2217145 (Migration)

[2024] AATA 3126

2217145 (Migration) [2024] AATA 3126 (13 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2217145

MEMBER:Gabrielle Cullen

DATE:13 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 13 August 2024 at 3:32pm

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant had not been enrolled in a registered course of study – failed marriage – unsatisfactory course progress – mental health condition – was not enrolled in a course with any value to his future – no compelling need to for the applicant to remain in Australia – breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed

LEGISLATION 
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8

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 18 November 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The applicant attached the Department’s decision, when applying to the Tribunal for review. This indicates that on 19 September 2022 the Department invited the applicant to comment on their intention to consider cancellation of his subclass 500 student visa, granted on 18 November 2018[1], on the basis that he had not been enrolled in a course of study since 13 October 2020. The applicant responded to the Notification of Intention to Consider Cancelling the Visa (NOICC).

   [1] This visa was granted on 18 November 2018 and valid to 15 March 2023 until it was cancelled by the Department on 18 November 2022.

4. The applicant appeared before the Tribunal via video on 22 July 2024 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The applicant was granted a subclass 500 Student visa on 18 November 2018 valid, at that time, to 15 March 2023. That visa was subject to condition 8202.

   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: condition 8202(2).

10. The applicant was notified of the intention to consider cancellation (NOICC) of his visa on 19 September 2022. The Tribunal is satisfied that the NOICC was validly issued. The applicant responded to the NOICC and did not dispute that he had not been enrolled in a course of study from 13 October 2020 until he enrolled in the Certificate III in Commercial Cookery on 26 September 2022[2] to be studied from 4 October 2022, followed by a Certificate IV in Kitchen Management and Diploma of Hospitality Management. He provided reasons as to why he had not been enrolled in a response to the NOICC which are considered below.

    [2] The COE submitted to study the Certificate III in Commercial Cookery was dated 19 October 2022.

11. The delegate found the applicant had not been enrolled in a registered course of study from 13 October 2020 to 25 September 2022.

12. As raised with the applicant at hearing via s.359AA the applicant’s Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study when his enrolment in the packaged course beginning with the Certificate IV in Commercial Cookery was cancelled on 13 October 2020 when the applicant did not pay the fees until he enrolled in the Certificate  III in Commercial Cookery on 26 September 2022 to commence on 4 October 2022.

13. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study from 13 October 2020 until he enrolled in a packaged course of study on 26 September 2022 to study the Certificate III in Commercial Cookery leading to the Diploma of Hospitality Management from 4 October 2022. The applicant did not dispute that he had not complied with condition 8202(2) of his visa.

14. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from  13 October 2020 to 25 September 2022 while the holder of a subclass 500 student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

15. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

17. 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’.

    Background

18. The applicant is a [age]-year-old male citizen of India who is single[3]. He has no children.

    [3] His evidence at hearing was that he was married but he is now divorced.

19. He first arrived in Australia on a subclass 500 Student Visa on [date] November 2018 valid to 15 March 2023 to study first an English course and then a Bachelor of Engineering. He completed the English course studied from 12 November 2018 to 8 February 2019, then changed his bachelor enrolment to a Bachelor of Information Technology to be studied from 18 March 2019 to 31 December 2021. On 4 February 2020 enrolment was cancelled for unsatisfactory course progress as raised with him via s.359AA. On 6 April 2020 he began studying the Certificate IV in Commercial Cookery leading to an Advanced Diploma of Hospitality Management but enrolment was cancelled for non-payment of fees on 13 October 2020. He was not enrolled again until he submitted COEs to study the Certificate III in Commercial Cookery from 4 October 2022 leading to a Diploma of Hospitality Management. When the visa was cancelled on 2 February 2023 a no study condition was placed on the visa so enrolment in these courses was also cancelled. He has been unable to study since that time due to the no study condition being placed on his visa.

20. In his response to the NOICC he provided the following reasons for his lack of enrolment in the relevant period.

21. He came to Australia on [date] November 2018 to pursue an English course leading to a Bachelor of Mechanical Engineering at the University of South Australia. He started the course and was struggling to cope as it was different to the mode he had studied in India. He started to feel lost and was unable to concentrate. He started to have anxiety. He could not complete his English course and moved to Melbourne as he had an uncle living there and was hoping to have some emotional support as he knew no one in South Australia. Due to his homesickness he could not continue his degree at the University of South Australia.

