Huma (Migration)

[2024] AATA 3085

Huma (Migration) [2024] AATA 3085 (14 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Zill E Huma

REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)

CASE NUMBER:  2307094

HOME AFFAIRS REFERENCE:               BCC2022/4044505

MEMBER:David McCulloch

DATE:14 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 August 2024 at 8:23am

CATCHWORDS 
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not comply with condition 8202 – was not enrolled in a registered course – was misadvised by an agent in relation to courses enrolled in and visa requirements –  there are extenuating circumstances beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958, s 116

Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 May 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).

2. The applicant is a citizen of Pakistan born on 2 November 1993. The visa was granted on 5 February 2021 for a stay period until 15 August 2023.

3. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) on 19 January 2023. The applicant responded to the NOICC.

4. The delegate cancelled the visa on the basis that the applicant failed to be enrolled in a registered course in breach of condition 8202(2)(a) of the 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.

5. The applicant appeared before the Tribunal on 2 August 2024 at 9.30 am to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mohammad Ansar. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages, but the applicant and witness elected to communicate in English, only using the interpreter if they required it, which they did not.

6. The applicant was represented in relation to the review. The representative attended the hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

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

11. The delegate’s decision indicates that government records indicate that the applicant has not been enrolled in a registered course from 13 December 2021 until 5 January 2023 and therefore the applicant has not complied with condition 8202(2)(a).

12. The written response to the NOICC accepts that there was this period of nonenrolment and provides explanations for this.

13. The applicant agreed at the hearing that there was this period of non-enrolment in a registered course.

14. On the evidence before the Tribunal, the applicant was not enrolled in a full‑time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa.

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 Procedural Instruction: General visa cancellation powers as well as government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose; whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

16. The following documents were provided in response to the NOICC as listed by the delegate:

    ·Pearson Test of English (PTE) Score Report for Zill E Huma, from Pearson, dated 13 July 2022.

    ·PTE Score Report for Zill E Huma, from Pearson, dated 15 February 2022.

    ·PTE Score Report for Zill E Huma, from Pearson, dated 09 August 2022.

    ·PTE Score Report for Zill E Huma, from Pearson, dated 13 July 2022.

    ·PTE Score Report for Zill E Huma, from Pearson, dated 02 September 2022.

    ·PTE Score Report for Zill E Huma, from Pearson, dated 10 September 2022.

    ·PTE Score Report for Zill E Huma, from Pearson, dated 01 August 2022.

    ·PTE Score Report for Zill E Huma, from Pearson, dated 01 March 2022.

    ·Master of Nursing course admission unsuccessful email, from Queensland University of Technology (QUT), dated 13 December 2022.

    ·Master of Nursing course admission update email, from Edith Cowan University (ECU), dated 25 November 2022.

    ·Master of Nursing course admission unsuccessful email, from Monash University, dated 15 November 2022.

    ·Certificate III in Health Service Assistance completion certificate for Zill E Huma, from National Career Institute, dated 09 March 2021.

    ·Response to NOICC.

17. The written response to the NOICC provides the following explanations for the applicant’s lack of enrolment. The applicant indicates that on arrival in Australia, due to depression caused by COVID-19 and homesickness, she could not start her studies. The applicant was supposed to study an English Language Intensive Course for Overseas Students (ELICOS) in Perth, WA, but when she arrived the border was closed, and WA only opened its borders in February 2022. The applicant arrived in Melbourne in December 2021 and after a couple of months felt better and undertook PTE exams to enable entry into a master’s program. The applicant became eligible for direct admission into a master’s program, but as the WA border was closed the applicant was unable to travel to Perth to start her studies. The applicant was used to living in Melbourne.

18. The applicant indicated that she made the decision that a nursing career would be better for her so she applied for a Master of Nursing. The Tribunal notes that the applicant’s government enrolment records indicate prior enrolment in a Master of Education. The applicant made attempts to gain entry into a Master of Nursing. The applicant tried a number of institutions but could not get admission. In the meantime, the applicant was starting an online Certificate III in Health Services Management so she could get some basic knowledge of the industry.

19. The applicant eventually got the required PTE score, which she obtained after trying eight times. The applicant however could not get admission to the Master of Nursing.

