1702584 (Migration)

[2019] AATA 4096

1702584 (Migration) [2019] AATA 4096 (31 May 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702584

MEMBER:Justin Owen

DATE OF DECISION:  31 May 2019

DATE CORRIGENDUM

SIGNED:4 October 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

(i)Page 2; Paragraph 6 ‘For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside’ is deleted and replaced with following:

“For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed”

Justin Owen
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702584

MEMBER:Justin Owen

DATE:31 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 May 2019 at 8:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant changed to related Vocational courses – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). This is an application for review of a decision dated 10 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of China born [on date].  Her Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 11 July 2013 and was subject to condition 8202.  On 2 February 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa, as she ceased to be enrolled in a registered course between 2 May 2016 and the date of the delegate’s decision.  The applicant responded to the NOICC on 3 February 2017.  On 10 February 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 5 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend [Mr A] and mother [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1)(b) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

8. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 10 February 2017. The decision record states that the Provider Registration and International Student [subject 3] System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 2 May 2016.  The decision noted that the applicant obtained enrolment on 3 February 2017 in response to a NOICC issued to her by the Department on 2 February 2017 and nine months after the cessation of her previous enrolment. 

11. The applicant provided the Tribunal with a statutory declaration dated 26 March 2019 (T1, Folio. 80) where she stated that her original study package was to study a foundation course in English and then go to [University 1] to study [subject 1]. She arrived [in] July 2013.  The applicant wrote that she left the foundation course after a month and transferred to another course of study and education provider.  She outlines how she attended a range of education providers and undertook a range of studies that included a number of VET rather than higher education courses of study.  The applicant states she ceased studying in March 2016 due to her mental state.  After receiving treatment she enrolled at [College 1] in early 2017 and has been studied successfully there (though the Tribunal notes not at the higher education level) until October 2018. The Tribunal notes on 22 May 2019 the applicant received admission to a [degree with] major in [subject 2] at [University 2] (T1, Folio.85-88).  The Tribunal notes the applicant was not enrolled on the evidence before it in a higher education course of study for the vast majority of the time between her arrival in 2013 and the time of decision.      

12. The Tribunal furthermore notes that in the written submission the Tribunal received from the applicant’s representative on 29 March 2019, the applicant’s representative concedes that a ground for cancellation is made out under s.116(1)(b) because the applicant did not comply with Condition 8202 of her visa. The applicant’s representative in his correspondence to the Tribunal further conceded that the notification requirements of s.119 were met by the delegate.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

15. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

16. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The Tribunal accepts that the applicant has during the six years she has been in Australia engaged in a significant degree of study in both Sydney and Melbourne. 

17. In her statutory declaration of 26 March 2019 the applicant outlines the diverse array of courses of study and education providers she has attended the past six years.  These include courses at the higher education level that she successfully completed (ie a Diploma of [subject 3] at [College 2] in 2015) to colleges and courses of study that were not completed and were not either eligible education providers or courses of study for a higher education visa (an uncompleted Diploma of [subject 4] at the [College 3]). 

18. The Tribunal notes the applicant’s claims concerning her mental health especially in the 2016 period where she stopped attending classes.  The Tribunal notes that the applicant recommenced studying in January 2017 and successfully completed a Diploma and an Advanced Diploma in [subject 2] by October 2018 as well as a Certificate III in [subject 5] at [College 4].  The Tribunal notes that these are not higher education courses of study or eligible higher education providers but nevertheless gives some positive weight to the applicant as an indicator of her commitment to study. 

19. The Tribunal notes that on 22 May 2019 the applicant received admission to a [degree with] major [in subject 2] at [University 2] (T1, Folio.85-88).  At the hearing the applicant talked about her desire to move to the next level of study in her [subject 2] studies via a Bachelor degree.  The Tribunal notes from the Letter of Offer that the applicant is due to commence in July 2019 and complete the course at the end of 2020, suggesting the applicant has been granted advance standing in recognition of her Diploma and Advanced Diploma. 

20. The Tribunal accepts that the applicant is genuinely enthusiastic and keen about enrolling and successfully completing this higher education course.  At the hearing she outlined the significant employment opportunities in China with [subject 2 work].  She stated it was her desire to return to China as a qualified [subject 2 professional].        

21. The Tribunal accepts that the applicant has been in Australia for the principal purpose of study: the Tribunal notes however that the vast bulk of this has not been at the higher education level for which she was granted a 573 Higher Education visa.   The Tribunal finds that despite arriving in Australia in 2013 – almost six years ago – her commitment to and progress in her studies – as outlined in her statutory declaration to the Tribunal - at the higher education level has been poor.  The Tribunal notes the impact the applicant’s claimed mental health in 2016 especially had upon her ability to study successfully.       

