Sangthaworn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 171
•21 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sangthaworn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 171
File number(s): MLG 1531 of 2016 Judgment of: JUDGE KENDALL Date of judgment: 21 October 2021 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal afforded the applicant procedural fairness – whether the Tribunal failed to consider relevant material – no jurisdictional error – application dismissed Legislation: Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), ss 116, 119, 349, 360, 476
Migration Regulations 1994 (Cth), Schedules 4 and 8
National Code 2007
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Shi v Migration Agents Registration Authority [2008] HCA 31
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 129 Date of hearing: 1 October 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr M Hosking Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1531 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAMONPORN SANGTHAWORN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Thailand (Court Book (“CB”) 79, 89 & 142). On 24 September 2014, she was granted a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa (the “visa”) (CB 89). She was enrolled to study a Certificate IV in Business Administration at True Education Pty Ltd trading as Technical Education Development Institute (“TEDI”) (CB 91).
On 25 March 2015, the then Department of Immigration and Border Protection (the “Department”) sent the applicant a Notice of Intention to Consider Cancellation (“NOICC”) (CB 4-9). The NOICC stated that it appeared that the applicant had engaged, whilst in Australia, “in conduct not contemplated by her visa” (CB 4). Relevantly, the Department had “considered samples of the applicant’s assessment which appeared to have been plagiarised”. The applicant was advised that her visa was “being considered for cancellation” pursuant to s 116(1)(fa)(ii) of the Migration Act 1958 (Cth) (the “Act”).
On 31 March 2015, the applicant responded to the NOICC (CB 79-80). She indicated that she was “a good citizen”, did not have any “academic misconduct or criminal records”, had “attended all [of her] classes regularly”, met “the school and visa requirements and had “completed every assignment on her own” (CB 80).
On 20 April 2015, a delegate of the first respondent (the “Minister”) cancelled the applicant’s visa (CB 89-96). The delegate found that a ground for cancellation existed and that the grounds for cancelling the visa outweighed the grounds for not cancelling (CB 96).
On 27 April 2015, the applicant applied for review of the delegate’s decision by the then Migration Review Tribunal (the “Tribunal”) (CB 97-98).
Further supporting documents were provided to the Tribunal by the applicant on 8 April 2016. These documents included written submissions prepared by her representative (CB 113-132).
The applicant attended a hearing before the Tribunal on 20 April 2016 (CB 134-136). The applicant was assisted at that hearing by an interpreter in the Thai and English languages. The applicant’s representative also attended the Tribunal hearing.
On 23 June 2016, the Tribunal affirmed the delegate’s decision to cancel the visa (CB 140-155).
On 19 July 2016, the applicant sought judicial review of the Tribunal’s decision in this Court pursuant to s 476 of the Act (CB 156-161). The application was supported by an affidavit annexing a copy of the Tribunal’s decision (CB 162-164).
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 16 pages long and spans 77 paragraphs.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring instead to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process and to properly consider and address the contentions raised against the Tribunal: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when (as is the case here) the applicant appears without legal representation and has had difficulty articulating her concerns. In these circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. A more detailed overview of the Tribunal’s decision is particularly helpful in that regard.
In this matter, the Tribunal began by identifying the type of visa being considered for cancellation, detailing the delegate’s decision and confirming that the applicant had appeared before the Tribunal. The Tribunal also noted that the written submissions provided by the applicant’s representative in the matter before it were similar to those of another applicant before the Tribunal and with whom the applicant shared an email address (at [1]-[3]).
The Tribunal noted that the issue in the case before it was whether the applicant had breached s 116(1)(fa)(ii) of the Act and, if so, whether the applicant’s visa should be cancelled (at [5]).
The Tribunal then summarised s 116(1)(fa)(ii) of the Act, explaining that the Tribunal needed to be satisfied that the applicant had engaged in conduct (including omissions) not contemplated by the visa (at [6]). Further, it was noted, where the notice of proposed cancellation under s 119 of the Act was sent on or after 27 March 2010, there are prescribed matters to which the Tribunal may have regard (at [7]).