20. The applicant, in addition to documents and a Statutory Declaration, provided the following submission to the Tribunal, dated 18 July 2024, which expands on reasons for nonenrolment and further information in relation to the applicant and her situation (unedited):

    BACKGROUND OF THE REVIEW APPLICANT: 

    1.I arrived in Australia on 17 Dec 2021 after covid restriction were lifted. 

    2.I was married to Ali Shan however recently our relationship has been ceased.

    3.I held student visa granted on 05 Feb 2021 till 15 August 2023, however cancelled on 15 May 2023.

    4.I arrived in Australia as an international student and was assisted by an education agent from Pakistan who done my enrolment from offshore and then the student visa application. Upon arrival in Australia, he was the only point of contact for me in regard to any immigration and education matters.

    5.I approached him in order to change my course and education provider and I was promised to do my job on time and ensure the student visa compliance. I have attached the screenshots of communication between myself and the agent attempting to switch the course and the education provider.

    6.I was dealt with delay and excuses and was give fake hopes that my admission into the desired course will be done within the required time frame. Further, even when my original student visa application was done from Pakistan, I was assured that any assistance required in Australia will be provided as the cost was paid to the agent in the first place.

    7.The agent was getting commission from the education provider and obtained multiple offer letters into the courses that I did not ask for.

    8.I became victim of the migration fraud where the agent delayed my application process, and I was not sure who to ask for help until it was too late. My unawareness of the immigration’s complex policies and procedures, I could not get my head around and the intention to cancel the visa and left me with high stress and anxiety.

    9.I have attached the statutory declaration for your reference. I have tried everything in my control to remain compliant and I have provided evidence showing that I was offered an appropriate course, signed the offer letter, and paid the school fees as well to obtain the Coe however, the ECU refused to give me the Coe even though I was given the offer, and I met all the conditions on the offer. 

    EDUCATION:

    8.I have completed Bachelor of Science in 2016 at University of the Punjab, Pakistan. 

    9.I have completed Master of Science Biotechnology in 2018 at Government college university, Faisalabad, Pakistan. 

    10.I have completed online Cert III in health Service Assistant Online in March 2021 by attending online classes.   

    AUSTRALIAN STUDY/ INTENTION TO STUDY    

    11.I held CoE of Certificate III in Health Service Assistant in March 2021.- completed the course

    12.I held CoE of Academic English program from 31/05/2021 to 02/07/2021 - Not studied due to border closure.

    13.I held Coe of Master of Education from 21/02/2022 to 31/12/2023 at Edith Cowan University, WA - Not studied due to border closure.

    14.I held Coe for Master of Business Administration from 16/01/2023 to 06/12/2023, however not studied as started studying in following course.

    15.I hold CoE of Diploma of Nursing from 14/02/2023 to 01/10/2024 at Southern Cross Education Institute – completed first semester and currently do not have study right and would like to complete by 2025.

    16.I may be able to obtain a Certificate of Enrolment or offer letter, from the education provider once I have permission to study in Australia.

    17.After the visa was cancelled and AAT application was lodged, I applied to the DoHA to seek rights to study so I could resume my studies, finish them and return home. However, my request to study was also refused by the DoHA and this leaves me in a situation, where I am waiting for the AAT to decide on this matter.

    The extent of Zille’s compliance with any conditions subject to which ZILLE’s visa was granted.  And - the circumstances in which the ground for cancellation arose.

    18.I am aware that I have not been enrolled for in registered course for some time however I have attempted to comply with the visa conditions by all means and even obtained a sufficient English score to be enrolled into the desired course (relevant documents provided for reference).   I have given PTE test 8 times on following dates.

PTE test taken Date	Scored
15 Feb. 2022	55
1 Mar 2022	62
13 July 2022	66
1 Aug 2022	62
9 Aug 2022	61
2 Sept 2022	63
10 Sept 2022	66

19.Despite my best efforts, I was unable to take admission in Master of Nursing and finally decided to study Diploma of nursing.

20.I tried in many universities such as ECU, Monash University, QUT, University of New England etcetera at the Higher education, however unable to get admission due to low English score.

21.Once, I was accepted by the ECU and paid the school fees as well to obtain the Coe, keeping myself into the same level (higher education), the ECU last minute refused to generate the Coe (even though I met all the conditions on the offer letter and paid $20K).

