Myoorakumar (Migration)

[2024] AATA 3990

Myoorakumar (Migration) [2024] AATA 3990 (26 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Athavan  Myoorakumar

REPRESENTATIVE:  Dr Anthony Robinson

CASE NUMBER:  2311731

HOME AFFAIRS REFERENCE(S):          BCC2023/2237733

MEMBER:Penelope Hunter

DATE:26 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 26 September 2024 at 3:21pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant was not enrolled in a full-time registered course – difficulty with online study – breached condition 8202 – applicant took no steps to re-enrol – mental health – the breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed     

LEGISLATION
Migration Act 1958, ss 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 2 August 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 September 2024 via telephone to give evidence and present arguments. The hearing was scheduled to take place via MS Teams video. The applicant did not join the hearing at the appointed time. The Tribunal contacted the applicant by phone, he claimed he was unable to join the hearing via the link sent by the Tribunal with the hearing invitation or the further hearing link provided on the hearing date. The applicant consented to the hearing proceeding by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented in relation to the review. The applicant’s representative and the interpreter attended the hearing via video.

4. 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

5. 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.

6. The applicant is a 23 year old male citizen of Sri Lanka. He was granted the visa on 6 November 2019 valid to 30 August 2024, in order to undertake study in Australia.

7. On 13 July 2023, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, because the Provider Registration and International Student Management System (PRISMS) records of the applicant indicated that he had not been enrolled in a registered course since 19 September 2022. The applicant was advised that this may be a breach of condition 8202(2)(a) of his visa and that it may form a ground for cancellation of his visa. The applicant was invited to provide comment within seven working days.

8. On 18 July 2023, the representative of the applicant requested a further extension of time for the applicant to respond. The applicant was granted a further extension to 27 July 2023.

9. On 28 July 2023, the delegate wrote to the representative of the applicant and advised that in accordance with relevant legislative provisions no further extension of time was permitted. The applicant was directed to provide a response as soon as possible.

10. On 2 August 2023, the delegate proceeded to a decision. The delegate was satisfied with the material before them the grounds for cancellation under s 116 of the Act were made out and in the absence of any response from the applicant found that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

11. On 9 August 2023, the Tribunal received an application for review from the applicant together with a copy of the decision record of the delegate.

12. On 18 September 2024, the Tribunal received submissions on behalf of the representative of the applicant and a report from Luke Williams of Elevate Psychology Collective dated 12 September 2024.. In their submissions the representative for the applicant set out the following information:

    i.The applicant was a relatively young man (23 years and 10 months old) and apart from a short trip to India had never been away from home for an extended period.

    ii.The applicant felt intense pressure coming to Australia to study due to him being the only son and eldest child of his family. His family would lose face if he returned to Sri Lanka without having obtained Australian qualifications.

    iii.The applicant realised that if he did not complete his studies he has no real future. He needed to complete his studies to obtain a well-paying job so that he can look after his parents in their retirement.

    iv.The applicant instructs that when he approaches the campus of his education provider, RMIT, he recounts that he becomes very anxious and nervous. Being anxious and nervous was a circumstance beyond his control. Through his sessions with the psychologist, Luke Williams, the applicant has now learned how to control symptoms that manifest and will complete his studies if given another opportunity.

    Did the applicant comply with Condition 8202?

13. 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).

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

15. The applicant confirmed at the hearing that he was aware that his visa was granted subject to conditions, including the condition that he maintain enrolment.

16. In the submissions to the Tribunal, the applicant had not disputed that he was not enrolled when issued with the Department’s NOICC.

17. At the hearing, the applicant did not dispute that he was not enrolled in a course of study when he was sent the Department’s NOICC, he further acknowledged that he was aware that his education provider had cancelled his enrolment on 19 September 2022.

18. Consequently, the Tribunal is satisfied on the evidence before it that the applicant was not enrolled in a full time registered course between the period 19 September 2022 and 1 August 2023, the day before the delegate made their decision.