The Tribunal then outlined the applicant’s submissions to the Department, as follows (at [8]):
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 [omitted]. 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 [omitted] 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 Tribunal then discussed the submissions provided to it by the applicant (which summarised the applicant’s “circumstances”) and noted as follows:
(a)the applicant studied in Thailand and Australia and “never had a record of any academic misconduct”, “her relevant educational history suggests that she remained a good student” and she wanted change educational institutions as she was “not comfortable with the standard of studies” (at [9]):
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
(b)criticisms were made about the conduct of the college, turnover of staff, encouraging students to “get material online”, providing limited resources and students not being “told the right way of learning”. It was also 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 further submitted that the applicant had not received any prior warnings about her assessments and had received positive feedback. Further, no issues of plagiarism were raised. The applicant blamed the teacher for “not educating her properly and claimed education in her home country is more “bookish or theoretical” and students achieve higher grades when they “reproduce definitions and concepts, which encourage[es] them [to] memorise” materials (at [10]);
(c)the submissions included a definition of plagiarism as follows (at [11]):
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.
(d)the submissions further stated that dishonesty required an element of intention and misappropriation may “arise from ignorance, inexperience or socio-cultural dislocation” and that “acting wrongly” was more inadequacy or incompetence (at [12]);
(e)the applicant could not leave her course for a period of 6 months into her main Diploma course (at [13]);
(f)it was further submitted that (at [14]):
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.
(g)the submission referenced the Education Services for Overseas Students Act 2000 and the National Code 2007, noting 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” and submitted that the education provider had failed in that regard and there was no breach of Condition 8202 (at [15]); and
(h)the submission outlined the hardship for the applicant if the visa was cancelled, stating that (at [16]):
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 then noted that it had discussed the “plagiarism issue” with the applicant at the hearing and the applicant had confirmed that she had plagiarised in the Certificate IV course “as she found some aspects of the course difficult, did not understand the subject and the emphasis was on completion of work”. The Tribunal noted that the applicant had further stated that she was told by a friend to obtain information from the internet and that, when she had referenced work previously, she was told to resubmit the work without referencing. The Tribunal noted that, when questioned about the assignments completed, the applicant had “limited understanding of the work she had completed” (at [17]).
The Tribunal had concerns in relation to the evidence provided by the applicant. Specifically, when asked whether the applicant had complained about the teaching, it was submitted that the applicant “was not conversant with plagiarism” and that teaching methods in Thailand differed. The Tribunal queried why the five year degree completed by the applicant prior to coming to Australia would not have provided some instruction on how to complete work, including referencing sources (at [18]).
Regarding the applicant’s evidence given at the hearing in relation to plagiarism, the Tribunal noted as follows:
19.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 Checklist1 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. 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.
The Tribunal confirmed that it had considered the operation of s 116(1)(fa)(ii) of the Act. It also confirmed that it had considered the evidence and submissions provided by the applicant (which argued that TEDI had not followed policy and the law accurately) (at [20]).
The Tribunal considered the law and meaning of the provisions of s 116(1)(fa)(ii) of the Act (at [21]) and noted that the terms used in those provisions were not defined in the Act , further, and there was no case law on the meaning of the provisions of s 116(1)(fa)(ii) of the Act (at [22]).
The Tribunal noted the applicant’s submission in relation to “condition 8202, the ESOS Act” and the “National Code”. The Tribunal considered provisions of s 116(1)(fa) of the Act and the Explanatory Memorandum which introduced those provisions and the “new version of Condition 8202” which was introduced at the same time (at [23]).
The Tribunal considered the introduction of the new version of condition 8202 and the introduction of the general power provision in s 116(1)(fa) of the Act (at [24]-[26]) and concluded as follows:
27.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’, or has engaged or is engaging in conduct not contemplated by the visa.
28.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.
The Tribunal outlined the accusations of plagiarism against the applicant, noting she had “handed in work that [was] not her own” and which had been obtained from the internet without appropriate referencing. It was noted the applicant had passed units of her course using that work and was working towards a Certificate qualification at the time her visa was cancelled (at [29]).
