Brar (Migration)

[2023] AATA 4230

Brar (Migration) [2023] AATA 4230 (2 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vijaypal Singh Brar

REPRESENTATIVE:  Mrs Preeti Puri (MARN: 0960289)

CASE NUMBER:  2216040

HOME AFFAIRS REFERENCE(S):          BCC2022/2198756

MEMBER:Christine Kannis

DATE:2 December 2023

PLACE OF DECISION:  Perth

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

Statement made on 02 December 2023 at 8:14am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – family bereavement – financial hardship – relationship with a partner in Australia – multiple course cancellations – limited academic progress – decision under review affirmed           

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03

CASES

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 27 October 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 on 20 November 2023 to give evidence and present arguments.

5. The applicant was 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 affirmed.

   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 29 May 2019, 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 12 August 2020.

14. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 12 August 2020 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 applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

17. On 12 September 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 12 August 2020 and had therefore failed to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

18. On 27 September 2022, the applicant responded to the NOICC and provided the following information:

    ·He received an email which stated he had not been enrolled in a registered course of study since August 2018. He is currently enrolled in Diploma of Management starting on 24 October 2022 and through this course he wants to complete units he missed earlier. He was supposed to finish this course in one go but due to distraction of mind from studies and changing of course he couldn’t complete it.

    ·A lot of things happened during the period from 12 August 2020 until now. His father was sick and suffering from leukaemia. He would have chosen to visit him but due to COVID-19 there was no assurance of coming back or getting stuck in a big hall as a quarantine thing in India. Also, a lot of money was already gone in his father’s treatment so he hesitated asking for money and had no money for school fees that year which resulted in cancellation of his CoE.

    ·After his CoE was cancelled he started to look for an alternative plan to keep up with the rules and regulations but after two months, on 22 November 2020, his father passed away. He couldn’t see him or do the last rituals which completely broke him as his father was the first reason he was here so he could see him somewhere better and established because his father lived his life in dust and dirt being a farmer.

    ·He has a debt from a 2017 car crash which he is repaying in instalments, which is not to be worried about but it has a little effect on life when it comes to debt.

    ·He has now enrolled in a Diploma of Business with the credits transcript and he wants to finish at least one full course and not be hanging with few units.

    ·Another reason he doesn’t want his visa to be cancelled is that he has a partner in Australia and for one year he has been trying to move in but due to no luck with rental properties he is finding it hard but they have plans for moving in together by the beginning of next year.

    ·If his visa is cancelled, it will be a big failure for him and his future life and he won't be able to deal with this. It will destroy his confidence and willpower. All these years had always brought him something due to which he was mentally and physically disturbed. He has now recovered and he doesn’t want to go back to that situation. He is sure he will not be to able deal with this again.   

19. At the time of responding to the NOICC, the applicant provided a Letter of Offer and Acceptance dated 12 September 2022 from Apeiro Institute in relation to a Diploma of Business course and a debt recovery notice dated 18 October (year not stated) indicating  the outstanding balance was $7,933.47.

    Evidence provided prior to the hearing

20. A written statement from the applicant in which he stated:

    ·He arrived in Australia on 14 December 2014 and pursued IT Certificate 2 and 3 from February 2015 to December 2015. Unfortunately he did not receive any credits for these courses. He subsequently enrolled in a Diploma of  Business from February 2016 to December 2016. Due to academic challenges he faced setbacks and his course completion date was extended to September 2017.

    ·In September 2017 he transitioned to a Commercial Cookery course however unforeseen family emergencies when his father fell seriously ill required him to return to India from 13 September 2017 to 2 October 2017. A similar situation arose in July 2018 leading to his presence in India from 13 July 2018 to 9 August 2018.

    ·These family emergencies significantly impacted his ability to focus on his studies, resulting in academic challenges. In November 2020, his father passed away which added emotional stress to an already difficult situation. He made the decision to prioritise his family and jeopardized his academic progress. 

    ·In the wake of his tragedy he found it increasingly difficult to focus on his studies. The grief and emotional strain impacted his ability to meet academic deadlines and he made the difficult decision to step back from his studies with the intention of resuming at a later date.

    ·Despite his sincere desire to continue his education, he faced emotional and mental health challenges that prevented him from taking the necessary steps to resume his studies promptly.

    ·He received a Letter of Offer and Acceptance of Offer from Apeiro Institute on 12 September 2022, indicating his commitment to continuing his studies.  

    ·Subsequently he applied for study rights and work rights. His application was refused on 21 November 2022. He made another attempt to secure study rights and work rights and on 23 August 2023 he was granted only work rights.

    ·During this tumultuous period he faced the loss of a loved one. The grief and emotional strain significantly impacted his ability to focus on his studies and he was unable to meet the demands of coursework leading to a delay in course completion.

