Ali (Migration)

[2023] AATA 3281

Ali (Migration) [2023] AATA 3281 (30 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Babar Ali

CASE NUMBER:  2212736

HOME AFFAIRS REFERENCE(S):          BCC2022/1846771

MEMBER:Christine Kannis

DATE:30 September 2023

PLACE OF DECISION:  Perth

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

Statement made on 30 September 2023 at 1:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – study difficulties, two completed courses, multiple enrolments and cancellations and changes of subject areas and course providers – COVID restrictions – father’s death and mother’s financial support – debt collection for unpaid fees – no approach to department – re-enrolment and continuing study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)

CASE
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 August 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 on the basis that the applicant failed to comply with a condition of his 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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams video on 12 September 2023 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 (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?

7. On 3 February 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

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 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).

9. 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.

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

11. 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.

12. The information from PRISMS shows that the applicant was not enrolled in a registered course from 3 March 2021.

13. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 3 March 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

14. 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

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

16. On 5 July 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 3 March 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

17. On 18 July 2022, the applicant responded to the NOICC and provided the following information in a written submission from his representative:

    ·The applicant arrived on a Student visa to study a Diploma of Computing leading to a Bachelor of Computing at Deakin College. He commenced the diploma course on 27 July 2017 but faced difficulties due to the variation in education standards between Pakistan and Australia. He tried to get help and complete his education but he was not able to perform well in his course.

    ·The applicant realised his interest in automotive technology and memories of trying to understand engines in his childhood and wanted to pursue his education related to automotive technology. He was admitted to Barkly International College Pty Ltd (Barkly) but faced some issues related to the students from whom he was getting mental pressure and this made him change to Ashton College. His student visa was granted on 3 February 2021 to study at Ashton College. After a while at Ashton College, he was not satisfied with their education methods and he preferred to study at Barkly as he was facing issues related to teaching methods and staff in understanding the concept that he was taught. He decided to complete his course at Ashton College as he did not want to waste completing his education.

    ·He faced personal problems during his course. It was during the COVID-19 pandemic period and he faced serious circumstances while living in Australia by himself. He had to stay mentally stable as his family lives in Pakistan.

    ·The applicant lost his father a few years ago which impacted his mental health while he stayed far from his family. His father was the only earning family member and his mother has been struggling and arranging financial support for the applicant. His father had high hopes for him to complete an education in Australia and that is why his mother has been sponsoring his expenses alongside her own medical expenses.

    ·If the applicant’s visa is cancelled, the outcome might affect his family members on a huge level.

    ·Even after all the culture shock and mental stress, the applicant tried to continue his study and tried to get admission to different colleges and finally now has an opportunity to study, which shows the dedication that he wants to complete his education.

    ·These circumstances put the applicant in mentally stressful situations which affected his education, due to Ashton College cancelling his CoE without giving him a chance. He tried to enrol in a registered course after Ashton College cancelled his CoE. He tried to enrol at different colleges like Barkly and Acumen Institute. Other colleges refused to enrol him as they required a Release letter from Ashton College. The applicant attempted to get the Release letter but Ashton College refused.  

    ·After several attempts, the applicant received a CoE from Barkly. He is currently enrolled at Barkly in a Certificate III in Light Vehicle Mechanical Technology commencing on 15 December 2022. He decided Barkly would be the most appropriate for him due to a range of factors such as quality of education, feedback from his peers, cost and reputation of the provider.

    ·The applicant also wanted the unique experience of living in one of the major cities of Australia prior to returning to his home country. He plans to continue his education at Barkly if the Department provides the opportunity to do so. He has taken all steps to maintain his visa conditions, however, due to an error in judgement he may pay the ultimate price.

18. At the time of responding to the NOICC, the applicant provided a CoE for a Certificate III in Light Vehicle Mechanical Technology created on 6 June 2022 and updated on 8 July 2022.

    Evidence provided prior to the hearing

19. The following documents were provided prior to the hearing:

    ·Email dated 12 February 2021 from Ashton College advising of pause in online and face to face teaching from 13 to 17 February 2021 and that classes will resume on 18 February 2021;

    ·Receipt dated 21 October 2021 for payment of $1,750.00 to Southern Cross education;

    ·Receipt dated 9 December 2021 for payment of $1,500.00 to Barkly International College;

    ·Emails between applicant and “Kasey” dated 6 December 2021 in relation to providing assistance to the applicant with his CoE;

    ·Receipt dated 24 February 2022 for payment of $1,000.00 to Bluechip Collections Pty Ltd;

    ·Acumen Letter of Offer and Acceptance of Agreement dated 13 May 2022 for Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis – Superseded and Diploma of Automotive Technology – Superseded (Page 1 of 10 only provided);

    ·Receipt dated 26 May 2022 for payment of $300.00 to Bluechip Collections Pty Ltd;

    ·Barkly International College Letter of Offer dated 6 June 2022 for Certificate III in Light Vehicle Mechanical Technology;

    ·Email dated 6 July 2022 from Ashton College to the applicant advising that his CoE was cancelled on 3 March 2021; and

    ·Photographs x 2 of tools.