The Tribunal then discussed the meaning of plagiarism, noting the Oxford dictionary definition of plagiarism (at [30]), the effects of plagiarism (at [31]), comments on plagiarism needing to be “considered more broadly” (at [32]) and noting the “exceptions to the requirement for attribution” as outlined in the Harvard Guide to Using Sources (at [33]).
The Tribunal also included a submission from the applicant’s agent, which provided (at [34]):
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.
The Tribunal highlighted the significance of plagiarism in academia but noted that the response to plagiarism may differ between institutions. Further, it was noted that the TEDI documentation specifically names plagiarism as “an issue for students” (at [35]).
The Tribunal then discussed the “consequences of plagiarism” (at [36]-[37]). The Tribunal noted that the applicant, when questioned about her assignments, was unable to answer the questions put to her, including in relation to questions “arising from the assignments she had submitted”. The Tribunal noted that plagiarism had led to the applicant passing units where her knowledge was “deficient”. The Tribunal also noted that the applicant maintained that she “was directed to the internet by the teacher” and “was instructed to rewrite her answers using information from the internet”, rather than “in her own words” (at [37]).
The Tribunal continued:
38.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 considered the applicant’s submissions regarding plagiarism and teaching practices at TEDI but did not accept that the applicant plagiarised work she submitted through any fault of the school or her teachers. Further, the Tribunal did not consider that the failure of the school to follow procedures regarding plagiarism excused the applicant’s actions in submitting plagiarised work. Rather, the Tribunal determined that the applicant was aware of the policies in place and was responsible for her actions. The Tribunal found that the information regarding appropriate study practices was before the applicant and she chose to plagiarise – despite policy information she acknowledged receipt of (at [39]).
The Tribunal had regard to the submissions in relation to the nature of plagiarism and noted that the submissions identified plagiarism as “academic misconduct” (at [40]).
The Tribunal noted that “seriousness” is not referenced in legislation when considering the power to cancel, but only in the policy document “PAM3”, and that the Tribunal was not bound by Departmental policy. The Tribunal did not take into account the issue of seriousness when considering whether the ground for cancellation was made out (at [41]).
The Tribunal considered that the applicant had plagiarised information in her assessments and used that information to pass units of her course. The Tribunal also noted that the applicant had a limited understanding of the work she had completed and considered that plagiarism was a form of academic misconduct (at [42]). Further, on review of the circumstances of this matter, the Tribunal considered that the applicant’s conduct was “academic misconduct” (at [43]).
The Tribunal detailed that, in order to understand what was not contemplated by the visa, it first needed to consider what was contemplated (at [44]). The Tribunal reviewed the Regulations themselves and what they require of a visa holder (at [45]) and then considered the Schedules to the Regulations, including the Public Interest Criteria outlined in Schedule 4 of the Regulations and the conditions outlined in Schedule 8 of the Regulations (at [46]).
The Tribunal noted that condition 8202 was the only provision which considered attendance and performance aspects of a student and that the provisions of 8202(3) dealt with course progress and course attendance requirements. The Tribunal considered that what was not contemplated by the visa in the relevant legislative provisions was where a student visa holder met the course progress and attendance requirements through deceptive or fraudulent conduct or by academic misconduct (at [47]).
The Tribunal continued:
48.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 s 116(1)(fa)(ii) is connected to condition 8202 and the subsequent power to cancel pursuant to s 116((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.
The Tribunal had regard to the submissions in relation to the PAM3 policy and noted that the submission detailed that the meaning of “conduct not contemplated by the visa” was not specifically defined and that the Tribunal was not bound by policy (at [49]).
The Tribunal discussed the PAM3 examples of what may be considered conduct not contemplated by the visa and noted that PAM3 states that the conduct must relate to the visa holder’s student status and that “generally, ‘conduct not contemplated by the visa’ would be restricted to academic misconduct” (at [50]).
The Tribunal stated:
51.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.
52.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.
The Tribunal did not accept that the meaning of “conduct not contemplated by the visa” meant that there was a relationship between s 116(1)(fa) of the Act and condition 8202, having determined that a reading of the legislation did not lead to that conclusion (and citing Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574) (at [53]).
