Dalby-Jeffreys (Migration) - [2024] AATA 3994

Dalby-Jeffreys (Migration) [2024] AATA 3994 (27 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Olivia Alexandra Dalby-Jeffreys
REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)
CASE NUMBER:  2313767
HOME AFFAIRS REFERENCE(S):          BCC2022/873516
MEMBER:Christine Kannis
DATE:27 September 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 27 September 2024 at 7:29pm
CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant was not enrolled in a full-time registered course – breached condition 8202 – deterioration in her mental health – the breach did not occur in circumstances beyond the applicant’s control – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994 (Cth), Schedule 8
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 August 2023 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).
The delegate cancelled the visa on the basis that 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 17 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative did not attend the hearing.
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
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?
On 28 January 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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).
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.
In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a full-time registered course.
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.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 23 March 2022 until 16 September 2024. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 23 March 2022 until 16 September 2024 and the Tribunal finds that she breached condition8202(2)(a) of her visa.
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
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.
On 7 August 2023, the Department the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 23 March 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa.
The applicant did not respond to the NOICC.
Evidence provided to the Tribunal prior to the hearing
The following documents were provided:
·documents evidencing the applicant’s enrolment in and completion of a Certificate III in Early Childhood Education and Care completed in June 2021;
·documents evidencing the applicant’s appointment with a psychiatrist on 11 March 2021;
·documents dated in February 2021 evidencing the applicant’s grandmother’s treatment for coronary artery disease at St Michael’s Unity Health Toronto from 11 November 2020 until her discharge on 2 February 2021; and
·Crown Institute of Higher Education letter dated 11 September 2024 evidencing offer to the applicant and CoE for Bachelor of Education (Early Childhood) (Birth to Five) created on 16 September 2024.
Representative’s written submission which included the following:
·The applicant began her studies in 2021 during the challenging aftermath of the COVID-19 pandemic. As lockdowns returned learning transitioned online which created difficulties for her, particularly due to her ADHD. She was open with her teachers about these struggles and although they granted her extensions on assignment deadlines, the shift to online learning continued to be overwhelming. She reached out to student support for but was told as an international student there was no assistance available.
·The end of the applicant’s relationship with her partner affected her emotional and mental stability. This relationship had been a source of support through the challenges of online learning and managing her ADHD. The breakup intensified her feelings of anxiety, loneliness and helplessness, compounding the academic pressures. As she tried to cope with the academic and personal turmoil, her mental health deteriorated further, necessitating her to seek help from a psychologist to manage the stress and emotional pain.
·The applicant’s mental health was significantly impacted by her grandmother’s coronary artery disease. Her grandmother underwent bypass grafting surgery. Given the close bond with her grandmother, this caused the applicant emotional distress. The worry about her grandmother's well-being and surgery heightened her anxiety and affected her ability to focus on her academic responsibilities. The combination of her personal worries and academic pressures took a toll on her mental health.
·The challenges faced by the applicant during bear significant similarities to the cases such as Wei [2003] MRTA 8377, Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229, and Paduano v MIMIA (2005) 143 FCR 204. These legal precedents demonstrate that personal difficulties such as illness, family issues and mental health challenges can constitute compelling circumstances in the context of visa compliance.
·The applicant has always been deeply passionate about early childhood education and completed a Certificate III in Early Childhood Education and Care which shows her commitment to her chosen field and highlights her genuine intention to study and build a career in Australia. Her enrolment in a Bachelor of Early Childhood Education is a testament to her unwavering focus.
·The significant challenges the applicant has faced—particularly her grandmother’s health issues and her own ADHD and anxiety—have profoundly impacted her academic performance. Her prioritization of her family’s well-being over personal ambitions demonstrates her strength of character and her unwavering commitment to supporting those she loves.
Evidence provided at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of her 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 her PRISMS enrolment record, she was enrolled in the following courses of study:
a.She was enrolled in a Certificate III in Early Childhood Education and Care which was cancelled on 15 August 2020 due to Deferment/Suspension -Compassionate or compelling circumstances;
b.She was enrolled in a Diploma of Early Childhood Education and Care which was cancelled on 15 August 2020 due to Change to CoE/Student Details;
c.She was enrolled in a Certificate III in Early Childhood Education and Care which was cancelled on 15 August 2020;
d.She was enrolled in a Bachelor of Early Childhood Education and Care which was cancelled on 15 August 2020 due to Change to CoE/Student Details;
e.She was enrolled in a Certificate III in Early Childhood Education and Care which she completed on 30 June 2021;
f.She was enrolled in a Diploma of Early Childhood Education and Care which was cancelled on 23 March 2022 due to Disciplinary reasons; and
g.She was enrolled in a Bachelor of Early Childhood Education and Care which was cancelled on 23 March 2022 due to Non-commencement of studies.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 23 March 2022 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her 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.
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 and asked her whether she had any comments in relation to her PRISMS enrolment record. The applicant told the Tribunal she agreed with her PRISMS enrolment record. The Tribunal also noted that the applicant obtained a CoE created on 16 September 2024 which was provided prior to the hearing.
