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 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.
The applicant’s agent provided a submission to the Tribunal. This summarised the applicant’s circumstances. It was noted that the applicant studied in Thailand and Australia and submitted that the applicant ‘never had a record of any academic misconduct’ and ‘her relevant educational history suggests that she remained genuinely a good student. It was submitted that she wanted to leave TEDI because she was not comfortable with the standard of studies. It was submitted that:
She was badly struggling and passing hard time. She expressed her desire to change the education provider but she was stopped, due to visa conditions. Her continuation of studies with this education provider was due to compelling reasons beyond her control
The submission criticised the conduct of the college, that there was a turnover of teachers, and they were openly encouraged to get material online, had limited resources, and was not told the right way of learning. It was submitted that ‘given the lack of warning, formal or informal, the visa applicant continued her practice of copying work without attribution from the internet’. It was submitted that the applicant never received any prior warnings for the way of preparing assignments rather they expressed their satisfaction about her work. She had in fact received positive feedback on the assignment. Her teachers said nothing; making no negative comments on the work she had done certainly not identifying any issues with copying or plagiarising work. The applicant blamed the teacher for not educating her properly. The applicant stated that the education system in her home country is less practical and more bookish or theoretical. The students get higher grades only when they reproduce definitions and concepts, which encouraging them memorise the contents.
It was stated that:
Plagiarism is a form of wrong whose content may be intentional or negligent transgression of rules of originality or authorship. Plagiarism arises in its delineation as a disciplinary concept. It is strictly speaking an ethical 'wrong' generated from carelessness' and 'negligence' behaviour. It may be a construction of academic misconduct.
It was then stated that this was dishonest when there was an element of intention. Other forms of misappropriation may ‘arise from ignorance, inexperience or socio-cultural dislocation’. It is different to acting wrongly, and more of an inadequate or incompetence.
It was submitted that the applicant could not leave her course until 6 months into her main course, that being the Diploma.
It was submitted that:
The visa applicant submits that her course progress was adversely affected by these three extraordinary circumstances beyond her control, namely:
Firstly, the college has adopted shrewd tactics to reserve education dollars and deprived her from proper teaching and guidelines by wrongly evaluating as successful.
Secondly, the college did not follow policy and provisions of law, accurately. Before taking up this matter, I refer to the contents of Sections 19, 20 and 104 of Education Services for Overseas Students Act.
Thirdly, the visa application's continuation of studies with this education provider was due to her visa conditions.
The submission provided reference to provisions of the Education Services for Overseas StudentsAct 2000 and the National Code 2007, including the provisions of NC Standard 10.5. it was submitted that Standard 10 of the National Code ‘requires the education providers to systematically monitor students' course progress and to be proactive in notifying and counselling students who are at risk of failing to meet course requirements’. The submission stated that the education provider failed in this regard. It was submitted that there was no breach of Condition 8202.
The submission stated that there would be hardship for the applicant if her visa was cancelled. It was stated that:
She belongs to a noble family and receiving fund from her family living in Thailand. The cancellation of a student visa may have serious and prolonged effects on her well-being as she is a young girl with bright future ahead. If the cancellation of a student visa is not revoked.
And
The applicant and her family would suffer financial and emotional hardship if the visa applicant had to abandon this course before completing it. The visa applicant is 24 years of age and she has invested substantial sums of money and time in her studies and career advancement. Moreover the breach was due to exceptional circumstances beyond the applicant's control.
The Tribunal discussed the matter at the hearing. The applicant stated she had plagiarised in the Cert IV course. She found some aspects of the course difficult, she did not understand the subject and there was an emphasis on completing the work. She just gave the assignment and expected results. The applicant spoke to a friend who told her to just put information from the internet. She would ask the teacher if this was correct, and it would be handed back and told to revise it. The applicant stated she was not sure if she had to write the references. When she did reference the work she was told to revise it without referencing The applicant stated that work done in her own words was not correct, she had to go to the internet to get the correct answers. The Tribunal asked the applicant some questions from the assignments she had completed. The applicant had limited understanding of the work she had completed.
