Sadhu (Migration)

[2019] AATA 2329

Sadhu (Migration) [2019] AATA 2329 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Reddy Sadhu

CASE NUMBER:  1719890

HOME AFFAIRS REFERENCE(S):           BCC2017/1668015

MEMBER:Joseph Lindsay

DATE:5 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 June 2019 at 3:54pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – breach of condition – failed to remain in a registered course – may not be giving credible information – no compelling need to travel to or remain in Australia – unlawful for one year – significant breach – strong indicator of applicant’s non-compliance – does not accept applicant needs an MBA – no evidence applicant has been uncooperative – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116(1)(b), 140, 359AA, 360
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 18 August 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).

2. The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Procedural matters

4. The applicant was invited under s.360 of the Act to appear before the Tribunal on 1 April 2019 at 9:30am. The Tribunal commenced the hearing, however, the applicant’s migration agent, Mr Puneet Gupta, was not in attendance. The Tribunal asked the applicant where Mr Gupta was and the applicant indicated that Mr Gupta had told him his train was running late. The Tribunal had an adjournment and waited for Mr Gupta to arrive.

5. Mr Gupta finally attended the Tribunal sometime after 10:00am. The Tribunal asked Mr Gupta why he was late and he responded that his train was delayed. However Mr Gupta then changed his story to say that his train was not delayed but rather his train was overcrowded and so he decided to take a later train. When asked how often the train went, Mr Gupta said every 20 minutes. When asked which train line he had used Mr Gupta indicated he did not know but then indicated he took the Ballarat line because he only took the train when he came to Tribunal hearings.

6. The Tribunal indicated to Mr Gupta that his lateness was not acceptable and the reason for his lateness was not acceptable. The Tribunal told Mr Gupta that the hearing was going to be adjourned to a later date because of the insufficient time available left in the hearing as a result of him being late. The Tribunal adjourned the hearing.

7. On 1 April 2019 Tribunal sent a hearing invitation to Mr Gupta inviting himself and the applicant to the Tribunal on 12 April 2019.

8. On 10 April 2019 Mr Gupta wrote an email to the Tribunal requesting a postponement of the hearing date because he had travelled to India. Mr Gupta claimed his father-in-law had passed away. Mr Gupta indicated he would provide a copy of the death certificate and travel tickets to the Tribunal. These documents were never provided to the Tribunal. On 10 April 2019, the Tribunal wrote back to the applicant’s representative informing him that the hearing would not be postponed. On 11 April 2019 another representative, Mr Jayapal Reddy Vadlakonda, sent an email to the Tribunal indicating that he had now been appointed as the applicant’s representative.

9. On 12 April 2019 the Tribunal hearing resumed. The applicant confirmed at the hearing that he did not need an interpreter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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).

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

13. The Tribunal put to the applicant that the decision record indicated he had not been enrolled in a registered course of study from 18 October 2016 until 28 July 2017.

14. The Tribunal asked the applicant if this information was correct. In response he indicated he thought it was a summer break for him and he thought he was enrolled. Ultimately however the applicant agreed he had not been enrolled in a registered course of study from 18 October 2016 until 28 July 2017.

15. 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)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

16. 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’.

    The circumstances in which the ground for cancellation arose

17. The Tribunal asked the applicant about the circumstances in which the ground for cancellation arose at the time he was no longer enrolled in a registered course of study on 18 October 2016.

18. In response, the applicant claimed:

    ·He completed semester one and semester two of his MBA course in 2016.

    ·Semester two of his course concluded in October 2016 and then he proceeded on his summer break.

    ·He completed two subjects in semester two of 2016.

19. However, when the Tribunal questioned the applicant about exactly which subjects he completed, he had difficulty in recalling the exact names of the two subjects he claimed to have completed, but then indicated they were something along the lines of “accounting for management” and “business management.” The applicant indicated he was not sure what the title of the subjects was because of the time that had passed since then.

20. The Tribunal put to the applicant that it may give his submission low weight that he studied two subjects in semester two of 2016 because he did not give the Tribunal any documentary information to support his claim. In response he indicated he was not able to access information from Holmes Institute.