22. The Tribunal appreciates the applicant has enrolled in a number of courses but notes she has not on the evidence before it successfully completed any Higher Education courses beyond a Diploma of [subject 3] in almost six years since arriving in Australia with a higher education student visa.       

23. Based upon the evidence before it the Tribunal finds the applicant was not fulfilling the purpose of her travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.  Nevertheless the Tribunal recognises in particular the applicant’s recent efforts to obtain a Diploma and Advanced Diploma in [subject 2], whilst not in their own right higher education courses, are genuine examples of a desire to study. The Tribunal notes the advanced standing the successful completion of these courses are providing to the applicant in her desire to study [subject 2] at the tertiary level.  The Tribunal notes that the applicant has now obtained enrolment at [University 2] in a [degree] in [subject 2].  The Tribunal notes that her study in this area so far is providing significant advanced standing in her Bachelor degree course.  The Tribunal accepts that the applicant’s commitment to remaining enrolled at the higher education level has been mixed, yet it considers the purpose of the applicant to study is genuine and honest.  She appears to the Tribunal to be motivated and keen to succeed.  The Tribunal furthermore considers the applicant with her enrolment at [University 2] arguably has a compelling need to remain in Australia.  Given however she has not yet commenced the course, the Tribunal considers she could enrol in a similar such course offshore.  On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor slightly against cancelling the visa.

24. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of her visa by not being enrolled at a Higher Education Sector level for the vast majority of her time in Australia since arriving in 2013 to be substantial.  The Tribunal considers the applicant’s non-compliance with her visa conditions, notwithstanding her enrolment and successful committed study in a number of non-higher education courses to be considerable.  The Tribunal notes that the applicant was granted a higher education level visa in 2013 but only months later shifted to vocational education level study.  There is no evidence before the Tribunal that she contacted the Department or made efforts to seek permission to make these changes to the conditions attached to her visa.  There is no corroborative evidence of any requests she made to the Department or her education providers at the time.  The Tribunal notes that the applicant enrolled again in a course just prior to the cancellation of her visa by the delegate: a course that was not a higher education course of study.    The Tribunal considers the applicant’s non-compliance with condition 8202 has been substantial.   There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions.  On the evidence before it the Tribunal weighs this factor slightly in favour of cancelling the visa.

25. The Tribunal has considered the degree of hardship that may be caused to the applicant or her family should her visa be cancelled.    

26. The applicant talked about her mental health and the challenges she faced leading up to 2016.  The applicant claims she was suffering from anxiety.   In her statutory declaration the applicant states that she thinks she started having mental health issues whilst studying in China just prior to coming to Australia in July 2013.  The applicant and her mother in their respective statutory declarations discussed the mental health challenges the applicant faced in 2016.  The Tribunal accepts that the applicant was facing some genuine mental health issues during that year.  The Tribunal notes the evidence the applicant has provided of her communciations to her friend [Mr A] (T1, Folio.61-75), her personal notes and the correspondence of her clinical psychologist [Psychologist A] (T1, Folio.56) who saw her numerous times in 2016. Their evidence supports the applicant’s claims as did [Mr A] in his oral testimony to the Tribunal.  At the hearing the Tribunal asked the applicant what hardship would be caused to her if her visa was cancelled.  The applicant said that she had never fully recovered from her mental health challenges and still sees [her psychologist] from time to time.  She said that she hadn’t returned to China in six years and to do so would be overwhelming for her and not good for her mental health.  She stated that she essentially wanted to complete her studies and perhaps do a Masters in [subject 2] as that was what was needed to be a [subject 2 professional].    

27. The Tribunal notes that the applicant in her oral testimony and in her statutory declaration has stated that her mental and indeed physical health have improved markedly since 2016.  The applicant writes that she still has occasional anxiety and panic attacks but now knows how to manage them and she generally functions she claims ‘very well’. She utilises meditation and sees a psychologist a few times a year.  The applicant’s friend [Mr A] agreed that the applicant had improved since 2016 and the applicant’s mother [named] in her own statutory declaration wrote that the applicant was in much better shape when she visited Australia at the end of 2017.  She said the applicant was healthy and outgoing and ‘has returned to a positive state of mind.’  The Tribunal accepts that the applicant may still face anxiety from time to time but notes that there is no claim made or evidence of a mental health plan or any ongoing treatment that requires the applicant to remain in Australia.  The Tribunal considers any mental health related hardship to be minimal.   The Tribunal considers that the applicant furthermore will be able to obtain mental health support and advice from health professionals in China if she returns.

