SANDEEP (Migration)

[2021] AATA 1780

SANDEEP (Migration) [2021] AATA 1780 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss SANDEEP

CASE NUMBER:  1930843

HOME AFFAIRS REFERENCE:               BCC2019/3220230

MEMBER:L. Symons

DATE:4 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 04 May 2021 at 4:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – compelling need to remain in Australia – circumstances giving rise to non-compliance – young age and lack of maturity – reliance on advice of Education Agent – inadvertent breach – took steps to rectify the problem – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

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 25 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (AQF) that was the same level as, or at a higher level than, the registered course in relation to which her Student visa was granted. On 30 October 2019, she applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 16 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. The applicant was represented in relation to the review by her registered migration agent, Mr Patel, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8202(2)(b) 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(2)(b)?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(b) requires that the applicant:

   ·subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

8. Condition 8202(3) provides that:

   ·The applicant is taken to satisfy the requirement set out in paragraph (2)(b) if she:

   (i)    is enrolled in a course at the AQF level 10; and

   (ii)   changes her enrolment to a course at the AQF level 9.

9. Subclause 8202(3) does not apply to the applicant as she was not enrolled in a registered course at AQF level 10 (Doctoral degree).

10. The applicant has filed with the Tribunal a copy of the decision of the Department of Home Affairs (the Department) made on 25 October 2019. It indicates that on 7 February 2018 she was granted a Student visa for the purpose of studying a Diploma in Information Technology leading to a Bachelor of Information Technology degree (AQF Level 7) at the Queensland University of Technology from 25 February 2019 to 31 December 2020. This visa was subject to a number of conditions including condition 8202. On 21 June 2018, her education provider cancelled her enrolment in the Bachelor of Information Technology degree for non-commencement of studies.

11. The Department’s Decision Record indicates that on 2 July 2019, the applicant enrolled in a Certificate III in Commercial Cookery (AQF Level 3), a Certificate IV in Commercial Cookery (AQF Level 4) and a Diploma of Hospitality Management (AQF Level 5) at the Durban International College.

12. On 19 September 2019, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of her Student visa on the basis that she appeared to be in breach of condition 8202(2)(b) of her Student visa as she was not enrolled in a registered course that, once completed, would provide her with a qualification from the AQF that was at the same level as, or at a higher level than, the registered course in relation to which the Student visa was granted since 21 June 2018. She was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why her Student visa should not be cancelled.

13. On 26 September 2019, the applicant’s former migration agent wrote to the Department requesting an extension of time to provide a response. The applicant was granted an extension of time until 3 October 2019 to provide a response. On 3 October 2019, the Department received a submission from the applicant’s former migration agent together with a letter dated 26 September 2019 from Dr Van Son Nguyen and a release letter from the University of Technology Queensland in response to the NOITCC. 

14. In the response to the NOITCC, the applicant’s former migration agent submitted that the applicant was under 19 years of age at the time she came to Australia and was under pressure to make significant changes in her life after her arrival in Australia. She struggled to adjust to the new environment and the high level of studies. She felt anxiety due to the heavy study load and social isolation in Australia.

15. In the response to the NOITCC, the applicant’s former migration agent submitted that the applicant was socially isolated in Brisbane and did not talk about her deteriorating mental state. He advised her to see a Doctor or a Psychologist immediately. She changed her study plan in July 2019 and moved to South Australia to be with her cousin. She has settled into studying a package of courses at the Durban International College and her studies are progressing.

16. In the response to the NOITCC, the applicant’s former migration agent submitted that the breach of condition 8202 of the Student visa started when the applicant was “suffering from the highest degree of his psychological condition and distress”. She was detached from society and did not share her condition with anyone except a cousin. Since then she has been trying hard to continue her studies but did not realise she had inadvertently breached one of the visa conditions of her Student visa. The circumstances in which the grounds for cancellation arose were beyond her control.

17. In the response to the NOITCC, the applicant’s former migration agent submitted that the applicant was granted a Student visa in February 2018 and never breached any visa conditions except condition 8202 from 2 July 2019 to 20 July 2019 (sic) which is only little more than 1½ months. Her education agent did not inform her that she had to maintain enrolment in the principal course for which she was granted the Student visa. When she moved to Adelaide (from Brisbane), her current education provider informed her that she needs to either apply for a new Student visa in the Vocational Studies Sector or maintain enrolment in a course at AQF Level 7 or higher. Since then, she has been trying to get enrolled in a course at AQF Level 7 or higher but, due to her history, no university in Adelaide has agreed to enrol her in a Bachelor’s degree. On 20 September 2019, she enrolled in a Graduate Diploma (AQF Level 8) at Nova Institute of Technology which is a vocational level college. Her breach of condition 8202 was inadvertent.