21. The applicant then indicated that in late January and February 2017 he started having problems with his lower back.

22. The applicant indicated that he worked full-time for Domino’s pizza during the summer break between the end of 2016 and the beginning of 2017 and that is where he incurred his back problems. The applicant indicated it wasn’t an injury but it was the compression of two discs in his back. However the applicant then indicated it probably was an injury that he sustained. He indicated he then had to seek medical attention for this injury to his back. The applicant then indicated that the back injury he suffered was not just from work but also due to the stress he was feeling from his day-to-day activity. When the Tribunal asked the applicant what day-to-day activity caused his back injury he indicated he had started jogging and “working out” around that time. Ultimately the applicant indicated he was not sure why he developed back pain or where or how the back pain was caused. He simply claimed he just started to realise he was getting a backache. He then indicated his backache started becoming severe and that is why he went back to India to get medical attention.

23. The Tribunal then asked the applicant if he could return to explaining what had happened to him at the time his enrolment ceased in October 2016. The applicant again indicated he thought he had completed his subjects and thought he was still enrolled and that he could proceed onto a summer break.

24. When the Tribunal asked the applicant if he could remember any other reason that could have led to him ceasing enrolment in October 2016 he indicated he could not think of any other reason.

25. The Tribunal put to the applicant that it is important to tell the truth to the Tribunal. The Tribunal again asked the applicant if there was any other reason that he could think of which led him to ceasing enrolment in October 2016.

26. The Tribunal then put to the applicant information in accordance with s.359AA of the Act. The Tribunal spoke to the applicant about information from his Provider Registration and International Student Management System (PRISMS) record. The Tribunal put to the applicant that the information from his PRISMS record indicated that the reason for the date of cancellation of his course enrolment on 18 October 2016 was “non-payment of fees.” The Tribunal put to the applicant that the information from his PRISMS record indicated that his course provider had cancelled his course enrolment due to non-payment of fees, which was not consistent with the information he had told the Tribunal. The Tribunal put to the applicant that the information was relevant because it indicated that the applicant may not be telling the truth to the Tribunal, that he may not be giving credible information to the Tribunal and as result the Tribunal may find that the applicant’s student visa should be cancelled.

27. The applicant indicated that he did want additional time to respond and accordingly the Tribunal granted the applicant a 10 minute adjournment.

28. When the Tribunal resumed the hearing, the applicant indicated that he did complete his second semester but that he had some fee problems with Holmes Institute. The applicant explained that he was having problems with the credit transfer and was negotiating payment of fees with Holmes Institute. The applicant indicated he told Holmes Institute that he would not pay the full fee because of the dispute he was having with them in relation to the credit transfer. The applicant claimed that he had actually paid the fees in full for the first semester.

29. The Tribunal put to the applicant that he had just indicated that he did not in fact pay his fees to Holmes Institute for the second semester – to which he agreed. The applicant claimed that Holmes Institute told him the issue was in the process of being resolved and that he could re-enrol in February 2017. The applicant referred to the emails he claimed provided evidence about the situation from early 2017.

30. The Tribunal considered the emails provided by the applicant. One of the emails is addressed to the applicant from Andy Liang from Holmes Institute indicating that Holmes Institute records showed that the applicant failed to re-enrol with Holmes Institute commencing 13 March 2017. The Tribunal considered the applicant’s response to the email, that he was going to India for treatment and that he would return.

31. The Tribunal asked the applicant if there were any other instances in his course enrolment history where he had his course cancelled due to non-payment of fees. In response, the applicant indicated that there was another instance where this happened with his enrolment at Charles Darwin University. He indicated that in that instance he paid his fees immediately and got his confirmation of enrolment again.

32. The applicant agreed that there were two instances where his course provider had cancelled his course enrolment because he did not pay his fees. The Tribunal indicated to the applicant that it appeared he has he was telling the truth, because that information was reflected accurately in his PRISMS record.

