Ghimire (Migration)

[2023] AATA 3244

Ghimire (Migration) [2023] AATA 3244 (22 September 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anil Ghimire

REPRESENTATIVE:  Mr Jaya Prakash Oli (MARN: 1570827)

CASE NUMBER:  2211553

HOME AFFAIRS REFERENCE(S):          BCC2021/2274715

MEMBER:Michael Bradford

DATE OF ORAL DECISION:  22 September 2023

DATE OF DECISION:  22 September 2023

DATE CORRIGENDUM

SIGNED:6 October 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1. Paragraphs 18, 26, 27, 30, 42, 44, 45, 46, 49, 52 (which was split in two), 53 (newly created), 55 (previously 54), 56 (previously 55), 57 (previously 56, split in two), 58 (newly created), 59 (previously 57), 60 (previously 58, split in two), 61 (newly created), and 63 (previously 60) have been amended to correct minor grammatical and / or syntactical errors.

   Signature:

   Michael Bradford
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Mr Anil Ghimire

   REPRESENTATIVE:  Mr Jaya Prakash Oli (MARN: 1570827)

   CASE NUMBER:  2211553

   HOME AFFAIRS REFERENCE(S):          BCC2021/2274715

   MEMBER:Michael Bradford

   DATE:4 October 2023

   PLACE OF DECISION:  Sydney

   DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Class TU, Sub-class 500) visa.

   
   Statement made on 04 October 2023 at 1:57pm

   CATCHWORDS  
   MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – not fulfilling purpose of visa – non-compliance for an extended period – mental health condition – Recognised Prior Learning (RPL) – COVID-19 – decision under review affirmed

   LEGISLATION 
   Migration Act 1958 (Cth), s 116
   Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

   STATEMENT OF REASONS

   APPLICATION FOR REVIEW

   Introduction

2. This is an application to review a decision of a delegate of the Minister for Home Affairs who, on 2 August 2022, cancelled the applicant’s Class TU Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (the Act).

3. The delegate found that the applicant had not been enrolled in a registered course of study during the period from 25 September 2019 to 3 May 2022 and was thus in breach of condition 8202(2)(a), a mandatory condition in a student visa of the kind granted to him on 29 March 2019.

4. There is no issue in this case that the delegate was entitled to make those findings. The only issue on the review is whether the visa should, as a matter of discretion, be cancelled.

5. At the conclusion of the hearing on 22 September 2023 I orally decided to affirm the delegate’s cancellation decision and announced that I would publish my reasons in written form later.

6. What follows are the reasons which the Tribunal foreshadowed at the hearing.

   Procedural aspects  

7. The hearing in this case was combined with the hearing of another review, the applicant having also filed an application in the Tribunal to review the delegate’s refusal to grant to him another TU-500 visa on genuine temporary entrant (GTE) grounds (Case 2219068). He was entitled to challenge this other decision in the Tribunal because he had filed the Visa Application before the cancellation decision was made. Sec 48(1) of the Act does not apply in these circumstances.

8. At the conclusion of the combined hearing, I also made an oral decision to affirm the refusal decision and announced that I would give written reasons later.

9. My reasons for affirming the refusal decision will be given separately from these reasons, although many of the findings in this decision have application to the other one.

   Documentary aspects and the hearing

10. Shortly prior to the hearing, on 21 September 2023, the applicant filed a Written Submission prepared by his Registered Migration Agent, Mr Jaya Oli from BJ Education Network, and other supporting documents including two COE’s for a package of Hospitality courses at the TKL College consisting of a CIV in Commercial Cookery and a Diploma of Hospitality Management which the applicant is currently enrolled in (the TKL courses), together with a Statement of Attainment issued on 1 August 2023 in relation to his studies in the CIV at TKL.

11. On 22 September 2023, in response to the Hearing Invitation, the applicant appeared via video to give oral evidence and present his arguments. He was assisted by Mr Oli. The applicant gave his oral evidence in English without apparent difficulty over a period of about 2 hours, an unusually long allocation given the evidence necessarily addressed two decisions of the delegate which turned on different albeit related criteria.