18. In the response to the NOITCC, the applicant’s former migration agent submitted that the applicant has been a law-abiding student in Australia and there are no criminal or civil activities recorded against her. She has responded to the Department’s request within the prescribed time frames. If her Student visa is cancelled, she will have limited options to apply for further visas onshore due to the s.48 bar being imposed. She may be subject to detention and removal. People in India judge their children’s capabilities/performance on their academic achievements. Social pressure is so huge on children to do well in their studies that they sometimes make adverse decisions like suicide. He referred to newspaper articles in relation to students committing suicide in India.

19. In the response to the NOITCC, the applicant’s former migration agent submitted that the applicant has gone through “a high degree of psychological distress”. She is trying to get over this distress with the help of her cousin in Adelaide. She has resumed her studies and enrolled in a Graduate Diploma (AQF Level 8). She is committed to completing her studies. If her Student visa is cancelled it would “pose a great order of psychological stress and feeling of self-abandonment”. It would cause social embarrassment for herself and her parents. She and her parents have spent a significant amount of time, money and effort and if she returns home without any qualifications it would be a loss of money and time. Her personal and professional plans “will vanish” leaving her in a situation where she returns home without any educational achievements.

20. Enclosed with the response to the NOITCC was an email dated 27 June 2019 from International Compliance at the Queensland University of Technology (QUT) to the applicant. The email stated that her application for release from QUT to transfer to another provider had been approved and the PRISMS records updated. Her Confirmation of Enrolment (CoE) for the Diploma in Health Science had been cancelled and her course status reported to the Department of Education. This automatically alerts the Department of Home Affairs and may affect her Student visa status. She was required to discuss any implications for her Student visa with the Department of Home Affairs.

21. The email from QUT also stated that the approval does not automatically cancel the applicant’s enrolment at QUT. If she was no longer going to be studying at QUT, she was required to withdraw from her course. Cancelling her course could incur cancellation fees in accordance with the International Student Refund Policy. She was advised to consider whether a change to her enrolment breaches a condition of her Student visa. In some cases, a new Student visa applicant may be required. She was referred to the website for the Department of Home Affairs for more information.

22. Enclosed with the response to the NOITCC was a letter dated 26 September 2019 from Dr Van Son Nguyen. This letter is addressed to Dr Shiva Gunapu and is a referral. In his letter, Dr Nguyen stated “thank you for seeing Ms Sandeep, age 18 years, for opinion and management. She is a student from India. Initially, arrived in Brisbane but moved to Adelaide recently with the cousin due to stress and unable to meet others. I would appreciate very much for your help. Past history: none recorded. Allergies: none recorded. Current medications: none recorded”.

23. The delegate formed the view that the applicant had not complied with condition 8202(2)(b) of her Student visa as she had not maintained enrolment in a registered course at the same level as, or at a higher level than, the registered course in relation to which the visa was granted and her visa was cancelled on 25 October 2019.

24. The applicant lodged a pre-hearing statement dated 9 December 2020 with the Tribunal. In her statement, under the subheading Why the grounds for cancellation do not exist?, she stated that the decision to enrol her in a Diploma of Information Technology and a Bachelor of Information Technology at QUT was made by her parents and an education consultant. She found studying Information Technology to be difficult. Due to a lack of maturity and experience, she thought she could (change her course and) start at a lower AQF Level and progress to a higher level. She did not realise that she had “done something wrong” by enrolling in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. When she became aware that she had breached a condition of her Student visa, she enrolled in a Graduate Diploma of Management (Learning) (AQF Level 8). 

25. During the hearing, the applicant changed her evidence. She stated that she does not agree with the Department’s finding that she had not been enrolled in a registered course at AQF Level 7 since 9 November 2018. She stated that she was enrolled in an AQF Level 7 registered course until June 2019. When asked what course she was enrolled in, she responded a Diploma in Health Science. When the Tribunal pointed out that a Diploma is an AQF Level 5 course, she responded that it was part of a package leading to a Bachelor of Nursing degree and she was enrolled in a Bachelor of Nursing degree at QUT until 27 June 2019 when her enrolment was cancelled.