    Evidence at hearing

20. 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 Diploma of Computing course which was cancelled on 27 January 2017 due to Change to CoE/student details.

    b.He was enrolled in a Bachelor of Information Technology course which was cancelled on 30 January 2017 due to Change to CoE/student details.

    c.He was enrolled in a Diploma of Computing course which was cancelled on 27 March 2017 due to Non-commencement of studies.

    d.He was enrolled in a Bachelor of Information Technology course which was cancelled on 15 June 2017 due to Change to CoE/student details.

    e.He was enrolled in a Diploma of Computing course which was cancelled on 13 November 2017 due to Student Notifies of Cessation of Studies.

    f.He was enrolled in a Bachelor of Information Technology course which was cancelled on 19 March 2018 due to Deferment/Suspension -compassionate or compelling circumstances.

    g.He was enrolled in a Diploma of Computing course which was cancelled on 31 July 2018 due to Student Notifies of Cessation of Studies.

    h.He was enrolled in a Bachelor of Information Technology course which was cancelled on 27 March 2019 due to Non-commencement of studies.

    i.He was enrolled in a Certificate II in Security Operation course which he finished on 14 May 2019. 

    j.He was enrolled in a Certificate III in Light Vehicle Mechanical Technology course which he finished on 14 November 2019. 

    k.He was enrolled in a Certificate IV in Automotive Mechanical Analysis which was cancelled on 12 June 2020 due to Student Notifies of Cessation of Studies.

    l.He was enrolled in a Certificate III in Light Vehicle Mechanical Technology course which was cancelled on 3 March 2021 for non-payment of fees.

    m.He was enrolled in a Certificate IV in Automotive Mechanical Analysis and a Diploma of Automotive Technology, both of which were cancelled on 3 March 2021 due Non-commencement of studies.

    n.He was enrolled in a Certificate III in Light Vehicle Mechanical Technology course which was cancelled .

21. The Tribunal explained to the applicant that this information was relevant because it indicates that from 3 March 2021 until he received the NOICC , 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 his purpose for remaining in Australia.

22. 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 comment in relation to his PRISMS enrolment records. The applicant told the Tribunal that he agrees with the PRISMS record.

23. The Tribunal asked the applicant to clarify the information in his response to the NOICC that he suffered mental pressure at Barkly when he was undertaking automotive technology classes. He said the other students knew more than he did and he had difficulty when teachers asked him questions. He said the other students made fun of him. He said he tried to talk to the teachers about it but he was told to toughen up and that it was normal.

24. The Tribunal asked the applicant to clarify the information in his response to the NOICC regarding his decision to change education providers and complete his course at Ashton College. He told the Tribunal that his problems started with Ashton College when he did not pay his fees during the pandemic. He explained that during the pandemic Ashton College conducted online classes which did not work for him because he was not learning anything. He said he preferred “physical” classes and said he contacted admissions at Ashton College in February 2021 and requested that his classes be postponed until things were back to normal. He told the Tribunal that Ashton College advised him that they would cancel his enrolment if he did not attend the online classes.

25. Noting that PRISMS shows his enrolment was cancelled on 3 March 2021 for non-payment of fees, the Tribunal asked the applicant the reason he did not pay his fees. He said he had not attended classes for 3 months and therefore did not consider he should have to pay his fees. He said he advised Ashton College that he would be happy to pay his fees once “physical” classes resumed. In response to Tribunal asking whether he requested a deferment on compassionate or compelling circumstances, he said he did not because he did not think Ashton College would agree.

26. The applicant told the Tribunal the pandemic was a stressful time for him. He said he spoke to his family every day but it was still difficult. He said he previously worked in a hospital but during 2021 he only worked as a delivery driver once or twice a week. He said in June 2021 the government provided some financial assistance to international students.  He said he was under financial pressure at the same time that he was having trouble with Ashton College online classes. In response to the Tribunal asking whether he sought medical assistance to manage his stress, he said he did not and that he only talked to his mother who was always supportive.

27. The applicant claimed that he was not aware that his CoE had been cancelled until October/November 2021. When asked how he came to know about the CoE cancellation, he did not provide any further information. The Tribunal put it to him that he was not undertaking any study during 2021 and Ashton College had advised that him that they would cancel his enrolment if he did not attend the online classes.  In response, he told the Tribunal that he contacted Ashton College about getting back to “physical “ classes however they advised that he needed to re-enrol and pay $7,500 because he did not take the online classes. He said he offered to pay Ashton College in instalments but that was not acceptable.

28. The applicant told the Tribunal that in late 2021 he was desperate to obtain a CoE and not remain in Australia illegally. He sought the assistance of a migration agent who said he could help with obtaining a CoE at Barkly however this could not be done because Barkly requested a Release letter from Ashton College and Ashton College refused to provide a Release letter because he had not paid his fees. The applicant said he was so desperate to obtain a CoE that the migration agent tried to obtain a CoE in Nursing, however a Release letter was needed. The applicant told the Tribunal he tried to enrol at the Acumen Institute and received a Letter of Offer however they also required a Release letter.