22. After he moved to Melbourne he enrolled in a new English course and completed it but he could not recover from the feeling of being alone and struggling. He was unable to complete the course. He decided to return home in January 2020 to visit his family as he was missing them and he thought once he saw them he would have the strength to complete what he had started. He submits that his family has expectations of him and he does not want to disappoint them. He claims in India he went to see a Doctor to see if there was any other medical condition but he was physically fine but mentally suffering from depression. During that time he was recovering and his parents advised him to get married as they knew a girl and her parents were also ready for the marriage and they were married on [date] February 2020. He claims he then returned to Australia with confidence and decided to focus on his studies. He enrolled in the cookery course and he was about to start the course when his wife in India informed him that she wanted a divorce. He was speechless and could not figure out what was wrong. He claims he was shattered and broken.

23. He claims he has a dream of completing a degree in Australia and making his parents proud which will help him obtain a good job in India but his ex-wife thought and assumed that he will never come back. He claims she did not listen to anything he said and she decided that she wanted a divorce. His cousin’s brother who he was living with tried his best to support him but he lost all hope, did not attend classes and could not complete the course. It was also the time of Covid and he felt helpless. The international borders were close so he could not travel to India.

24. He submits it was never his intention to not complete the course but because of these circumstances he was in a tricky position. With the support of his family and friends he has recovered and he is confident that he will complete his course and he is now enrolled to complete the cookery course.

25. In his response to the NOICC he attached the COEs to study the above-mentioned Certificate III in Commercial Cookery leading to the Diploma of Hospitality Management.

26. He also provided a letter from his cousin’s brother who noted that the applicant was depressed for more than six months after his divorce, he lost his job during the time of the divorce and he hardly saw him go out. He submits he was in a critical condition during that time and he was living with his friends. He claims he then invited the applicant to live with him during the time of divorce. He submits that the applicant was in a very critical and depressed condition for a long period of time because of the divorce.

27. He also submitted a further statement prior to the hearing in which he states that when he came to Australia he was studying English in South Australia, he then moved to Sydney and was studying IT at [a] University and working at [a workplace]. He was doing fine until 9 August 2019 when his mother called him and advised she had arranged a marriage and he went to India for his marriage in January 2020. He claims he returned in January 2020 just before the Covid pandemic started, he was struggling financially and his parents could not help him because they had spent $50,000 on the wedding. He claims he was trying to manage everything but his wife wanted to go to a foreign country to live and that is why she married him but he was not aware of that at the time. He claims because of Covid his wife could not come to Australia and they argued every day until she decided to divorce him. He claims after his divorce he moved in with a [family] and rented a small room so he could live peacefully and cut off all relations with his family and friends so nobody could find out he was divorced. He claims from that day he had a horrible life; he was mentally tired, heartbroken and he was financially struggling and on 18 December 2022 he decided to end his life but he remembered his mother and dropped the idea. He claims because of what happened to him he could not focus on his studies and he did not notice anything on his student visa. He asks for a second chance.

28. He also submitted his past education certificates.

29. At hearing he was very emotional when giving evidence. The applicant completed a Diploma in Automobile Mechanics in India. He said he wanted to go into the Indian Army and he tried to convince his family but they did not allow him to do that because he is a single child. He said he did not want to come to Australia to study but his family wanted him to come to Australia which he did. Once he was here his parents found him a wife and he could not say no and he returned to India to marry her in January 2020. He said after his return Covid happened and he lost his job and his wife could not come to Australia. This caused difficulties and issues and she initiated a divorce. He said he was very embarrassed and did not want anyone to know so he went and lived with [a] family for two years. He said in late 2022 he tried to kill himself but remembered his mother and that he was the only child and there was no one else to care for his parents. He said because of this he spent two years not focusing on his studies.

30. When asked if he ever sought professional help for the mental difficulties he faced he said around the time he was suicidal in late 2022 he talked to someone online similar to Lifeline.

31. As to his work history, he said except for the seven months from when Covid began in 2020 he has been able to work and listed a range of employers. He confirmed that except from March 2020 to October 2020 he was able to work. He said his father cannot work and he needs to send money.

32. The Tribunal asked him about his study future and why he enrolled in the cookery courses in 2020 and 2022 and he said he went to an agency and that is what they told him he could enrol in. He said he thinks he would rather study IT or nursing. He said his current girlfriend in India is a nurse.

33. The Tribunal went through the below factors and raised some concerns as outlined below.

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

34. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. The evidence indicates the applicant first arrived in Australia on a subclass 500 Student Visa on [date] November 2018 valid to 15 March 2023 to study first an English course and then a Bachelor of Engineering. He changed to study a Bachelor of Information Technology from 18 March 2019 to 31 December 2021 but on 4 February 2020 enrolment was cancelled for unsatisfactory course progress as raised with him via s.359AA at hearing. On 6 April 2020 he began studying the Certificate IV in Commercial Cookery leading to an Advanced Diploma of Hospitality Management but enrolment was cancelled for non-payment of fees on 13 October 2020. He was not enrolled again until he submitted COEs to study the Certificate III in Commercial Cookery from 4 October 2022 leading to a Diploma of Hospitality Management. When the visa was cancelled on 2 February 2023 a no study condition was placed on the visa so enrolment in these courses was also cancelled. He has been unable to study since that time.