The Tribunal considered that the policy was misguided in some ways and noted that the seriousness of conduct as detailed in PAM3 was not founded in legislation (also noting that it was limited to conduct and not serious conduct) (at [54]).
The Tribunal also viewed the policy statement regarding conduct not contemplated by the visa being “generally restricted to academic misconduct” as misguided. The Tribunal could not identify where in the legislation such a restriction arose and considered that no such restriction existed. Instead, the Tribunal was of the view that conduct other than “academic misconduct” could enliven the power to cancel (at [55]).
The Tribunal considered that academic misconduct was conduct not contemplated by the visa and conduct that could be considered in relation to cancellation. The Tribunal then reviewed clause 10.5 of condition 8202(3) regarding implementation of an intervention strategy for students at risk of not meeting course progress requirements (at [56]).
The Tribunal noted the difference between “not meeting satisfactory course progress requirements” and the concept of academic misconduct (at [57]). The Tribunal demonstrated what was contemplated by the visa and determined that “academic misconduct” had not been so contemplated (at [58]).
The Tribunal considered that the provisions of s 116(1)(fa)(ii) “lend themselves to the consideration of cancelling a student’s visa in circumstances of academic misconduct” and did not consider that to be a misuse or misguidance of the PAM3 or that it required more than what the legislation stated (at [59]).
The Tribunal discussed instances where education providers have not taken action regarding academic misconduct and noted that the “general power” relating specifically to student visas was available to hold student visa holders to account regarding their conduct (at [60]).
The Tribunal concluded as follows:
61.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.
62.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.
The Tribunal had regard to the relevant circumstances when considering whether to exercise its discretion to cancel the visa, including those identified in the Department’s Procedures Advice Manual PAM3 “General visa cancellation powers” (at [63]).
The Tribunal considered the applicant’s circumstances and the evidence and submissions provided by the applicant and her agent in that regard (at [64]).
The Tribunal noted the submission regarding the applicant handing in assignments without crediting source information as being “misappropriation from ignorance, inexperience or social dislocation” and that the conduct constituted an educational problem rather than a violation of the conduct rules (at [65]).
The Tribunal explained that the applicant had stated that she was committed to her studies and would enrol in an alternate institute and ensure adherence to relevant academic policies. Further, it was submitted that the applicant’s responsibility for any academic misconduct was limited and that TEDI had failed to inform the applicant of plagiarism policies (at [66]).
The Tribunal considered those submissions and the applicant’s oral evidence, noting that the level of plagiarism identified and admitted to by the applicant was more than that as was stated in those submissions (at [67]).
The Tribunal continued:
68.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 determined that TEDI was partially responsible for the applicant’s conduct, noting that a number of former students had criticised the education provider. The Tribunal also accepted the submission that TEDI was at fault by not following its procedures in dealing with plagiarism (which appears to be widespread in this course) (at [69]).
While the Tribunal was concerned about the practices of TEDI, the Tribunal considered that the applicant was responsible for her conduct and the work that she had “passed off as her own”. The Tribunal noted that there were a number of warnings and policies from TEDI regarding plagiarism, including a declaration signed by the applicant when handing in an assessment confirming that the work was her own. The Tribunal gave no weight to the applicant’s claim to not have understood the declaration (at [70]).
The Tribunal did not accept that the applicant was ignorant of the policies. Rather, the Tribunal concluded, she chose to continue to conduct herself in a way that benefited her in passing units towards her qualification (at [71]).
The Tribunal then discussed the applicant’s claims regarding her future employment options, noting that the applicant holds a five year degree and that the qualification, together with the support of her family, would mean the applicant would be able to find work in Thailand. The Tribunal did not accept that the applicant’s future would be compromised by the cancelation of her visa (at [72]).
The Tribunal considered the applicant’s claims regarding maintenance of her enrolment at TEDI due to visa requirements and had significant concerns with the applicant’s claim. The Tribunal noted that despite claiming to have concerns with the education provider, the applicant took no steps to resolve her complaints or seek to leave the education provider. The Tribunal considered that the applicant took no external action (such as contacting the Department or the Ombudsman) and, on that basis, the Tribunal placed no weight on that aspect of the applicant’s claims (at [73]).
