1917208 (Migration)

[2020] AATA 3818

1917208 (Migration) [2020] AATA 3818 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917208

MEMBER:Genevieve Cleary

DATE:21 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 21 July 2020 at 1:54pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – multiple applications for adjournments – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling need to remain in Australia – circumstances giving rise to non-compliance – mental health condition – beyond the applicant’s control – consequential cancellations – separation of the family – best interests of child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), 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 25 June 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the grounds for cancelling the visa outweigh the reasons for not cancelling. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 20 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A].   The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. Prior to the hearing the applicant provided to the Tribunal:

   ·The Decision Record of the delegate;

   ·A report dated 24 June 2020 from [a mental health service];

   ·Letter dated 4 June 2020 from [Education Provider 1] confirming enrolment in a number of courses;

   ·A report: ‘Mental health and international students: issues, challenges and effective practice’ Forbes-Hewett, H.  2019 Research digest 15, International Education Association of Australia;

   ·An article: ‘New research sheds light on international students’ mental health’ 15 October 2019, contained in a media release by BUPA.

Applications for adjournments

1. Prior to the hearing of this matter on 20 July 2020, the applicants requested and were granted a number of adjournments to the hearing date.  A history of these requests and other matters is as follows.

2. The applicant filed their application for review in June 2019.  The hearing for the review was listed for 2 September 2019.

3. The applicant was initially assisted in the review by a registered migration agent who is not their current agent.  On 16 August 2019 the applicant’s previous agent requested an adjournment of the hearing on the basis of medical matters relevant to the migration agent.  The adjournment was granted, the hearing re-set for 28 October 2019.  On 17 October 2019 the applicants’ previous migration agent requested an adjournment as the migration agent had been in a car accident, and was certified unfit for work.  The adjournment was granted. The applicants then changed their migration agent.

4. The hearing was re-set for 22 June 2020, there being some delays in the listing because of the disruption to processes in many agencies because of shut-downs due to the ‘COVID-19 pandemic.’  On 17 June 2020 the applicants sought an adjournment of the hearing.  They, through their current migration agent, gave 3 reasons for the need for the adjournment:

   a.A psychological report requested by the primary applicant had not yet been made available by her psychologist;

   b.The primary applicant had had surgery for a burst appendix, and

   c.The current migration agent, having made an application for documents to the Department under Freedom of Information, had not yet received a response from the Department.

5. The representative provided a medical certificate showing that the applicant was certified unfit for work from 16 June 2020 to 28 June 2020.  The Tribunal was also provided with a letter from [a health service provider] saying that the applicant could attend a hearing by telephone from her home, however given the absence of the psychological report, primarily, the application to adjourn the hearing was granted.  The hearing was re-set for 20 July 2020.

6. The Tribunal received the psychological report on 25 June 2020. On 14 July 2020 the Tribunal received by email an application to adjourn the hearing of 20 July.  The applicants’ current migration agent requested the adjournment because there had still been no response from the Department regarding the applicants’ request for documents under Freedom of Information.  The applicants’ agent provided emails from the Department acknowledging the receipt of the request, and the warning of delays given the continuing ‘lock-down’ difficulties. The applicants’ agent said that they were of the view that it would be unprofessional to provide witness statements and submissions to the Tribunal without having seen the “FOI material”.

7. Further, the applicants’ agent said, “Another factor which incites adjournment is the Review Applicant’s partner is waiting for the delivery of a reserved judgement in regards to his Judicial Review application in the Federal Circuit Court. We are instructed that there was a hearing last month and judgement was reserved.” No further details were provided as to whether the applicant’s partner was seeking review in relation to a decision regarding migration, whether that application included the primary applicant in this review and why the primary applicant in this review was of the view that her matter could not be considered and determined until her partner’s is.