12. A Nepalese interpreter had not been requested in either of the applicant’s Hearing Response forms, nor was there any need for one. I had ample opportunity to assess his linguistic abilities and was satisfied that he had a reasonably good command and understanding of spoken English.

13. In his oral submissions Mr Oli suggested, I think rather faintly, that there might have been some misunderstanding on the applicant’s part in relation to one aspect of his oral evidence concerning the deferral of his Hospitality studies in March 2019 but, given the detail which he gave me on this topic, I do not think there was. He seemed to me to have a good understanding of what a deferral of studies meant, and to my observation, he had no difficulty in recollecting what he had done at that time in that regard. None of this evidence, in my view, can fairly be attributed to any linguistic difficulty.

14. Accepting, as an admission against interest, that he took the steps he says he did in March 2019 does not of course mean that I accept the whole of his evidence on this and other topics. As will be seen, there are some implausible features of his account which are wholly unconvincing, indeed in some respects incredulous, while other aspects of his review case depend entirely on self-serving assertions which I do not consider to be credible or reliable.

15. Although Mr Oli made other oral submissions during and at the end of the hearing most of them can be found in his Written Submissions.

16. In addition, I was provided with a physical Department file which contains a copy of the decision under review, the NOICC, the applicant’s written response to it and other supporting documents among them being the COEs for the TKL courses.

17. I have also seen PRISMS and Movements Details records for the applicant. Although the content of the PRISMS record is not wholly consistent with his oral evidence nothing really turns on this because I am prepared to resolve these discrepancies in his favour by preferring his evidence where it conflicts with the record.

18. At the commencement of the hearing, with the agreement of Mr Oli, I made a direction that evidence given in each review be evidence in the other and that the written submissions made in each case be regarded as applicable to both.

    An overview of the applicant’s case

19. Put shortly, the applicant’s case in relation to the cancellation decision focuses on the circumstances in which the breach of condition 8202 occurred, on his current progress in the CIV at TKL and on his current intentions once he completes the Hospitality package at TKL.

20. The applicant claims, among other things, that his visa should not be cancelled because the non-enrolment took place in circumstances beyond his control, including but not limited to what he claims was an undiagnosed depression arising from the combined effects of the death of his grandfather and the pandemic. In addition, he says that he is now enrolled in the TKL courses, is “deeply committed” to completing them and that he should be given the opportunity of doing so before he returns to Nepal to begin his career as a chef.

21. It may be accepted that some of these claims are supported by objective features. For instance, I accept his evidence that he has been working in the Hospitality sector during his stay in Australia and that he has recently procured a genuine offer to work in a local restaurant in Nepal once he completes his studies here.

22. But the evidence regarding his real intentions cuts both ways. His conduct in connection with his Hospitality studies at the TAFE College as from the end of 2018, if not earlier, when viewed in conjunction with his decision to undertake the CIV at TKL, a course which on his own account he had almost completed by the end of 2018, without attempting to obtain any concessions from TKL for his prior learning in that course at TAFE, undermines his claim that he now intends to complete the TKL courses and return to Nepal to find work in that field.

23. Moreover, absent any credible medical evidence to support these claims, I do not accept at face value his self-serving assertions that the extensive period of non-enrolment in this case came about because he was depressed or was otherwise incapable of further engaging with his studies in the Hospitality package at the TAFE College. In circumstances where he should have completed those studies by the end of 2019, before COVID impacted Australia, I do not accept his assertions that he is now committed, deeply or otherwise, to complete these TKL courses by May 2024 and return to Nepal to work as a chef.

24. His oral evidence concerning his failure to engage in study, or productive study, at TAFE during 2019 was most unsatisfactory. Indeed, despite numerous attempts by me to encourage him to articulate why he did not study during that year, he was unable or unwilling to give any informative evidence on this topic.

25. In any event, even if I had been convinced that the applicant has finally got his studies back on track for legitimate career related reasons, I would not be prepared to attach other than moderate weight to this factor in the overall circumstances of this case. Certainly, it could not, in my view, attract preponderant weight in these circumstances.