The Tribunal asked the applicant about the cancellation of her enrolment in Diploma of Early Childhood Education and Care which was cancelled on 23 March 2022 due to Disciplinary reasons. She referred to not passing the first half of her course and therefore not attending classes in the second half. The Tribunal notes that the reason for cancellation was not indicated to be Non-commencement of studies or Unsatisfactory course progress however the applicant said she was unable to explain the basis of cancellation due to Disciplinary reasons
The Tribunal asked the applicant about her difficulties with online learning referred to in the representative’s submission. In response she said in 2021 her school moved to online classes which she found difficult due to her ADHD.
The Tribunal asked the applicant about her seeking professional help in 2021 for her deteriorating mental health referred to in the representative’s submission. In response the applicant said she had one appointment only, on 11 March 2021, and that appointment was only partially to discuss her poor mental health. She said the appointment was really an emergency appointment because her prescription for her ADHD medication had run out. She said it was a one-off appointment for a prescription and she has not sought any professional treatment for her mental health since then.
The Tribunal asked the applicant about the breakdown of her relationship with her partner referred to in the representative’s submission. The applicant said she and her partner commenced their relationship in April 2019 and it ended in August 2021. She said they both knew the end of the relationship was coming but when it did end they could not afford to find separate accommodation and so they continued to live together until July 2022. The applicant said living together after the relationship ended was very difficult.
The Tribunal asked the applicant about the impact her grandmother’s medical condition and treatment (including surgery) had on her own mental health. She said it was hard to be away from family during this time while she was juggling other things. In response to the Tribunal asking about these other things the applicant referred to COVID-19, school, working and her fear that if something happened to her grandmother she would have to travel to Canada and she was afraid she might not be allowed to return to Australia.
The Tribunal asked the applicant about the deterioration in her mental health in 2021 referred to in the representative’s submission. She said COVID-19, online classes, her ADHD and her work in a critical sector during lockdown contributed to the deterioration in her mental health in 2021.
The Tribunal put to the applicant that she would have known from 23 March 2022 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. In response, the applicant conceded that she was aware of her non-compliance. The Tribunal asked her whether she contacted the Department about her visa status. In response she said she lodged a change of circumstances with the Department. The Tribunal noted that there was no evidence of this and the applicant said she may not have lodged it correctly. She said she lodged an application for a Subclass 408 visa however it was refused because her Student visa was active. The applicant told the Tribunal that prior to receipt of the NOICC she contacted the Department’s general information line to ask how she could end her Student visa earlier than the cessation date because she wanted to apply for a Subclass 408 visa.
Noting that the applicant sought to rely on her mental health which she said was impacted by her grandmother’s ill health, the Tribunal asked the applicant whether she discussed a deferment of her study with her education provider. In response she said she did not seek a deferment because during a previous deferment she had no work rights and she needed to work to support herself.
In response to the Tribunal asking how she had spent her time since 23 March 2022, the applicant said she has been working and trying to figure out her next step. The Tribunal noted that an extended period of 2.5 years has passed and considers this is ample time to figure out her next step.
Regarding her employment, the applicant told the Tribunal that she works in early childhood education and care. She said she works 24 hours per week and that she has worked continuously including from 23 March 2022 to the present. During this time she has worked for two employers and she commenced her current employment earlier this year.
When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she wanted to obtain a degree in Australia because Australia is a leading country in early childhood education and care and she wanted to gain knowledge and experience here. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said the Certificate III in Early Childhood Education and Care she completed on 30 June 2021 is not recognised in Canada and therefore she would have to start her studies again in Canada. The applicant also said her life and her cat are in Australia.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said she would have to leave her belongings, her friends and her cat. She said her workplace relies on her. The applicant told the Tribunal that if she has to return to Canada and start over, it will have a massive effect on her mental health because she has been here for 5 years.
The applicant told the Tribunal that after she hired her lawyer she did not hear from him again for a year when her application for review was listed for hearing. She said she wanted to enrol as soon as she instructed her lawyer but his failure to contact her for a year is the reason she did not obtain a new CoE until 16 September 2024.
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
The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of 1 year 4 months prior to the issuing of the NOICC. Her total period of non-enrolment was 2.5 years. The applicant told the Tribunal that she wanted to enrol a year ago however her lawyer did not contact her. In the Tribunal’s view it is the responsibility of all visa holders to be aware of the conditions of their visa and what they must do to remain compliant with them.
The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.
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].
The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response she said her life and her cat are here and that the course she has completed in Australia is not recognised in Canada. The Tribunal accepts that the applicant does not want to return to Canada at this time but does not consider this constitutes a compelling need to remain in Australia.