The applicant claimed to have lost money in Australia which was spent on qualifications and amounted to $3250 (made up of existing and future enrolments). The Tribunal questioned the claimed amount, noted that the applicant would have living expenses in Australia which could be supplemented by working in Australia and considered that the applicant was responsible for her actions and chose to remain in Australia following the cancellation of her visa. The Tribunal considered that the applicant’s actions led to her loss and placed no weight on that aspect of the applicant’s claim (at [74]).
The Tribunal found there were no adverse matters regarding conduct towards the Department, no international obligations in the circumstances and no consequential visa cancellations affected by the matter (at [75]).
Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled (at [76]) and affirmed the delegate’s decision to cancel the applicant’s visa (at [77]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 19 July 2016 contains four “grounds of review” as follows:
1.THE DETERMINATION OF APPLICATION HAS RESULTED IN UNFAIRNESS TO ME.
2.THE DELEGATE FOR THE MINISTER HAS MADE FINDINGS IN THE APPLICATION WHICH APPEARS IRRATIONAL OR IN COMPREHENSIVE.
3.THE MERITS OF APPLICATION COULD PROPERLY BE TAKEN INTO CONSIDERATION TO DETEMINE A LEGAL ISSUE OF SOME IMPORTANCE.
4.THE EDUCATION PROVIDER DID DERELICTION OF DUTIES AND MADE ME INNOCENT VICTIM.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. The applicant filed two affidavits. The first affidavit was affirmed and filed on 15 February 2017 and annexed screenshots of email correspondence, extracts from the applicant’s assessments, screenshots of what appears to be social media accounts and a letter of support. The second affidavit was affirmed on 3 September 2021 and filed on 4 September 2021 and annexed what the Court understands to be the applicant’s written submissions.
The applicant appeared before this Court without legal representation and was assisted at the hearing by a Thai interpreter. At the hearing, the applicant had some difficulties locating documents filed by the Minister, being the Court Book (Exhibit 2) and two sets of submissions. The Minister submitted correspondence confirming the applicant had been validly served with the Court Book (Exhibit 1). The Minister also tendered correspondence confirming that the applicant was validly served with submissions filed by the Minister in 2017 (Exhibit 3).
The materials before the Court thus include the application for judicial review and supporting affidavit filed on 19 July 2016, a Court Book numbering 164 pages, two affidavits of the applicant affirmed and filed on 15 February 2017 and affirmed on 3 September 2021 and filed on 4 September 2021 respectively and written submissions filed by the Minister on 7 March 2017 and 15 September 2021.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained to the applicant that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that she would like the Court to review the fact that she was told the wrong thing about plagiarism and didn’t receive any warning or notice from the education provider. The applicant also stated that she did not think that the representative she had at the Tribunal really understood what she was saying – which is why she chose to represent herself before this Court. With respect to the issue of plagiarism, the applicant explained that, based “on her online research”, she understood that it was okay to obtain information from the internet as long as it was not used for financial gain.
The applicant also sought leave to submit more materials relating to internet research she had conducted about “the law and how a student can use information from the internet”. The Court did not accept any further material from the applicant. This material was not before the Tribunal. In effect, the applicant sought to rely on this material for the purpose of an impermissible merits review.
The applicant’s oral and written submissions will be addressed below.
CONSIDERATION
Ground 1
Ground 1 provides:
1.THE DETERMINATION OF APPLICATION HAS RESULTED IN UNFAIRNESS TO ME.
Although not entirely clear, it is arguable that the applicant is raising concerns in relation to the Tribunal’s “procedural fairness obligations”.
