Khan (Migration)

[2019] AATA 2805

Khan (Migration) [2019] AATA 2805 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shaheryar Khan

CASE NUMBER:  1708653

HOME AFFAIRS REFERENCE(S):           BCC2015/939768

MEMBER:Sean Baker

DATE:18 February 2019

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 18 February 2019 at 3:21pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – Federal Circuit Court remittal – engaging in conduct  not contemplated by the visa – plagiarised work submitted for assessment – visa expired – visa subclass program ceased – three year exclusion – no culpability or contrition for academic behaviour – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 109, 116, 119, 128, 140, 359
Migration Regulations 1994, Schedule 2 cls 500.217 Schedule 4 Public Interest Criterion 4014; r 2.43

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 and Border Protection 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 the applicant had plagiarised work submitted for assessment. 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 matter was affirmed by the previous Tribunal. The Federal Circuit Court remitted that Tribunal’s decision by consent, by reason that the Tribunal committed a jurisdictional error by failing to comply with s.359A of the Act as it did not provide the applicant with an opportunity to comment on or respond to additional examples that it had identified where the applicant provided responses to assignment questions that were wholly or substantially copied from unattributed internet sources.

4. The applicant was forced to return to Pakistan by the untimely death of his parents. He returned to Pakistan on 5 September 2016.

5. 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

6. 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). 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?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister 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.

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 decision-maker 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.

9. In this case the delegate cancelled the visa under s.116(1)(fa)(ii) on the basis that the applicant had submitted another person’s work as his own in a significant proportion of his assessment and therefore had engaged, while in Australia, in conduct not contemplated by the visa.

10. This is not a case in which any of the prescribed grounds apply.

11. The term 'conduct not contemplated by the visa' is not defined. Departmental guidelines suggest that the conduct must relate to the visa holder's status as a student and the ground should not be used in relation to actual or alleged criminal conduct. The guidelines suggest the conduct would be restricted to academic misconduct, but this is not clearly apparent from the terms of the provision.[1]

    [1] PAM3 – Visa cancellation instructions > General visa cancellation powers (s109, s116, s128 and s140) - s116(1)(fa) – Non-genuine students and conduct not contemplated by the visa – Conduct not contemplated by the visa – s116(1)(fa)(ii) (re-issue date 24/04/17).

12. The Notice of Intention to Consider Cancellation (NOICC) and delegate’s decision set out six examples in the applicant’s coursework which are drawn directly from internet sources and led the delegate to conclude that the applicant has submitted another person’s work as his own in a significant proportion of assessments. I have reviewed the answers he gave and agree that they are the same or substantially the same as the internet sources located by the delegate.

13. The previous Tribunal identified three other examples where that Tribunal said that the applicant provided responses to assignment questions that are wholly or substantially copied from unattributed internet sources. However, two of the links provided in the previous Tribunal decision do not work. The third link does work but the information is not wholly or substantially copied from this source from what I am able to see. I have therefore placed no weight on these links and they do not form any part of the consideration here. For this reason I have not put these putative examples to the applicant for comment under s.359A or s.359AA.

14. It is clear from the ordinary meaning of the provisions and from Departmental guidelines that plagiarism can constitute ‘conduct not contemplated by the visa’. I note that the Departmental guidelines qualify its example to serious plagiarism. [2]

    [2] PAM3 – Visa cancellation instructions > General visa cancellation powers (s109, s116, s128 and s140) - s116(1)(fa) – Non-genuine students and conduct not contemplated by the visa – Conduct not contemplated by the visa – s116(1)(fa)(ii) (re-issue date 24/04/17).

15. The Macquarie Dictionary sets out that plagiarism is:

    the appropriation or imitation of another's ideas and manner of expressing them, as in art, literature, etc., to be passed off as one's own.

16. It is clear, and undisputed by the applicant, that the examples provided in the NOICC constitute content taken by him from internet sources and not attributed. It is also clear that plagiarism is and can be a serious issue in academia, because it compromises the assessment of a student’s demonstration of their knowledge. Plagiarism is clearly not ‘conduct contemplated by the visa.’ The purpose of a student visa is to allow the holder to travel to and remain in Australia for the purpose of study. That purpose is undermined by conduct such as plagiarism.

