Randhawa (Migration)

[2019] AATA 2717

Randhawa (Migration) [2019] AATA 2717 (1 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Alambir Singh Randhawa

CASE NUMBER:  1702672

HOME AFFAIRS REFERENCE(S):          BCC2016/3724756

MEMBER:  Justin Owen

DATE:  1 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 April 2019 at 2:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – never commenced bachelor course – enrolled but not commenced  range of certificate, diploma and advanced diploma courses – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

1. The applicant is a national of India born 5 January 1995.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 8 November 2013 and was subject to condition 8202. On 24 January 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course between 6 March 2016 and the date of the delegate’s decision. The applicant failed to respond to the NOICC. On 13 February 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.

1. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements 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.

1. The applicant appeared before the Tribunal on 20 March 2019 to give evidence and present arguments.

1. 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

1. 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 (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?

1. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

1. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 13 February 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated

that the applicant had not maintained the study plan that he outlined to study at the University of Canberra when he applied for his Student visa.

1. The delegate’s decision goes on to indicate that at the University of Canberra the applicant never commenced the Bachelor of Information Technology course he enrolled in and ceased his studies in the Diploma of Information Technology (Extended) course he enrolled in on 10 October 2014.

1. The decision record goes on to note that the applicant in 2014 enrolled in a range of certificate, diploma and advanced diploma courses at the OzStar Academy Pty Ltd – all of which were never commenced. In 2016 the applicant enrolled in an advanced diploma course at the Apex Institute which was never commenced.

1. At the hearing the Tribunal put to the applicant that, according to the decision record he supplied, he had not been enrolled in a registered course of study whilst holding a Higher Education Student visa for 11 months and 7 days at the time of the delegate’s decision in February 2017. The applicant agreed that this was correct. The applicant also confirmed in response to the Tribunal’s questions that he had not enrolled in or completed any registered courses since the cancellation of his visa on 13 February 2017.

1. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study for a period of 11 months and 7 days until the delegate’s decision on 13 February 2017. The applicant agreed with this claim. The applicant furthermore confirmed in oral evidence that since that time he has not been enrolled in any registered course between the delegate’s decision and the Tribunal’s decision – a period of over twenty five months.  On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

1. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

1. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia. The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled in a registered course of study for a significant period of time since 2014. The Tribunal notes that at the time of the delegate’s decision the applicant had only been actively involved in study for seven months and seven days despite holding a Higher Education Student visa for three years, three months and five days. The Tribunal notes the applicant’s admission that he has not enrolled in a registered course at all in the period since the delegate’s decision over two years ago. The Tribunal considers the breach of condition 8202(2) to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa.

1. The applicant stated that the purpose for his travel and stay in Australia was for study. He also raised the situation in the Punjab area of India where his family is from and the conflict the area had faced being situated on the Pakistani border whilst also facing a hostile Indian central government. He intimated that fleeing the problems in the Punjab area was a strong

motivation for young citizens such as him to travel to Australia on a Student visa. He said that there was no justice for the people of Punjab.

1. The Tribunal appreciates the challenges facing the people of the Punjab provincial area of India and the history of conflict. The Tribunal notes however that the issue before the matter before it relates to the cancellation of a Higher Education visa for non-enrolment. The Tribunal notes that the applicant could have lodged an application for a Protection visa if he legitimately feared returning to India.

1. The applicant stated to the Tribunal that he had not enrolled in any registered courses of study in recent years as he didn’t want to mislead the Australian people by enrolling in just any course essentially for migration purposes. He also stated that it was very expensive to enrol in a new course and he did want to outlay some thousands of dollars to recommence studying whilst waiting for the Tribunal hearing that would potentially cancel his visa and leave him significantly out of pocket for his educational expenses.

1. The Tribunal notes from the oral testimony of the applicant that his original preference for study was in the fields of commerce and business. Based on external advice, he instead enrolled in a Bachelor of Information Technology at the University of Canberra – a subject area where he had little genuine interest in – in order to obtain his Student visa and come to Australia. His plan was to then transfer to courses in the business/commerce area once he had secured a Student visa and arrived in Australia. The plan however was scuttled by the University of Canberra ultimately demanding he enrol in Bachelor of Information Technology subjects.