35. The applicant was very tearful at the hearing. It accepts he did not really want to come to Australia to study but would have rather gone into the Indian army. It accepts he came to Australia to study at the request of his family. It accepts he travelled to Australia with the purpose of study, albeit with pressure from his family. It accepts his initial stay in Australia was to study as he completed the English course.

36. It accepts he feels that pressure to achieve from his family and worries now about their disappointment. It accepts his family arranged for his marriage and then his wife divorced him around April 2020, and this would have been difficult. It accepts that Covid would have impacted him  financially especially when he could not work from March 2020 to October 2020.

37. However,  it does not accept that following completion of the English course it has been his purpose to study in Australia while holding the student visa for the following reasons.

38. Of particular relevance is that since his arrival in November 2018 until his visa was cancelled in February 2023 and a no study condition was placed on his visa, a period of over 4 years he has only successfully completed one three-month English course in 2018/19. Specifically, his study history prior to the non-enrolment period was poor, only completing an English course and then having his enrolment in the Bachelor of IT cancelled for unsatisfactory course progress on 4 February 2020. When the Tribunal raised this with him via s.359AA this concern, he at first said he did not know what to say; he then referred to his failed marriage and Covid but those events occurred after his enrolment in the Bachelor of IT was cancelled for unsatisfactory course progress in February 2020.

39. He has also referred to the mental difficulties he faced as to the reason for the cancellation of his enrolment on 4 February 2020. He referred to being homesick and moving to Sydney to live with his uncle, his mother arranging the marriage in early 2020 which led to divorce and at hearing he said he could not say no to this arranged marriage. In the response to the NOICC he referred to seeing a Doctor in India for depression when he returned home in 2020. The Tribunal has considered whether the mental issues were the cause for the cancellation of his enrolment. Of concern is there is no documentary medical evidence the claimed mental health issues were the reason or part of the reason for his non-enrolment, which the Tribunal expects if this was the reason he was unable to achieve course progress. There is also no evidence he sought deferment form his study from the education provider due to any mental health issue which the Tribunal would expect if he were having difficulties achieving course progress due to his mental health issues. The Tribunal is of the view if he were in Australia to study and could not achieve course progress due to mental health issues for the reason he claims he would have sort assistance from the provider[4] and a Doctor in Australia.

    [4] As noted in the Department decision submitted with his Application for Review.

40. He then enrolled in a Certificate IV in Commercial Cookery and did not pay the fees which led to the cancellation of his enrolment in October 2020. When asked why; he referred to difficulty being able to pay the fees due to Covid, which the Tribunal accepts may have occurred as his evidence is he lost his job and did not work between March 2020 and October 2020. However, when asked why he enrolled in the cookery course in 2020 he referred to being told to do so by the agent and having no interest in this area. The Tribunal is of the view if his purpose was to study; he would have enrolled in a course that was beneficial to his future or in an area he was interested in, not just done so at the advice of the agent.

41. As to his period of non-enrolment from October 2020 to September 2022, a period of 23 months the applicant has referred to the mental health effects upon him as a result of his failed marriage, the impact of Covid, isolating himself due to his divorce and the shame of his divorce as well as financially providing for his family. It is his claim that his mental health issues affected him to the extent he could not study. In response to the NOICC he provided a statement from his cousin as to his mental issues at the time.

1. At hearing he indicated he sought no medical assistance except when he tried to harm himself in December 2022. The Tribunal is of the view if his mental health affected him to the extent he could not study for 23 months in the period of non-enrolment from October 2020 to September 2022 and he was in Australia for the purpose of studying he would have sought professional or medical help prior to December 2022 when he claims he sought help online. It also is of the view if he were in Australia to study, and he was fit enough to work as he claims he did from October 2020, he would have enrolled to study. This undermines his claim he was in Australia to study and did not due to mental health issues.

2. Finally, it views as undermining his claim his purpose of staying in Australia was to study was that he enrolled again in the cookery courses leading to hospitality management; when it is his evidence he has no interest in this area.

3. In making this finding it has considered the evidence from the applicant’s cousin’s brother submitted in response to the NOICC. His evidence was that he noted that the applicant was depressed for more than six months after his divorce, he lost his job during the time of divorce and he hardly saw him go out. He submits he was in a critical condition during that time and he was living with his friends. He claims he then invited the applicant to live with him during the time of divorce. He submits that the applicant was in a very critical and depressed condition for a long period of time because of the divorce. However this evidence contrasts with the applicant’s evidence at hearing that he was only not employed from March 2020 to October 2020, which is before the period of non-enrolment. Further, his evidence in his pre-hearing submission is that rather than living with his cousin and friends around the time of his divorce; he was living in isolation with a [family] as raised with him at hearing. He did not refer to living with a [family] in his response to the NOICC. When raised with him at hearing he referred to living with his cousin before living with the [family]; however this contrast with his evidence that he lived with the [family] as he did not want anyone to know about the divorce.