33. The Tribunal asked the applicant whether there was another instance where he varied his course enrolment in 2016. In response, the applicant indicated that he did remember that his enrolment was cancelled by Charles Darwin University. However the applicant indicated that his confirmation of enrolment with Holmes Institute was already in place at the time his enrolment was cancelled with Charles Darwin University.

34. The Tribunal asked the applicant when he started the MBA at Holmes Institute. In response he indicated he started his MBA course in February/March 2016.

35. The Tribunal asked the applicant what he was doing in October 2016. In response the applicant indicated he was working at that time but that he was under the belief that he was due to start studying again in March 2017.

36. The applicant then indicated he realised he had a back problem. The Tribunal asked the applicant if he consulted a general practitioner in Australia and in response he indicated he did consult a general practitioner in Australia. The applicant indicated he did not have any documentation to substantiate his claim that he consulted a general practitioner in Australia in relation to his back pain.

37. The applicant indicated that because the back pain was so severe and he had nobody to look after him in Australia he decided to return to India for treatment.

38. The Tribunal asked the applicant when he went to a general practitioner about his back pain and in response indicated he attended a general practitioner in February 2017. The Tribunal put to the applicant that it may put low weight on his submission that he attended a general practitioner in February 2017 for treatment of back pain because he had no documentation to substantiate his assertion. In response the applicant said that later he obtained medical certificates from his doctor back in India.

39. The Tribunal asked the applicant when he returned India. In response he said he travelled to India in the first week of April 2017. He then indicated he returned to Australia in the first week of May 2017.

40. The Tribunal then asked the applicant whether he approached his course provider about his medical issue. In response, the applicant indicated he did send an email to his course provider on 4 April 2017 about his medical issue but he never got a response from Holmes Institute.

41. The Tribunal asked the applicant what he did when he did not get a response from his course provider knowing how important it was that he maintained compliance with his visa conditions for his student visa. The Tribunal asked the applicant what steps he took in relation to his course provider, Holmes Institute.

42. The applicant indicated that once he found out he wanted to come back immediately. The Tribunal put to the applicant that he waited a month before returning to Australia in May 2017. The applicant claimed he needed bed rest so he did not have any option other than to delay his return to Australia. The applicant said to the Tribunal that when he was capable of flying back to Australia he returned to solve the issues with his course provider Holmes Institute. The Tribunal asked the applicant what he did when he returned to Australia in May 2017.

43. In response the applicant claimed he telephoned Holmes Institute to enrol in his course but that he was advised that he could not do so because his course had already started. The applicant claimed that Holmes told him he needed a new admission to his MBA so he could start studying again.

44. The applicant maintained that he tried to re-enrol in his course at Holmes Institute but he could not do so because he had not paid his course fees. The applicant was adamant that he did not and would not pay the money he owed in course fees to Holmes Institute.

45. The Tribunal asked the applicant if he told the Department. In response the applicant indicated he did not inform the Department of his circumstances because he was really trying hard to get a new confirmation of enrolment.

46. The applicant claimed he did approach Holmes Institute to get a new confirmation of enrolment so he could continue studying his MBA and that Holmes Institute wanted him to start studying again in July 2017.

47. When the Tribunal asked the applicant if he had any documentation about his discussion with Holmes Institute about re-enrolling, he indicated he had no such documentation and the discussions he had were oral only. The Tribunal put to the applicant that it may put low weight on his submission that he tried to get a new confirmation of enrolment to continue studying his MBA commencing in July 2017, because he had no documentation about that. The applicant indicated that he always wanted to complete his MBA through Holmes Institute.

48. The applicant indicated that his migration agent made a number of applications to course providers to enrol him in another MBA program but he was not successful. The applicant had no documentation to substantiate his assertion in this respect.

49. The Tribunal put to the applicant that even the written submission dated 29 March 2019 provided by his previous migration agent was inconsistent. Prior to discussing the submission, the applicant indicated that he had read and agreed with the contents of the submission. The Tribunal put to the applicant that in his written submission he had indicated at one point that he did not find out his course was cancelled until he received a Notice of Intent to Consider Cancellation (NOICC) from the Department on 18 July 2017 but then later in his submission he indicated he found out he was not enrolled in his course when he returned to Australia. The Tribunal put to the applicant that there was clearly inconsistent information being provided as to precisely when he knew he was no longer enrolled in his course. The Tribunal put to the applicant that shortly after in his written response he again indicated that he was completely oblivious to being not enrolled in his course until he received the NOICC. In response the applicant indicated he had problems with his previous agent.