17. Therefore, taking these factors into account, I find that in this case the applicant has engaged in conduct not contemplated by the visa, being plagiarism whilst holding his student visa.

18. 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 visa should be cancelled.

    Consideration of discretion

19. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

20. I have taken into account the applicant’s response to the NOICC. He has been reasonably consistent in his explanations around the reasons for the conduct and so it is helpful to excerpt that here:

    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 feedback 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.

21. I have also reviewed the information on the Department file, including copies of assessment tasks completed by the applicant which his provider gave to the Department. These assessments are largely in the form of question and answer assessments, rather than essay form.

22. I have had regard to the submissions made to the previous Tribunal and those made to me.

23. On 12 February 2019 the applicant’s representative provided documents including a statement of purpose, certificates, transcripts and CoEs for a different person to the applicant, but with a similar name. The representative was informed of this error and these documents were removed from the file. I have not taken these documents, or their provision, into account in assessing this case.

24. On 14 February and again on 15 February the representative and applicant provided information, including evidence of the applicant’s attempts to gain study and work rights on his bridging visa, including statements of the applicant dated 1 July 2015 and 9 November 2015, the grant of a BV in July 2015 with no study rights, and part of a bridging visa decision noting that the applicant had provided evidence of an intention to study in studies that would run to 30/09/2018. Study rights were refused. Other submissions included the above information as well as copies of the applicant’s certificates and transcripts for his certificate III in electronics and communication, certificate IV in video and audio system, and his academic transcript for the certificate III in business administration. Also attached is the most recent passport for the applicant. No documents were provided which addressed any more recent contact or activity by the applicant towards any Australian education provider.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

25. The applicant claimed that his purpose in travelling to and remaining in Australia had been to study and eventually to obtain a Bachelor here. He told me that in Australia he had completed a certificate III in electronics and communication and a certificate IV in video and audio systems and the certificate III in business administration. He was therefore studying for two years and 1 month of the approximately 2 and a half years that he held student visas and was studying for the majority of the period he held those visas. I accept therefore that the applicant’s purpose in coming to and staying in Australia was to study.

26. I have however also considered whether the applicant, now outside Australia, has a compelling need to travel to or remain in Australia.

27. The applicant’s original student visa would have ceased if it had not been cancelled. He would therefore be required to apply for a further student visa. If he was now to apply for another student visa offshore, he would have to satisfy criteria for the grant of a subclass 500 visa, including cl.500.217(1) which requires the applicant to satisfy public interest criteria, including PIC 4014. Because the applicant departed Australia on a bridging visa E, and is not in one of the exceptions, he is unable to be granted a student visa until three years after the date of his departure. The applicant is therefore unable at this time to be granted a student visa.

28. I am also not convinced by the applicant’s claims that he has a compelling need to travel to and remain in Australia. I accept that when he was in Australia he was here primarily to study. However, he has achieved much of his educational goals and I was not convinced by his claims that he needed to return to Australia to complete further studies and in particular a bachelor. He said it had been his dream to be educated in Australia. He said he had wanted to do a Bachelor in business administration. I asked if he had previously been enrolled in this and he said no, he had been waiting until he finished his certificate IV. I asked why he needed to complete a bachelor and he said he wanted to start and run a business. I asked how a bachelor would help him do this and he said he wanted to learn it from here and then these learnings would help him there.  He said that he had spoken to Holmes and Cambridge Colleges in 2016 but had not corresponded with them more recently because his circumstances had not been good. He said he could contact them and he could get admission in that institution. He said he could get a CoE via his agent in Australia. I noted that if he had not done anything about inquiring about his enrolment in over two years this might cause me to doubt that he would study. He said his case had been at the Tribunal and then Federal Court and now the Tribunal again and this is why he did not apply and he was still in touch. He noted again that he had applied for study rights twice when he held bridging visas but had been refused by the Department both times.

29. At the conclusion of the hearing I gave the applicant an opportunity to provide information or evidence that would tend to show that he intended to study if the cancellation was reversed and he was able to gain a student visa. Despite both he and his agent submitting a large volume of material after the hearing as summarised above, I do not have before me a CoE or any other indication that the applicant has taken active steps to show he will study in Australia if the visa is reinstated.  