The Tribunal asked the applicant about whether she had made any complaint about the teaching, noting that the applicant was an experienced student having completed a Bachelor degree in Thailand prior to coming to Australia. It was put in the submissions that the applicant was not conversant with plagiarism as the teaching methods are more bookish, requiring the reproduction of definitions and concepts. The Tribunal questioned that the 5 year degree in Architecture and Design would not provide some instruction on how work was to be completed, including attribution of sources. The Tribunal has concerns with the submission and evidence of the applicant in this regard.
The Tribunal discussed the policies of TEDI with respect to plagiarism. The Tribunal noted the considerable amount of information regarding plagiarism that TEDI had produced. This included various policies that were on the TEDI website that referenced plagiarism, including providing a definition, and why it was not accepted by TEDI. The Tribunal drew to the applicant’s attention by way of the 359AA process adverse information, including a Student Induction Checklist[1] signed on the applicant’s first day at TEDI, which stated that the applicant had been through an induction, which included reference at point 11 to the policy on plagiarism and cheating, and had been handed the Student Handbook which included further information, including about plagiarism. The Tribunal noted at the hearing the declaration the applicant signed specifically mentioned other sources, which was other than copying off other students[2]. The applicant stated she only ticked the induction checklist, she did not read the material. The Tribunal noted that the front page of the assignment, which the applicant signed, specifically noted the issue of plagiarism, including copying from other people and other sources. The applicant stated she just signed the documents before her.
[1] AAT Folio 16
[2] For example DIBP Folio 13
The Tribunal has considered the operation of s116(1)(fa)(ii), and the evidence of the applicant and submissions as provided. The applicant’s submissions on this point argue that TEDI did not follow policy and provisions of the law accurately. The submission quotes provisions from the ESOS Act, National Code, condition 8202 and excerpts of the PAM3[3].
[3] AAT Folios 29-35
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)(ii).
The Tribunal notes the applicant’s submission with respect to condition 8202, the ESOS Act and the relevant provision of the National Code[4]. The Tribunal has considered the provisions of 116(1)(fa) and the text of Explanatory Memorandum that introduced it.[5] The ‘amendments’, including the establishment of the ‘general power[6]’ 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’.
[4] Standard 10 and Standard 8 are referenced in particular
[5] Migration Legislation Amendment (Overseas Students) Bill 2000
[6] 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).[7] It provides alternative preconditions to the cancellation powers and not cumulative ones.[8]
[7]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].
[8]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[9], and achieve satisfactory course progress[10] and attendance[11]. 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[12], 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[13], including where ‘the student has failed or is deemed not competent in 50% or more of the units attempted in any study period’.
[9] 8202(2)
[10] 8202(3)(a)
[11] 8202(3)(b)
[12] 19 Giving information about accepted students
[13] 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.
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.
What is the conduct that has occurred in this instance?
The accusation against the applicant is that she 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, and was on the way to obtaining a Certificate qualifications when her visa was cancelled.
The Oxford dictionary defines plagiarism as ‘the practice of taking someone else's work or ideas and passing them off as one's own’. Wikipedia in providing its explanation of the definition states that it is the ‘use or close imitation of the language and thoughts of another author and the representation of them as one's own original work[15]’.
[15] taking this definition from the 1995 Random House Compact Unabridged Dictionary
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[16]. A further academic describes plagiarism as ‘the most serious offense in academia’.[17] 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.[18]
[16] Academic Honesty and Avoiding Plagiarism
[17] The Problems with Plagiarism
[18] The Plague of Plagiarism: Academic Plagiarism Defined, Irving Hexham,
There are some comments that plagiarism needs to be considered more broadly. An article by Brian Martin concludes that:
Plagiarism is often treated like a mortal sin: assumed to happen only rarely and warranting the most extreme penalties when discovered. The reality is different: plagiarism in mild forms is quite common. Plagiarism needs to be understood as a straightforward issue of learning how to give acknowledgements in the fashion expected in a scholarly environment. The main focus should be on learning, not penalties for transgressors[19].
[19] Plagiarism by university students: the problem and some proposals
The Tribunal further notes that there are exceptions to the requirement for attribution. The Tribunal notes that the ‘Harvard Guide to Using Sources’ provides that information which is common knowledge (either to the general public or professionals in the field) does not need to be cited (although it is suggested that citations are used). This guide states:
the only source material that you can use in an essay without attribution is material that is considered common knowledge and is therefore not attributable to one source. Common knowledge is information generally known to an educated reader, such as widely known facts and dates, and, more rarely, ideas or language. Facts, ideas, and language that are distinct and unique products of a particular individual's work do not count as common knowledge and must always be cited[20].
