Kuah (Migration)

[2023] AATA 1213

Kuah (Migration) [2023] AATA 1213 (2 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wai Yan Kuah

REPRESENTATIVE:  Mr Grant Huang (MARN: 0955280)

CASE NUMBER:  2208167

HOME AFFAIRS REFERENCE(S):          BCC2021/942097

MEMBER:Christine Kannis

DATE:2 May 2023

PLACE OF DECISION:  Perth

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

Statement made on 02 May 2023 at 7:58am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a full-time registered course – gap in studies – COVID19 pandemic college closure – payment of tuition fees – multiple course cancellations – financial hardship – decision under review affirmed       

LEGISLATION

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

CASES

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 June 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (the Act).

2. 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams video on 18 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with condition 8202?

8. On 3 August 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

9. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full-time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

10. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

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

12. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

13. The information from PRISMS shows that the applicant was not enrolled in a registered course from 31 March 2021 to 4 February 2022.

14. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 31 March 2021 to 4 February 2022  and the Tribunal finds that she breached condition8202(2)(a) of her visa.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

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

17. On 5 April 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 31 March 2021 to 4 February 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa.

    Response to NOICC

18. On 9 April 2022, the applicant responded to the NOICC and provided the following information:

    ·During the pandemic year of 2021 she did not receive any online course for her Business Study 3.

    ·She thought her college was having a semester break to plan during the uncertain times caused by the pandemic.

    ·She did not hear anything from the school for a period of time regarding when classes will recommence after the long suspension.

    ·She tried  to contact the school but despite several contacts by phone and messages she didn’t receive a response from the school.

    ·After not receiving any response from the school, she decided to visit the school however due to the lockdowns her travel was not deemed essential and for the times that she was able to travel to the school it was closed.

    ·She had no information from her school or agent and so she decided to give the school a little more time until the next semester.

    ·She was able to contact the school the following semester but was told by the head of the school that they had no information they can disclose to her and they cannot disclose when classes will recommence and enrolment.  When she requested clarification she was advised that she would need to make an appointment to visit the school due to a COVID-19 procedure and the only appointment they could make for her was in a few months.

    ·Her last contact attempt to the school was in December 2021 and she was informed that her name was no longer in their records but they could not provide the reason for this.

    ·She decided to move to a new school, Queens College, to complete her studies.

    ·She didn’t know what to do and she relied on the people she knows to provide information and updates to her.

    ·She is the only family member sent overseas for education and to have her visa cancelled and not continue her studies will be a shame to her family.

    Evidence provided prior to the hearing

19. Prior to the hearing the applicant provided the following documents:

    ·CoE for ILETS Foundation course created on 24 June 2019

    ·CoE for General English course created on 24 June 2019

    ·CoE for Certificate III in Business course created on 24 June 2019

    ·CoE for Certificate IV in Business course created on 24 June 2019

    ·Flinders International College certificate dated 1 August 2020 indicating that the applicant completed the ILETS Foundation course between 13 April 2020 and 5 July 2020.

    ·Screenshots of applicant’s Outlook Inbox emails between 15 February 2021 and  6 May 2021, described as evidence to prove that  I have not received the first warning email  with note stating: Search“ [email protected] from DELETED ITEMS. Its didn’t come out any email was told by admin of college which is the FIRST WARNING from college.

    ·CoE for Certificate III in Business course created on 4 February 2022

    ·CoE for Certificate III in Business course created on 9 May 2022

    ·Queen’s College certificate dated 21 August 2022 for Certificate III in Business

    ·Documents described as evidence of payment of fees in 2019, 2020 and 2022

20. Prior to the hearing the applicant provided a written submission which included the following relevant evidence:

    ·Her student visa was granted in August 2019. She completed the ILETS and General English courses and was admitted into CIII and CIV in Business at Joan Lawman College (JLC).  

    ·When she started attending classes at JLC in 2020, Melbourne's pandemic measures were very strict. The school informed her that she could only attend online classes and would regularly send links to access the course materials. She attended online classes until around March 2021, after which she did not receive any links from the school. She tried to contact the school repeatedly to find out what had happened as some of her friends told her that some private schools had closed due to the pandemic. However, she was unable to reach the school by phone.   