26. The applicant gave evidence that she found it difficult to study Information Technology, so she changed her course and enrolled in Health Science because she wanted to work as a Social Worker. Her enrolment in the Diploma of Information Technology and the Bachelor of Information Technology was cancelled on 20 June 2018 and she commenced the Diploma in Health Science on 21 June 2018. She found that studying Heal Science was also too difficult for her. When she was unable to study Health Science, she enrolled in Commercial Cookery.

27. The records held by the Department of Education’s Provider Registration and International Student Management System (PRISMS) indicates that the applicant was enrolled in a Bachelor of Information Technology degree and her enrolment was cancelled on 21 June 2018 for non- commencement of studies. She then enrolled in a Diploma of Health Science and a Bachelor of Nursing degree. Her enrolment in the Bachelor of Nursing degree was cancelled on 9 November 2018 and her enrolment in the Diploma of Health Science was varied on 13 March 2019. She enrolled in a Graduate Diploma of Management (Learning) commencing on 20 September 2019.

28. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that the records indicate that the last time she was enrolled in a Bachelor degree was on 9 November 2018. The Tribunal noted that this may lead it to the conclusion that she was not enrolled in an AQF Level 7 course (or above) between 9 November 2018 and 20 September 2019 and had therefore breached condition 8202(2)(b) of her Student visa. She responded that she was enrolled in the Diploma of Health Science and the Bachelor of Nursing degree until 21 June 2019 when she sought a release from QUT. When the Tribunal noted that that was not consistent with the PRISMS record, she responded that QUT did not inform her that her enrolment in the Bachelor of Nursing degree had been cancelled.

29. The Tribunal agreed to give the applicant additional time after the hearing to provide further evidence. Following the hearing, she provided the Tribunal with a forwarded email from QUT. It indicated that it is standard process for QUT to inform students when their COEs are cancelled for non-commencement of studies but they are unable to find any record of having informed her of the cancellation of her COE for the Bachelor of Nursing degree. The Tribunal accepts this evidence and gives it some weight.

30. In any event, the evidence before the Tribunal is that the applicant did not maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which her Student visa was granted between the period 9 November 2018 and 20 September 2019.

31. On the evidence before it, the Tribunal finds that the applicant has not complied with condition 8202(2)(b) of her Student visa.

    Consideration of the discretion to cancel the visa

32. Having found that the applicant has not complied with a condition of her Student 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’.

    Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling      need to travel to or remain in Australia?

33. In the response to the NOITCC, the applicant’s former migration agent submitted that the applicant travelled to Australia to study so that she could gain an internationally recognised qualification and get settled in her chosen career field. There are high expectations from parents in India for their children to gain a high quality education and have a bright career. Completing her proposed studies is her most important purpose for remaining in Australia. Cancelling her Student visa will drastically affect the progression of her studies. This represents the compelling need for her to remain in Australia.

34. During the hearing, the applicant gave evidence that when she came to Australia her intention was to study, “get good academics”, return to India and make her parents proud. She is currently studying a Certificate III in Commercial Cookery. She wants to set up her own business in Commercial Cookery in India or to be trained as a chef so she can work in hotels. Her parents are aware that she is not studying Information Technology and is now studying Commercial Cookery. They support her financially to undertake these studies. They have told her to study whatever she feels would give her a good future and allow her to perform well.

35. The applicant gave evidence that she has a small family, wants to live with them and have a career as a chef. She has every intention of studying the Graduate Diploma of Management (Learning). When asked how it would help her in her proposed career, she responded that it would help her to manage a restaurant.

36. Having considered all the evidence, the Tribunal accepts that the applicant came to Australia with the intention of studying and obtaining tertiary qualifications in Australia. The Tribunal accepts that, since then, she has changed her mind in relation to the type of study she wishes to undertake and her career goals. The Tribunal accepts that she was studying at the time of the hearing and that she wishes to continue and complete her studies in Australia. The Tribunal accepts that she has a compelling need to remain in Australia to complete her studies.