[20] Harvard Guide to Using Sources: The Exception: Common Knowledge
The applicant’s own agent submitted that:
Plagiarism is a form of wrong whose content may be intentional or negligent transgression of rules of originality or authorship. Plagiarism arises in its delineation as a disciplinary concept. It is strictly speaking an ethical 'wrong' generated from carelessness' and 'negligence' behaviour. It may be a construction of academic misconduct.[21]
[21] AAT Folio 36
Plagiarism is obviously seen as a significant issue in academia, and something that should not be tolerated, though the response to the discovery of plagiarism may differ. The Tribunal notes that the TEDI documentation as detailed names plagiarism specifically as an issue for students.
The Tribunal noted at the hearing that plagiarism has a number of consequences. It is the process of passing someone else’s work off as your own. Another person has taken time and effort to construct information, make an argument or explain a term, concept or idea to the broader public. Their effort and work, when taken and copied without attribution is not recognised, while the plagiarist receives the commendation, in the form of a pass mark or recognition for the work as their own.
There is a further possible consequence of plagiarism. Copying work directly from the internet to answer a question can lead to the applicant being unable to understand what they have copied and what they are being required to learn. The Tribunal at the hearing asked the applicant questions arising from the assignments she had submitted. The applicant was unable to answer the question put to them, a question that they had provided a detailed response to previously having sourced the answer from the internet. The Tribunal explained that the process of synthesizing information learned from various sources into their own words assisted in the learning of the concept that was being assessed. Simply searching a term on the internet and copying it directly into the assignment did not demonstrate any of the synthesis of the information by the applicant, putting it into their own words, and lead to the outcome where the applicant did not understand the question. The Tribunal pointed out that the use of plagiarism in answering questions had led to the applicant gaining a pass mark in an area where their knowledge was deficient. The applicant stated at the hearing she was confused, she went to the internet as directed by the teacher. The applicant stated she was told to rewrite answers using the information from the internet and not in her own words.
As discussed at the hearing, the applicant acknowledged that she had plagiarised work that she had handed in. The applicant blamed her teacher for her plagiarism. The applicant claimed that she was told to go onto the internet and find information that she would then put into her answers to the assignments and assessments she had. She was never told that this was wrong. It was submitted by the applicant that this was a common practice at the school, and the Tribunal acknowledges that it is aware that this claim has been made by a number of students.
The Tribunal has considered the claims and submissions of the applicant with respect to her knowledge of plagiarism and the teaching practices and policies of TEDI. The Tribunal does not accept that it is the fault of the school or any of her teachers that the applicant plagiarised the work that she handed in. The Tribunal accepts that TEDI did not go through any formal procedure to warn or admonish the applicant for his studying habits and activities. However the Tribunal does not consider that the failure of the school to follow their procedures with respect to plagiarism in any way exculpates the applicant from his actions in actually submitting the plagiarised work. The Tribunal considers that the applicant was aware of the policies in place, including those available on the home page of TEDI. The Tribunal considers that TEDI had made it clear that such practices were not permitted. The Tribunal considers that the applicant has completed work that was marked as successful despite copying information directly from the internet without attribution and using it as her own response, and having limited understanding of the actual work that she had copied and used. The applicant stated she found it difficult to comprehend the work that she was doing. Accordingly she copied the work from the internet. The Tribunal considers that the applicant is responsible for her actions, that the information regarding the appropriate manner of studying was before her and she chose to provide the plagiarised work despite this policy information being before her, as signed.
The Tribunal has considered the submission regarding the nature of the plagiarism, including the issue as to the seriousness of the plagiarism that the applicant has engaged in and its ongoing nature, and the submission that ‘misappropriation from ignorance, inexperience or social dislocation’ is distinguishable from conduct exhibiting ‘wrongfulness or impropriety’. The Tribunal notes that the submissions identify the plagiarism as academic misconduct.