22.As I wanted to study Nursing to become a nurse and I failed then I lower my expectation, and I applied for Diploma of Nursing as well. This was with the intention that I do not have to waste my time in Australia and complete my studies and return home.

23.Finally, I got accepted in admission in Diploma of Nursing as my plan was to enter the health care sector and I was not aware that lowering my studies level will cause me non-compliance with the visa (as the agent did not advise me this as I was relying on his expertises).  I even completed my first semester in the Diploma of Nursing and wish to finish my course and depart Australia to reunite with the family.

24.AAT can appreciate that someone who arrived in Australia (as their first time leaving the home country) and not being provided the right information regarding the visa compliance, the non-compliance becomes obvious. However, the NOICC was the wakeup call and I tried my best to remain I enrolled however, by this time the damage was already done and that resulted in the visa cancellation.

The degree of hardship that may be caused to Zille or Zille’s family members.

25.I received a good education back home because I enjoy learning and wanted to continue to study and have desire to study hard and shape my career. 

26.Coming from Pakistan, convincing the parents to send children to western countries for studies was not an easy decision (especially with significant cultural difference). However, I managed to come across this hurdle and came to Australia as an international student.

27.As I was committed to the further education in Australia and desired to do the health care course, I have spent great deal of time and resources to meet the English language requirement.  I have given proof of all PTE attempts for your reference. My main reason to remain in Australia is to complete my education and make my career in health sector upon my return to the home country. 

28.Living away from the loved ones for the purpose of studies was not easy. Full-time study commitment and visa matter difficulties has taken toll on myself. However, I am still committed to complete the desired course and return home with the skills and expertises that would assist me with the career path. 

29.I have also suffered back lash from the family in Pakistan due to my immigration matter however, family understand that I have done everything in my control, and they are supportive of my efforts in Australia.  I wish to complete my course in Australia and return to my husband in Pakistan and live there happily.

30.I have been suffering from severe stress and anxiety due to visa cancellation and this was all even without being responsible for this mess. I would like to request the AAT to consider my circumstances in full.

31.I have significant ties to my home countries such as my partner, parents, siblings, extended family members are all in Pakistan. I wish the AAT to consider the impact on my future and career plan should I return to home country without any education. My time, efforts, and money all will be wasted, and I may be considered as failure by the immediate family. My goal is to return home after completing my education so I can start my career and make a living rather than starting all over in Pakistan where lack of infrastructure, resources and quality of education derived me to study overseas in the first place.

My circumstances in Australia:

32.Australia offers great incentives to temporary entrants however, my only reason to stay in Australia is to have this matter dealt at the AAT.

33.I have been living on my own in Australia at a rental place and I have no intention to prolong my stay after completion of my education as I do not have any reason to do so.

34.I have been residing in a regional area in Victoria and have been diligently pursued my studies in nursing. However, the absence of study rights has put me at a considerable disadvantage as I am unable to fully participate in the academic activities and access the necessary resources. This hinders my ability to achieve the educational outcomes I have been working towards and ultimately impacts my prospects as a healthcare professional. 

35.My sole reason to remain in Australia remains unchanged and I wish to complete the desired course and return home.

36.I have been working in the aged care sector from Sept 2022 and ceased the work as lost the permission to work due to visa cancellation and applied for work and study rights and was only granted permission to work and resumed working on 12 Feb 2024.

37.I am working in aged care sector where I am providing valuable services to the elderly. My employer is experiencing a shortage of staff, and I am contributing to their organization during this critical time, especially considering the ongoing demand for healthcare workers in the aged care industry.

38.I wish to study in Australia and continue to work part time and gain valuable skills concurrently, so when I return home with the combination of studies and work experience, would benefit my local community.

The following other relevant factors were assessed.

Public interest criteria:

39.I have been working in the aged care sector from Sept 2022 and ceased work when I lost the permission to work due to visa cancellation. I applied for work and study rights and was granted permission to work and resumed working on 12 Feb 2024. During my time in aged care, I have provided valuable services to the elderly. My employer is experiencing a shortage of staff, and I am contributing to their organisation during this critical time, especially considering the ongoing demand for healthcare workers in the aged care industry.

