Singh (Migration)

[2019] AATA 6616

Singh (Migration) [2019] AATA 6616 (11 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurlal Singh Singh

CASE NUMBER:  1925419

HOME AFFAIRS REFERENCE(S):         BCC2019/1514644

MEMBER:Dominic Triaca

DATE:11 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 December 2019 at 11:38am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – reason for non-compliance – mental health condition – life stressors – delay in seeking medical assistance – capacity to work – steps taken to remedy situation – significant breach for an extended period of time – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 5 September 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2.The Applicant’s student visa was granted on 23 September 2017 with an original expiry date of 20 August 2020 providing for approximately 3 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3.The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

4.The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would 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 had been granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5.The applicant appeared before the Tribunal on 25 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Sandeep Gill, the applicant’s best friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6.The applicant was represented in relation to the review by his registered migration agent, Smita Gandhar who made submissions on his behalf.

7.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

8.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 Breach Condition 8202?

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

·be enrolled in a 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).

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

11.As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete, several courses. These included a General English course, a Diploma of Business. As the delegate’s decision record further notes, on 9 May 2018 the Applicant’s enrolment in the Bachelor’s course was cancelled by the course provider.

12.The delegate’s findings in this respect were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

13.The PRISMS report indicated that during the period 9 May 2018 to 26 June 2019, the Applicant was in continuous breach of his student visa for not being enrolled in a registered course. That amounts to more than 13 months and represents a significant proportion of the total visa grant period.

14.The Department of Home Affairs wrote to the Applicant by letter dated 18 June 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

15.The Applicant responded to the NOICC on 26 June 2019. In his evidence before the Tribunal he did not dispute that he had breached condition 8202 of his visa and was not enrolled in a registered course of study for the 13 month period alleged.

16.Accordingly, it seems reasonably clear that the delegate was correct in reaching the conclusion that the Applicant had been in breach of his visa for the period of time identified.

17.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

18.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 matters that ought to be considered are specifically listed in the PAM3 as follows:

•the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

•the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

•the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

•the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

•the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

•whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

•whether there are mandatory legal consequences arising from a decision to cancel the visa;

•whether Australia has obligations under any relevant international agreements that would be breached as a result.

Analysis of the Evidence.

19.The applicant‘s representative filed detailed written submissions and documentary evidence in support of the application and were of great assistance to the Tribunal. In these circumstances, I have attempted to summarise and address those submissions in some detail.

20.This is a difficult case to assess. On the one hand, the applicant has undoubtedly experienced mental health issues during his time in Australia and has provided evidence to the Tribunal in the form of an expert report from Dr Sangeeta Jain of the Glenwood Medical Centre dated 24 June 2019 (Medical Report). On the other, the applicant‘s breach is significant, extending for approximately 13 months, he does not appear to have sought assistance for his mental health issues or attempted to resolve his breach until he was in receipt of the NOICC and, he does not appear to have followed the recommendations of his treating psychologist to any great degree.

21.At the date of the hearing, the applicant held a Confirmation of Enrolment from Perth College of Beauty to study an Advanced Diploma of Leadership and Management commencing on 30 September 2019 and due to complete on 5 July 2020.

22.The Tribunal has received detailed written and oral submissions from the applicant’s representative. The Tribunal also received evidence from the applicant’s “best friend” Sandeep Kaur. Ms Kaur had prepared a detailed written statement and adopted this statement as her evidence at the hearing.

23.I summarise the applicant’s case as follows:

(a)He is a 27 year old citizen of India. He arrived in Australia in 2014 to study a Diploma leading to a Degree programme and a 10 week English course.

(b)He started his Diploma of Management in November 2014 and completed this course in October 2015;

(c)In September 2016 he commenced a Diploma of Business at Duke Institute and on 1 September 2017 he completed this course and received a certificate.

(d)In August 2017 he obtained a further student visa and enrolled in a Bachelor of Business at Polytechnic Institute of Australia which started in June 2017. He started to study this course but found it difficult. He says he tried very hard but he failed his subjects.

(e)His evidence is that around this time he fell into depression. He stated some reasons for the depression, which I will address below.

(f)He was unable to study due to depression and his enrolment was cancelled in May 2018.

(g)Around June 2019 he sought professional assistance for his mental health issues and he enrolled in a further course, being the Diploma of Leadership. He has a confirmation of enrolment for this course.

24.The applicant provided the following reasons for his slide into depression in 2017:

(a)His brother’s marriage failed and this impacted his family greatly. His brother’s wife left her marriage and migrated to Canada. She filed for divorce in 2017.