    The evidence before the delegate, the process which led to the cancellation and a summary of his findings on the issue of whether the visa should be cancelled.  

26. The Department initially contacted the applicant by an email sent on 22 April 2022 asking him to provide up-dated contact details because it had an important notice to send to him regarding his visa. The applicant responded to this request on 27 April 2022 by providing those details.

27. The Department’s file confirms that the NOICC was served under cover of an email sent to him at 12.07 pm (AEST) on 3 May 2022 and that, on 9 May 2022, he requested an extension of time within which to gather his documents and respond. By a further email sent on 10 May 2022 the delegate acceded to this request and gave him an additional 5 days within which to respond.

28. The COEs for the CIV and Diploma at TKL each bear an issue date and time confirming they were created on 3 May 2022 at 4.51 pm and 4.55 pm respectively, in other words within a few hours after the applicant had received the NOICC.

29. The NOICC recites what the PRISMS record indicated namely that the applicant had not been enrolled in a registered course of study since 25 September 2019 when his enrolment in a Bachelor of Business at the TAFE College had been cancelled for non-commencement of studies.

30. In his response dated 17 May 2022 the applicant did not dispute that his visa was subject to condition 8202 and that he had not complied with that condition. His case was that this breach was not intentional and came about because of circumstances beyond his control, more particularly the death of his grandfather in September 2019, the fact his parents contracted COVID in Nepal on two occasions during 2020, and the more general disruptive effects of the pandemic on his ability to focus on his studies and communicate with the TAFE College.

31. In support of these assertions, he attached to his response a Death Certificate and Hospital reports relating to the admission of his parents for treatment for COVID.

32. He stated that he was pursuing his studies in “the course” until September 2019 which, in context, can only be a reference to his studies in the Hospitality package at TAFE. He goes on to say that he was currently enrolled in the cookery course (in context a reference to the CIV) and attaches the COEs for the TKL courses. He asserts that he had learnt from his “mistake” and that he now wanted to complete his studies (at TKL) before returning to Nepal.

33. After finding that the applicant did not currently meet the requirements of condition 8202(2)(a), and had not done so since 25 September 2019, the delegate went on to find in Part C of his decision that the ground for cancellation existed. He interpreted the applicant’s response, correctly in my view, as going only to the issue of whether his visa should be cancelled.

34. In relation to that issue the delegate considered, as he was required to do, the applicant’s response, the information held by the Department, the applicable statutory provisions, and the guidelines in the Procedural Instruction for General Cancellation Powers, including those in relation to s 116 of the Act.

35. Under the heading “Purpose of the visa holder’s travel to and stay in Australia” the delegate correctly noted that the applicant had obtained the COEs for the TKL courses after he was contacted by the Department and that his enrolments in these courses appeared to be a strategic step to enhance his prospects of avoiding cancellation rather than a genuine step to re-engage with productive study in this field for legitimate career related reasons.

36. As the delegate observed, the period of non-enrolment in this case was extensive spanning some 2 years and 7 months, that is from September 2019 to May 2022, and that it could not be said in these circumstances that the applicant’s stay here was in line with the purpose for which his student visa had been granted.

37. As to the circumstances in which the ground for cancellation arose, while the delegate accepted that the applicant would have been deeply affected by the loss of his grandfather, and that he would have been worried at the thought of losing his parents during the pandemic, if these things had impacted on him in such a way as to prevent him from engaging in productive study he could and should have contacted his provider to defer his studies and/or the Department to investigate other visa options. It was, the delegate said, his responsibility to be aware of the visa conditions and what he should do to remain compliant with them.

38. Just pausing here, these concerns have heightened application in this case given that the applicant gave oral evidence on the review, and PRISMS confirms, that he deferred his studies in the Hospitality package at the TAFE College in March 2019, some 6 months before his grandfather passed away. If the applicant was unable to engage productively with his study in these courses as from in or about September 2019, a proposition which on the evidence led I do not accept, he must have at least understood that he could have sought from TAFE a further deferral of his studies at that time. That he did not do so undermines the proposition that his non-enrolment came about because of circumstances beyond his control.