The applicant’s non-engagement in the study for which his visa was granted for an extended period of 1 year 4 months prior to receipt of the NOICC and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions

The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study from 23 March 2022 until 16 September 2024. 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 she has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for an extended period of 1 year 4 months from cancellation of her CoE until receipt of the NOICC and for a total period of non-enrolment of 2.5 years weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing because she will have to return to Canada leave her friends in Australia and her cat. She may also have to commence her studies with no recognition of the Certificate III she completed in Australia in June 2021. The Tribunal accepts that returning to Canada is not the applicant’s preferred outcome however there was no evidence to substantiate the contention that it will have the claimed massive effect on her mental health. The applicant said her employer relies on her however she only commenced this employment earlier in the year and in the Tribunal’s view any hardship caused to the employer by the cancellation is likely to be minimal.
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
The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 4 months prior to the issuing of the NOICC and was not enrolled for a total of 2.5 years from 23 March 2022 to 16 September 2024.
The applicant, through the representative’s written submissions and in her oral evidence at hearing, contended that her enrolment was due to her poor mental health which was caused by a number of factors including COVID-19, online classes, the end of her relationship with her partner, her grandmother’s health and her own ADHD.
The only medical evidence relating to the applicant before the Tribunal was evidence of an appointment on 11 March 2021. There was no medical evidence of an ADHD diagnosis however the Tribunal accepts the applicant’s evidence that she has been diagnosed with and treated for ADHD. She said the appointment on 11 March 2021 was a one off emergency appointment because she needed a prescription for ADHD medication. There was no medical evidence confirming a diagnosis of or treatment for anxiety or any deterioration in the applicant’s mental health. While the Tribunal accepts that COVID-19, online classes, the end of her relationship with her partner and her grandmother’s health would have caused the applicant some distress, there is no medical evidence that her ADHD or any mental health condition precluded her from being enrolled in and undertaking study from 23 March 2022. The applicant’s evidence was that during the period of non-enrolment she continued to be employed at all times. Therefore, despite the claimed mental health issues caused by COVID-19, online classes, the end of her relationship with her partner, her grandmother’s health and her own ADHD, the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder. In addition the Tribunal notes that the applicant’s grandmother was discharged from hospital more than 12 months prior to her ceasing to be enrolled from 23 March 2022.
The representative’s written submissions referred to the challenges the applicant has faced, particularly those related to her grandmother’s serious health issues and her own struggles with ADHD and anxiety which profoundly impacted her academic performance. As noted, there was no evidence to substantiate this contention.
The Tribunal also considered the authorities referred in the representative’s written submission.
The decision in Wei was the cancellation of a Student visa on the basis that condition 8202 had been breached because of the applicant’s attendance record. The applicant referred to his worry about his grandmother’s illness, his homesickness, his youth and his ongoing medical problems as reasons why his visa should not be cancelled. A medical report was provided which stated that the applicant had been suffering from a reactive depressive state and that his non-attendance had been due to his depressive symptoms which impaired him and were beyond his control. As noted, in the present matter no medical evidence with respect to the applicant’s anxiety or the impact of her ADHD on compliance was before the Tribunal. The applicant’s evidence was that she did not seek treatment during the period of non-compliance and attended a psychiatrist one time only more than 12 months before she ceased to be enrolled.
The decision in Chen was in relation to a breach of a condition of a student visa relating to satisfactory academic performance. The Federal Court of Australia (FCA) quashed the decision of the Migration Review Tribunal (MRT) on the basis that it asked itself the wrong question and thereby fell into jurisdictional error. The FCA decided the MRT had to make a finding as to the number of contact hours which were missed by reason of the applicant’s medical condition and whether those missed hours were due to exceptional circumstances beyond the applicant’s control. The MRT did not do that but, rather, addressed the question whether there were emergency circumstances beyond his control. In the present case the Tribunal has considered whether the circumstances in which the cancellation arose were beyond the applicant’s control and has not considered an incorrect question.
The FCA decision in Paduano was in relation to a refusal of a Subclass 155 (Five Year Resident Return) Visa and whether the MRT erred in construction of the term ‘compelling reasons for the absence’. The FCA found that the MRT made a jurisdictional error because it erred in the construction of an expression in delegated legislation, which formed part of the criteria for the grant of a visa and therefore erred in the construction of the statutory criteria for the grant of a visa. In the present case, there is no requirement for the Tribunal to consider the meaning of compelling reasons.
Although the Tribunal does not consider Chen and Paduano to be on point, it accepts the general proposition that health, family and personal matters may be relevant to a consideration of whether circumstances are beyond a person’s control.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 23 March 2022. She was not enrolled again until the day before the hearing on 16 September 2024 . She referred to several reasons for not maintaining enrolment including her ADHD and poor mental health, however as noted, she was able to maintain employment during the period of non-compliance and no evidence was provided to substantiate the contention that her non-compliance was due to ADHD or any mental health condition. The Tribunal finds that the applicant knowingly remained in breach of her visa conditions for an extended period. The Tribunal finds there are no 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
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
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
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 she could also be subject to a three-year exclusion period unless she 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
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
The Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her 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 her travel to and stay in Australia as she was not undertaking the study for which her 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.
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
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.