COVID impact by working as PCA (critical sector) during the pandemic

40.In addition, I have been significantly impacted by the COVID-19 pandemic. I have been infected with COVID-19 seven times while working as a Personal Care Worker (PCW) in various aged care facilities. Despite these challenges, I continued to serve this nation with dedication, utilising my previous and current medical skills to provide the best care possible under extremely trying circumstances.

41.I have consistently demonstrated my commitment to public health and safety, which aligns with the Public Interest. My contributions during the pandemic highlight my dedication and the public interest in allowing me to continue my studies and work in Australia.

Importance of Australian education

33.Further Australia recognises the importance of education and have clause under Australian human right that everyone has a right to education. I am aware that I breached visa conditions due to circumstances beyond my control and I have attempted to gain study right so I could complete the course and go home as soon as I can.

34.I do not deny that I have contributed to the non-compliance, and I should have taken advice from a professional and contain the damage before it was too late. However, lack of resources and awareness pertaining to visa matter was the reason for my failure.

35.This chosen course will assist me to have good career in Pakistan and allow me to make my own living rather relying on the handouts from the family.

Highly qualified parents

33.Further my mother is doctor and running her own hospital and I am also holder of degree of doctor of homeopathy, and I practiced as in the occupation for couple of years in Pakistan. However, my interest lies more into nursing field.

34.I want to utilise this Diploma of Nursing studies to pursue my future career in my mother’s hospital it will be really helpful for my career in Pakistan and easy to seek employment.

42.I and my parents done the research when I choose the desired course and so that I could gain academic excellence complete my studies in Australia (as the Australian nursing studies have much higher academic level).

43.Australia counts for world-class education system and any education completed in Australia is recognized worldwide. It is one of the safest countries for international students and is a growing economy in the world. Climate conditions are favourable and similar to Pakistan unlike other western countries – UK, USA, and Canada.

Financials Required:

44.I am aware that we will bear the following cost and have sufficient savings and income to support my expenses in Australia for study purpose.

Expenses	AUD
Tuition cost per annum	$8,000
Travel	$1,000
Living cost	$29,710
Total	$38,710

Request:

45.I would like to request to the member to consider my request and revoke the visa cancellation

46.I would like to assure the member that I am genuine applicant for student visa and will complete my studies on time so I can return to the home country and live close to my family members.

47.I understand that each case is reviewed individually, and I assure you that I will comply with all necessary requirements and regulations as I have learnt from the past mistakes.

48.I am willing to provide any additional documentation or information to support my request, as deemed necessary by the AAT.

49.Should the member have contrary view, please let us know so we can provide additional documents to support our matter.

Attachments

1.Passport

2.National ID

3.All COE’s Held

4.Online aus study Certificate III in Health Services Management

5.Pakistann education

6.PTE 8 attemts evidence

7.Nursing first sem result

8.Monash Admission Application in Process Evidence

9.ECU Admission Application in Process Evidence

10.QUT Admission Application in Process Evidence

11.College Fees Payment

12.Letter_ConfirmationOfStudies_16275 ZILLE HUMA

13.StudentVocationalTranscript_16275 ZILLE HUMA

14.Employement letter

15.Uni Fees Payment confirmation Email

16.Homeopathy study

17.Stat Declration by Zill

18.Submission by ZIll

1. The Tribunal in the hearing questioned the applicant as to her explanations for nonenrolment. The applicant gave oral evidence consistent with the written explanations. The Tribunal was broadly persuaded that the applicant had used the assistance in Pakistan of an agent who did not properly advise her as to possibilities and options. The applicant in the hearing indicated that she did not have a genuine desire to study the Master of Education but had been told by her agent that on arrival, and after completing an English course, she could switch courses and be eligible to be accepted into a Master of Nursing.

2. The applicant in the hearing indicated that she was not aware that the English level she had that was sufficient for the Master of Education was not sufficient for a Master of Nursing.  The applicant has provided evidence of undertaking multiple English tests during 2022 before obtaining the requisite score needed to obtain entry into a Master of Nursing.

3. The applicant indicated that there were however other impediments to her gaining entry into this course. She then enrolled in and studied a Diploma of Nursing that commenced on 14 February 2023. The applicant indicated that she studied this course for a semester and a half before she lost her study rights when her visa was cancelled.