    ·His plan is to regain student visa status and resume and complete his studies in the Diploma of Business. As his father has passed away, he should take the responsibility to take care of his mother and he cannot achieve this without a degree. On completion of the course he would like to open a restaurant where he can apply his knowledge of kitchen management and business. His efforts and time will be wasted and he will have no qualification to show to his family if he cannot get his visa back.

21. The following additional documents were provided prior to the hearing:

    ·Documents in relation to the applicant’s Bridging Visa E including permission to work;

    ·Records of results and attainment dated 26 July 2017 in relation to a Certificate IV and Diploma in Business; and

    ·Statement of Attainment dated 17 August 2018 in relation to Certificate IV in Commercial Cookery.

    Evidence at hearing

22. 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 II in Information, Digital Media and Technology course which he completed on 3 July 2015.

    b.He was enrolled in a Certificate III in Information, Digital Media and Technology course which he completed on 11 December 2015.

    c.He was enrolled in a Certificate IV in Information Technology Networking course which was cancelled 9 September 2015 due to Change to student enrolment.

    d.He was enrolled in a Diploma of Information Technology Networking course which was cancelled 9 September 2015 due to Change to a course in the same sector, no gap, but longer study duration.

    e.He was enrolled in a Certificate IV in Information Technology Networking course which was cancelled 19 October 2015 due to Change to student enrolment.

    f.He was enrolled in a Diploma of Information Technology Networking course which was cancelled 19 October  2015 due to Change to student enrolment.

    g.He was enrolled in a Certificate IV in Frontline Management course which was cancelled 19 November 2015 due to Change to student enrolment.

    h.He was enrolled in a Bachelor of Information Technology which was cancelled on 16 November 2015 due Change to student enrolment.

    i.He was enrolled in a Diploma of Management course which was cancelled on 19 November 2015 due to Change to student enrolment.

    j.He was enrolled in a Certificate II in Information, Digital Media and Technology course which he completed on 11 December 2015.

    k.He was enrolled in a Certificate Leadership and Management  course which was cancelled 31 March 2016 due to Change to student enrolment.

    l.He was enrolled in a Diploma of Leadership and Management course which was cancelled on 31 March 2016 due to Change to student enrolment.

    m.He was enrolled in a Certificate IV in Business which he finished on 1 July 2016.

    n.He was enrolled in a Diploma of Business course which he finished on 16 December 2016.

    o.He was enrolled in a Bachelor of Business course which was cancelled on 31 January 2017 due to Non-commencement of studies.

    p.He was enrolled in a Diploma of Business course which he finished on 30 June 2017.

    q.He was enrolled in a Bachelor of Business course which was cancelled on 26 July 2017 due to Non-commencement of studies.

    r.He was enrolled in a Certificate IV in Commercial Cookery course which he finished on 5 August 2018.

    s.He was enrolled in a Diploma of Hospitality Management course which was cancelled on 17 August 2018 due to Non-commencement of studies.

    t.He was enrolled in a Certificate IV in Commercial Cookery course which was cancelled on 20 March 2019 due to Unsatisfactory attendance.

    u.He was enrolled in a Diploma of Hospitality Management course which was cancelled on 20 March 2019 due to Non-commencement of studies.

    v.He was enrolled in a Bachelor Tourism and Hospitality Management course which was cancelled on 14 May 2019 due to Change to CoE/student details.

    w.He was enrolled in a Bachelor Tourism and Hospitality Management course which was cancelled on 12 August 2020 due to Non-commencement of studies.

    x.He was enrolled in a Diploma of Business course which was cancelled on 12 September 2022 due to Change to CoE/student details.  

23. The Tribunal explained to the applicant that this information was relevant because it indicates that from 12 August 2020 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.

24. 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 record. The applicant told the Tribunal that he agreed with the PRISMS record.

25. The Tribunal asked the applicant to clarify the information in his response to the NOICC regarding being mentally and physically disturbed. In response, the applicant said he had different problems every year including family problems, a motor vehicle accident and study problems. He said his mental disturbances were due to everyday problems with his family, his partner and his study. He said he knew he needed to study to be compliant with his visa conditions however he was running away from his family and study responsibilities and ignoring everything. In relation to the reference to physical disturbances, the applicant said in 2018 he underwent a health check-up in India because he was having chest pains. No cause was identified and they did not continue.

26. The Tribunal asked the applicant to clarify the information in his response to the NOICC regarding his statement that after his CoE was cancelled, he started to look for an alternative plan to keep up with the rules and regulations. In response, he said he considered either getting married to his partner or enrolling in another course. He chose not to marry because he was not ready and did not enrol in another course for financial reasons. He said after his father passed way he could not ask his family for any money. He also said that he did not enrol in another course because he could not decide what course he wanted to study. He told the Tribunal that it was a problem for him because he could not make up his mind.

27. The Tribunal asked the applicant to clarify the information in his pre-hearing written statement that family emergencies significantly impacted his ability to focus on his studies resulting in academic challenges and grief and emotional strain impacted his ability to meet academic deadlines. In response, he said his father was diagnosed with leukemia in 2018 and passed away in November 2020 and this affected his ability to study. In response to the Tribunal whether he asked his education provider for a deferment on compassionate grounds, the applicant said he did not and was not able to offer any reason for not doing so. 