In this regard, the Court notes as follows:
(a)the applicant was provided an opportunity to provide information and evidence outlining why her visa should not be cancelled;
(b)the applicant provided an explanation to both the Department (CB 79-80) and to the Tribunal (CB 117-126) and that information was considered by the Tribunal;
(c)the Tribunal accepted that the educational institute was responsible in part for the applicant’s conduct but considered that the applicant was ultimately responsible for her conduct and the work submitted. Further, the Tribunal did not accept that the applicant was ignorant of the plagiarism policies but instead chose to continue to conduct herself in a way that did not align with those policies;
(d)the applicant was invited to attend a hearing before the Tribunal to provide evidence and arguments: s 360 of the Act. The applicant appeared at the hearing with her representative and was assisted by a Thai interpreter (CB 134-136);
(e)despite the applicant’s suggestion that her representative did not understand her, there is no evidence before the Court to suggest that the applicant raised any concerns with the Tribunal. Further, the applicant gave evidence at the hearing and was given an opportunity to answer questions put to her by the Tribunal and provided oral evidence;
(f)on the face of the decision record, there is nothing which would suggest that the Tribunal displayed any bias or prejudgment;
(g)the applicant was given opportunities to provide evidence in relation to her application and, having considered that evidence, the Tribunal made findings in relation to the matter; and
(h)those findings were open to the Tribunal based on the evidence before it (which was largely provided by the applicant).
Any claim by the applicant that there was “unfairness” in relation to the way the Tribunal assessed her evidence cannot be made out. The applicant is, in effect, simply disagreeing with the Tribunal’s decision and seeks an impermissible merits review of that decision.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
2.THE DELEGATE FOR THE MINISTER HAS MADE FINDINGS IN THE APPLICATION WHICH APPEARS IRRATIONAL OR IN COMPREHENSIVE.
Here, the applicant takes issue with the delegate’s decision. This Court has no jurisdiction to review the delegate’s decision: ss 476(2) and 476(4) of the Act. Further, the Tribunal conducts a “review” of the decision made by the delegate: s 349(1) of the Act. That review is a “merits review” where the Tribunal effectively “stands in the shoes” of the delegate: Shi v Migration Agents Registration Authority [2008] HCA 31. The Tribunal’s decision thus “cures” any error in the delegate’s decision.
No error arises in relation to ground 2.
Ground 3
Ground 3 provides:
3.THE MERITS OF APPLICATION COULD PROPERLY BE TAKEN INTO CONSIDERATION TO DETEMINE A LEGAL ISSUE OF SOME IMPORTANCE.
The applicant here is alleging a failure to consider the “merits” of the application. It is unclear exactly what the applicant means by this ground or exactly what the applicant believes the Tribunal failed to consider.
To the extent that the applicant is arguing that the Tribunal failed to consider relevant evidence before it, the Court disagrees.
The Tribunal is required to give ‘proper, genuine and realistic consideration’ to the claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33].
It is clear from the Tribunal’s decision and reasons that the Tribunal did so here and engaged, in forensic detail, with the applicant’s evidence.
The applicant provided submissions to the Department (CB 79-80) and the applicant’s representative provided submissions and supporting academic records to the Tribunal on the applicant’s behalf (CB 117-132). Both sets of submissions are considered in detail by the Tribunal throughout its decision and reasons (see, for example, the Tribunal’s decision at [8], [9]. [10]-[16], [18], [20], [23], [34], [39]-[40], [48]-[49], [64]-[69] & [74]).
Further, the Tribunal also considered the applicant’s oral evidence given at the Tribunal (see, for example, the Tribunal’s decision at [3], [10], [17]-[20], [37]-[39], [66]-[68] and [72]-[74].
The Court is satisfied that the Tribunal gave proper consideration to all of the applicant’s claims and evidence.
No error arises in relation to ground 3.
Ground 4
Ground 4 provides:
4.THE EDUCATION PROVIDER DID DERELICTION OF DUTIES AND MADE ME INNOCENT VICTIM.
Here, the applicant takes issue with the conduct of the educational institute. The Tribunal considered this issue in its reasons, as follows:
69.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.
70.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
71. 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.
It is clear from the above that the Tribunal took into account the conduct of TEDI (the educational institute). Whilst the Tribunal accepted that the institute bore some responsibility, it ultimately found that the applicant was responsible for her own conduct.
Ground 4 is, accordingly, dismissed.
Applicant’s written submissions
The applicant filed an affidavit in this matter on 4 September 2021 which annexed the applicant’s written submissions. Where relevant, the Court will also consider the issues raised in those submissions.
