Sangthaworn (Migration) - [2016] AATA 5001

Sangthaworn (Migration) [2016] AATA 5001 (23 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Kamonporn Sangthaworn
CASE NUMBER:  1505679
DIBP REFERENCE(S):  BCC2015/886874
MEMBER:Stuart Webb
DATE:23 June 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 23 June 2016 at 11:28am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – engaged in conduct not contemplated by the visa – academic misconduct – plagiarism – consideration of discretion – responsibility of the visa holder – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8202
CASES
He V Minister For Immigration & Anor [2015] FCCA 2915
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 April 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 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 his assessment. The delegate noted a number of instances where the applicant’s assessments conducted in her Certificate IV 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.
The applicant appeared before the Tribunal on 20 April 2016 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. The Tribunal noted at the hearing that the written submission of the applicant’s agent for this applicant was very similar to that of applicant Apinya Chiunboon (AAT File 1505681), with whom the applicant shared an email address. The applicant stated at the hearing that she and Ms Chiunboon had collaborated in their written responses to the Department, which were also very similar.
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
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)
A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied…

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 Sangthaworn (Migration)

Details

AGLC: Sangthaworn (Migration) [2016] AATA 5001
Case: [2016] AATA 5001
Decision Date: 23 June 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector), held by the applicant, Sangthaworn. The dispute arose from allegations of academic misconduct, specifically plagiarism, which formed the basis for the proposed cancellation of the visa under section 116(1)(fa)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. The legal issue was whether the applicant had engaged in conduct not contemplated by the visa, specifically through academic misconduct, and whether this warranted visa cancellation. The Tribunal also had to consider the applicant's submissions regarding the circumstances of the alleged misconduct, including the role of the educational institution.

The Tribunal found that the applicant had indeed engaged in conduct not contemplated by the visa, satisfying the ground for cancellation under section 116(1)(fa)(ii). While acknowledging that the educational provider, TEDI, bore some responsibility for failing to adequately inform students about plagiarism policies and for potentially encouraging such practices, the Tribunal found the applicant's conduct concerning. The applicant, an experienced student, admitted to plagiarising material, and the Tribunal noted that the extent of plagiarism was more significant than initially stated. Despite the mitigating factors concerning TEDI's practices, the Tribunal concluded that the visa should be cancelled.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 572 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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) 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 applicant provided the following submission to the Department.In 2014, I graduated with a Degree on Bachelor of Architecture and Design from King Mongkut's University of Technology of North Bangkok. I was a musician as my extra curricular activity in my High School and University. I have participated and won both domestic and international contests. I believe that I am a good person with good intentions only. I am a good citizen to Thailand and to Australia. I can assure you that I have never had an academic misconduct or criminal records.After graduation, I decided to further my studies in Melbourne Australia. The most liveable city in the world that offers high quality education. It also offers opportunities to work part time jobs to improve my personal skills and enhance my experience in life; following the restrictions to my student visa.Once I have completed my studies in Technical Education Development Institute (TEDI), I am hoping to get a career in a reputable international company in Thailand. In where I will apply all the skills and experienced I gained from TEDI and Australia.Since I started my General English Course at Impact English I then continued to study at TEDI for Certificate IV in Business Administration. I have always attended all my classes and finished all my assessments. I have done all my school works independently. I can guarantee you this with my attendance records and reports as evidence. You may also interview all my professors for my background check if you may wish. It is a surprise that I got your letter of notice to consider on cancelling my student visa.The reasons why the immigration should not cancel my student visa:I have attended all my classes regularly. My attendance is satisfaction and meet the school and visa requirements. Please find my attendance report attached to this email.I was on a vacation notice and I notified my teacher (Mrs Shubham Goel). I make sure that I notify my teachers before I leave for vacation back to Thailand.I understand the lessons and all of the assessments provided.I have completed every single assignments by my own and meet all the due dates. For that particular assessment, we were allowed by the teacher to open the book to find the answers. Once I have done it, the teacher ask me to modify it and allowed me to find more information from the internet. I have tried to modify the gathered information by changing some few words that will be more understandable for myself. That assessment was checked and evaluated successfully by my professor.I really hope that you will consider my honest reasons above and please do check all my records from the school such as Attendance, Assessments reports and Project reports. I also strongly suggest that you speak to Mrs Shubham Goel the professor who allowed us to open book and use the internet for that assessment, and who successfully evaluated my assessment.I really do apologise for this such unfortunate situation and I will be more careful to not cause this again.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.Stuart WebbMember

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’. The Tribunal has considered the circumstances of the applicant as to whether his visa should be cancelled. The applicant and his agent have provided evidence and submissions regarding this aspect of the cancellation. The Tribunal notes the submissions with respects to the seriousness, ‘misappropriation from ignorance, inexperience or social dislocation’ or ‘wrongfulness or impropriety’ explanation of the applicant’s misconduct in handing in assignments and assessments without crediting the source of the information. It was submitted that misappropriation from ignorance, inexperience or social dislocation appears to constitute an academic or educational problem, rather than a violation of the rules of conduct. It has been submitted that the applicant’s responsibility for the academic misconduct was limited, as TEDI failed to ensure that the applicant was informed and aware of the plagiarism policies and directed to use the internet by her teacher, and that no comment was made to his referencing. The applicant has stated she is committed to enrolling at a different institute and ensure she adheres to relevant academic policies in her future studies. The Tribunal has considered this submission. The Tribunal notes the discussion with the applicant at the hearing where she acknowledged she plagiarised material when handing in assignments and assessments when completing his course units. As noted by the Tribunal, the applicant completed units towards her qualification by handing in work that was plagiarised. The Tribunal noted that the level of plagiarism identified and admitted to was more than that as stated in the pre-hearing submissions. The Tribunal also commented at the hearing that the applicant was an experienced student, having studied for a number of years prior to commencing the course at TEDI. The applicant stated that she had not plagiarised previously in her other studies, that the system in Thailand was different. The Tribunal noted that the practice of the applicant to plagiarise at TEDI, after she had studied in a completely different manner previously, was of concern. The applicant reiterated that this was the way it was done at TEDI. The Tribunal considers that TEDI is responsible in some part for the applicant’s activities. The Tribunal is aware, having considered a number of matters of this nature, that the practices of TEDI have been criticised, that the claim that they permitted and allegedly encouraged this academic misconduct in this course has been made by a number of former students from this education provider. The Tribunal accepts the submission that TEDI is at fault in its practices that permitted, that it did not follow its procedures in dealing with the plagiarism that appears to be widespread in this course.