4. The Tribunal view these factors undermine his claim as to why he was not enrolled in this period. It leads to the Tribunal to find his purpose was not to study in this period.

5. As to whether there is a compelling need for him to stay in Australia, he referred to wishing to complete a degree and return to India to work in IT or in nursing but provided evidence lacking in detail as to why he wants to study in these areas. He referred to a girlfriend in India being a nurse. The Tribunal is of the view if he were in Australia to study he would be able to provide more detailed evidence as to what he wants to study.

6. He also referred to the shame he will endure as a result of not returning to India having completed an Australian degree or Diploma. He said this would be from his family and his father making repeated condescending remarks. He said they will view him as a failure. He said he just needs a second chance so he can study and achieve a degree. While difficult the Tribunal does not accept these circumstances represent a compelling need.

7. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

   The extent of compliance with visa conditions

8. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 13 October 2020 to 25 September 2022. The Tribunal considers this period of  1 year and 11 months to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

9. There is also evidence that enrolment was cancelled for unsatisfactory course progress in the Bachelor of Information Technology on 4 February 2020, which may indicate a breach of condition 8202(3).

10. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his visa.

11. Although there is no other evidence of non-compliance other than the above, considering the period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, and that enrolment in the Bachelor of Information Technology was cancelled for unsatisfactory course progress, the Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

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

12. At hearing the applicant referred to being unable to return without a degree or diploma if his visa is cancelled. He said he wants to study in IT or nursing. As to why he wants to study in these areas he referred to his current girlfriend being a nurse. He also referred to the shame upon him returning without  an Australian education. He said there would be many condescending comments made towards him from his relatives  and father.

13. The Tribunal gives this consideration some weight in favour of the exercise of its discretion not to cancel the visa.

    Circumstances in which the ground of cancellation arose

14. The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as he was not enrolled in a course of study between 13 October 2020 to 25 September 2022.

15. The applicant has advanced several matters that impacted on his ability to study as outlined above. He has referred to Covid, mental health issues and financial issues due to Covid. It accepts due to Covid he did not have employment from March 2020 to October 2020 and this may have affected his ability to pay the fees which led to the cancellation of his enrolment in the commercial cookery courses. However, when asked why he enrolled in the cookery courses in 2020 he referred to being told to do so by the agent and having no interest in this area. The Tribunal is of the view that his purpose was not to study and he was not enrolled in this course with any value to his future. It therefore places no weight in his favour against cancellation of the enrolment in the cookery course on his inability to pay the fees due to losing his employment because of the Covid pandemic.

16. As to why he was not enrolled the Tribunal above has considered the factors he claims were out of his control, including his divorce, Covid and the mental health effects and all the other matters he has raised as to why he was not enrolled in a  course of study from 13 October 2020 to 25 September 2022. However for the reasons outlined above it does not accept that the matters he has put forward led to him suffering such mental health issues which rendered him being unable to achieve course progression, which led to his enrolment being cancelled for non-payment of fees and not being enrolled in the relevant period. As noted above, the Tribunal is of the view if he were so mentally unwell he could not study and enrol he would have sought medical assistance in the period of non-enrolment, which he did not. It has found above that his purpose was not to study. His lack of study was therefore not due to circumstances outside of his control, rather that it was not his purpose to study or enrol in the period of non-enrolment.

17. Therefore, the Tribunal gives this neutral weight.

    Past and present behaviour of the visa holder toward the Department

18. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be any consequential cancellations under s 140

19. The applicant is now single with no dependents. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor neutral weight.

    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

20. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

21. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

22. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 he also may not be granted a further visa for 3 years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12. However, those are also intended and legitimate consequences of cancellation.

23. The Tribunal gives this consideration neutral weight.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

24. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.

25. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child or that it would be in contravention of the Convention Against Torture.

26. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

27. The applicant was very emotional requesting another chance to study and explaining the shame he will face on return by not achieving a degree or diploma in Australia. He however provided limited evidence as to what he wants to study and why. He said he is too old to go into the Indian Army now.

28. The Tribunal has considered all the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, such as Covid, it does not accept his mental health condition was to the extent he could not study in the relevant period. It has found that his purpose was not to study in this period. The Tribunal is mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, the cancellation of the visa is the intended consequence of the breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Gabrielle Cullen
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.