37. The Tribunal gives this consideration weight in the applicant’s favour. 

    Circumstances in which the ground for cancellation arose

38. During the hearing, the applicant gave evidence that she was a minor at the time she came to Australia and was relying on her parents and Education Agent to make decisions for her. She was enrolled to study Information Technology at QUT and found these studies to be too complex for her. After she obtained her results, she consulted a Student Counsellor at QUT and explained her difficulties to the Student Counsellor. She was advised to consult her Education Agent. Her Education Agent advised her to enrol in Health Science and later helped her to enrolled in Commercial Cookery.

39. The applicant gave evidence that she asked her Education Agent whether it would affect her Student visa if she changed her course and was told that it would not. She had complete trust in her Education Agent. She had no idea that she was breaching a condition of her Student visa by changing her course. She had no idea that she needed to obtain immigration advice before she changed her course. She now knows that her Education Agent was not qualified to give her immigration advice. She decided to study Commercial Cookery and start at the Certificate III level to build a foundation. She wants to continue on to higher qualifications.

1. The applicant gave evidence that she was lonely and isolated in Brisbane. She had never been away from her parents. She spoke to her family about her difficulties and they advised her to move to Adelaide where she could be with her cousin who is also an international student. Her cousin came to Australia in June 2018.

2. The applicant gave evidence that she was depressed after she failed her studies at QUT. She needed to speak to someone to help her deal with depression and consulted a Psychologist. When asked whether Dr Nguyen is a Psychologist, she responded that she had no idea. When asked whether she had ever consulted a Dr Shiva Gunapu, she responded no. Dr Nguyen did not refer her to someone else. He advised her to have a good time with her cousin. She has never consulted a Counsellor or Psychologist in Australia.

3. Having considered all the evidence, the Tribunal accepts that the applicant was a minor at the time she came to Australia and that she relied on her parents and Education Agent to make decisions for her. The Tribunal accepts that she had no family or friends in Brisbane. She has provided the Tribunal with evidence that QUT had organised homestay accommodation for her whilst she was a minor. The Tribunal accepts that she felt lonely and isolated in Brisbane and that she moved to Adelaide to join her cousin and obtain her familial support.

4. The Tribunal accepts that the applicant initially had difficulty studying in Australia because she found the courses she had enrolled in to be too complex for her. The Tribunal accepts that she relied on her Education Agent to guide her and accepted her advice. The Tribunal accepts that she was not aware that her Education Agent was not qualified to give her immigration advice. The Tribunal accepts that she consulted Dr Nguyen on the advice of her current migration agent. The Tribunal is of the view that she did not understand why she had consulted Dr Nguyen or that he had referred her to a Psychiatrist. 

5. The Tribunal accepts the evidence from QUT, referred to in paragraph 29 above, that they are unable to find any record of having informed the applicant of the cancellation of her COE for the Bachelor of Nursing degree. The Tribunal accepts her evidence that she was unaware that her enrolment in the Bachelor of Nursing degree had been cancelled on 9 November 2018 (as indicated in PRISMS). The Tribunal accepts that she unknowingly breached condition 8202(2)(b) of her Student visa between 9 November 2018 and sometime in July 2019.

6. The Tribunal notes that the email dated 27 June 2019 from International Compliance at the QUT to the applicant, referred to in paragraphs 20 and 21 above, put her on notice that the cancellation of her enrolment in the Diploma in Health Science may affect her Student visa status. She was advised to consider whether a change to her enrolment breaches a condition of her Student visa. She was required to discuss any implications for her Student visa with the Department and was also referred to the Department’s website for more information. Her evidence to the Tribunal is that she did not consult the Department prior to changing her courses.

7. The Tribunal notes that in the response to the NOITCC the applicant’s former migration agent submitted that the applicant’s current education provider informed her that she needs to either apply for a new Student visa in the Vocational Studies Sector or maintain enrolment in a course at AQF Level 7 or higher. Since then, she has been trying to get enrolled in a course at AQF Level 7 or higher but, due to her history, no university in Adelaide has agreed to enrol her in a Bachelor’s degree. On 20 September 2019, she enrolled in a Graduate Diploma (AQF Level 8) at the Nova Institute of Technology

8. In view of the above, the Tribunal does not accept that the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. However, the Tribunal accepts that, due to her young age and lack of maturity, she relied heavily on the advice given to her by her Education Agent and may have been able to avoid her current predicament had she been referred to a migration agent for immigration advice in relation to her Student visa.