50. After the hearing, the Tribunal received a written submission dated 29 April 2019 from the applicant’s representative indicating that he had enrolled in the MBA program at Charles Darwin University and that he had paid $17,148.00 towards his course fees and that the applicant’s family members will pay for his course fees and student expenses.

51. In consideration of the above, the Tribunal makes the following findings:

    ·The reason the applicant’s course enrolment ceased on 18 October 2016 was because he did not pay his course fees for his MBA to Holmes Institute.  The Tribunal finds that the applicant was not initially forthcoming with this information to the Tribunal and it was only during the course of the hearing that the applicant ultimately made admissions he did not pay his course fees for his MBA to Holmes Institute. The Tribunal finds that it was not for the first time that the applicant’s course enrolment was cancelled due to non-payment of fees.

    ·The Tribunal does not accept the applicant’s evidence that Holmes Institute stopped him from being able to access his academic results.

    ·The Tribunal does not accept the applicant’s evidence that he completed his exams in second semester of 2016 as he did not provide any documentary evidence in support of his claims, and he gave vague and evasive evidence as to exactly which subjects he completed in second semester of 2016.

    ·The Tribunal does not accept the applicant’s assertion that he proceeded on “summer break” from October 2016 to February/March 2017 without being aware that his course enrolment had been cancelled on 18 October 2016.

    ·The Tribunal accepts the applicant’s evidence that he developed a backache caused by jogging or “working out” in the period from October 2016 to February/March 2017.

    ·The Tribunal does not accept the applicant’s assertion that he consulted a general practitioner in Australia for his backache because he did not provide any documentation to substantiate this claim.

    ·The Tribunal does not accept that the applicant’s backache caused him to cease enrolment as this situation occurred well after he ceased his course enrolment on 18 October 2016.

    ·The Tribunal finds that the applicant was sent an email on 29 March 2017 from Holmes Institute making him aware that he had failed to re-enrol with Holmes Institute.

    ·The Tribunal finds that the applicant’s interpretation of the email dated 29 March 2017 from Holmes Institute that his enrolment was continuing was not reasonable in the circumstances.

    ·The Tribunal finds that the applicant travelled to India in April 2017 when he was reasonably aware that he was not enrolled in registered course of study, and that as a result he was in breach of the condition 8202 of his student visa.

    ·The Tribunal finds that the applicant did not inform the Department of his failure to comply with the conditions of his student visa.

    ·The Tribunal finds that the applicant did not return to Australia until May 2017.

    ·The Tribunal does not accept the applicant’s assertion that after he returned to Australia in May 2017 he contacted Holmes Institute in an endeavour to re-enrol in the MBA course on the basis that his explanation was vague and lacking in detail.

    ·The Tribunal does not accept the applicant’s assertion that he has a genuine interest in completing an MBA course because he enrolled in a non-higher education course, and he only did this after receiving the NOICC, that had absolutely nothing to do with an MBA course. 

    ·The Tribunal does not accept the applicant’s assertion that his then migration agent approached several course providers that offered an MBA program for him to enrol in on the basis that his explanation was vague and lacking in detail and there was no documentation provided in support of his assertions.

    ·The Tribunal finds that the applicant’s evidence about when he became aware that he was no longer enrolled in a registered course of study, as detailed in his written submission dated 29 March 2019, was inconsistent where at one point in the submission he indicated he did not find out he was not enrolled in his course until he received the NOICC (18 July 2017), and then later in the submission he indicated he did not find out he was not enrolled in his course until he returned to Australia (May 2017), and then later in the submission he again indicated he did not find out he was not enrolled in his course until he received the NOICC (18 July 2017).

1. In considering the above information, the Tribunal finds that the applicant has not given credible evidence to the Tribunal about the circumstances in which the ground for cancellation arose. Accordingly, the Tribunal finds that the applicant’s explanation as to why he did not remain enrolled is not credible and are not exceptional circumstances.