1. The Tribunal notes that the applicant did initially study after his arrival. The applicant explained he enrolled in a Diploma of Information Technology (Extended) at the University of Canberra where he studied four units in the business administration area. He claims the University however refused to release his results and demanded he do subjects in the Bachelor of Information Technology class. As the decision record states and the applicant confirmed at the hearing, he departed this course in October 2014.

1. The Tribunal notes that the applicant subsequently enrolled in numerous courses at the OzStar Academy and the Apex Institute between 2014 and 2016 – all of which according to the delegate’s decision he provided he never commenced.

1. The Tribunal notes the extensive oral testimony of the applicant concerning his long period of non-enrolment and failure to commence multiple courses. The applicant blamed unscrupulous migration agents for his difficulties and gave numerous examples of advice he had received to essentially ‘game’ his Student visa enrolments and mislead the Department with the ultimate goal of attaining permanent residency.

1. The applicant said after he enrolled at the Apex Institute for an Advanced Diploma of Leadership and Management he received advice from an agent as to how for the payment of a significant sum of money he could have someone do his assignments and exams for the course and utilise this ‘study’ to attain permanent residency. The applicant said that at this point he talked to his father who was a former Policeman. His father advised him not to be involved in any unlawful activities and to instead inform the Tribunal of his situation.

1. The Tribunal appreciates the applicant’s candour and willingness to speak about his experience with the Higher Education Student visa subclass. The Tribunal agrees that there is significant fraud occurring in the Student visa subclass with the aim of utilising this subclass to attain permanent residency.  The Tribunal is of the opinion that this is an area that urgently needs addressing by Government in order to maintain the integrity of the Student visa subclass.

1. Nevertheless the Tribunal does not on the evidence before it consider the applicant’s travel to and stay in Australia has been for the purpose of study and achieving an educational qualification.   According to the applicant’s oral evidence to the Tribunal he has not enrolled or studied any course of study since his visa was cancelled over two years ago. He has not completed any units of study since 2014 at the University of Canberra. The Tribunal accepts his evidence that there are unscrupulous advisers in the Student visa space that are providing advice and encouraging enrolments in courses with the objective of permanent residency not attaining an educational qualification. The Tribunal notes however that the applicant could have if he wished enrol in a course through an established educational provider and completed his studies. Instead he spent a significant time enrolling in courses without commencement and has not enrolled in anything now for over two years. The Tribunal furthermore notes from the decision record that the applicant applied for a Combined Partner (UK820/BS 801) visa on 30 December 2014 some ten weeks after he ceased his studies in a registered course at the University of Canberra on 10 October 2014. Whilst the application was withdrawn in July 2016, the Tribunal notes that the application for a permanent visa suggests that the applicant did intend to remain in Australia on a permanent basis. The Tribunal ultimately cannot accept that the purpose of the applicant’s travel to and stay in Australia has been for the purpose of studying towards achieving an educational qualification in Australia. On the evidence before it the Tribunal considers the breach of condition 8202(2) to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa. Given the applicant’s actions in failing to fulfil the purpose of his visa for a significant period of time, the Tribunal weighs this factor in favour of cancelling the visa.

1. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.

1. The Tribunal is of the firm view that visa holders are expected to both study, and study at the visa subclass level for which they were approved at the time of application. On the evidence before the Tribunal, this has not been the case with the applicant.  The Tribunal considers the applicant’s failure, as outlined in the decision record and in his oral testimony to the Tribunal, to comply with the conditions of his visa by not being enrolled in a registered course of study for such a lengthy period of time at the time of decision to be substantial. According to his oral testimony to the Tribunal’s hearing he has failed to complete any courses since the grant of his Student visa in 2013 and since the cancellation by the delegate over two years ago he has not enrolled in or attempted any course of study. The Tribunal again appreciates his commentary and claims about receiving poor and at best questionable advice from agents both in India and Australia. Whilst this may provide a background to some of the decisions he has made concerning his study in Australia, it nevertheless does not in the Tribunal’s opinion justify such a long-term and substantial failure to either enrol in a registered course of study at the higher education level.

1. The oral testimony of the applicant suggests that the applicant was aware he was in breach of the conditions of his Student visa by failing to remain enrolled and/or enrolling but not commencing various courses of studies.