9. The Tribunal gives this consideration some weight in the applicant’s favour. 

   The extent of compliance with visa conditions

10. The applicant was granted the subclass 500 Student visa on 7 February 2018 for the purpose of studying a Diploma of Information Technology and a Bachelor of Information Technology degree (AQF Level 7). Her enrolment in the Diploma of Information Technology and a Bachelor of Information Technology degree was subsequently cancelled on 21 June 2018. She then enrolled in a Diploma of Health Science and a Bachelor of Nursing degree. Her enrolment in the Bachelor of Nursing degree was cancelled on 9 November 2018. The Tribunal has accepted that she was not notified of this at the time.

11. The applicant’s former migration agent has submitted that the applicant was informed by her current education provider, Durban International College, (sometime in July 2019) that she needed to either apply for a new Student visa in the Vocational Studies Sector or maintain enrolment in a course at AQF Level 7 or higher. He submitted that she had been trying to get enrolled in a course at AQF Level 7 or higher but, due to her history, no university in Adelaide had agreed to enrol her in a Bachelor’s degree. On 20 September 2019, she enrolled in a Graduate Diploma of Management (Learning) (AQF Level 8) at the Nova Institute of Technology.

12. The Tribunal has accepted that the applicant’s breach of condition 8202(2)(b) was inadvertent and that when she found out she took steps to rectify the problem.

13. During the hearing, the applicant gave evidence that she has not breached any other condition of her Student visa. There is no evidence before the Tribunal to indicate that she has not complied with the other conditions of her Student visa.

14. The Tribunal gives this consideration some weight in the applicant’s favour. 

Degree of hardship that may be caused

1. In the response to the NOITCC, the applicant’s former migration agent submitted that the applicant is committed to completing her studies. If her Student visa is cancelled it would “pose a great order of psychological stress and feeling of self-abandonment”. It would cause social embarrassment for herself and her parents. She and her parents have spent a significant amount of time, money and effort and if she returns home without any qualifications it would be a loss of money and time. Her personal and professional plans “will vanish” leaving her in a situation where she returns home without any educational achievements.

2. During the hearing, the applicant gave evidence that if her Student visa is cancelled, she will have considerable financial hardship. Her parents have invested a large amount of money in her studies in Australia and she has invested substantial time in studying in Australia. This was done in the hope of a positive outcome. Her parents’ dreams and her dreams would be shattered if her Student visa is cancelled. It would have a big impact on her and her parents. Her parents are farmers and in India farming is a risky occupation. Many farmers are against the new laws passed by the Indian government.

3. The Tribunal gives this consideration weight in the applicant’s favour.    

   Past and present behaviour of the applicant towards the Department

4. In the response to the NOITCC, the applicant’s former migration agent submitted that the applicant has always responded to the Department’s requests within prescribed timeframes including providing the response to the NOITCC.

5. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that she has engaged in unfavourable behaviour towards the Department.

6. The Tribunal gives this consideration some weight in the applicant’s favour.  

   Whether there would be consequential cancellations under s.140 of the Act

7. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act.

8. The Tribunal gives this consideration no weight in the applicant’s favour.

   Legal consequences of a decision to cancel the visa

9. If the applicant’s Student visa is cancelled, she will be subject to s.48 of the Act which means she will have limited options when applying for further visas while in Australia and Public Interest Criteria may prevent her from being granted particular temporary visas for a period of 3 years from the date of cancellation. 

10. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa.

11. The Tribunal gives this consideration no weight in the applicant’s favour.   

    Australia’s international obligations

12. The Tribunal asked the applicant whether there was any reason why she could not return to India. She responded that she wants to complete her studies. When asked whether there was anything preventing her from returning to India, she responded no. Her parents are farmers and farming is bad in India. It has led to her parents suffering depression in their old age. She has a younger brother and they have to look after his career as well. This will increase their problems and lead to social embarrassment if she now has to return to India.

13. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations.

14. The Tribunal gives this consideration no weight in the applicant’s favour.

    Any other relevant matter

15. The Tribunal asked the applicant whether there was any other reason why her Student visa should not be cancelled. She responded that she wants to study, complete her studies, return to India and look after her family.

16. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

17. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for not cancelling the applicant’s Student visa outweigh the grounds for cancelling her Student visa. Therefore, the Tribunal concludes that the Student visa should not be cancelled.

    DECISION

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

    L. Symons
    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.