29. The Tribunal asked the applicant whether he contacted the Department when his enrolment circumstances changed. He said he did not contact the Department because he was not aware of his visa conditions. In contrast to this, when the Tribunal put to him that he would have been aware that he was in breach of his visa conditions from at least October/November 2021 (when he claimed to become aware that his CoE had been cancelled), he conceded that he was aware that he was in breach of his visa conditions however he was struggling with the pandemic lockdowns and was waiting for “physical” classes to start.

30. The Tribunal asked the applicant about the receipts provided prior to the hearing. He said they show he attempted to pay enrolment fees to providers Barkly and Southern Cross. The Tribunal noted that these payments were in October 2021 and December 2021 at which times the applicant had not attended classes all year. He said the Bluechip Collections Pty Ltd receipts are payments made to debt collectors for his outstanding Ashton College fees.

31. The Tribunal asked the applicant about the photos provided prior to the hearing. He said they show he has the tools for automotive technology study and he wants to work in the industry.

32. The applicant told the Tribunal that he came to Australia because it had been his childhood dream to live in a country which could offer better him a better future and opportunities. He said Australia treats everyone equally and has an education system second to none. The applicant said he wants to obtain a qualification, open his own shop and be able to support his mother. The applicant said he has a compelling need to remain in Australia because he can complete a Certificate IV in 6 months and then obtain temporary residency and work in Australia.

1. In response to the Tribunal asking the applicant about the hardship that may be caused by cancellation of his visa, he said if his visa is cancelled everything will be over for him. He said in Pakistan the automotive industry is very poorly paid and his mother is waiting for him to finish his studies so he can provide her with financial assistance. He said she is a retired teacher and has spent all her savings on him.

2. The applicant told the Tribunal that if his visa is cancelled, his dream will be over. He said he has been here 6 years. The Tribunal pointed out that PRISMS shows he has only finished 2 courses in 6 years and that 13 enrolments have been cancelled including all of his enrolments since the visa the subject of this decision was granted. In response, the applicant said he had made some mistakes and he had no-one to guide him.

3. 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

4. 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 16 months from 3 March 2021 until he received 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.

5. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said he wants to study a 6 month Certificate IV course after which will be able to obtain temporary residency and be able to work in Australia. The Tribunal does not consider this constitutes a compelling need.

6. 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

7. 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 3 March 2021.  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.

8. The applicant’s non-compliance for an extended period of 16 months from 3 March 2021 until he received the NOICC weighs in favour of visa cancellation.

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

9. The Tribunal accepts that cancellation of the applicant’s visa will be disappointing to him because he will not be able to undertake further study in automotive technology and obtain a qualification which will enable him to work in Australia. The Tribunal accepts that this may cause financial and emotional hardship to the applicant and to his mother. The Tribunal gives the hardship that may be caused to the applicant and his mother some weight against cancellation.

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

10. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 16 months prior to the issuing of the NOICC. He said he did not attend classes in 2021 because his course changed to online classes.

11. When the Tribunal put to the applicant that he would have been aware that he wasn’t complying with a condition of his visa during the 16  months he remained in Australia as the holder of a student visa and wasn’t studying, he said he was not aware that his CoE had been cancelled until October/November 2021. In the Tribunal’s view it is unlikely that Ashton College did not inform him when his CoE was cancelled on 3 March 2021 and as noted, the applicant did not explain how he came to be aware of the cancelation of his CoE in October /November 2021. However, even if he became aware of this in October/November 2021, he did not obtain enrolment prior to the NOICC. The Tribunal accepts the applicant’s evidence that he attempted to enrol with other education providers in late 2021 however could not do so because Ashton College would not provide a Release letter because he had not paid his fees.

12. The applicant told the Tribunal that in late 2021 he was desperate to obtain a CoE because he did not want to remain in  Australia illegally. He was aware that he was not complying with his visa conditions but he did not contact the Department.  It is the responsibility of visa holders to notify the Department of changes in their circumstances that affect their visa and remain compliant with visa conditions. 

13. When asked whether he contacted his education provider to request a deferment of study on compassionate or compelling grounds, the applicant said he did not request a deferment because he believed Ashton College would not agree.

14. In relation to the applicant’s difficulty with online classes, the Tribunal notes that the change to online classes did not prevent him from being enrolled, however he preferred “physical” classes. He said he did not learn much in online classes.

15. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he did not pay his fees. He did not pay his fees because he decided that he was not learning from online classes and he wanted to resume study when “physical” classes commenced. The Tribunal accepts that the online classes were due to the COVID-19 pandemic and in this respect the circumstances were beyond the applicant’s control, however the Tribunal finds that the decision to stop attending online classes was a decision based on the applicant’s preference and this was a choice he made. The Tribunal finds, based on the applicant’s evidence that he had not attended classes for 3 months when Ashton College asked him to pay his fees, that he did attend classes from at least 3 March 2021 and was not undertaking any study and he did not attempt to enrol in a course until, based on his evidence, October /November 2021. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

16. Past and present behaviour of the visa holder towards the Department

17. 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

18. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

19. 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

20. 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

21. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

22. 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 affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

23. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    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.