1. At the hearing the Tribunal asked the applicant if he had met the other conditions of his visa. He said he had done so. There is no evidence before the Tribunal that this is not the case.

1. The Tribunal has taken into account the applicant’s explanation as to his failure to remain enrolled in a registered course of study for multiple years and his failure to successfully complete a single course of study. Nevertheless the Tribunal considers the applicant’s non- compliance with his visa conditions to be considerable. On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

1. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled.

1. The applicant failed to respond to the NOICC from the Department and therefore did not provide any explanation to the delegate of any hardship that may be caused as a result of the cancellation of his visa to either himself or his family.  The applicant in response to the Tribunal’s questions concerning the degree of hardship he personally would face should his visa remain cancelled, stated he was already 50% prepared for his visa to be cancelled. He conceded he needed to be prepared to change his plans if he was unable to remain in Australia to study. He stated he would study Psychology if he was able to remain in Australia.

1. The applicant said he had no family members in Australia. The Tribunal asked his sponsor from his withdrawn Partner visa application. He stated that she resided on the Gold Coast and he remained married to her. He intimated that whilst they are not in a spousal relationship they remain in contact.  He said he visited her on the Gold Coast once a year.

1. The applicant said he has not been working since around May 2018 and is currently being financially supported by his family.

1. The applicant provided little detail pertaining to the hardship he would face should his visa be cancelled. The Tribunal notes that the applicant is not working so any cancellation and requirement to depart Australia would not impact upon his current employment circumstances. He has no family members in Australia beyond his wife on the Gold Coast who he concedes he visits once a year and is not effectively in a spousal relationship with her anymore.    The Tribunal notes that cancellation may impact adversely upon the applicant’s desire to study in the future in Australia. The Tribunal notes that the applicant retains the opportunity to study either in India or he can apply elsewhere offshore.

1. The Tribunal considers the hardship that would be caused on the applicant to be limited. The Tribunal weighs this factor in favour of cancelling the visa.

1. The Tribunal has considered the hardship to the applicant’s family. In response to the Tribunal’s questions the applicant said that his parents had spent many thousands of dollars on his education already and his father especially will be very disappointed in him.  His failure to complete his studies will be a disappointment with his sister currently holding a scholarship and studying as a certified accountant in Canada.

1. The applicant also pointed out that his father had in recent times had heart surgery and any cancellation would not be good for his health. The applicant said he had not told his father the full details about his current predicament as he did not wish to hurt him.

1. The Tribunal accepts that his parents and family may feel some disappointment at the cancellation of the applicant’s Student visa. That is entirely understandable in the circumstances. The Tribunal does however recognise that the applicant’s breach of his visa conditions has been substantial.  The Tribunal weights this factor pertaining to hardship to the applicant’s family neither in favour nor against cancelling the visa.

1. The Tribunal has considered the circumstances in which the ground for cancellation arose.

1. The Tribunal notes that as outlined in the delegate’s decision the applicant provided, the circumstances in which the ground for cancellation occurred arose when the applicant failed to maintain his enrolment in a registered course of study which led to his non-compliance of visa condition 8202. The Tribunal noted that the applicant failed to respond to the Department when he was asked to provide reasons why his non-compliance was due to

exceptional circumstances beyond his control. The applicant said there was no particular reason for his failure to respond. He said he wasn’t sure at the time what he needed to do next.

1. The applicant provided the Tribunal with an extensive explanation for his failure to maintain his enrolment.

1. The applicant explained he was only 19 years of age when he decided he wished to travel to Australia to study. His original preference for study was in the fields of commerce and business.  The applicant claimed that his agent in India however told him it was very difficult to obtain a Student visa to study business in Australia. He said his agent recommended he enrol in a Bachelor of Information Technology and simply change courses once he arrived in Australia. The applicant said he followed this advice in order to obtain his Student visa and come to Australia. He came to Australia and enrolled in four units of business administration via the Diploma of Information Technology (Extension) rather than commence his Bachelor of Information Technology. His plan was to do these subjects and transfer into a business course. The applicant stated he completed his first semester but the University of Canberra then refused to release to him his results on the basis he was not enrolled in the correct course being the Bachelor of Information Technology. The applicant said he lost $7,000 in fees because of the University’s actions. The University recommended to the applicant that he enrol in the Bachelor course for which he was originally granted his Student visa. The applicant’s last day of study in the Diploma course was 10 October 2014. The applicant said he never re-enrolled as his mother was sick at this time and the University’s expectation was he would return to the Bachelor course he was originally meant to be enrolled in.

