Adhikari (Migration)

[2024] AATA 3392

Adhikari (Migration) [2024] AATA 3392 (31 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Biplov Adhikari
Mrs Shrista Bhujel

REPRESENTATIVE:  Mr Yogendra Poudel (MARN: 1797600)

CASE NUMBER:  2307598

HOME AFFAIRS REFERENCE(S):          BCC2022/3904576

MEMBER:Christine Kannis

DATE:31 August 2024

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 500 (Student) visa.

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

Statement made on 31 August 2024 at 1:08pm

CATCHWORDS
MIGRATION – cancellation Student (Temporary) (Class TU) visa – Subclass 500 (Student) –not enrolled in registered full-time course – discretion to cancel visa – previous enrolments and cancellations of courses in different subject areas – COVID pandemic and financial hardship – applicant’s attempts to enrol not possible because previous provider had not released due to non-payment – later enrolment, first course now completed and second in progress – member of family unit – consequential cancellation with no jurisdiction to review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas Students Act 2000 (Cth), s 19

CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 May 2023 made by a delegate of the Minister for Home Affairs to cancel the first named 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 on the basis that the first named applicant (the applicant) failed to comply with a condition of her 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.

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 by MS Teams on 13 August 2024. The Tribunal also received oral evidence from the second named visa applicant, Mrs Shrista Bhujel. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicants were represented in relation to the review.

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 (Cth) (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?

8. On 2 December 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

9. 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 full-time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

10. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

11. In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course.

12. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

13. The information from PRISMS shows that the applicant was not enrolled in a registered course from 10 February 2022 to 21 November 2022.

14. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 10 February 2022 to 21 November 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

16. 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 applicants and the representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

17. On 14 February 2023, the Department of Home Affairs (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 10 February 2022 to 21 November 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa.

18. The applicant did not respond to the NOICC.

    Evidence provided prior to the hearing

19. CoE for a Diploma of Business created on 22 November 2022.

20. CoE for a Diploma of Business created on 20 June 2023.

21. CoE for an Advanced  Diploma of Business created on 24 July 2024 

22. Applicant’s written submission dated 12 December 2023 which included the following information:

    ·He did not respond to the NOICC due to an oversight.

    ·Due to financial hardships brought about by the COVID-19 pandemic and delays in salary payments from Mastercare Cleaning, he encountered difficulties paying tuition fees on time. As a consequence, his CoE was cancelled on 10 February 2022.

    ·He applied to the Victorian Institute on 16 March 2022, receiving an offer letter and making a payment of $3000. His course was to commence on 11 April 2022.

    ·On 13 April 2022 the Victorian Institute advised they were unable to issue a CoE as his previous education provider, Skyline College, had not released him from the course. He contacted Skyline College multiple times by phone and email on 29 April 2022. An email dated 29 April 2022 from the applicant to [email protected] requesting to be released from Provider Registration and International Student Management System (PRISMS) was provided.

    ·During this period he continued his studies at the Victorian Institute online. On 26 May 2022, he received an email from the Victorian Institute which advised as follows:

    We’ve tried to contact you several times unfortunately you didn’t receive it.

    The reason for this mail is to inform you that you must visit the college tomorrow with the Statutory declaration or else strict action will be taken. Please be mindful this is an urgent matter.

    Your swift response will be much appreciated.

    ·On 26 July 2022, he visited Skyline College and completed a Release Application Form requesting release from the Certificate III in Light Vehicle Mechanical Technology course because he wished to transfer to another institute/ provider He was frustrated and felt unfairly penalized for something that was not his fault. He had done everything he could to comply with his visa condition and to continue his studies but was let down by Skyline College’s lack of cooperation and communication.

    ·He sought assistance from a migration agent and secured an offer from Choice Business College on 27 September 2022 however on 7 October 2022, he was notified that they could not issue a CoE because Skyline College had not released him from the course. He contacted Skyline College by email on 11 October 2022.  An email dated 11 October 2022 from the applicant to [email protected] stating he has submitted and done everything and requesting release PRISMS was provided.

    ·On 17 October 2022, he received a reply from his Skyline College advising  that his release application could not be processed further as he was non-financial as per their accounts team update. He was advised that in order to process his request he must pay the outstanding 2021 and 2022 fees. He was confused by this demand and did not understand why they did not tell him this before and why they waited for so long to respond.  

    ·He contacted Choice Business College again and they sent a new offer letter on 16 November 2022. He received a CoE from Choice Business College on 21 November 2022 and started the course on the same day. The course was supposed to end on 19 November 2023 however on 29 May 2023 his visa was cancelled.  

    ·He re-applied to Choice Business College receiving an offer on 22 June 2023 and is currently pursuing studies with a course commencement date of 24 July 2023 and  an end date of 21 July 2024.  