39. In any event, as the delegate rightly observed, even if the onset of COVID affected the applicant’s ability to communicate with the TAFE College as from March 2020, he could not accept that this adequately explained the failure to be enrolled in a registered course of study until early May 2022 given that TAFE, and most other providers here, had moved to online learning well before then. In fact, as the delegate pointed out, the educational restrictions which COVID created in Australia had largely been removed as from in or about October 2021.

40. All or most of those matters were regarded by the delegate to attract significant adverse weight.

41. After addressing the other matters referred to the decision and giving to them what the delegate considered to be appropriate weight, he concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.  

    Evidence and other findings

42. As noted earlier, whilst I am prepared to accept parts of the applicant’s oral evidence and documentary case regarding the historical details relating to his studies in Australia since he arrived here in July 2015, now more than 8 years ago, I do not accept his uncorroborated assertions that he was incapable of functioning effectively, or engaging with his studies, as from in or about September 2019.

43. There is no suggestion in his case, let alone any evidence, to the effect that he sought any medical treatment for what he now says was a depressive disorder or psychological condition acquired from the combined effects of the loss of his grandfather and the flow-on effects of the pandemic. Clearly, the applicant is not qualified to give an opinion on these matters let alone give evidence to the effect that his condition prevented him from engaging in productive study. These are matters for expert medical evidence. I do not accept that he suffered from an undiagnosed depression or any other mental condition which impacted on his ability to engage with his study as from in or about September 2019.

44. Whilst I accept that he may have been close to his grandfather, as he gave oral evidence to the effect that his grandfather lived with his family in Nepal, I do not accept that he had any ongoing difficulty in coping with this loss to the extent that it compromised his ability to study absent medical evidence, contemporaneous or otherwise, to this effect.

45. COVID had disruptive effects on the educational system in Australia, that much is obvious, and there would have been difficulties for students in communicating with some providers at least for a short period of time after March 2020. Moreover, the fact that the applicant’s  parents contracted COVID in Nepal and were being treated in a local hospital in that country on two occasions during that year would no doubt have been worrying for him but the evidence which he has led on this issue, such as it is, falls well short of satisfying me that these things prevented him from studying productively on-line, from in or about mid-2020 to in or about October 2021, and more recently to re-engage with other more traditional forms of tuition in the period prior to May 2022.

46. In any event, it seems to me that COVID and its aftermath is something of a red herring in this case because, if the applicant had studied at TAFE during 2019, as he could and should have done, he would have completed his Hospitality studies by the end of that year, a proposition with which he agreed when it was put to him at the hearing. The reason for investigating this aspect of his case was that his own documents in the refusal case included various Interim Transcripts from TAFE, apparently issued during the period from 3 July 2018 to 3 July 2019, which contain details of his studies at that provider during 2017 and 2018 (the TAFE Transcripts).

47. The TAFE Transcripts confirm that the applicant began studies in the CIV in early 2017 and that, by the end of 2018, he had completed 41 units in that course and numerous other units in the associated Diploma and Advanced Diploma. There is, in this evidence, no record of him having undertaken any studies in any of these courses during the first half of 2019. I do not accept his evidence that he was trying to study during that year given that, according to his own evidence, he obtained a deferral of his studies in March of that year, a fact which sits comfortably with the details in the TAFE Transcripts.

48. Indeed, bearing in mind his evidence about the deferral of his studies, his other evidence that he had attempted to but could not engage productively with these vocational courses later during that year is inherently implausible. He has led no convincing evidence to this effect. He did tell me that he left his part-time work as a chef in March 2019, although he later said this was because of the temporary closure of the Hotel for renovations. Thus, according to this evidence, he was not working after March 2019 and did not find other employment in a cafe until November 2020.   

1. Among his other documents in this case is an (Interim) Statement of Attainment from TKL which relates to his studies in the CIV (the TKL Transcript). This document confirms that he completed 27 units in this course since he resumed studies in this field on or about 9 May 2022. Read in conjunction with the TAFE Transcripts it also reveals that these units, or most of them, were in fact completed by the applicant when he was enrolled in the CIV at TAFE during 2017 and 2018.