(b)The failure of his brother’s marriage set off a chain reaction, leading to financial losses for his parents, his father suffering from a heart attack, his mother suffered from depression and his brother suffering adjustment problems.

(c)His depression worsened once his grades were affected and he failed subjects leaving him questioning his ability to meet the high expectations of his parents of a good career.

25.The applicant attended Dr Jain on 20 June 2019 for the purposes of assessment and psychological testing. Dr Jain produced a detailed “psychological functioning report” and a copy was provided to the Tribunal. The Report provided the following opinion and recommendations:

(a)The applicant reported symptoms that are consistent with mixed anxiety and depression symptoms.

(b)The applicant’s stated reasons for his depression, described collectively as “family trauma” are stressful events which call contributed to the development of anxiety and depressive symptoms as he struggled to cope and adjust to these events.

(c)The applicant has suffered quite significant severe depression with reported lack of concentration for the years since the family trauma started.

(d)Failure to meet his parents’ expectations and being unable to meet the financial needs of his parents has led him to be trapped in guild leading to both depression and anxiety.

(e)“Given his presenting issues, current emotional functioning and reliance on medication prescribed by GP to cope, it is recommended that Mr Singh be referred for continued therapy with a Psychologist. In my opinion Mr Singh is likely to respond to psychological intervention.”

(f)It is further recommended that “Mr Singh continue to consult with a GP to periodically review his medication. Meanwhile, he has good support and help from his friend Ms Kaur, which is a protective factor in keeping his symptoms in check. However, this can be reassessed once his more immediate symptoms of depression and anxiety have been alleviated.

(g)It is recommended that the applicant be provided with an opportunity to continue his studies in Australia, with perhaps a less rigorous course than a Bachelor’s Degree. This will assist him in building good education foundational skills that he can utilise to successfully pursue a Bachelor level education in Australia in the future. This will be beneficial to Mr Singh and help in reducing his guilt and shame which are currently exacerbating his mental health issues.

26.Notwithstanding that Dr Jain did not interview the applicant until 2019, from a review of his report it is apparent that he considers that the applicant’s symptoms displayed in 2019 were consistent with the applicant suffering a family trauma leading to mental health issues. Ms Kaur’s evidence was to the effect that she was concerned about his mental health in 2017when she observed him acting strangely although it was not until 2019 that she suggested he seek medical assistance. The applicant stated that the family issues leading to his depression occurred from about 2017.

27.It was submitted on behalf of the applicant that, as a general rule, “a visa should not be cancelled where the breach of the visa condition occurred in circumstances beyond the visa holder’s control” and depression, by its very nature, is outside the applicant’s control. The submission follows that the visa ought not be cancelled in circumstances where the breach appears to have been caused by depression.

28.The Tribunal considers that this submission is somewhat attractive in its simplicity, however, it does not withstand rigorous assessment of the breach for the following reasons.

29.The applicant was in continuous breach the conditions of his student visa for a period of 13 months. Whilst the applicant may have been through difficult family events starting in 2017, the fact remains that it was not until 2019, when the applicant was on notice that his visa may be subject to cancellation, that he chose to seek medical assistance and attempted to enrol in further study.

30.The applicant’s representative addressed the delay in seeking assistance as follows. She submitted on the applicant’s behalf that depression was a debilitating condition where a person lacks motivation to “do anything even seek medical help. The fact that Mr Singh comes from a rural background in India, the fact that mental health issues like depression are not recognised as a legitimate ailment mandating treatment in India, the cultural perception that only mad people take assistance or help from a psychologist.”

31.The difficulty with this submission is that is not supported by the medical report. Dr Jain does not, at any stage, suggest that the applicant’s depression prevented him from seeking medical treatment for his illness.

32.The Tribunal also places little weight on the submission that cultural reasons prevented the applicant from seeking medical treatment. The applicant‘s evidence was that his mother suffered from depression, and he provided the Tribunal with a copy of a medical certificate from the Maardeep Hospital in Armritsar confirming that his mother Rajinder Kaur had suffered from “persistent depression” from 2011 and had been treated at the hospital for depression from 2011 until the certificate was issued in November 2019. In circumstances in which the applicant’s own mother had sought treatment for depression, in India, over many years, and absent any corroborating evidence, the Tribunal does not accept the submission that cultural reasons prevented the applicant seeking treatment earlier.