The Tribunal notes that nowhere in the legislation is there any reference to seriousness when considering this power to cancel. The discussion of ‘seriousness’ arises purely from the policy document PAM3. While the Tribunal considers that the discussion of the seriousness, misappropriation from ignorance, inexperience or social dislocation, wrongfulness or impropriety of the conduct in question is a relevant consideration in the discretion whether to cancel the visa or not, the Tribunal considers its relevance to whether the ground exists is more limited. It is not something that directly affects the consideration as to whether the applicant has engaged in conduct not contemplated by the visa. The Tribunal notes that the Tribunal is not bound by Departmental policy, as the policy, discussing seriousness, appears to be an addition not specified by the legislation. Accordingly, the Tribunal does not take into account the issue of seriousness in this aspect of the consideration as to whether the ground for cancellation is made out.
The Tribunal considers that the applicant has plagiarised information when completing assessments in her course. The applicant used this information to pass units leading towards a qualification. She has shown limited understanding of the work that she has undertaken, a direct result of her plagiarising work. Noting the discussion above, the Tribunal considers that the plagiarism is a form of academic misconduct.
Having considered the circumstances of this matter, the Tribunal considers that the conduct that the applicant has engaged in is academic misconduct.
Is academic misconduct ‘conduct not contemplated by the visa’?
To try to understand what conduct is not contemplated by the visa, the Tribunal has reversed the question to determine what is presently contemplated by the visa.
The student visa has a significant number of provisions that apply through the regulations. Having considered this through the parameters of the Subclass (TU) 572 visa, the regulations themselves considers whether the student visa holder:
·has a genuine intention to stay in Australia temporarily[22];
·has a confirmation of enrolment[23];
·adequate English language proficiency[24];
·meets preceding educational requirements[25];
·funds[26]; and
·health insurance[27].
[22] 572.223(1)(a), 572.231
[23] 572.223(1A)
[24] 572.223(1A)(a)(i)
[25] 572.223(1A)(a)(ii)
[26] 572.223(1A)(c)
[27] 572.225
The regulations then proscribe satisfying further Schedules to the Regulations, including specific Public Interest Criteria found in Schedule 4 of the Regulations[28][29]. It then also provides certain conditions that must be complied with[30], referencing Schedule 8 of the Regulations, including:
•work restrictions[31];
•maintaining enrolment and satisfactory course progress and attendance[32];
•maintaining adequate health insurance[33];
•continue to meet the primary and secondary criteria for the grant of the visa[34];
•provide certain information to the education provider[35]; and
•not involve themselves in disruptive or threatening behaviour[36].
[28] 572.224
[30] 572.611
[31] 8105
[32] 8202
[33] 8501
[34] 8516
[35] 8533
[36] 8303
As can been seen, much conduct has been contemplated in relation to the visa. The Tribunal notes that condition 8202 is the only provision that considers directly the attendance and performance aspects of the student. The provisions of 8202(3) deal with the course progress or course attendance requirements. However, what is not contemplated by the visa, in the terms as set out in 8202(3) and the ESOS Act and National Code, is where the student visa holder is meeting the course progress and attendance requirements, however is achieving this by pursuing or implementing measures that are deceptive, fraudulent or considered to be academic misconduct.
The Tribunal considers that academic misconduct is not contemplated by the existing provisions of the visa. To consider academic misconduct within the existing provisions of the course progression provisions of condition 8202(3)(a) is not supported in its terms, including reading into the ESOS Act and the National Code Standard 10.5. As detailed above, the Tribunal does not accept the submission that the power in s116(1)(fa)(ii) is connected to condition 8202 and the subsequent power to cancel pursuant to s116((a)(b). 116(1)(fa) has been determined to be different to the test as provided in 116(1)(b), Conti J stated in MIMA v Hou [2002] FCA 574 that:
I do not think however that the “genuine student” concept of paragraph (fa) was intended to be incorporated into, or to control or modify the test for compliance with paragraph (b) of subs 116(1), which test was expressed in unconditional and unqualified terms. That “genuine student concept” is directed to circumstances where a student visa holder has been in literal compliance with visa conditions, for instance as to course attendances, 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.[37]
[37] Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 at [32]
The Tribunal has considered the submission regarding the PAM3 policy on this cancellation power. The submission notes that the meaning of conduct not contemplated by the visa is not specifically defined. The submission correctly notes that the Tribunal is not bound by policy.
The PAM3 provides a series of examples of what may constitute conduct not contemplated by the visa. The PAM3 states that the conduct must relate to the visa holder’s status as a student, and then states that ‘Generally, 'conduct not contemplated by the visa' would be restricted to academic misconduct[38]’.