2. Recognised Prior Learning (RPL) is a well-established method by which a student can obtain from a provider a credit (or credits) for a subject (or subjects) previously undertaken by that student, either at that or some other provider, in respect of which he or she has been assessed as competent. A Transcript of Results issued by the second provider will usually record that a credit for a subject was obtained in this way to inform the reader that no formal assessment process was carried out by that provider in that subject. 

3. In this case the TAFE Transcripts record that the applicant obtained numerous credits in this way during his studies at that provider during 2017 and 2018. But, despite having done that, the applicant has not, so far as the evidence goes, sought any RPL credits in the CIV at TKL for the same subjects which he completed in the same course at TAFE. Given that the CIV at TKL is a relatively long vocational course, as was the CIV at TAFE, both of which had a duration of some 18 months, and given that we are here dealing with identical subjects in the same vocational course, this called for evidence from the applicant to explain why he has not sought RPL credits from TKL for subjects previously completed at TAFE. In this case, there is none.

4. Despite having been asked to explain this more than once, the applicant was unable or unwilling to do so in any meaningful or responsive way. He asserted that he was not aware that he could obtain credits for his studies in the CIV at TKL but, in circumstances where he had already done this in the package at TAFE, this evidence is implausible if it is not incredulous. Although he denied the proposition that he had not done so because he wanted to remain in Australia for as long as he could, I cannot accept his denial absent any other proffered and acceptable explanation.  

5. Although Mr Oli frankly conceded in his oral submissions that he could not think of a legitimate reason why the applicant had not sought RPL concessions from TKL, he did suggest that it did not matter because the applicant had a review pending before the Tribunal and he was thus entitled to remain here and study until such time as that process was finalised.

6. This submission is correct so far as it goes because his Bridging visa, granted to him when the cancellation took effect, contains no prohibition on study, a fact which the Movements Details record confirms. But the answer to his submission is that, if the applicant had sought RPL credits for the CIV from TKL in a timely manner he would almost certainly have obtained them and, in that event, would likely have completed that course and the associated Diploma at TKL, a 6-month course, long before now. Mr Oli accepted as much in his oral submissions. Given the applicant’s evidence he could hardly do anything else.

7. As the delegate pointed out, this case involves an extensive breach of a fundamental condition which attached to the applicant’s TU-500 visa. His review case, insofar as it depends on the bland assertion that he was for medical reasons unable to study as from in or about September 2019 to in or about May 2022, has very little if anything going for it.

8. I am left with the uneasy feeling that the applicant has, for reasons best known to himself, refrained from giving to me a full and frank account of the circumstances which precipitated the cancellation of his enrolments in the Hospitality package at TAFE in September 2019. His failure to maintain enrolment in any other registered course until he enrolled in the Hospitality package at TKL on 3 May 2022, something which he did not do until after he received the NOICC, has also been largely if not completely unexplained.

9. Whilst I can accept that he came out here in July 2015 on a TU-573 visa to study a package of Information Technology (IT) courses at the TAFE College and that his decision to discontinue studies in that field in late 2016, after passing only (he said) a couple of subjects in the CIV, was probably excusable, his conduct in relation to his studies in the Hospitality field as from early 2019 has been nothing short of irresponsible. This is not a case which simply involves mistakes made by an inexperienced student who had difficulty adjusting to the challenges of an international education. By the end of 2018 the applicant had been in Australia for some 3.5 years after working as a teacher in a High School in Nepal for a few years. Fast forward to May 2022, another 3.5 years later, and the applicant wanted the delegate to excuse his “mistake” because he had recently obtained enrolment in another Hospitality package and wanted to pursue his studies in that field.

10. The reality is that the applicant did not maintain enrolment in a course of study, let alone engage with his studies for most of the period since September 2019 and, to make matters worse, he sat back and did nothing to rectify the position until the NOICC was served on him.

11. COVID, of itself, is not and never has been a reason for an international student who is on a student visa which is subject to condition 8202 not to study. Adapting to on-line learning as from about mid 2020 was something which most reasonably capable students could handle. In any event, as noted earlier, on the evidence led the applicant had not been studying since March 2019, at a time when COVID did not exist.