33.In these circumstances, whilst it is possible that the initial breach was caused by the applicant’s depression and therefore out of his control, the Tribunal considers that the extent of the breach was a matter that was within the applicant’s control and he could have sought assistance prior to the receipt of the NOICC in June 2018. The evidence does not support the proposition that the applicant‘s depression prevented him from taking steps to resolve the breach for a period of over a year. It was seemingly in his control to seek medical assistance in June 2019 and there is not any apparent reason why seeking assistance was outside his control prior to that.

34.Another issue that weighs against the application is as follows.

35.It was apparent from the report that Dr Jain regarded the applicant’s depression as ongoing and stated he required further psychological intervention. He also recommended that the applicant’s medication be reviewed periodically in consultation with his GP. It is fair to say that at the time of the report, June 2019, the Psychologist did not consider that the applicant’s depression had resolved.

36.In his evidence, it became clear that the applicant had not followed the recommendations made by the psychologist for his ongoing treatment. The hearing took place on 25 November, some 5 months after the report was written. He was prescribed medication by his GP in June 2019. He says he had taken that medication as prescribed but had not sought a review. He had not returned to the psychologist for any therapy or consultation since July 2019. He stated he had elected not to return to the psychologist since that time due to feeling that the medication had improved his condition but also affordability.  

37.In essence, the applicant’s position is that he suffered from a detrimental mental health condition over a period of years. His condition was so bad that it prohibited his from studying in any way between 2017 and 2019 including a period of 13 months in which he was in continuous breach of his student visa conditions. After approximately two years he resolved to seek medical assistance at the suggestion of his friend. This assistance took the form of 2 or 3 visits to a psychologist and his GP whom prescribed him medication and this assistance effectively resolved his issues so that he is now able to return to study. The Tribunal does not accept that this is an accurate reflection of the applicant’s situation. It is implausible that his mental health issues were so bad, on the one hand, that for an extended period of time he could not study, yet resolved so swiftly and effectively that he is now able to return to study. This is conclusion is not supported by the medical report in which the psychologist clearly regarded his issues as ongoing and recommended “continued therapy with a Psychologist”. The applicant’s failure to follow the recommendations of the psychologist in relation to his mental health weighs against the application.

38.Another relevant matter is that despite the applicant‘s mental health issues, he stated that he was able to work and continued to do so during the period of the breach. He stated that he worked casually to enable him to pay the rent. His friend drove a truck and he supported his friend when required. Whilst there were no further details provided in relation to his employment. Whilst I accept that his capacity to work may have been reduced due to his issues, the fact that the applicant was able to work at all, suggests that he may have been able to study, or at least take steps to address his mental health and resolve the breach earlier than he did. The applicant’s capacity to work was not addressed by the medical report.

39.One further matter, again weighing against the application, is the applicant’s evidence in relation to his failure to take steps to re-enrol in study sooner. His evidence was that he determined that he wanted to take a 6 month break from study as he was found studying was not beneficial. There is no evidence that this, seemingly unilateral decision, was supported by the psychologist or GP. It simply appears that the applicant decided that he would benefit from a 6 month break from study and ceased studying.

Extent of Applicant’s Compliance with Visa Conditions

40. Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions. For the reasons expressed above, the Tribunal considers the applicant’s breach of Condition 8202 is a significant breach. He was in continuous breach of his student visa for approximately 13 months.

Purpose of the Applicant’s travel and stay in Australia; whether the applicant holds a compelling need to travel to or remain in Australia.

41.The Tribunal accepts the applicant’s purpose of travel to Australia was to study. This is evidenced by his initial enrolment. It also accepts that, for a period, he did study. However, on his own evidence, and certainly since May 2018 it is apparent that his purpose of residing in Australia was no longer studying.

42.The Tribunal accepts his evidence that he would like to return study, albeit at a lower level than the Bachelor degree he was previously enrolled in.

43.The terms ‘compelling’ and ‘need’ are words that ought to be given their ordinary meaning. They are not defined by s 116 of the Act or the PAM3. Crennan J (then sitting in the Federal Court) considered compelling to mean ‘forceful and therefore convincing’[2] . Need is a relative concept. It plainly means more than ‘want’ but falls well short of ‘cannot survive without.’[3]  Having regard to these authorities, and the ordinary meaning of the terms, the Tribunal does not consider that the applicant has advanced any compelling need to travel and stay in Australia.

[2] Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244 [37] – [45]

[3] See R (on the application of M) v Slough Borough Council (2008) WLR 1808 at [54]; Boettcher v Driscoll (2014) SASC 86 at [41] per David J

Hardship

44.The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. He will be disappointed and his family will be disappointed. He states that he would find it difficult to obtain employment in India. Notwithstanding his concerns, the Tribunal notes that he has completed an English course and a Diploma of Business in Australia which ought to improve his employment prospects in his home country.