To the extent that the applicant’s submissions relate to the delegate’s decision, as noted above, this Court does not have jurisdiction and is not able to assist the applicant in relation to any review the delegate’s decision.
A large portion of the applicant’s submissions also go to the merits of the matter, do not and could not establish jurisdictional error on the part of the Tribunal or simply disagree with the Tribunal’s findings or reasoning. For the reasons outlined above, this Court is not able to engage in merits review. Further, disagreement with the Tribunal’s findings (however strong) does not evidence jurisdictional error on the part of the Tribunal.
The Court will otherwise address the issues raised by the applicant’s submissions below.
The applicant alleges that the Tribunal failed to consider information from Mr Brian Martin in relation to plagiarism.
The Court disagrees.
This was clearly considered and identified by the Tribunal at [32], as follows:
32.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
In the paragraphs immediately prior and subsequent to the discussion above, the Tribunal considers other definitions and interpretations of plagiarism and then discusses its applicability to the applicant’s case.
In conducting a review, the Tribunal may obtain any information that it considers relevant (including various definitions and interpretations of conduct) and the weight that the Tribunal affords that information is a matter for the Tribunal and forms part if its fact finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11]. Further, the Tribunal is entitled to accept, reject or give weight to evidence tendered as it thinks is appropriate in the circumstances of a matter: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
No jurisdictional error arises in this regard.
The applicant also takes issue with the Tribunal not citing any case law regarding the meaning and application of the words “conduct not contemplated by the visa”.
The Tribunal, at [22], states (emphasis added):
22.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 Minister submitted that this does not constitute jurisdictional error, that there continues to be no relevant case law on this point and that the Tribunal followed the correct process in the absence of relevant case law. As explained in written submissions dated 15 September 2021:
9.… the applicant criticises the Tribunal for not citing case law concerning the meaning of the phrase “conduct not contemplated by the visa” in s 116(1)(fa)(ii) of the Act. This does not establish jurisdictional error on the part of the Tribunal. At the time of the Tribunal’s decision, there was no case law considering the meaning of that phrase. That remains true now. In the absence of case law, the Tribunal engaged in an orthodox process of statutory interpretation to give meaning to that phrase, considering the text of the provision and relevant context, including extrinsic materials relating to the introduction of s 116(1)(fa) (CB 145-146 [22]-[28], 149-150 [44]-[48]). The applicant has not identified any basis to doubt the Tribunal’s conclusion that academic misconduct is capable of constituting “conduct not contemplated by the visa” within the meaning of s 116(1)(fa)(ii).
10.It is clear from the text of s 116(1)(fa)(ii) that the provision requires consideration of a student visa holder’s conduct, and whether or not that conduct is contrary to the intended purpose of the student visa’s grant. That intended purpose is the achievement by the student visa holder of an educational outcome in respect of his or her course of study. In this context, the Minister submits that it is clearly permissible to have regard to academic plagiarism on the part of the visa holder. It is permissible to consider that such conduct is contrary to the intended purpose of the student visa’s grant and, in particular, the attainment of knowledge and learning in respect of matters the subject of the visa holder’s course of study.
The Court agrees with the Minister’s submissions in this regard.
The Court has been unable to locate any relevant case law specific to the meaning of the wording in s 116(1)(fa)(ii) of the Act. In circumstances where relevant case law is not available, it is accepted that the Tribunal will engage in a process of statutory interpretation.
The Tribunal looked at the applicant’s submissions in relation to condition 8202, the Education Services for Overseas Students Act 2000 (the “ESOS Act”), and the National Code and the intention of Parliament and determined as follows:
23.The Tribunal notes the applicant's submission with respect to condition 8202, the ESOS Act and the relevant provision of the National Code. The Tribunal has considered the provisions of 116(1)(fa) and the text of Explanatory Memorandum that introduced it. The ‘amendments’, including the establishment of the ‘general power’ 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’.
24.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). It provides alternative preconditions to the cancellation powers and not cumulative ones.
25.Condition 8202 requires a student to be enrolled in a registered course, and achieve satisfactory course progress and attendance. 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 Act 2000 (ESOS Act), in particular s19, 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’, including where ‘the student has failed or is deemed not competent in 50% or more of the units attempted in any study period’.