4. The applicant had provided to the Tribunal a Notification of Results from the education provider for the Diploma of Nursing dated 6 July 2023. The Tribunal noted to the applicant that this document indicated continuing progress in 25 courses, but without indicating units actually passed.

5. In response the applicant indicated that she did in fact pass units and would be able to provide evidence of this after the hearing. The Tribunal gave the applicant this opportunity. In response the applicant provided a letter from the education provider issued on 6 August 2024 indicating the applicant’s progress in eight units in the Diploma of Nursing. It indicates the applicant fully completing one unit and completing significant components of remaining units. The Tribunal considers this establishes reasonable progress in the applicant’s study of the Diploma of Nursing.

6. The applicant has provided evidence of obtaining a Certificate III in Health Service Assistance. The applicant indicated that she undertook this course to further her healthcare experience given the difficulties she was facing with her preferred study options meeting visa requirements.

7. The applicant in the hearing indicated that if the visa was reinstated she would wish to complete the Diploma of Nursing and thereafter potentially undertake the Master of Nursing before returning to Pakistan to pursue a career in healthcare. However, in a Statutory Declaration of the applicant provided after the hearing she indicates that she in fact intends to return to Pakistan after completion of the Diploma of Nursing to pursue her career there.

8. The Tribunal noted to the applicant that the student visa requirements for graduate and master’s courses are less onerous than for lower‑grade courses such as diplomas and that some students deliberately obtain the easier student visa for higher-level courses and then deliberately downgrade the courses when they come to Australia.

9. The applicant stridently maintained that she had no disingenuous intention and was misadvised by an unscrupulous agent in relation to courses enrolled in and visa requirements.

10. Mr Ansar in the hearing indicated that he is a friend of the applicant in Australia and has been supporting her. He is from the same area as her in Pakistan. Mr Ansar reiterated the applicant’s explanations for nonenrolment and gave evidence as to her intelligence, industry and integrity.

11. The Tribunal would need significant countervailing discretionary factors to overcome a student arriving in Australia to study a master’s course, undertaking no study at all at that level and after some time downgrading to a diploma‑level course, and of course not being enrolled in a registered course for most of their period in Australia before the visa cancellation.

12. Given all the evidence, and the applicant’s response to questioning in the hearing, the Tribunal is broadly satisfied as to the genuineness of the applicant’s explanations as to what occurred in this matter. The Tribunal is persuaded that the applicant was given advice by an unscrupulous agent.

13. It is in the applicant’s favour that she diligently undertook multiple attempts in Australia to obtain the English score necessary to pursue master’s studies in nursing. It is in the applicant’s favour that she studied the Certificate III in Health Service Assistance. It is in the applicant’s favour that she successfully completed a considerable number of components in the units of the Diploma of Nursing in 2023 before the visa was cancelled and she lost rights to study.

14. The Tribunal considers in this case that there are extenuating circumstances beyond the applicant’s control that explain and justify her nonenrolment in a registered course for a little over a year.

15. This weighs significantly against the Tribunal exercising its discretion to cancel a visa. This is reinforced by the diligence of the applicant in pursuing other studies outlined above. It is also reinforced by the clear evidence of the applicant being employed in the aged care sector and as a personal care worker, a needed vocation in Australia that is consistent with the applicant’s area of study.

16. The Tribunal is persuaded as to the genuineness of the applicant’s intention to continue with and complete the Diploma of Nursing before returning to Pakistan to pursue a healthcare career.

17. The Tribunal is persuaded as to the genuineness of the applicant’s intentions in this respect and the hardship to her if she is not able to progress with these studies in Australia as a means to provide a foundation for her career in Pakistan.

18. The Tribunal takes into account hardship if the visa remains cancelled in terms of limitations on the ability to be eligible for a significant period for many other visas in­ Australia.

19. In the context of the Tribunal being persuaded that there are extenuating circumstances beyond her control that explain the period of nonenrolment, the efforts the applicant has undertaken to pursue a vocational interest at a lower level in Australia and the hardship she will face in not being able to finish studies in nursing already commenced in Australia, the Tribunal is persuaded not to exercise its discretion to cancel the visa.

20. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    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.