[38] PAM3 - Conduct not contemplated by the visa - s116(1)(fa)(ii)
The Tribunal is conscious that policy can be misguided and wrong, and that it should not seek to use it if it is misguided. The recent decision of He V Minister For Immigration & Anor [2015] FCCA 2915 provides guidance to the Tribunal in considering the policy and the actual words of the legislation, that:
23.      The error in the Tribunal’s reasoning was, in my view, an attempt to reconcile the words of the legislation with the policy. It is whether this can actually be done that will determine whether there has been a jurisdictional error.
23.      In Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168, the Full Court was dealing with circumstances in which the policy of the Department was different from the statutory criterion. In that case a finding was made that the Tribunal had been diverted by the policy into an examination of something different than what was required by the statutory criterion.
24.      The question for me is whether the policy used in determining the issue was such that it assisted in the application of the legislation or whether the policy requires more than the legislation actually states and therefore becomes unlawful.[39].
[39] He v Minister For Immigration & Anor [2015] FCCA 2915 at 22-24
In that case the Court found that the policy and the use of the policy by the Tribunal in coming to a decision were incorrect.
As stated above, the Tribunal has not accepted the construction of the meaning of ‘conduct not contemplated by the visa’ means that there is a relationship between s116(1)(fa) and condition 8202. The Tribunal considers that the meaning of this legislation does not lead to this conclusion, supported by the decision of Hou as cited above
The Tribunal does consider that the policy is misguided in a number of ways. As detailed above, the consideration of the seriousness of the conduct as detailed in the PAM3 is not founded in the legislation. It does not state ‘engaged in serious conduct’, it is limited to conduct. The application of ‘seriousness’ in the PAM3 to that conduct is misguided.
Similarly, the policy statement that ‘generally, conduct not contemplated by the visa' would be restricted to academic misconduct’ is a further misguided policy guidance. The legislation has no such restriction provided to it, this is a guidance provided by the Department in its implementation of cases that fall under this cancellation power. The Tribunal cannot identify in the legislation as to where the restriction to consider this cancellation power in academic misconduct cases arises. It is not on the face of the provision, and it would appear that this general restriction is an addition by the Department as to how they will approach using the cancellation power. The Tribunal considers that no such restriction exists, that conduct other than ‘academic misconduct’ could enliven the power to cancel under this provision.
However, the Tribunal considers that academic misconduct is a form of conduct that can be considered under this power. As detailed above, the Tribunal considers that academic misconduct is not contemplated by the visa. The legislation provides for a cancellation process whereby a student visa holder has not progressed at the appropriate rate, as per the National Code Standard 10, specifically mentioned in condition 8202(3), in particular clause 10.5,:
10.5 The registered provider must implement the intervention strategy for any student who is at risk of not meeting satisfactory course progress requirements. At a minimum, the intervention strategy must be activated where the student has failed or is deemed not yet competent in 50% or more of the units attempted in any study period.

There is a difference between ‘not meeting satisfactory course progress requirements’, the provision that is contemplated by the visa, and academic misconduct as a concept. Academic misconduct may lead to a need for an intervention strategy as a student visa holder is deemed not yet competent in a number of units, or it may lead to more drastic action such as expulsion. Academic Misconduct is not mentioned in the National Code at all, at most it references ‘misbehaviour’[40] when considering deferring or temporarily suspending an enrolment, so it cannot be said that academic misconduct is contemplated by reference to this extrinsic source[41].
[40] National Code Standard 13.2
[41] National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
The Tribunal has demonstrated what has been contemplated by the visa, and has determined that academic misconduct has not been so contemplated.
The Tribunal considers that the construction of 116(fa) permits the Minister to review the activities of the student in this light, given that this may fall outside the remit or knowledge of the education provider. The Tribunal considers that the provisions of s116(1)(fa)(ii) lend themselves to the consideration of cancelling a student’s visa in circumstances of academic misconduct. This is not a misuse or misguidance of the PAM3, or requiring more than what the legislation actually states. In this case, the restrictions around the guidance are the inappropriate guidelines that should not be applied, given a proper reading of the legislation.