8. Of further relevance are 2 matters:

   a.On 16 August 2019 the applicants’ previous agent requested, pursuant to s 362A of the Act, access to written material, including “all documents contained in the Department file and case file relating to the applicants.”[1] On 27 August 2019 the applicants, via their then migration agent, were electronically provided full access by the Tribunal to both the Department and Tribunal files, copies of those files being sent under cover of letter to the migration agent.  The applicant has had, therefore, since August 2019, full access to the applicants’ Department file.

   b.As is noted elsewhere, the applicant has provided to the Tribunal a comprehensive psychological report. It is noted that at [57] of that report, the writer says

   I would also like to suggest that the longer her visa status remains unresolved, the more likely her current anxiety and depression will fester, and her symptoms might increase.

   [1] Administrative Appeals Tribunal Migration and Refugee Division ‘Request for access to written material under Section 362A of the Migration Act – MR Division’ form dated 18.8.19.

9. Given the:

   ·number of times the matter had been adjourned,

   ·lack of information in the agent’s email about the documents requested in the FOI request,

   ·lack of information in the agent’s email about the primary applicant’s partner’s judicial review,

   ·the amount of time that has passed since the review hearing was first listed, and the warning of the psychologist, and

   ·the suggestion by the applicants’ agent that their intention is to file submissions and witness statements,

   I determined that it was necessary to ask the applicants and their representative to appear before the Tribunal at the already allocated time on 20 July 2020 to discuss the need and reasons for yet another adjournment in this matter.

10. At the hearing on 20 July 2020, I outlined to the representative that:

    ·This was the fourth application for an adjournment of this matter, and the reasons for each adjournment;

    ·As she would be aware, the psychologist had expressed concerns about the mental health of the applicant, should the matter be prolonged;

    ·The applicant’s previous representative had already requested and received both the Tribunal and Department files by virtue of s362A of the Act, and

    ·In my view the psychological report was very detailed and I could not imagine much more evidence the applicant would have to give in a witness statement.

11. The representative explained that:

    ·She was not aware of previous applications for adjournment, other than hers in June 2020;

    ·It is her general practice to provide to the Tribunal submissions and witness statements, and she anticipated that she would be filing statements from the applicant, her husband and her parents, and submissions;

    ·The applicant had had several migration representatives prior to her, and although she had received some documents from them, she had not received the movement records, the application to the Department itself and the NOICC.

12. Having discussed the background to the adjournment, the procedural history and the psychological report with the representative, those discussions being interpreted by a Vietnamese interpreter to the applicants, I asked if the applicant pressed for her adjournment.  After briefly adjourning the hearing to provide some time to the representative to take instructions, when the hearing resumed later in the morning, the applicant did not press for her adjournment, and the hearing proceeded.

13. 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

14. 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) of the Act, the visa may be cancelled.

    Did the applicant comply with Condition 8202?

15. 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).

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

17. I put to the applicant that the delegate found that she had not been enrolled in a course from 15 February 2018.  The applicant agreed that that was correct, and that she ceased enrolment on that date. 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

18. 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 Procedural Instruction ‘General visa cancellation powers’.

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

1. The applicant was granted a Student (TU573) visa on 18 January 2016 for the purposes of study in the higher education sector.  That visa was to expire, had it not been cancelled, on 15 March 2020. The applicant arrived in Australia [in] January 2016.

2. Prior to coming to Australia the applicant had completed year [level] in Vietnam and commenced a [Discipline 1] course. She decided to come to Australia to pursue that course and an education package was to prepared for her, to be a four year package, commencing with English, to culminate in a suite of [Discipline 1] courses.

3. The applicant’s father owns and runs a [specified] business in Vietnam and she wishes to gain qualifications in order to assist him.  When she initially came to Australia her plan was to return to assist him in the management of personnel and finances when she had completed her qualifications. The company employs approximately [number] people.  The Tribunal is satisfied that the applicant had a compelling reason to come to Australia.  It is reasonable for a young person to want to gain a qualification in another country, and to attempt to achieve the best qualification they can in doing so, even if it is to return to the applicant’s home country to work in a family business.  Gaining a qualification in Australia is, therefore, reasonable in the circumstances and the Tribunal gives that factor some weight in not cancelling the applicant’s visa. 