    ·Since she came to study in Australia, her agent required her to pay her tuition fees to them and they would pay the school on her behalf. So, she also contacted her agent to find out what had happened. Previously, her agent would remind her to pay her tuition fees via WeChat or SMS, but they had not contacted her since March 2021, and she has not received any response to the contact she sent them.  

    ·After a period of time, she had not received any updates from the school regarding recommencement of classes. She tried to contact the person in charge of the school. She queried the plans for dealing with current students and when she could  resume her course. All her queries had gone down into the drain and despite several contacts through phone and messages, not a single response received.

    ·After receiving no response from the school, her plan was to go to the school personally and seek an answer. However, with several lockdowns her travel was not deemed as essential most of the time and at times that she was able to travel to the school to seek clarification, the school was closed.

    • She had no information from the school or the agent, so she decided to give the school a little more time until when the next semester and then decide what to do.
    • After several tries, around the commencement date of next semester, she got through to the school by phone however the person could not check her status because that was beyond their level and she was advised that her query would be escalated it to the head of the school. In that phone conversation she was told that they have no information that they can disclose about the recommencement of class and enrolment dates. She enquired whether she could meet them in person to seek clarification and understand her status rather than wait endlessly on the phone for clarification. She was advised that she needed to make an appointment to visit the school as this is a COVID procedure and the next available appointment was in few months’ time.
    • With no option, other than continue to make phone calls until her appointment date, all phone calls didn’t come to any positive outcome, despite the clarification on her status that this should be treated as an urgent case and she did not want to waste any more time, “every attempt is being left with endless call on hold, plead for patience and call back and information”.
    • In December 2021, she was informed by the school that her name was no longer in the school curriculum, despite requesting a clarification on what had led to this, the school replied that they were not clear about that and she should go to the person in charge to deal with the problem and “she can’t give me any help and more answers”.
    • Her agent asked her to go to JLC and request reasons for the cancellation of her CoE as well as all warning records. She was informed by the school they sent her a first warning letter on 25 January 2021, notifying her to pay her tuition and informed her agent. They cancelled her CoE on 31 March 2021. She confirmed her email address with the school which was correct. She did not receive any warning records. The normal procedure is to have three warnings, but she did not receive even one.
    • She thought the school's financial situation was the reason for signs of its closure, which is why they had avoided helping her to solve the problem or telling her what had happened. In May 2021, she tried to seek help from her agent, and their response was to ask whether she needed to transfer to another school. However, she did not want to transfer and wanted to complete her course smoothly. After it was confirmed in December 2021 that JLC could not find her academic records, she asked the agent to help her leave this poorly managed school and register at Queens College.
    • She has successfully completed her CIII in Queens College. She wished to continue the CIV in business, however, her student visa was cancelled in June 2022.
    • She has always been a genuine international student and wanted to complete an Australian diploma so she could have qualifications to find a good job in her home country. However, the pandemic and many uncertainties made it difficult for her to cope. The school cancelled her CoE because that she did not pay the tuition fees. However, the payment list provided shows she has always paid her tuition fees punctually to the study abroad agency's account, and before and during the early stages of the pandemic, the agency regularly sent payment invoices. She has never been in arrears. However, the pandemic disrupted the work rhythm of the agency and the school, but she is the one who has to bear all the consequences.   

    Evidence at hearing

21. 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 General English ( Pre-Intermediate, Intermediate and Upper Intermediate) course which was cancelled on 31 January 2020  for Disciplinary reasons.  

    b.She was enrolled in an ILETS Foundation course which she finished  on 5 July 2020.

    c.She was enrolled in a Certificate III in Business, but this enrolment was cancelled on 31 March 2021 due to non-payment of fees.

    d.She was enrolled in a Certificate IV in Business, but this enrolment was cancelled on 31 March 2021 dues to non-commencement of studies.

    e.She was enrolled in a Certificate III in Business, the CoE having been created on 4 February 2022, and which she finished on 21 August 2022.

    f.She was enrolled in a Certificate III in Business, the CoE having been created on 9 May 2022, and which was cancelled.