    ·He requests the Tribunal's understanding and consideration of the exceptional circumstances surrounding his visa cancellation. The difficulties faced, particularly exacerbated by the global pandemic and the actions of his previous education provider, played a significant role in these challenges.

    ·He is keen to resume his studies in Australia and to complete the course. He has invested a lot of time, money and effort in pursuing his education and does not want to give up on him dream .

23. Email dated 6 January 2022 from Skyline International College to the applicant advising that his fees of $2,800 had not been received by the due date 3 January 2022 and requesting payment be made by 17 January 2022. He was also advised that failure to pay result in reporting due to non-payment of fees.

24. Pages 6, 17 19, 26 and 31 of Statement 8 of the applicant’s Commonwealth Bank account number ********** 9986 with highlighted credit transactions on 11 January 2022, 25 February 2022, 14 March 2022, 20 April 2022 and 13 May 2022.  

25. Financial documents evidencing the applicant’s parents’ current financial circumstances including bank account statements, pensions, property and securities/shares ownership.

26. Representative’s undated submission which set out the applicant’s enrolment history and the following and stated that the applicant also has access to offshore funds; his family is financially capable of supporting him and his educational requirements.

    Evidence provided at hearing

27. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:

    a.He was enrolled in a Certificate IV in Accounting and Bookkeeping which he finished on 18 August 2019;

    b.He was enrolled in a Diploma of Accounting  which was cancelled on 26 August 2020 due to Non-payment of fees;

    c.He was enrolled in Certificate IV in Commercial Cookery which was cancelled on 2 February 2021 due to Non-payment of fees;

    d.He was enrolled in Diploma of Hospitality Management which was cancelled on 2 February 2021 due to non-commencement of studies;

    e.He was enrolled in Certificate IV in Commercial Cookery which was cancelled on 25 March 2021 due to Unsatisfactory course progress;

    f.He was enrolled in Diploma of Hospitality Management which was cancelled on 25 March 2021 due to non-commencement of studies;

    g.He was enrolled in Certificate III in Light Vehicle Mechanical Technology which was cancelled on 10 February 2022 due to Non-payment of fees;

    h.He was enrolled in a Certificate IV in Automotive Mechanical Diagnosis which was cancelled on 10 February 2022 due to non-commencement of studies;

    i.He was enrolled in Diploma of Business which was cancelled;

    j.He was enrolled in Diploma of Business which he finished on 21 July 2024; and he is currently enrolled in an Advanced Diploma of Business.

28. The Tribunal explained to the applicant that this information was relevant because it indicates that from 10 February 2022 to 21 November 2022 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering her purpose for remaining in Australia.

29. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. In response the applicant said he agreed with his PRISMS record.

30. The applicant told the Tribunal that he overlooked the NOICC because he did not check his email every day.

31. The applicant told the Tribunal that the reasons his CoE was cancelled on 10 February 2022 were financial reasons and the mental pressure from COVID-19 because he people were sick and lost people in his country.

32. The Tribunal referred the applicant to the email  dated 6 January 2022 from Skyline International College requesting payment of his fees and asked him the reason he did not pay. He said he wanted to pay but because of COVID-10 the banks in his country were closed and his family could not help him. He also said he was not paid by his employer in Australia for 3 months and he had to pay rent and living expenses and did not have enough money to pay the tuition fees in January 2022.

33. Noting that he paid $3,000 to the Victorian Institute on 16 March 2022, the Tribunal asked him how he paid that amount a few weeks after he did not have funds to pay Skyline International College. The applicant said he asked his brother for financial assistance. The bank statements provided show he received $2,520 on 14 March 2022 however he told the Tribunal that this payment was from his employer.

34. The Tribunal asked the applicant how he spent his time between 10 February 2022 and 21 November 2022. He said after his enrolment was cancelled by Skyline International College on 1o February 2022 he asked them if his enrolment could be re-instated if he paid the outstanding fees however they said they would not do so. He said he talked to other colleges about possible courses and chose to enrol at the Victorian Institute in March 2022.

35. The applicant said he discussed a release with Skyline International College many times but he was not given clear information until the email of 17 October  2022 despite personally attending and completing a Release Application Form on 26 July 2022. The Tribunal asked the applicant the reason he did not pay the outstanding fees in 2022. He said he did not know if it would make any difference in relation to obtaining a CoE from another provider until the email dated 17 October 2022. He told the Tribunal that he obtained the CoE from Choice Business College on 21 November 2022 without having to pay the outstanding tuition fees to Skyline International College and they remain unpaid.

36. The Tribunal asked the applicant about the mental pressure from COVID-19 he had referred to earlier in the hearing as a contributing factor to his non-enrolment. He said he lived in a share house with 5 people in 2022  and they all had COVID-19 and could not work and this made it difficult to pay their expenses. The Tribunal noted that the impact of the pandemic significantly reduced by 2022.