2. The Tribunal places some weight on the submission from the applicant dated 29 April 2019, where he indicated that he had enrolled in the MBA program at Charles Darwin University and that he had paid $17,148.00 towards his course fees. The Tribunal also places some weight on the assurances provided by the applicant’s family members that they will pay for his course fees and student expenses.  However, given the Tribunal concerns about the applicant’s lack of credibility in respect to the evidence he gave as to the circumstances in which the ground for cancellation arose, and the fact that the applicant on more than one occasion had his course enrolment cancelled due to non-payment of fees, the Tribunal places low weight on the written submission from the applicant’s representative indicating that he had enrolled in the MBA program at Charles Darwin University, that he had paid $17,148.00 towards his course fees and that the applicant’s family members will pay for his course fees and student expenses.

   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

3. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

   The extent of compliance with visa conditions

4. It is apparent from the applicant’s evidence at the hearing that he did not comply with condition 8202 from the time his course enrolment was cancelled on 18 October 2016 until he obtained another enrolment on 28 July 2017 – a period of approximately eight months. The Tribunal finds that this is a significant breach and a strong indicator of the applicant’s non-compliance with his visa conditions.

5. In addition, the applicant indicated at the hearing that he actually went unlawful for approximately one year because he did not know he had to apply for a Bridging Visa E. The applicant indicated that he had no intention to go unlawful, but he readily admits he did go unlawful for one year because he did not have a Bridging Visa E. The Tribunal finds that this is also a significant breach and a strong indicator of the applicant’s non-compliance with his visa conditions.

6. Accordingly, the Tribunal places high weight on the findings that the applicant has committed breaches of his visa conditions that are significant breaches and are a strong indicator of the applicant’s non-compliance with his visa conditions.

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

7. In response to this issue, the applicant indicated that it was valuable for him to get his Master’s degree in Australia because he only has a Bachelor’s degree in India. He indicated that it would lead to a great future for him in India and that he had tried really hard to get that degree. He indicated that if he did not get the MBA, the situation would put him at least five years behind in his life and that he would go back to square one.

8. The Tribunal asked the applicant what he was going to do with his Master’s degree when he went back to India. In response the applicant said he wanted to go into business with his family and that it was a construction business.

9. In balancing the applicant’s concerns, the Tribunal does give some weight to the applicant’s concerns that it was valuable for him to get his Master’s degree in Australia, and that it would lead to a great future for him in India. The Tribunal does give some weight to the applicant’s concerns that he has already completed a number of his course subjects and that it has already cost him and his family some money to undertake those subjects.

10. However, the Tribunal does not accept that the applicant needs an MBA to successfully work in his family’s construction business. The applicant already has a Bachelor’s degree from India. The Tribunal accepts that the applicant has been in Australia for a number of years without completing an MBA. The Tribunal accepts that having his student visa cancelled in the circumstances will cause some disappointment to himself and his family. However, in balancing the above considerations, the Tribunal gives low weight overall in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

11. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

12. The applicant has no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

13. In the hearing, the applicant indicated that he was well aware of the mandatory legal consequences if his student visa was cancelled.

14. The applicant told the Tribunal that even though he went unlawful for so long, he was never placed in detention. The applicant indicated he did not intend to go unlawful in the past and would not do so in the future.

15. As indicated above, the applicant is very much aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

16. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point.

17. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to India.

18. The Tribunal places low weight on this information in the applicant’s favour.

    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

19. The applicant indicated the only fear he had was that he didn’t get his Master’s degree on his return to India, and he confirmed again that was the only fear he had. He indicated that he did not want to disappoint his parents, to express concern about his future and in India he did not have his Master’s degree.

20. The Tribunal finds that there would be no breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

21. The applicant indicated that there were no other relevant factors he wished to raise.

    Conclusion

22. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 2 July 2016.

23. The Tribunal finds that the applicant was not enrolled in a registered course of study from 18 October 2016 until 28 July 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

24. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay

    
    

    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.