1. Notwithstanding his mother’s illness at the time, the Tribunal has little sympathy for the applicant concerning this specific situation. The applicant admitted to the Tribunal that he had applied for a Student visa on the basis of studying a course he had no intention of doing. He agreed that he had been misleading by doing this. The applicant was granted a Higher Education visa which was for study at the Bachelor or Advanced Diploma level. He was granted the visa on the basis he was enrolling in a Bachelor course in Information Technology. The applicant instead enrolled in a Diploma-level course immediately after arriving at the University of Canberra. His 573 Student visa is for Higher Education courses, not a Diploma-level course. The applicant claimed to the Tribunal he did at one point apply for a Vocational Education and Training Sector (subclass 572) student visa that allows international students to enter Australia to study on a vocation or training course such as the Certificate IV and Diploma courses he subsequently enrolled in at the OzStar Academy Pty Ltd but this was never granted. The Tribunal places a significant amount of adverse weight upon the applicant’s behaviour in this situation. On the facts the applicant was almost immediately non-compliant with the condition 8202 of his Higher Education visa by enrolling in a Diploma level course after arriving in Australia.  After being called out by the University of Canberra for not commencing the Bachelor course he was enrolled in and instead enrolling in a Diploma-level course, the applicant could have taken steps to restore his compliance by returning to his Bachelor level course or investigating other qualifying courses.  The applicant instead subsequently enrolled in but never commenced Certificate IV and Diploma courses at the OzStar Academy Pty Ltd that were also non-compliant with the condition 8202 attached to his Higher Education visa.

1. The applicant in his oral testimony stated in response to the Tribunal’s questions that in the beginning he was not aware that a condition of his Student visa was that he remain enrolled in a registered course.  He said that the advice of agents however led him to believe he could continue to enrol in a range of Certificates and essentially buy time to commence his Higher Education courses. He said that correspondence that outlined the conditions of his visa and the consequences of non-compliance went to his agent that looked after his visa application. He claimed he only became aware that not being enrolled in a registered course

would impact upon his eligibility to continue to hold his Student visa after he talked to his father in 2016.

1. The Tribunal considers on the evidence that the applicant was well aware he was failing to maintain enrolment in a registered course of study. By his own admission he was aware from 2016 yet the Tribunal considers the applicant, given his testimony concerning the advice of his agent in India, was in all likelihood aware before this time. The Tribunal notes that it is not in dispute that he has not enrolled in any registered course of study since the Apex Institute in 2016 and at the time of decision he has not completed any registered course and has not commenced a Higher Education level course.

1. The Tribunal also notes that even if the applicant considered the Diploma and Certificate IV level courses he was enrolling in after October 2014 were actually registered courses of study meeting the requirements of his Higher Education Student visa, the fact remains that according to the PRISMS records as outlined in the delegate’s decision record, the applicant failed to commence studying any of them.

1. The Tribunal also places adverse weight on the applicant’s decision to enrol in a Bachelor degree to obtain the grant of a Higher Education Student visa – only to immediately and deliberately vacate the course to instead enrol in other units of study that did not comply with the requirements of his Higher Education Student visa. The Tribunal is of the view this illustrates a lack of good faith at the time as well as a willingness to mislead the Australian authorities as to the purpose of his visa.

1. The Tribunal notes that there is no evidence before it or claim made that the applicant ever approached his education provider or the Department either seeking a deferral or informing them of his non-compliance respectively. He has made virtually no effort to rectify his enrolment status.

1. The applicant on the evidence in the decision record had failed to adequately rectify his enrolment situation as the holder of a Higher Education Student visa for multiple years. The applicant was a direct party to his enrolment. The Tribunal notes his claim that he was unaware of some of the requirements of his Student visa. The Tribunal would point out in response that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status. The Tribunal has taken into account the applicant’s claims concerning the questionable and in some cases deliberately misleading advice he received from agents in relation to his Student visa. The Tribunal notes his relative youth when first travelling to Australia. The Tribunal appreciated the applicant’s insights into the considerable problems and opportunities for visa fraud in the Student subclass which he has experienced over the last four to five years in Australia. He has provided insights concerning specific situations that may warrant further investigation by the Department.       Nevertheless on the evidence before it however concerning the circumstances in which the ground for cancellation arose, the Tribunal weighs this factor strongly in favour of cancelling the visa.