There are instances where the education providers have not taken any action with respect to academic misconduct, and the student has benefitted with the passing of units and the completing of qualifications when their submitted work has been subsequently shown to have not been their own. This ‘general power’, relating specifically to ‘student visa holders’ and no one else, is available to hold to account the student visa holder their conduct, as the academic misconduct clearly has not been contemplated by the other provisions that exist in this visa category.
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.
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.
Notwithstanding its concern as to the practice of TEDI, the Tribunal considers that the applicant is responsible for her conduct, that she is responsible for the work that she has passed off as her own. As detailed above, there are a significant number of warnings and policy documents from TEDI that discuss the issue of plagiarism and cheating, not least the very student declaration signed by the applicant when handing in an assessment or assignment that ‘the work submitted is my own, and has had not been copied or plagiarised from any person or source’. The applicant has signed this document. She has attested to the accuracy of the declaration. The Tribunal gives her claim now not to understand that declaration or have it explained to him, no weight
The Tribunal does not accept that the applicant was ignorant of the policies or that the practice was wrong, but chose to continue to conduct herself in this way, for her benefit in passing the various units of her course and ultimately gaining a qualification.
The Tribunal has considered the applicant’s claims with respect to her future employment options. The applicant stated that people with overseas business degrees got work, and she was planning on increasing her business knowledge in Australia. The Tribunal is concerned that the practice of increasing her knowledge was established in the manner as discussed, the applicant looking online for answers to questions and copying that directly and claiming it as her own work. The applicant has a 5 year degree in a specific area, which the Tribunal considers would be of interest to potential employers. The applicant further states that she is from a noble family, the Tribunal considers that this would assist her in employment seeking efforts in the future, with the support of her family. The Tribunal considers that the applicant will be able to find work in Thailand arising out of her existing qualifications. The Tribunal does not accept that the applicant’s ‘bright future’ is compromised by the cancellation of this visa given her existing qualifications.
The Tribunal has considered the claim that the applicant maintained her enrolment at TEDI because she was required to by her visa conditions. The Tribunal has significant concerns with this claim. As discussed at the hearing, the applicant did little to resolve her complaints about the teaching methods of her teacher. The Tribunal noted that the applicant had claimed to have concerns about the practices. However, when asked whether the applicant had sought to make a complaint to administration of the education provider, the applicant stated that she had only spoken to the receptionist, and accepted the advice to just do the assignments and finish the course. The Tribunal does not consider speaking to the receptionist demonstrates that the applicant was actively seeking to complain about the education she was receiving. It further does not demonstrate that the applicant was seeking to leave the education provider but was unable to do so because of restrictions on leaving before 6 months was completed. The actions of the applicant do not demonstrate she was constrained by her visa conditions, and she did not take any external actions, such as approaching the Department of Immigration or the Overseas Students Ombudsman who has a role in investigation complaints with private education providers in Australia.[42] The Tribunal places no weight on this aspect of the applicant’s claims.
[42] Overseas Students Ombudsman
The applicant claims to have lost money in Australia, having spent money towards the qualifications. The applicant stated that this amounted to $3250 from her existing and future enrolments. The written submission states that she has invested substantial sums of money and time in her studies. The Tribunal questions the claim that $3250 is a substantial sum. The Tribunal does note that the applicant would be required to have money for living expenses, which could be supplemented by working in Australia. With respect to the time spent, the applicant is responsible for her actions, and decision to remain in Australia after her visa was cancelled. The Tribunal considers that it is the actions of the applicant herself that has led to this loss, and places no weight on this aspect of the applicant’s claims.
There are no adverse matters that the Tribunal is aware of with respect to the conduct towards the Department. There are no international obligations relevant in the circumstances. There are no consequential visa cancellations affected by this matter.
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 Webb
Member

[29] 4001 – pass the character test. Character test is defined at s501(6) of the Migration Act
Character test – 501(6) – including: criminal conduct; association with a person group engaged in criminal conduct; vilify, incite discord; represent a danger to the Australia community, harass, molest intimidate or stalk
4002 – ASIO assessment as to risk to security
4003 – contrary to Australia’s foreign policy interests, weapons
4004 – outstanding debts to the Commonwealth
4005 – undertake medical assessments
4010 - likely to become established in Australia without undue personal difficulty and without imposing undue difficulties or costs on the Australian community
4013 – 3 year exclusion period unless compelling or compassionate circumstances exist
4020 – not provide bogus documents or false or misleading information
4019 - Values statement