28. The Tribunal asked the applicant to clarify the information in his pre-hearing written statement that he made the decision to prioritise his family and jeopardized his academic progress and made the difficult decision to step back from his studies with the intention of resuming at a later date. In response, the applicant told the Tribunal  that he put his family first by not asking them for money and thereby placing a financial burden on them.

29. The Tribunal asked the applicant to clarify the information in his pre-hearing written statement that he faced emotional and mental health challenges that prevented him from taking the necessary steps to resume his studies promptly. He initially said these challenges were that he had given up and did not want to study. He then said he was not sure which course he wanted to do. He also said he was drained by his family’s requests for him to visit them in India because he knew that the cancellation of his student visa meant that if he departed Australia he would not be able to return and his family were not aware of the visa cancellation.

30. In response to the Tribunal asking whether he sought medical assistance or counselling in relation to his emotional and mental health challenges, the applicant said he did not do so because he is an introverted person.

1. The Tribunal asked the applicant about the Letter of Offer from Apeiro Institute dated 12 September 2022, a few days after he received an email on 1 September 2022 from the Character and Cancellation Branch of the Department. He told the Tribunal that he obtained the Letter of Offer in response to the Department’s email.

2. The Tribunal put to the applicant that he would have known from August 2020 until he received the NOICC, that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response, the applicant conceded that he was aware of this. 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 believed they knew he was no longer studying. He said he thought his education provider would have informed the Department. 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.

3. Noting that he was not undertaking study from at least August 2020, the Tribunal asked the applicant how he spent his time. He said he stayed at home. In response to the Tribunal asking whether he worked during the period from August 2020 to September 2022, the applicant said he worked as a delivery driver 3 days per week for 5 to 6 hours each day. He said he was able to pay his living expenses from his employment income.

4. The applicant told the Tribunal that he came to Australia to study. He said he has a compelling need to remain in Australia because he wants to complete his Commercial Cookery studies or alternatively, if he is required to undertake a course from the beginning, he will undertake Nursing studies.

5. In response to the Tribunal asking about the hardship that may be caused by cancellation of his visa, the applicant said if his visa is cancelled he will not suffer any financial hardship but he will suffer emotional hardship. He said if he returns to India without a qualification he will have to give an explanation to his family. He said they think he has been studying in Australia and are not aware that his visa has been cancelled. He said if he returns to India without achieving anything it will be difficult for him to face his family.

6. The representative provided the following submissions:

   ·When the applicant arrived in Australia he was too young to focus on his study. He was in a new environment and after his father fell ill, he had no-one to guide him.

   ·If he returns to India without at least a diploma qualification he will be considered a failure in life and his family will not respect him.

   ·He cannot study a diploma course in India because of his age.

   ·He knew the cancellation decision was coming. After he received the NOICC, he attempted to gain study rights on two occasions but was unsuccessful.

   ·He wants to complete a diploma course and start work in India. If he is permitted to study he will undertake to maintain attendance, complete his studies and promptly return to India on completion of his studies.

7. 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

8. 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 2 years 1 month from 12 August 2020 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.

9. 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 complete his Commercial Cookery studies or alternatively undertake Nursing studies. The Tribunal does not consider this constitutes a compelling need.

10. 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

11. 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 12 August 2020.  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.

12. The applicant’s non-compliance for an extended period of 2 years 1 month from 12 August 2020 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)

13. The Tribunal accepts that cancellation of the applicant’s visa will be disappointing to him because his family are not aware that he stopped studying in 2020 and that he has not completed his study. The Tribunal accepts that this may cause emotional hardship to the applicant. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

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

14. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 2 years 1 month prior to the issuing of the NOICC. He told the Tribunal that his father’s death impacted on his ability to study. The Tribunal accepts that the death of a parent is a significant stressor however the applicant was not enrolled for a period of nearly 2 years after his father’s death until he received the NOICC. He did not seek a deferment of his studies, he did not contact the Department and he did not seek any medical assistance or counselling for his claimed emotional difficulties. He told the Tribunal that he continued to work 3 days per week during this period. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder.

15. 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 2 years 1 month he remained in Australia as the holder of a student visa and wasn’t studying, he said he knew he was in breach of the conditions and believed his education provider informed the Department that he was no longer studying. As noted,, 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. 

16. The representative submitted that the applicant’s youth and lack of guidance in Australia 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 . 

17. 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 20 August 2020. The applicant did not attempt to enrol in a course in 2021 or in 2022 until he received an email from the Department on 1 September 2022. He said he suffered from mental and emotional problems during that time however no evidence, including medical evidence, was provided to substantiate the claim. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

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

19. 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

20. 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

21. 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

22. 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

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

    Conclusion

24. 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.

25. 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

26. 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.