the education provider acting pursuant to condition 8202. There is no limitation as to when this power may be exercised, however it is likely to occur when where the education provider has proved unwilling, unable or has otherwise failed to act on the academic conduct of the student visa holder. The delegate of the Minister can consider whether the student visa holder’s activities warrant cancellation pursuant to these provisions.
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[15]. A further academic describes plagiarism as ‘the most serious offense in academia’.[16] 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 behaviour, 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.[17]
[15] Academic Honesty and Avoiding Plagiarism
[16] The Problems with Plagiarism
[17] The Plague of Plagiarism: Academic Plagiarism Defined, Irving Hexham,
By the applicant’s own admission, she knowingly engaged in plagiarism in completing assignments and/or assessments in her course at TEDI. She has handed in work that is not her own, being copied without attribution from internet sources. The applicant has benefited from this plagiarism by passing units of her course using this unattributed work, obtained a Diploma qualification and was enrolled in a further qualification at TEDI when her visa was cancelled.
In essence, the conduct, being academic misconduct, has been engaged in by the applicant, and this has not been contemplated by the visa. The Tribunal considers that the ground is made out, as required by s.116(1)(fa)(ii).
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

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’.
At the latter scheduled hearing, the applicant reiterated the opportunity for her to gain employment in China with her qualifications and elaborated on her desire that having obtained specific childcare qualifications she required an advance diploma in business to learn the management of a child care centre. The applicant stated that she would return to China to work, but that she strongly desired to open her own kindergarten or early childhood centre. Although she had completed a diploma of childcare centre, she expressed the desirability and utility to continue her studies in management because of the emphasis on business management and skills which is required in privately owning and operating an early childhood centre. She did not want to restrict herself, she added, to the basic practices of singing songs as in China as an employee. She added that she had undertaken some voluntary work placement for her studies and that her prospects were good in finding work based on her existing qualifications. The Tribunal notes that in its earlier decision record that she stated that her prospects in China were not good if her visa remained cancelled.
The applicant attempted to quantify that only a small amount of her completed course work had been copied from the Internet in a written statement submitted to the Tribunal, including in the assessment where plagiarism was identified. With no evidence to the contrary and without diminishing the seriousness of the admitted plagiarism, the Tribunal accepts this to be the case.
In assessing whether the purpose of the applicant remaining in Australia is full time study, the Tribunal notes that she has largely been consistent about her purpose in studying and that she had largely been engaged in her studies while she held her student visa, despite some earlier implausible embellishments. It is noted that her overseas travel as student visa holder did not largely interfere with her studies. Although there is some evidence in not beginning her last enrolled course in a timely manner, the Tribunal nevertheless accepts that the applicant has a genuine and determined desire to complete her advanced diploma in business management that would assist her in establishing a privately owned and operated childcare centre in home country and that business management would be of practical assistance. Accordingly, the Tribunal places a considerable amount of weight on being a genuine student into the future who will uphold her conditions relating to enrolment and academic conduct.
The Tribunal notes that it does not have any evidence on the departmental file that the applicant has breached other conditions on her cancelled student visa and that there is no evidence that her past and present conduct towards the department has been non-responsive. In this regard, the Tribunal places some weight in these factors in favour of the visa not remaining cancelled.
The applicant did not claim that there were any extenuating circumstances arising from the grounds that the cancellation arose. The Tribunal therefore places no weight on this factor in favour of the visa not remaining cancelled.
The applicant did not advance that she would face a significant degree of hardship and no degree of financial hardship that may be caused if the visa remained cancelled, expect to mention that her academic levels were low and the record of her cancellation affected her reputationally and that she felt embarrassed for her parents. The Tribunal only places a negligible amount of weight on the visa not remaining cancelled when assessing from the emotional hardship and the negative impact on her academically. Noting that the applicant’s parents continue to materially support the applicant, it places no weight on the financial hardship she may encounter if her visa remains cancelled.
The applicant, who is not married and has no children, claimed that she spoke to her representative about her migration options in the event of her visa remaining cancelled and stated that she would have few migration options open to her and that she would depart Australia in an orderly manner. She stated her desire to return to Australia to visit friends. The applicant however did not advance that the cancellation of her visa would breach any international conditions. Based on this evidence, it would be remote that the applicant will be detained or deported by remaining in Australia unlawfully; validly apply for a limited number of visa class; need to return to Australia any family reason; or encounter refoulement. Accordingly the Tribunal places only a negligible amount of weight on these factors in having the visa not cancelled.
The Tribunal has also considered other factors as relevant including the relative immaturity of the applicant and places some weight in favour of the visa not remaining cancelled. It has also considered that while the grounds for the cancellation was met, there were other disciplinary methods open to the education provider which may have remedied this breach in student and academic conduct in a more proportionate and educative manner.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
Having considered the circumstances, there is sufficient evidence of plagiarism before the Tribunal to reach the finding that it is satisfied that the applicant has engaged, while in Australia, in conduct (including omissions) not contemplated by the visa at the time of cancellation, as required by s.116(1)(fa)(ii).
The undertaking of plagiarism is serious matter that undermines that erodes intellectual integrity and negates the genuine acquisition of knowledge, skills and qualifications. There were no extenuating circumstances at the time of the non-compliance and there is no significant hardship to be encounter if she returns to her country of nationality.
However, there is no evidence that the applicant has undertaken extensive plagiarism or other unbecoming student conduct in other assessments or throughout completed studies while in Australia or that other visa conditions had been breached. Her current academic achievements were commensurate with her business goals if she were to complete her business management studies and pursue owning and operating an early childcare centre in China. The applicant also admitted to plagiarism and expressed her remorse, which the Tribunal accepts to be earnest. The Tribunal is therefore satisfied that the applicant is a genuine student who will not further breach the conditions on a student visa and that she will not engage in conduct not contemplated by the visa, such as plagiarism, as a holder of a student visa.
Accordingly, the Tribunal finds those factors, cumulatively considered, in favour of the visa not remaining cancelled outweighed by those factors in favour of the visa remaining cancelled. The applicant should be aware that the Tribunal only marginally reached this decision in her favour.
The Tribunal notes that the applicant will have to apply for a new visa in a short period if she wishes to study in Australia. This does not have the same issue of being enrolled in a requisite level of course, the subclass 500 student visa no longer having the distinction between the different types of courses.
In the circumstances, the Tribunal considers that the applicant be given the opportunity to continue her studies and apply for a new visa.
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.
Brendan Darcy
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.