37. The Tribunal put to the applicant that he would have known from 10 February 2022 that he was no longer enrolled in a course and was in breach of his visa conditions. In response, the applicant conceded that he was aware of his non-compliance and said he was trying to obtain enrolment in 2022 but was not aware that he needed to pay his outstanding tuition fees to Skyline International College to obtain a release. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.

38. When asked about the purpose of his travel to Australia, the applicant told the Tribunal that  he came to Australia to study. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he wants to finish his course. He  completed a Diploma of Business on 21 July 2024 and he is currently enrolled in an Advanced Diploma of Business.

39. When asked about the hardship that may be caused by cancellation of the visa, the applicant said  if he returns to his country without a qualification his family and society will be angry with him. He said he wants to complete his business studies because that is the area of study he completed in Nepal.

40. Mrs Bhujel told the Tribunal that the applicant was very young when he arrived in Australia and he made mistakes with maintaining his enrolment.  She said he now realises his mistakes and wants to complete his degree which will assist him in business when they return to their country.

41. The representative submitted that the applicant was only 18 years old when he arrived in Australia and he found it hard to cope with his changed circumstances. He said the applicant has now finished a diploma course and is studying a further diploma course.

42. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

43. The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of  9 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

1. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3]  

   [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

2. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said wants to finish his Advanced Diploma of Business course. The Tribunal does not consider this constitutes a compelling need.

3. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

   The extent of compliance with visa conditions

4. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 10 February 2022 to 21 November 2022. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

5. The applicant’s non-compliance for a period of 9 months from cancellation of his enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

6. The Tribunal accepts that the cancellation will be disappointing to him and his family.

7. The Tribunal gives the hardship that may be caused to the applicant and his family some weight against cancellation.

   Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

8. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 9 months prior to the issuing of the NOICC. He told the Tribunal the main reason for not maintaining enrolment was financial. He failed to pay his fees and this was the reason for cancellation of his enrolment on 10 February 2022. As noted, the applicant was able to pay $3,000 to another education provider a few weeks later, which he said he was given by his brother.

9. The applicant also referred to limited employment due to COVID-19 as impacting on his financial capacity however the Tribunal notes that he failed to pay his tuition fees in 2022 which was nearly 2 years after the pandemic commenced and by which time the impact of it had significantly reduced. In any event, as noted with the applicant at the hearing, it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia. If a visa holder is experiencing financial difficulties it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.

10. The applicant’s evidence was that after his CoE was cancelled on 10 February 2022, he attempted to obtain a CoE from Skyline International College and other providers. He said he attended classes at the Victoria Institute even though he was not enrolled. He requested a release from Skyline International College on 26 July 2022 and they did not respond until 17 October 2021.  The applicant said he did not understand that he needed to pay the outstanding fees to obtain a release.

11. The Tribunal accepts that the applicant continued to study and attempt to obtain a CoE during the period from 10 February 2022 and 21 November 2022. The Tribunal accepts that the applicant did not have a clear understanding of what was required to obtain a new CoE however in the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.

12. The representative submitted that the applicant’s youth contributed to his non-compliance with his visa conditions. In the Tribunal’s view, if the applicant was old enough to travel to and live in a foreign country and undertake study, he would have sufficient life experience to ensure compliance with his visa conditions . 

13. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he ceased to be enrolled in a registered course  from 10 February 2022 to 21 November 2022. He referred to financial hardship and COVID-19 as the reasons for his non-compliance however for the reasons set out above, the Tribunal does not find there are extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

14. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

15. The applicant’s partner is a secondary visa holder. Cancellation of the applicant’s visa means he will be subject to consequential visa cancellation of his visa, which was granted to him as a member of the family unit of the applicant.

16. The Tribunal accepts that there would be a consequential cancellation in this case.  The Tribunal gives this factor some weight against exercising its discretion to cancel the visa.

    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

17. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

18. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

19. The applicant finished a Diploma of Business on 21 July 2024 and he is currently enrolled in an Advanced Diploma of Business.

    Conclusion

20. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not be in breach of Australia’s international obligations.

21. Against this the Tribunal accepts that cancellation will cause some hardship to the applicant and his family, that there is nothing adverse known about the applicant’s past and present conduct towards the Department and that the cancellation will affect the second named visa applicant’s visa. The Tribunal places significant weight on the applicant’s continued attempts to obtain a CoE after 10 February 2022 (as evidenced by the emails provided), the delay by Skyline International College in responding to the applicant’s request for a release, the applicant’s finishing the 12 month Diploma of Business course and his current enrolment in an Advanced Diploma of Business. The Tribunal is prepared to accept that applicant’s non-compliance arose in part due to his lack of understanding of the need to obtain a release from an education provider and what was required to obtain a release.

22. The Tribunal recognises that the cancellation of the visa is a significant matter and on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa in this case should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicant.

    Christine Kannis
    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.