1. The Tribunal has considered the past and present behaviour of the applicant towards the Department. The applicant stated that he has had no contact with the Department since the cancellation of his via by the delegate.  The Tribunal accepts his claim.

1. The Tribunal however notes that the applicant failed to respond to the Department when issued with his NOICC. When asked by the Tribunal why he had not done so the applicant said that there was no particular reason. The Tribunal notes he then claimed in oral evidence that he was not sure what to do next when he received his NOICC. The Tribunal notes that the obligation remains with the applicant to ensure he is aware of and meets the

conditions of his visa. The Tribunal weights this factor slightly in favour of cancelling the applicant’s visa.

1. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The Tribunal notes from the decision record that there is no information before the Department which indicated that any other person currently holds a visa because the applicant held his student visa. The applicant agreed in oral evidence to the Tribunal that no one holds a visa because of his 573 student visa. There is no evidence or claim made of dependents. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

1. The Tribunal has considered whether there are 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 of the applicant’s visa. There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations. The Tribunal notes the applicant’s general claims in his oral testimony concerning conflict in the Punjab region of India and the challenges faced by the people of Punjab with the central Indian Government. The Tribunal notes that the applicant has not lodged a Protection visa application.  Based on the evidence provided by the applicant in this review, the Tribunal is not satisfied that the applicant will be harmed in India and that the applicant would be removed in breach of Australia’s non-refoulement obligations as a consequence of the cancellation of his visa.. On the evidence before it the Tribunal weighs this factor concerning the breach of any international obligations as a result of the cancellation of the applicant’s visa neither in favour nor against cancelling the visa.

1. On the evidence before it the Tribunal considers the applicant’s breach of condition 8202 of their student visa to be substantial. The Tribunal received his Higher Education Student visa over five years ago. Since that time he has never completed any registered course. He has not commenced a Higher Education level course.  The Tribunal has noted the applicant’s oral evidence concerning his failure to meet the conditions of his visa and his explanation concerning the circumstances of the breach.  The Tribunal appreciates his claims concerning the utilisation of the Student visa subclass to achieve permanent residency in Australia and the widespread fraud being encouraged by a number of agents as well as educational providers. He expressed his regret that there were many individuals coming to Australia that were being taken advantage of and misled by unscrupulous agents and education providers. He viewed his own situation as a waste of five years of his life. The Tribunal accepts the applicant’s claim that the Student visa subclass has been open to abuse. The Tribunal is of the opinion that much more needs to be done to ensure the subclass remains a pathway for non-citizens and non-permanent residents to study in Australia, not a backdoor for permanent residency. That however does not in the Tribunal’s mind mitigate the quantum of the applicant’s breach of condition 8202 and his ongoing failure to enrol again in a registered course of study and commence a Higher Education level course. The applicant enjoys financial support from his family. The Tribunal found him to be an intelligent, educated, highly articulate and thoughtful young man who has the ability to study and make some real progress with his life.  The applicant states he now wishes to study Psychology – the Tribunal is of the opinion he will make a success of this if he is prepared to commit himself to it and wishes him well.  Nevertheless the Tribunal notes that the applicant’s breach of the conditions attached to his Student visa are substantial. The Tribunal has assessed relevant factors and taken into account the applicant’s explanation for the breach.  The Tribunal does not consider these factors constitute a reason for the Tribunal to exercise its discretion and not cancel the visa. The Tribunal has determined on the basis of the information before it that the visa should be cancelled.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Justin Owen Senior Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2)A holder meets the requirements of this subclause if:

(a)the holder is enrolled in a registered course; or

(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

(3)A holder meets the requirements of this subclause if neither of the following applies:

(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i)section 19 of the Education Services for Overseas Students Act 2000; and

(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i)section 19 of the Education Services for Overseas Students Act 2000; and

(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.