19. Accordingly, Tribunal finds that the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

20. 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’.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

21. The applicant told the Tribunal that although he had paid fees he did not undertake work in his Associate Degree in Engineering. He did not attend his university or his lectures online because he claimed he had a problem with his anxiety.

22. After the COVID-19 lockdowns the applicant said that he had difficulty with re-engaging in study. A lot of the content was delivered online. He did not understand what was being taught in his course and he could not do the associated coursework. In the past he would ask someone next to him for assistance but this was not possible if he was not attending lectures in person. On the material before the Tribunal at the time the applicant enrolment was cancelled he had the option of attending lectures in person or online. The applicant was engaging in neither. The Tribunal put to the applicant that it would be unreasonable to expect that he could progress through his course if he did not undertake the work, and the applicant acknowledged that this was correct.

23. The Tribunal asked the applicant if he sought assistance with his difficulties with his course and he said that he did not because he did not understand what was going on. He told the Tribunal that it was not until he had his first meeting with the psychologist that he became aware that he may have depression. The Tribunal asked the applicant when his first meeting with the psychologist had occurred and he said that it was the week before the Tribunal hearing. He has not had any other medical treatment at any time, he has not engaged in any counselling. When asked why, the applicant told the Tribunal that he did not realise what was happening and thought that it was nothing major. He had seen the psychologist on the recommendation of his representative.

24. The Tribunal noted from the information in the delegate’s decision record that the applicant had in the past been granted approval for a deferral of his studies due to compassionate or compelling circumstances. The applicant was asked about these circumstances and he said that it was offered to students at the beginning of the pandemic by his education provider. He confirmed that he had filled out paperwork and he understood that there was a procedure to obtain this deferral. The Tribunal asked the applicant why he could not take similar action to apply for a deferral if he was anxious in 2022, and he said that he was pretty sure in the offer letter he received from his education provider that he could only take a break after a year of study. The applicant has provided no evidence to corroborate this claim.

25. The Tribunal asked the applicant what he had been doing and what steps he took once his enrolment was cancelled to address the situation. He did not appeal the decision by his education provider. The applicant told the Tribunal that he could not tell anyone that he was living with what happened. He just stayed at home to watch videos to distract himself. He said that he did not have the money to re-enrol, he was not working at the time and he did not want to ask anyone in his family for money because he would have to explain the status of his studies. He said that he did not try to enrol in an easier course or change course because he was told that his visa was only approved for his enrolment at RMIT. He has not provided evidence to support this assumption. He did not approach anyone at the time for assistance.

26. On this evidence it was not evident to the Tribunal that the circumstances which led to the cancellation of his enrolment were outside his control. He did not undertake work in his chosen course and this was conduct he as aware would have consequence. He did not take steps to contact his education provider for a deferral or assistance even though he knew that there was a process to do this. His claims that he was limited in the number of deferrals he could seek or that he could not transfer to a different course are without corroboration.

27. The Tribunal has also considered the report of Mr Williams dated 12 September 2024. Mr Williams sets out in his report that it has been prepared for the purposes of assisting the applicant with his review. He does not acknowledge the Tribunal Guideline for Purposes Giving Expert Opinion and Evidence,[1] and his report does not provide a declaration to provide impartial assistance to the Tribunal as directed in the Guideline. The report does acknowledge the Uniform Civil Rules, which are not applicable in Tribunal proceedings. Mr Williams set out in his report that he had an interview with the applicant via audio visual link on 11 September 2024, and that he has relied on this and an instructing letter of the applicant’s representative to prepare his report. The Tribunal has also not been provided with the letter of instruction. These factors all limit the reliance that the Tribunal can place on the report. It does accept that it may provide some insight as to the applicant’s current mental state, but this is approximately two years after the applicant’s enrolment was cancelled in the first instance and the Tribunal does not accept that Mr Williams is able to provide a thorough assessment of the condition of the applicant at the time of the relevant non-compliance that can be relied upon with confidence.