12. In his Written Submission Mr Oli also suggests that COVID resulted in financial challenges, if not constraints, which impacted the applicant’s family in Nepal and which, if I have interpreted his submission correctly, may have had flow-on effects for the continued funding of his tuition here. The problem with this submission is that it finds no support in the evidence. His parents have not given any evidence along these lines, there is no mention of this in the applicant’s response to the NOICC, nor did he suggest in his oral evidence that they were having trouble making ends meet. In any event, if the submission goes no further than that, I do not think this is a relevant hardship in a Sec 116 case at the discretionary level.

13. As Mr Oli also rightly points out in his submissions, the applicant has completed 27 subjects in the CIV at TKL and appears to be on track to complete this course on time, in early November of this year. Whilst I accept that the applicant has been productive in the CIV at TKL he gains little, if anything, from this given his previous studies in that course at TAFE during 2017 and 2018. His academic program at TKL also includes a Diploma of Hospitality, a course which he has also studied at TAFE.

14. Moreover, given that he was also previously enrolled in an Advanced Diploma of Hospitality Management and a Bachelor of Business at TAFE, it is not beyond the realms of possibility that he will want to study either (or both) of these higher-level courses at TKL or some other provider further down the track. Mr Oli has made no unequivocal submission to the effect that the applicant intends to return to Nepal once he completes the Diploma, nor has the applicant given to me any unequivocal assurance that he will do so.

15. I do not overlook the fact that the applicant has recently procured a “Prospective Job Offer” from a restaurant in Nepal once he completes his studies here. Nor do I entirely discount the employment and other opportunities which currently exist for qualified chefs in that country. A good deal of documentary evidence has been provided by the applicant in the refusal case which relates to these matters. Although they are matters which arise more particularly for consideration in that case, given that it involves a GTE issue, they may also conceivably have some bearing on the purpose of his stay in Australia, which is (as he contends) to complete his education and return to Nepal.

16. But, looking at the balance of the objective features in this case, I remain unconvinced that this is in fact his primary motivation. He has been in Australia now for more than 8 years working in the Hospitality field for most of that time, has not completed any courses of study in that or any other field, had the opportunity of completing the Hospitality courses at TAFE in 2019, a package which included an Advanced Diploma, and returning to Nepal at that stage, but did not take advantage of it. Instead, he spends 2 years studying courses in that package during 2017 and 2018 and, having been totally unproductive from early 2019 to May 2022, and not enrolled for most of that period, enrols at the heel of the hunt in another almost identical package at TKL within hours of receiving the NOICC and embarks on lengthy studies in the CIV which he could have avoided by means of RPL. None of this leads me to think, let alone find, that he is now a genuine student who intends to return to Nepal on completion of the Diploma.

17. Insofar as the question of hardship goes, I do not think that any significant weight can be attributed to the fact that the applicant has already made considerable progress in the CIV in circumstances where he elected to engage in these costly, time-consuming, and unnecessary studies. I cannot see in the evidence any other hardship, financial or emotional, which can fairly be said to arise. There have been wasted resources, that much is clear, but the applicant has been the author of his own harm. If his parents have been funding him, and I have no evidence which throws any light on this, they will be out of pocket and presumably otherwise disappointed at the outcome, but again this is something for which the applicant must bear responsibility. I cannot in these circumstances give this matter other than minimal weight in his favour.

18. Insofar as the other relevant factors are concerned, including the legal consequences of a decision to cancel, these have been dealt with adequately by the delegate in his decision and I broadly agree with his findings on them and the weight, if any, which he attributed to them. Certainly, there is nothing in the evidence led on the review to warrant me taking a different approach to any of these other factors.

    Conclusion and summary

19. Having considered the whole of the circumstances, including those in which this extensive breach of condition 8202 occurred and, having given due weight to them and to the other relevant matters, I have concluded that the reasons for cancelling the applicant’s Student TU-500 visa far outweigh those which point in the other direction.

    DECISION

20. The Tribunal thus affirms the decision under review.

    Michael Bradford
    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.