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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao (Migration)

Details

AGLC: Cao (Migration) [2018] AATA 1192
Case: [2018] AATA 1192
Decision Date: 15 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms. Cao, a holder of a Student (Temporary) (Class TU) visa, subclass 572. The dispute arose from the Minister's decision to cancel Ms. Cao's visa on the grounds that she had engaged in conduct not contemplated by the visa, specifically academic plagiarism. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether Ms. Cao's actions constituted conduct not contemplated by her student visa under section 116(1)(fa)(ii) of the *Migration Act 1958* (Cth). This involved assessing whether her academic plagiarism, as evidenced by the delegate's findings, met this criterion. Additionally, the Tribunal had to consider whether, if the ground for cancellation was established, it was appropriate to exercise the discretion to cancel her visa, taking into account all relevant circumstances.

The Tribunal reasoned that while academic plagiarism is a serious matter and can constitute conduct not contemplated by a visa, it must be considered in context. It noted that the delegate had taken limited account of Ms. Cao's explanation, which included claims of instruction from her teachers regarding referencing and a desire to learn proper study skills. The Tribunal accepted Ms. Cao's assertion that only a small portion of her coursework involved plagiarism and found that she had largely been consistent in her stated purpose of studying to gain qualifications for establishing a childcare centre in her home country. The Tribunal placed considerable weight on her genuine and determined desire to complete her advanced diploma and her commitment to upholding visa conditions in the future.

Consequently, the Tribunal concluded that the decision to cancel Ms. Cao's visa should be set aside. While acknowledging the ground for cancellation existed, the Tribunal exercised its discretion not to cancel the visa, finding that Ms. Cao was a genuine student with a clear future intention to use her qualifications for a legitimate purpose.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.