    [1] Guideline-Persons-Giving-Expert-and-Opinion-Evidence.pdf (aat.gov.au)

28. The Tribunal has considered the submission and the comments by Mr Williams that the pressure of the applicant’s family expectations led to his anxiety and resultant mental health condition and were circumstances outside his control that led to the cancellation of his course. While the Tribunal does not discount this as a factor, on the actual evidence of the applicant it was his inability to cope the academic rigour required of his chosen studies that instigated his avoidance behaviour.

29. The Tribunal has considered the submission of the applicant’s representative that given his upbringing in Sri Lanka, the applicant lacked the language and insight to understand mental health symptoms or access appropriate treatment. The Tribunal has weighed this assessment with the fact that the applicant had family support in Australia and was living with his uncle. The Tribunal has considered the evidence of the applicant that he did not want to discuss matters with his uncle because they would inform his parents. This is balanced by information set out in Mr Williams’ report that the applicant felt well-loved and support by his parents. He also told the Tribunal that his family made the decision to send him to Australia to study because they knew he would be supported. This decision was informed by the death by suicide of his cousin in 2017 while studying in Germany and their concern for his future well-being. The applicant also told the Tribunal that he did not wish to tell his mother about his situation because he had concerns for her mental health. It appeared to the Tribunal that the applicant had some understanding and appreciation of mental health issues due to his family circumstances. It is not accepted that the impact of mental health conditions was a concept foreign to the applicant.

30. The Tribunal gives this factor weight in favour of cancellation.

    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

31. The purpose of the applicant’s travel and stay in Australia was so that he could undertake study in an Associate Degree in Engineering Technology and then proceed to a Bachelor of Engineering degree and these studies were to conclude by August 2024. The applicant deferred his initial studies after one semester in the Associate Degree course, and did not obtain a new enrolment in the Bachelor of Engineering. Consequently, as set out in the decision record of the delegate, the enrolment in the Bachelor of Engineering was cancelled on 6 December 2021. Although the applicant returned to his course in February 2022, he conceded that he did not do coursework, and eventually stopped attending lectures in person and online. He failed the subjects he was enrolled in and ultimately his enrolment was cancelled by his education provider for unsatisfactory course progress. The applicant took no steps to re-enrol in response to the NOICC and has not provided a further enrolment to the Tribunal to confirm his intention to resume studies. It is not evident that the applicant has acted consistently with the purpose of the visa prior to cancellation.

32. The applicant would have the Tribunal accept that he had mental health issues of such an impact that the ability to study was outside his control. Mr Williams has assessed that the applicant has an Adjustment Disorder with mixed anxiety and a depressed mood. It is also reported that these symptoms have worsened since the visa cancellation. The applicant has taken no steps to address the factors which he claimed impacted on his study in the first instance. His representative has submitted that the applicant has through his session with Mr Williams learnt how to control his symptoms. The Tribunal does not accept this submission. The applicant has had one consultation with Mr Williams for the purposes of his report. He has not engaged in any active treatment. The applicant told the Tribunal that he did not realise until the week before the hearing when he consulted Mr Williams that he was having mental health problems. Mr Williams reports that the applicant should engage in treatment including cognitive behavioural therapy, behavioural therapy and pharmacological intervention to address his condition. The applicant conceded at the hearing that he did not have the resources to do this. He did however offer that if his visa was reinstated he could get a job and save up for treatment. He has not told his family of his situation or sought their assistance with his mental health. The Tribunal held considerable concerns that the applicant had the intention or capacity to undertake treatment to address any psychological barriers to study.