4. The applicant’s circumstances in Australia are set out fully below.  In summary, the applicant is now married, with a young child.  He husband, also from Vietnam, has applied to Australia for protection.  The applicant’s son, also an applicant to her Student visa, is included as a dependant applicant on his father’s protection visa.

5. The applicant told the Tribunal at the hearing that even though now she has a child and husband, that does not change her goal in trying to assist her father.  She said that even though her husband has applied to stay in Australia, she will return to Vietnam to assist her father, and come back periodically to visit her husband and child. I questioned the applicant about any hardship that would create for her, or her child, and why she would choose to leave her child in Australia.  This aspect of the applicant’s claim is discussed below in relation to the factor of hardship and Australia’s obligations to the child.  She does not know how long that means she would be away from her child, and she knows that will make her very tired, and it will be difficult for the family unit.  The applicant expressed a divided loyalty to both her husband and son, and her father, who has paid for her studies and her travel to Australia, with expectations that that support will be rewarded.  Given the manner in which her marriage came about, the Tribunal is satisfied that the applicant has a genuine desire to satisfy her loyalty to both.

6. The applicant is currently enrolled as follows:

   [Qualification 1]   17 February 2020 - 21 June 2020

   [Qualification 2]   20 July 2020 – 22 November 2020

   [Qualification 3]   17 December 2020 - 21 April 2021

   [Qualification 4]  27 May 2021 – 24 November 2021

   [Qualification 5]  6 January 2022 – 6 July 2021

   [Qualification 6]  15 August 2022 – 12 February 2023

7. She has now completed the first [qualification], having achieved a mark of 80%.  In the past, when she had been studying, she only passed one exam for one course at the TAFE, and then she attended at [Education Provider 2] and passed one course.  However, she did not pass anything further, and stopped studying because of the psychological stress she was suffering, as outlined below.  She last attended a course, prior to her current enrolments, on 19 January 2018.  This was when the English course in which she was enrolled finished. She was enrolled in further courses but did not attend. 

8. Given her continued desire to assist her father, and repay her family for their support, the Tribunal is also satisfied that the applicant has a compelling need to remain in Australia to finish her studies, and this is to be given weight in favour of the visa not being cancelled.

The extent of compliance with visa conditions

1. There is nothing before the Tribunal to suggest that the applicant has not complied with other conditions on her visa. However the Tribunal expects that all visa holders adhere to the conditions on their visa and as such the Tribunal gives this factor no weight in favour of the applicant and not cancelling the visa.  

2. The length of the current breach is, however, lengthy.  The applicant was not enrolled from February 2018 to the cancelation in June 2019.  It was not until February 2020 that she enrolled in courses again, and the courses are, to an extent in relation to their subjects, repetitions of courses she has already completed.  While, as discussed below, the Tribunal is satisfied that the reasons for the cancellation were beyond the applicant’s control, the breach itself is significant, and weighs in favour of cancelation.

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

1. Since the applicant has been in Australia she has completed the following courses:

   [Course 1]                 4 January 2016 - 3 June 2016

   [Course 2]                 6 June 2016 - 26 August 2016

   [Course 3]                 6 February 2017 - 4 August 2017

   [Course 4]                 21 August 2017 - 19 January 2018

2. Other than other English courses, the applicant has been enrolled in [other specified] courses.  Each of those has been cancelled, the final cancellation of enrolment which triggered the Notice of Intention to Consider Cancelation (NOICC) from the Department was on 15 February 2018. 

3. The applicant met her husband in Australia in June 2017 through mutual friends. This was her first romantic relationship. Her husband is also from Vietnam. She knew at the time that her husband’s visa status was uncertain.  She unexpectantly fell pregnant to him relatively soon after they met.  It was because she was pregnant that they decided to marry soon after meeting. Two weeks prior to her wedding she miscarried. Because the wedding had already been organised and she did not want to let everybody down she persisted with the marriage, the ceremony taking place [in] September 2017.

4. At first she found being married difficult however she feels that it is manageable now.

5. Throughout this time the applicant had been studying English, although was struggling, as is evidenced by the repetition of the courses.