45.The Tribunal takes into account that the applicant and his family have paid money towards course fees which will be lost and the Tribunal accepts this is a further hardship he will suffer. I also take into account that his parents have financially contributed to his studies in Australia and they are also likely to suffer some hardship if the visa is cancelled.

46.I note that concern in relation to the applicant’s hardship must be tempered by the fact that the applicant has breached a fundamental condition of his student visa, the breach was continuous for an extended period of time.

47.Further, the Tribunal does not accept the submission that the cancellation of the applicant’s visa will result in a worsening of the applicant’s parents respective conditions. There is no evidence to support this submission.

Applicant’s Behaviour towards Department

48.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. He has been co-operative in assisting the Department towards the resolution of this matter. It was submitted that good behaviour towards the department ought to be given “significant weight”. I do not accept that submission and it was made without any authority in support. I give it some weight in favour of the applicant but I do not consider it significant.

Other Visa Holders

49.There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

50.The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met.

51.The Tribunal considers these consequences are the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of visa conditions.

52.The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of India and can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

53.The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Other relevant matters.

54.The applicant’s timeline in relation to his family’s troubles is difficult to follow. Whilst it is not a determinative issue, and I place no weight on it, I note for the record that at times it was difficult to follow the applicant’s timeline and his evidence in respect of the cause of his depression.

55.Specifically I note that the applicant’s evidence was that his father experienced a heart attack in 2013 and his mother had experienced depression since 2011. Accordingly it seems on the objective evidence that the applicant dealt with those circumstances reasonably well during the 2015 – 2017 period when he was studying and making academic progress. There seems no real reason why those matters would have started to impact on him at the time of the initial breach in 2018. It may be that the applicant’s brother’s marriage breakdown has had such a catastrophic effect on the family that it aggravated these matters and caused or contributed to the applicant’s depression. For this reason I do not weigh these inconsistencies adversely as I accept the applicant has been suffered mental health issues during his time in Australia and speculating on the reasons for his difficulties is not necessarily relevant to this decision.

56.It was submitted on behalf of the applicant that his personal circumstances were such that his deep depression led him to being unable to pursue full time studies in a registered course and correspondingly failed to comply with Condition 8202(2)(a) and this weighs in favour of the visa not being cancelled. However, the submission assumes that the only choice open to the applicant was to remain in Australia until such time as his depression passed. 37.          It is apparent that the applicant found himself in breach of his student visa conditions in May 2018. If a student holding a student visa finds that they are unable to maintain satisfactory course progress or enrolment for personal reasons, the student has a very definite choice. They may advise the Department and return to their home country until such time as they are able to study. Alternatively, they may remain in Australia on a valid student visa, which the Tribunal considers is a decision to recommit to achieving satisfactory course progress and enrolment. In this case, the applicant has remained in Australia for 13 months on a student visa, without studying or being enrolled to do so. The applicant failed to take any positive steps to remedy this situation with respect to his continuing obligations throughout this time.

57.Having regard to all the evidence before the Tribunal, and weighing the submissions, the Tribunal does not consider that the breach was occasioned by circumstances outside the applicant’s control. Whilst it accepts that the applicant suffered depression, the evidence does not support a conclusion that the applicant’s depression prevented him from studying or returning to study for a period in excess of a year.

58.The Tribunal notes that the Applicant provided no psychological evidence, beyond the written assertions of the Applicant himself, that accounted for his mental state at the time. The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition during the time he was in continuous breach of his visa. In these circumstances, the Tribunal has formed the view that his personal suffering arising from his relationship breakdown falls into the category of ordinary mental difficulties that people generally suffer on a daily basis in dealing with life’s stressors. In the end, the Applicant’s explanation of the situation effectively amounts to a statement that he was unable to deal with his personal problems while, at the same time, maintaining his legal obligation to comply with an essential condition of his student visa. He chose not to comply with an essential visa condition.

59.Lastly, it was submitted on behalf the applicant that the delegate’s decision contained an error in that the delegate referred to the applicant as “Bhupinder Singh“ rather than his given name Gurlal. It was submitted that this was a “significant error”. Whilst unfortunate, there is no evidence that this mistake prejudiced the applicant in any way and I regard it as an inadvertent error. In the circumstances I give this submission no weight.

60.In all the circumstances, the Tribunal is satisfied that the Applicant’s visa should be cancelled.

DECISION

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

Dominic Triaca
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.