33. The applicant is not working, he has undertaken limited work in the past. He has been reliant on his parents for his course fees and upon both his parents and uncle for his daily living expenses. It was acknowledged to the Tribunal that he did not have the funds to obtain a further enrolment. The solution to this he offered at the hearing was that if his visa was reinstated that he could get a job and save some money to pay for a course. He would also again approach his family for money for course fees. The applicant said that he was interested in Information Technology and hoped to study something along these lines or maybe engineering again. Given his circumstances and conduct to date it was not demonstrated to the Tribunal that if the decision was overturned by the Tribunal that the applicant had the capacity to comply with the purpose of the visa.

34. As to whether he had a compelling need to remain in Australia, his conduct to date and his attempts to avoid the consequence of his actions does not indicate to the Tribunal that the applicant has compelling prospects of success in ongoing studies in Australia. It is not the case that the applicant is partway through a course and needs the visa to be reinstated to complete studies. Any course that the applicant undertakes in the future will have to be commenced from the beginning.

35. The Tribunal asked the applicant why he could not undertake relevant studies in his home country and he said that many of his contemporaries in his home country had already completed their degrees. The applicant was concerned about the loss of face if he was to return home without a degree, he was also afraid of  having to tell his family that his visa had been cancelled. The applicant told the Tribunal that he had been pretending to his family that his studies were continuing. He was also maintaining this pretence to his uncle with whom he was living, he would leave the house and pretend to go to university only to return home while his uncle was at work. While these are factors currently important to the applicant, the Tribunal is not satisfied that they are compelling in the overall assessment of the applicant’s need to remain onshore.

1. The applicant also said that his future would be ruined if he did not obtain qualifications and work experience in Australia. Firstly the purpose of the student visa is not for the applicant to obtain work experience. He held the visa for approximately three years prior to cancellation and told the Tribunal he did not do any major work in the past. The applicant said that another reasons he could not undertake relevant study in Sri Lanka was because of the cost of rent and he would not be able to afford to live. On the evidence his family live in Colombo so the Tribunal is not satisfied that this is an impediment. It is accepted that a qualification obtained domestically may have less value than an engineering qualification from Australia, but as set out above, the applicant has not demonstrated that he has the capacity to undertake studies at the degree level in engineering in Australia. The costs and expenses of any relevant study in his home country would be considerably less than that in Australia, they applicant may also have less difficulty adjusting to studies in his home country. The Tribunal is not satisfied that the applicant is without future study options. Overall, it is not satisfied that he has demonstrated a compelling need to remain.

2. It is considered that this factor weighs in favour of the cancellation of the visa.

   The extent of compliance with visa conditions

3. The duration of the applicant’s non-compliance with condition 8202(2)(a) was considerable, from 19 September 2022 to 1 August 2023 was considerable. The applicant took no steps to address this when provided with the Department’s NOICC. The applicant was acknowledged that he was aware it was a condition of his visa that he maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern as the failure to maintain enrolment and continue study goes to the core purpose of the visa.

4. Additionally, the applicant’s enrolment was cancelled in 2022 due to unsatisfactory course progress. This would appear to be a further breach of condition 8202(2)(c)(i) of his visa.

5. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of his visa.

6. The Tribunal gives this factor weight in favour of cancellation.

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

7. The applicant had not told his family that he was having difficulties with his study, that his enrolment was cancelled or that his visa was subsequently cancelled. He has been maintaining the pretence for several years that his studies are progressing as expected and that he is on track to obtain his qualification. He has been pretending to his uncle with whom he is living. The applicant’s life for the last two years, if not longer, has been a complete fabrication. It acknowledged that the weight of these falsehood could have contributed to mental health problems for the applicant and the applicant may consequently exhibit symptoms consistent with an Adjustment Disorder as assessed by Mr Williams. It is accepted if the applicant is required to tell his family the truth it will have psychological and emotional consequences for him. However, the severity of those consequences is considered to be a product of the applicant’s two year pattern of avoidance which according to Mr Williams have worsened his psychological symptoms. They are in part a consequences of his choices and his duplicity. If the applicant is able to avoid having to disclose the truth of his circumstance by having his visa reinstated it is not demonstrated that his avoidance behaviour will be addressed or that the applicant will be motivated to remedy his psychological condition. At some point the applicant may need disclose to his family what has transpired and this in any event will cause emotional and/or psychological hardship for the applicant.