28. The Tribunal notes the applicant has just enrolled in a [degree] in [subject 2] after her successful Diploma and Advanced Diploma level studies.  The Tribunal notes that the applicant has not as yet commenced the course and will not do so until July.  The Tribunal notes the applicant has been in Australia since 2013 and, notwithstanding her mental health challenges of 2016 which the Tribunal accepts, has had ample opportunity to undertake her higher education studies. The Tribunal accepts the applicant has a strong desire to study this particular course at [University 2] and accepts she would be disappointed to have to return to China.  The Tribunal considers the applicant to be a talented student on the evidence before it and is confident the applicant would be able to study similar courses at the higher education level either domestically in China or internationally.

29. The Tribunal notes that the applicant through her representative’s written submission has stated there is no claim that cancellation will cause the applicant serious financial hardship.  He also states that the applicant has no family or business ties in Australia.  The Tribunal considers the hardship the applicant will face to be limited.

30. The Tribunal furthermore notes that the applicant will become an unlawful non-citizen if her visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if she does not voluntarily depart Australia. She will also be subject to an s48 bar which will limit her options in applying for further visas in Australia. The Tribunal notes that the applicant, if she were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date. The Tribunal however also notes that if her visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow her to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.

31. The Tribunal enquired about hardship that might be caused to the applicant’s family should her visa be cancelled.  The applicant said she does not have any family members in Australia.  The applicant said that her family expects her to succeed.  The Tribunal accepts that the applicant’s mother and family may be disappointed by her returning to Australia prior to completing her planned Bachelor degree at [University 2].  The Tribunal does not consider that to be a particularly unusual state of affairs and gives it no weight.

32. On the evidence before it concerning the degree of hardship the applicant and her family would face, the Tribunal weighs this factor slightly in favour of cancelling the visa. 

33. The Tribunal has considered the circumstances in which the ground for cancellation arose.

1. The Tribunal notes that as outlined in the delegate’s decision the applicant provided, the circumstances in which the ground for cancellation occurred arose when the applicant failed to maintain her enrolment in a registered course of study which led to her non-compliance with visa condition 8202.  The Tribunal notes that the applicant’s representative in his submission to the Tribunal does not dispute the applicant did not comply with condition 8202.  He submits that the non-compliance was due to circumstances beyond the applicant’s control.  The applicant’s representative drew the Tribunal’s attention to PAM3 which states as a general rule, a visa should not be cancelled where the circumstances on which the ground for cancellation arose was beyond the control of the visa holder. 

2. The applicant submitted to the Tribunal that she suffered significant psychological problems throughout 2016.  The applicant submitted a range of corroborative evidence including a report from her clinical psychologist [named] dated 6 March 2017 which states the applicant had sought treatment from her from October 2016 for depression and social withdrawal.  The Tribunal notes the evidence of a chat history between the applicant and [Mr A] from October 2016 where [Mr A], a health professional, urged the applicant to seek assistance for her mental state; as well as the applicant’s electronic diary notes between March 2016 and March 2017.  The applicant also provided telephone records confirming that she rang counselling services on 30 March 2016.  The applicant furthermore provided statutory declarations from herself, her mother, her flatmate from 2016 [named] and from [Mr A].

3. At the hearing the applicant spoke of her mental health challenges during this period.  She claimed she first started to feel mentally unwell before she came to Australia but went into further decline particularly in 2016.   The applicant blamed her numerous changes of enrolments and moved between Sydney and Melbourne on the fact she couldn’t cope with being in the same place for too long.   

4. The applicant stated in her statutory declaration that by March 2016 she had stopped attending classes and thought she would die soon.  The applicant said to the Tribunal that she had no energy, couldn’t get out of bed and thought of committing suicide.   She claimed she visited [another country] with her family in China a month previously because she wanted to give her family a good memory of her before she died.  The applicant’s mother agreed with this, writing she noticed the applicant’s decline in her mental health.  The applicant claims she became a recluse and gave up studying.  She said whilst she never committed any self-harm she would binge eat or other times not eat at all.  The applicant stated that she [commenced specified work] and had no self-respect.  She claims her life started to turn around in October 2016 after [Mr A] referred her to mental health assistance and with support and treatment she was well enough to commence study again in early 2017 with a Diploma of [subject 2] at [College 1].    

5. The Tribunal notes that the applicant has not provided a mental health plan or more significant evidence of medical treatment beyond the correspondence of her GP and her clinical psychologist.  Nevertheless the Tribunal on the evidence before it accepts that the applicant was mentally unwell in 2016.  The Tribunal accepts that she reached the position where she was unable to cope with not only her studies but much of her everyday life.  The Tribunal found the applicant to be a highly intelligent, eloquent and thoughtful witness and is prepared to accept the claims of the applicant and her supportive witnesses concerning her mental health in 2016 and its corrosive impact upon her studies.