30. I have carefully considered the information I have before me. There is no doubt in my mind that when he was onshore, he was a genuine student and that his purpose in entering and remaining in Australia was to study. However. The applicant has been outside Australia for some years now, and has not provided me with any compelling information, or documentation, to indicate that he is engaged with any Australian education providers, has sought CoEs as he said he would do or has checked with them recently how and when he could resume studies in Australia. On the information before me I am not satisfied that the applicant has established a compelling need to travel and remain in Australia, nor has he established that if he did so he would study. Ultimately this consideration also goes to the question of futility. Even if, as below, I have concerns with the circumstances surrounding the breach, I am considering the situation as it is now. The applicant has departed Australia and is living and working in Pakistan. He would currently be unable to be granted a student visa, and there is also considerable doubt in my mind about whether he does indeed wish to return to study – he was unable to make a clear or compelling argument in my view for why he needed to return and study. For these reasons I give this factor significant weight towards the visa remaining cancelled.

    the extent of compliance with visa conditions

1. There is no evidence that the applicant was non-compliant with conditions on his visas, either his student visas or bridging visas. I give this some weight towards the visa not being cancelled.

   degree of hardship that may be caused (financial, psychological, emotional or other hardship)

2. The applicant has explained that the cancellation placed him in considerable difficulties – he had not completed his studies and believed he could not find suitable employment if he returned to Pakistan. His parents were unwell and, sadly, passed away and he said they were unhappy with him when they did so. He said he had had to go through some mental issues because of the cancellation. The applicant returned to Pakistan in September 2016 and has now lived there for a considerable period of time and is employed, but says that he wishes to return to do further study. The applicant feels deeply aggrieved by what happened. Whilst I understand that the applicant considers that he has suffered great hardship, and that he would continue to suffer if the visa were not reinstated, he has not put forward anything to establish that such hardship could be considered particularly significant or serious – he has achieved some of the educational outcomes he set out to and is now working - and I give this factor only some weight towards the visa not being cancelled.

   circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

3. The context of the behaviour the applicant has engaged in here is, I think, highly relevant. The majority of the assessment materials on the Department file are short answer, some are multiple choice, and many questions require only a single word answer. They are not essays or questions requiring detailed analysis, synthesis of information or application of reasoning. 

4. I also note and accept the applicant’s evidence that he was poorly supported by his provider and that his teacher told the class that they could copy from the internet. It does appear from what I have before me that there are concerns with how the provider has gone about assisting their students and informing them of their policies, including around plagiarism. I do accept that the applicant was not supported by his provider in being able to complete his assessment without plagiarism. From the copies of his assessment on the file, it does not appear that this provider is providing appropriate education services to their students.

5. However, it is striking that the applicant has not admitted any culpability or contrition for his behaviour. Even if, as he claims, he was completely unaware of the issue of plagiarism, it concerns me that he has not clearly indicated that he would do things differently were he to study now.

6. Ultimately, given my concerns with the provider and with the level of the plagiarism here, I give this factor very little weight towards the visa being cancelled.

   past and present behaviour of the visa holder towards the department

7. The applicant cooperated with the Departmental processes and engaged with the Tribunal on both occasions. However, I do not consider this a factor which goes towards the visa not being cancelled, this is purely part of the process and I give this no weight towards the visa not being cancelled.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

8. As the applicant is offshore, he would not be subjected to detention or become unlawful. He is barred from making further applications and I have analysed this and taken it into account above. I give this factor no weight therefore.

   whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

9. As the applicant is offshore, there is no engagement of Australia’s international obligations. I give this factor no weight.

   any other relevant matters

10. I understand, as discussed above, that the applicant feels deeply aggrieved by the process, and I have very real sympathy for that feeling. However, this is not the only consideration, and the factors above weigh more heavily in this case than the applicant’s sense – somewhat justified – of him having suffered an injustice at the hands of his provider and the Department.

11. I have carefully weighed the factors above. It is regrettable that the applicant is now appearing before the Tribunal some many years after the original cancellation decision, but I consider that questions about whether the applicant would study if the visa were reinstated – or, rather, he was to apply for a further student visa in the future are relevant to my consideration. Whilst the circumstances surrounding the breach, and his behaviour as a student historically here may have counted in his favour, I have considered that these more prospective considerations are to be weighed more significantly than the historical considerations in deciding whether the visa should remain cancelled. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Sean Baker
    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.