8. The Tribunal has considered the claims of the applicant that he would not have a future in his home country because he could not get a job without qualifications or experience. It acknowledges claims that his life will be over, and Mr Williams’ concern about the applicant’s actions towards self-harm. Although he may not see it, and it is not the future that he anticipated, as set out above the Tribunal is not satisfied that the applicant is without future study options. It accepts that his prospects will be less advantageous than they otherwise would have been if the applicant completed his study. The Tribunal will weigh this with the concern that the applicant had the capacity to achieve the desired qualification.

9. The Tribunal acknowledges that the applicant feels the weight of his family expectation. If his visa remains cancelled he will in all likelihood have to face some consequence as a result of having misled them for so long and accepted their financial support while withholding from them the true status of his studies. While the applicant is young, he is not a child, the history recounted by Mr Williams is that he has had a childhood without trauma, a close and loving relationship with his family and that he has in the past always felt loved and supported.

10. The Tribunal accepts that if the visa remains cancelled it will have an emotional and psychological impact for his parents. The severity of this impact again is the consequence of the applicant’s duplicity. The Tribunal notes the applicant’s concern for his mother’s wellbeing, and that there will be some shame for the family if the applicant’s lies are revealed in the community. It is also accepted that the applicant’s family have expended funds financially that they might not otherwise have in the belief that the applicant was pursuing studies. On the evidence the applicant has not acted responsibly to mitigate this loss.    

11. Overall, however, the Tribunal gives this factor some weight against the cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

12. Although he sought additional time, the applicant did not respond to the Department’s NOICC. When asked about his cooperation with the Department the applicant said that to be honest he did not really want to think about his situation. He said that he barely checks his emails.

13. While he may have been avoidant there is no evidence that the applicant has been deliberately uncooperative in his dealings with the Department.

14. The Tribunal gives this factor neutral weight.

    Whether there would be consequential cancellations under s 140

15. The applicant is single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa remained cancelled.

16. There is no weight attributed to this factor.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

17. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

18. The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

19. It is accepted that the applicant wishes to remain in Australia, obtain some work experience and perhaps pursue further study. It is also accepted that cancellation would have further consequences and these would limit his options to immediately return to Australia or applying for a different kind of visa. These are the intended and legitimate consequences of cancellation.

20. The Tribunal gives this consideration neutral weight.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

21. The applicant is a citizen of Sri Lanka. There is no information that indicates that the visa cancellation would impact on Australia’s international obligations or that it would be in breach of Australia’s non-refoulement obligations. The only fears that the applicant relayed about returning to Sri Lanka was that he would have to tell his family the truth and that he viewed his future was over.

22. The applicant is does not have any children whose interests would be affected by the cancellation of the visa.

23. The Tribunal gives this factor no weight.

    Other relevant matters

    The Tribunal has also considered relevant authorities referred to in the submissions of the applicant’s representative. The Tribunal is not bound by such determinations and each of those matters were determined on the merits of those particular cases. The Tribunal has considered the particular circumstances of the applicant and is not persuaded that they add any further weight as a factor against cancellation of the visa.

    Conclusion

24. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. Overall there are limited aspects that in favour of not exercising the power to cancel. Although it is accepted that there will be hardship for the applicant and his family as a consequence of his actions it is not satisfied on balance that this outweighs the other factors considered. The breach of condition 8202(2)(a) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. It is acknowledged that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not demonstrated that he has a compelling need do so, nor that the circumstances in which the ground for cancellation weigh in favour of the visa grant. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

25. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

    DECISION

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

    Penelope Hunter
    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.