Cao (Migration)

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.