6. Despite the wedding and her continued studies, the applicant reported to the psychologist who provided the report to the Tribunal that she felt excessive guilt and a sense of helplessness, struggling with motivation and irritable, with insomnia and a poor appetite as a result of the loss of the baby.  While these symptoms lessened over time, not long after their wedding she fell pregnant again and gave birth to the secondary applicant in this application on [date].  As the pregnancy progressed she became anxious about the possible loss of the second baby, and while the birth of the child alleviated those symptoms for a time, eventually the stress of having a child with a husband who was rarely home because he was busy at work and no other family support resulted in the resumption of  insomnia, loss of appetite, irritability and anger, headaches, helplessness and feelings that she was not good enough. She felt that things were not as she had wanted them to be. 

1. She tried to make a home, however she felt that she was criticised for her efforts.  Health professionals recognised that she was struggling, and she was urged to take action, such as joining a mothers group, however, she felt that she wanted to be by herself at home and did not want to associate with other people. She did not want to seek professional help. In June 2019, because the applicant’s husband was worried about her mental health, the family moved to [Town 1]. This enabled her husband to obtain alternative employment and consequently could spend more time with her and their son. The applicant eventually had some time to herself and began to feel more stable in her mood, with reduced symptoms of anxiety and depression. In December 2019, seeing some improvement in his wife, the applicant’s husband moved the family back to [City 1].

2. The psychologist providing the report dated 24 June 2020 is of the opinion that the applicant experienced a severe level of depressive symptoms after the miscarriage in September 2017, lessening after her marriage. However, upon her second pregnancy the symptoms “flared up” again and continued beyond the birth of her second child, the secondary applicant in this application. The psychologist’s diagnosis is both antenatal and postnatal depressive symptoms. As a result, the Tribunal is satisfied that not only did the applicant suffer a miscarriage while she was attempting to study, as a young woman, away from home and family, but that she also suffered relatively significant depressive symptoms during the continuation of that study, leading to her moving to [Town 1] in an attempt by her husband to enable her to heal and look after her second child.

3. The applicant did not speak to her college about the fact that she was struggling, because, she told the Tribunal at the hearing, she had had the miscarriage, and was too sad, and did not know what to do, and did not have the motivation to do anything.

4. At the hearing the applicant’s husband gave evidence.  He said that he escaped from Vietnam, and he had been jailed before then.  Now he is in Australia he has been condemned publicly by the Vietnamese government.  He cannot return to Vietnam.  I make no finding as to the applicant’s husband’s evidence in that regard. At present his wife and he have a child and he wants to support his wife in her learning.  He is fearful and is worried because of the cancellation of his wife’s visa and that creates uncertainty about his family life.  He is remorseful for his mistakes in allowing matters with regard to her visa to have gone on for so long.

5. As the bread winner of the family he feels it is his responsibility that the visa was cancelled, but he said that after the miscarriage it was a confusing time for both of them, and they did not know how to satisfy the law. 

6. The Tribunal is satisfied that the applicant suffered from a medical condition which deterred her from studying and her ceasing to study, and the consequent cancellation of her enrolment, is not only understandable but beyond her control, and the Tribunal places significant weight on that factor in favour of the visa not been cancelled. In addition, it is to the applicant’s credit, and further limited weight can be given to the fact, that the applicant has resumed her studies, although she has a small child.  Therefore, despite the breach being significant, that breach is outweighed by the factors which lead to it, the hardship that would follow cancellation and the best interests of the secondary applicant.

Past and present behaviour of the visa holder towards the Department

1. The applicant was sent a NOICC on 28 May 2019.  She told the Tribunal at the hearing that at that time she was still very sad, and did not know what to do.  She agreed that she did not respond. While eventually she did go to a lawyer for help, she agreed this was after the decision had been made to cancel. Otherwise, there is no information before the Tribunal which suggests that the primary applicant has been uncooperative with the Department or Department staff and the Tribunal gives this consideration a little weight against cancelling the visa.