22. The Tribunal explained to the applicant that this information was relevant because it indicates that from 31 March 2021 until 4 February 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 also 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.

23. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to her PRISMS enrolment records. The applicant told the Tribunal that she did complete the General English course and the reference to Disciplinary reasons in PRISMS was because her attendance was “not 100%”. She said the school told her that her attendance did not matter . The applicant made no other comment on her PRISMS record.

24. The applicant’s oral evidence to the Tribunal at the hearing was not materially different from the information she provided in her response to the NOICC and her written submission. She told the Tribunal that in 2021 she was studying at Joan Lawman College (the College). She said the College sent her online links every Tuesday in relation to her classes. She said in mid-March 2021, the College stopped sending these links. The applicant said she tried to contact the College by phone during that week and every Tuesday thereafter in March 2021. She said her phone calls were not answered.

25. The applicant told the Tribunal that in April 2021 she attended the College on a Tuesday and attempted, from the ground floor, to call their office on the first floor however her call was not answered. She said she continued to call the College every Tuesday in April 2021 however her phone calls were not answered. She said she thought she would then wait until the next semester to contact the College.

26. The applicant told the Tribunal that in mid-May 2021 she successfully contacted the College reception by phone (although in her written submission she said this occurred around the commencement date of next semester). She said she provided her name and student number and asked why she had stopped receiving the online class links. She said reception were unable to view her profile and advised that her query would be escalated to a manager who would contact her. The applicant told the Tribunal that she asked if she could personally attend the school however she was advised that she would have to wait for COVID-19 lockdowns to end. She did not receive any response from the manager. She did not say an appointment had been made for a few months’ time.

27. The applicant told the Tribunal that in May 2021 she contacted the school’s agent. The Tribunal attempted to clarify with her whether this was a migration agent representing her however she said it was the ‘school’s agent’. She said she asked the agent the reason she had not received any class links from the College since mid-March 2021. The applicant told the Tribunal that in response the agent asked her if she needed to change education providers to which she replied that she did not. Given the College’s failure to respond to her calls and queries in the previous 2 months, the Tribunal asked the applicant the reason she did not change education providers. In response she said she was used to the teachers and the classes at the College.

28. The Tribunal noted that the applicant was not enrolled in any course during the semester 2 2021 and asked her what attempts, if any, she made to enrol in study. She said when the College stopped sending her class links from mid-March 2021, she thought they were having a break for a few week because of COVID-19.

1. The Tribunal asked the applicant whether she was able to provide any proof of her attempted contacts or contacts, including emails to or from the College or the agent in 2021. She said she had no emails and said she called by phone because it is faster than email.

2. The Tribunal asked the applicant about the cancellation of her enrolment in the Certificate III in Business on 31 March 2021 due to non-payment of fees. She said previously she was prompted by a message from an agent to pay her fees. She said this happened every 3 months however she did not receive a prompt to pay her fees on this occasion and therefore they were not paid. She said she attempted to call the agent on their mobile phone however her call was not answered.

3. The applicant told the Tribunal that during the 10 months from cancellation of her enrolment on 31 March 2021 until 4 February 2022, she worked 20 hours per week in compliance with her visa condition. She said she worked in an administration job found or her by her boyfriend. In response to the Tribunal asking how she financially supported herself during the  10 months, the applicant said her parents had given her some money when she came to Australia and her boyfriend also provided financial support.

4. The Tribunal put to the applicant that she would have known from March 2021, and in particular in semester 2 2021, that she was no longer enrolled in a course and was not abiding by the conditions of her visa. In response she repeated that her attempts to contact the College and the agent were unsuccessful because the calls were either not answered or information was not provided. The Tribunal asked the applicant whether she contacted the Department when her enrolment circumstances changed. She said she did not contact the Department because she didn’t know she could do that.