6. The Tribunal notes however that the applicant arrived in Australia in July 2013 and almost immediately was in breach of condition 8202 of her higher education visa.  The Tribunal, whilst accepting the applicant was unwell in 2016, notes the significant periods of non-compliance with the condition 8202 of the higher education visa between 2013 and the applicant’s challenges of 2016.   The applicant in response to the Tribunal’s questions said she had no evidence of any mental illness or psychological problems prior to her non-enrolment in 2016.  The Tribunal asked if she ever requested deferral of her studies if she was unwell.  She claimed she didn’t know was too down and didn’t know what to tell the education provider. 

7. The Tribunal is not satisfied with this response.  The applicant stated in response to the Tribunal’s questions that she was aware that a condition of her Student visa was that she remain enrolled in a registered course.  She agreed that she was aware that her enrolment had ceased and that not being enrolled in a registered course would impact upon her eligibility to continue to hold a Student visa.  The Tribunal accepts the applicant was unwell in 2016 but notes examples of non-compliance with the requirements of her higher education visa dates back to 2013, long before she was receiving treatment for her mental health issues.  The applicant arrived in Australia originally to study [subject 1] at [University 1].  The Tribunal does not accept that the applicant was unaware of her compliance requirements when it came to remaining enrolled in a higher education registered course of study.  The Tribunal notes the claim of the applicant’s representative that the fact the applicant did not seek treatment earlier is consistent with the nature of mental illness.  The fact remains there is no corroborative evidence of the applicant’s mental health issues prior to 2016.  In the periods both prior to and after 2016 the applicant failed to enrol in a higher education course of study.  The Tribunal accepts that she has enrolled in VET level courses and accepts she has a strong commitment to study. 

8. The Tribunal considers on the evidence that the applicant was well aware she was failing to maintain enrolment in a registered course of study.  By her own admission she was aware from 2016 yet the Tribunal considers the applicant was in all likelihood aware before she was not meeting the conditions of her higher education visa before this time.   

9. The Tribunal notes that there is no evidence before it or claim made that the applicant ever approached her education provider or the Department either seeking a deferral or informing them of her non-compliance respectively.  She made virtually no effort to rectify her enrolment status.  The Tribunal accepts that she was unwell in 2016.  The applicant and her witnesses have claimed that she was much better by early 2017 and yet enrolled in a vocational rather than a higher education level course and educational establishment. 

10. The applicant on the evidence in the decision record had failed to adequately rectify his enrolment situation as the holder of a Higher Education Student visa for multiple years.  The applicant was a direct party to his enrolment.  The Tribunal notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.   The Tribunal has taken into account the applicant’s claims concerning her mental health in 2016 and their impact upon her ability to remain enrolled at the higher education level.  The Tribunal has a great deal of sympathy for her and accepts her mental health challenges in 2016 precluded her from effectively addressing her study and enrolment issues.  In relation to the circumstances in which the ground of cancellation arose, the Tribunal slightly in favour of cancelling the visa.

11. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    There is no evidence before the Tribunal that the applicant has not complied with all other visa conditions.  The Tribunal notes she responded to the Department’s s.119 letter within five days.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

12. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. The applicant’s written submission confirms this. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

13. The Tribunal has considered whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  The applicant’s written submission to the Tribunal states that the applicant is not claiming that any international obligations would be breached as a result of the cancellation.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

14. The Tribunal has found this a challenging review.  The Tribunal is of the opinion that the applicant is a bright and intelligent individual that is now exhibiting a strong motivation to study and to build herself a successful future in the world of employment.  She is already working from time to time as an [subject 2 professional] for [a named employer].  Her studies since early 2017 have been excellent.  The Tribunal nevertheless notes the applicant has now been in Australia since 2013.  On the evidence before it the applicant spent a significant period of time being non-compliant with condition 8202: initially almost six years ago when she departed her planned course of study not long after arriving in Australia.  The Tribunal accepts that she faced some challenging mental health issues in 2016 that impacted upon her ability to study and remain compliant with all the conditions attached to her Higher Education student visa.  The Tribunal accepts that the events of 2016 made it extremely challenging for the applicant to meet her higher education study commitments.  The Tribunal does not consider these circumstances explain the applicant’s failure to remain enrolled in higher education-level principal courses of study both before and after 2016.  The Tribunal recognises the applicant’s recent enrolment in a [degree] in [subject 2] at [University 2] (T1, Folio. 86-90) and has given that some positive weight in the applicant’s favour.  Nevertheless considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Justin Owen
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.