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

1. Hardship regarding the separation of the family is addressed below.  In addition to hardship to the family unit, the psychologist notes that affirming the cancellation, leading to possible fracturing of the family unit, will in all likelihood exacerbate the applicant’s mental health instability beyond what would normally be expected of a person facing such a worrying time, and, given the applicant’s history, the Tribunal gives this a little weight in favour of the visa not being cancelled.

2. The applicant said in the hearing that if the visa remains cancelled, she does not know what she will do immediately, because she will not know what to do.  She knows that the cancellation will mean she cannot apply for a visa again for 3 years. In addition, her parents will lose face, and will have spent a lot of money for nothing. The Tribunal accepts that the cancellation of a visa is disappointing and that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study. The Tribunal gives this consideration a little weight towards the visa not being cancelled.

Whether there would be consequential cancellations under s.140 and whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. The primary applicant’s application for the visa includes an application for her son, born on [date], the secondary applicant in this matter. If the visa is cancelled, the secondary applicant’s visa would also be cancelled under s140(3) of the Act.  The primary applicant’s partner, who is not subject to the applicants’ application for a visa, is also in Australia. Therefore, the cancellation of the secondary applicant’s visa in this case may result in the separation of the child from his father, and I give the consequential cancellation itself some weight against the visa being cancelled.

2. The applicant said at the hearing that if she goes back to Vietnam with her child, it would be dangerous to her and her child.  Because the secondary applicant was not born in Vietnam, but to a man who is claiming protection against the Vietnamese government, the applicant is worried that her child will not be able to be registered for education or medical services, or on her family’s household register.  Therefore, she is inclined not to take her child back to Vietnam if she goes back to assist her father.

3. As is noted by the delegate in the Decision Record, Australia is a signatory to the Convention on the Rights of the Child and accordingly has an obligation to ensure that in all actions concerning children, the best interests of the child are a primary consideration. This does not preclude cancellation of a visa, but requires the decision maker to turn their mind to the consequences of cancellation, specifically whether a child will be separated from the family unit. 

4. The secondary applicant in this application is also a secondary applicant in relation to his father’s XE790 visa application, filed on 26 April 2019. Therefore, while the child’s visa, based on the dependence on his mother’s application, may be cancelled if his mother’s application is unsuccessful, the child may nevertheless remain as a dependent on his father’s application while that application, at least, is pursued through judicial review. This does not mean, however, that the consequential cancellation would cause no hardship, as it may mean that while the child is not separated from his father, he may become separated from his mother who would have to leave Australia as a result of the affirmation of the cancellation.

5. It is noted that even by the applicant’s own evidence, at some point the applicant will choose, if she can, to leave her son in Australia while she returns to Vietnam to fulfil her family obligations.  However, should that occur, that will be some years away, the child will be older, and the family will have time, while the applicant is completing her studies, to plan around that event.  Given that any, but particularly any immediate, separation of the applicant from her child would not be in the best interests of the child, nor the applicant, and that the best interests of the child is a primary consideration, I give the immediate hardship that would be caused by the cancellation of the child’s mother’s visa and Australia’s obligation to the best interests of children significant weight against the cancellation of the mother’s Student visa.

6. Otherwise, when asked, the applicant indicated there was no reason she cannot return to Vietnam and she herself has not made any claims which would relate to any legal or non-refoulment obligations Australia has towards her and the Tribunal places no weight on this aspect in favour of the applicant.

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

1. If the current visa is cancelled, this will result in the following:

   a.The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.The applicant will have limited options to apply for further visas in Australia;

   c.The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Requirement 4013 to be met.

2. I give little weight to this consideration in favour of the applicant because:

   ·These are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·It reflects the seriousness with which the Department takes this type of cancelation ground;

   ·The applicant will be eligible to apply for a bridging visa while she makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that she does not co-operate in applying for a bridging visa.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. This matter is not relevant to the primary applicant and I give it no weight.

Any other relevant matters

1. I am satisfied that there are no other relevant matters to consider.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 573 Higher Education Sector visa. The Tribunal has no jurisdiction with respect to the other applicant.

   Genevieve Cleary
   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.