5. The applicant told the Tribunal that she came to Australia to improve her English which would enable her to get a better job in her home country. She said her qualification of a Diploma of Business Studies from Malaysia enabled her to work as an assistant accountant in Singapore. She said her employer told her she could not be promoted unless she received a higher qualification from overseas. The applicant said she needs to obtain a diploma or degree from Australia so that she can earn a higher salary in her home country and financially support her family. She said her salary as an assistant accountant would not be sufficient due to increased living costs. She said her younger brother does not earn enough to support the family. The applicant told the Tribunal that her father is working however it is a Chinese custom that adult children financially support their parents regardless of whether or not the parents are working. She said if her visa is cancelled and she is not able to obtain an Australian education qualification, her family will suffer hardship because she will not be able to earn a higher salary and support them.

6. In her written submission the applicant said that in May 2021 she was told by the College that she would need to make an appointment to visit the school and the next available appointment was in few months’ time. She said she continued to make phone calls until her appointment date. The written submission did not refer to the appointment date and at the hearing the applicant did not refer to having made an appointment with the College at a later date. As noted, the applicant told the Tribunal that she did not send or receive emails from the College and therefore there was no evidence before the Tribunal that a future appointment had been scheduled.

7. The applicant told the Tribunal that after mid-March 2021 she was not able to obtain any information from the College or the agent, She said if she had known what the problem was she would have resolved it and it is not fair that her visa has been cancelled.

8. In relation to the applicant’s written submission stating that she did not receive a warning letter from the College prior to cancellation of her enrolment in March 2021, she did not enrol in a course in semester 2 2021 and therefore she would have been aware that she was not enrolled in semester 2 2021.

9. 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

10. The applicant told the Tribunal that she came to Australia to improve her English and obtain an Australian education qualification which would enable her to earn a higher salary in her home country.

11. 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 10 months.

12. 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.

13. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response she said has not achieved the education level she wanted to achieve.  The Tribunal does not consider this constitutes a compelling need.

14. The applicant’s non-engagement in the study for which her visa was granted, 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

15. 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 31 March 2021 to 4 February 2022 . There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

16. The applicant’s non-compliance for an extended period of 10 months weighs in favour of visa cancellation.

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

17. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to her in that she will not be able to undertake study to obtain an Australian education qualification which would enable her to earn a higher salary in her home country. She said her family expect her to provide financial support and she will not be able to provide the higher level of financial support if she cannot obtain a diploma or degree qualification in Australia. The Tribunal gives this some weight against cancellation.

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

18. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant said she was unable to maintain enrolment because her calls to the College and to the agent were either not answered or did not provide the information she requested. No proof of the claimed repeated contacts from mid-March 2021 was provided however the Tribunal accepts that the applicant made attempts to contact the College by phone and in person after she stopped receiving class links from the College. The Tribunal accepts that the COVID-19 pandemic and lockdowns may have caused communication disruptions. However, after unsuccessfully attempting to ascertain the reason she had stopped receiving the links from the College after mid-March 2021 during the remainder of semester 1 2021, she was aware that she was not enrolled in any study during semester 2 2021. In addition, she had not paid her fees for semester 1 2021 which she said she was asked to do every 3 months. The non-payment of fees together with the cessation of class links from the College should have alerted her to a problem with her enrolment in semester 1 2021. She was not enrolled in any course in semester 2 2021 and when asked about this at the hearing she said she thought the College was taking a few weeks break because of the COVID-19 pandemic. The Tribunal notes that the applicant was not enrolled in a course for 10 months which included the whole of the semester 2 2021. The applicant told the Tribunal she continued to work during the 10 month period. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder.

19. The Tribunal asked the applicant whether she contacted the Department during the 10 months she remained in Australia as the holder of a student visa during which time she wasn’t studying. She said she did not know she could contact the Department. It is the responsibility of all visa holders to be aware of the conditions and what they must do to remain compliant with them. At the hearing the applicant gave clear evidence of her knowledge of the condition relating to the work rights attached to her student visa.

20. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she did not pay her fees. She said she tried to contact the agent about this but her call was not answered. She said her calls and visits to the College were also unsuccessful in clarifying her status. Even if the  circumstances in semester 1 2021 were beyond her control (which the Tribunal does not accept), there is no basis for such a finding in semester 2 2021. The applicant did not attempt to enrol in a course until the following year. 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

21. 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

22. 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

23. 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

24. 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

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

    Conclusion

26. 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.

27. 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

28. 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.