26.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.
27.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’, or has engaged or is engaging in conduct not contemplated by the visa.
The Tribunal, after consideration of the provisions of the relevant legislation and extrinsic material, ultimately determined:
28.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.
The Tribunal here followed a reasoning process that was entirely open to it. It was sound, logical and flowed rationally from the materials before it. In the absence of case law, and in the absence of clear legislative direction, the Tribunal interpreted the legislation before it in context and on the evidence available to it.
No error arises in this regard.
The applicant also alleges that the Tribunal failed to consider:
(a)her inexperience and lack of academic skills; and
(b)Copyright law in Thailand.
To the extent that the applicant is suggesting that the Tribunal did not consider the applicant’s previous study, experience and academic skills, this is simply incorrect. The Tribunal considered the applicant’s previous academic history and the fact that the applicant had obtained a 5 year degree. On the basis of that evidence, the Tribunal found that the applicant was an “experienced student” and considered that she should have had an understanding of plagiarism and the requirements of tertiary studies.
Further, the Tribunal had concerns about the applicant’s submissions in this regard. The Tribunal stated as follows (emphasis added):
18.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 also raised concerns later in its reasons as follows:
68.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 applicant also maintains that she is “lacking in skills and study experience”. The Tribunal disagreed and found that five years of study was a sufficient amount of time for the applicant to learn about plagiarism, referencing requirements and proper academic conduct.
The Court considers those findings to have been open to the Tribunal on the evidence before it. No error arises in this regard.
Insofar as the applicant suggests that there was “a failure to consider copyright laws in Thailand”, there is no evidence before this Court that the applicant raised this issue before the Tribunal, nor provided any relevant legislative extracts to the Tribunal at the time of the Tribunal’s review. Where information or material was not provided to the Tribunal, there can be no jurisdictional error if that material was not assessed.
No error arises in this regard.
To the extent that the applicant suggests that she did not intend to plagiarise and it was “accidental”, on one level the applicant seems to seek impermissible merits review. To the extent that the applicant believes the Tribunal failed to take this into account, the Court disagrees.
As the Minister submits, the applicant’s statements to this Court are entirely inconsistent with her evidence before the Tribunal. In that regard, the Tribunal noted that (emphasis added):
17.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.
Before the Tribunal, the applicant claimed that she had been told to obtain information from the internet by a friend, by the teachers and the applicant confirmed that she had plagiarised. No reference was made to the plagiarism being accidental. It was simply stated that she did what she was told to do by her friend and by the teachers at the educational institute – submissions which the Tribunal assessed but which ultimately carried little weight.
The Tribunal can only make its decision based on the information before it and the evidence provided by the applicant (both written and oral). Here, the applicant did not provide information about “accidental” plagiarism to the Tribunal. Failure to consider information which was not before it cannot amount to jurisdictional error on the part of the Tribunal.
The applicant’s submissions do not identify any jurisdictional error on the part of the Tribunal.
Otherwise
The Tribunal generally referenced the applicant in this matter as the applicant and, where it used a gender pronoun, referred to the applicant as “her” or “she”. However, the Court notes that at a few points in the Tribunal’s decision, the Tribunal refers to the applicant as “him” or, when speaking about the applicant, uses “his” (see for example [2] where the Tribunal says “his” at line 3, [39] where the Tribunal says “his” at lines 5 and 7, [64] where the Tribunal says “his” at line 2, [66] where the Tribunal says “his” at line 4, [67] where the Tribunal says “his” at line 3 and [70] where the Tribunal says “him” at line 9, being the final line).
The Court considers these to be a simple typographical errors. It is clear from the remainder of the decision that the Tribunal was referencing the correct applicant and her case and the relevant evidence provided. Whilst this is an unfortunate oversight, no error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 19 July 2016 does not identify any jurisdictional error on the part of the Tribunal. The applicant’s submissions filed by way of affidavit on 4 September 2021 do not identify any error on the part of the Tribunal. The Court has otherwise assessed the Tribunal’s decision and cannot identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 October 2021
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