Xu (Migration)

[2020] AATA 1344

Xu (Migration) [2020] AATA 1344 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinjian Xu

CASE NUMBER:  1932909

HOME AFFAIRS REFERENCE(S):          BCC2019/3285656

MEMBER:Michael Biviano

DATE:3 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 03 February 2020 at 1:45pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a higher level registered course – limited academic progress – applicant changed courses – completion of lower level studies – impact of cancellation upon a relationship – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 November 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 subclause (2)(b) of condition 8202 of his visa was breached as he was not enrolled in a registered course at the same level or a higher level than the registered course in relation to which the visa was 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.

3. The applicant appeared before the Tribunal on 21 January 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. After carefully considering the evidence presented in this matter and 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

6. 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?

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

   a.be enrolled in a full-time registered course: 8202(2)(a);

   b.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: 8202(2)(b);

   c.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and

   d.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

8. In the present case, the applicant’s visa was cancelled on the basis that the applicant was in breach of subclause (2)(b) of condition 8202 of his visa as he was not enrolled in a registered course at the same level or a higher level than the registered course in relation to which the visa was granted, for the period from 21 December 2017 to the cancellation of the visa on 18 November 2019.

9. The decision record of the delegate of the Department of Home Affairs (the Department) on 20 November 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa, which was granted on 8 February 2017, and the reasons for the cancellation of the visa (Decision Record).

10. Prior to the hearing on 5 November 2019, the applicant filed with the Tribunal:-

    a.Submissions dated 5 November 2011;

    b.Confirmation of Enrolment (COE) number B0B39E96 created on 30 October 2019 for Diploma of Information Technology at Wentworth Institute commencing on 28 October 2019 and concluding on 25 October 2020;

    c.COE number B0BF3D31 for the Diploma of Interactive Media at Wentworth Institute commencing on 16 November 2020 and concluding on 11 November 2022;

    d.Certificate of Relationship dated 28 October 2016;

    e.Letter from SIBN dated 20 January 2020 confirming course progress in Certificate IV in Business; and

    f.Letter from Commonwealth Bank of Australia to the Applicant dated 17 January 2020 confirming the opening of a bank account for the applicant.

11. On the day of the hearing, on 21 January 2020, the applicant, by his migration agent, filed documentation in support of his application, including:

    a.Confirmation of Enrolment (COE) number B2327785 for Certificate IV of Business at IBN College Pty Ltd (SIBN) commencing on 6 January 2020 and concluding on 9 February 2020;

    b.COE number B2328B51 for the Diploma of Business at SIBN commencing on 10 February 2020 and concluding on 9 August 2020;

    c.Letter from SIBN dated 20 January 2020 confirming course progress in Certificate IV in Business; and

    d.Letter from Commonwealth Bank of Australia to the Applicant dated 17 January 2020 confirming the opening of a bank account for the applicant.

12. The applicant gave evidence that he completed high school to year 11 in China in 2017 and he arrived in Australia from China in August 2017 after obtaining his Student Class TU (Subclass 500) visa on 9 August 2017  to study a suite of courses including:

    a.Trinity College Foundation Studies (Foundation Course) at Trinity College commencing 14 August 2017 and concluding on 31 December 2018; and

    b.Bachelor of Design at the University of Melbourne.

13. At the time the visa was granted, it was granted on the basis that he was to be enrolled in a suite of courses including the Bachelor of Design, which is a course at level 7 of the Australian Qualification Framework (AQF).

14. The applicant claimed that he did not know at the time of the grant of the visa that he was required to remain enrolled in a course at level 7 or higher of the AQF but knew at the time of the hearing this was a requirement of the visa. He gave evidence that the migration agent who had applied for the visa, had told him that if he completed the courses he would have no problem with the visa. However, they did not tell him about the condition that he was required to main enrolment in a course at level 7 or higher. The applicant gave evidence that he had not read his visa conditions. A student who obtains a student visa is expected to know and be aware of his visa conditions and comply with those conditions. Ignorance of the visa conditions is no defence to a breach of the visa.

15. The applicant claimed that while studying the Foundation Course he found it difficult and he passed only two of the four units that he studied. He decided to change course. He gave evidence that he consulted an education consultant and they recommended that he change course. They advised him that if he changed course provider he would not have a problem with his visa. The applicant did not submit to the Tribunal any corroborating evidence supporting that he had been given that advice.

16. The applicant gave evidence that due to his failing two subjects for each of two semesters he lost his enrolment in the Foundations Course and in the Bachelor of Design course, which was conditional upon the applicant completing the Foundations Course. The applicant accepted that he had lost his enrolment in the Foundations Course and Bachelor of Design course on the date set out in the Decision Record on 20 December 2017.

17. The applicant was advised by his education consultant to enrol at SIBN and undertake lower level courses as a stepping stone and build up to a degree. She recommended he enrol in a Certificate III and IV in Business, then leading to a Diploma of Business and then finally a Bachelor’s Degree.

18. In 2018, the applicant enrolled in a Certificate III in Business at SIBN but his COE was cancelled as he was not passing his studies. The course was a level 3 course under the AQF. The applicant re-applied to SIBN and obtained another COE to study a Certificate III in Business and he undertook studies in that course. The applicant submitted to the delegate a Statement of Attainment from SIBN, which confirmed that the applicant studied that course from 18 February 2019 to 16 June 2019. The applicant gave evidence that he obtained the Certificate III in or around June or July 2019.

19. In or about August 2019, the applicant enrolled and commenced studying in a Certificate IV in Business at SIBN, which was to conclude in December 2019. However, the applicant’s enrolment and COE in that course were cancelled due to the decision of the delegate cancelling the visa on 18 November 2019. The applicant has since been able to re-enrol and obtain a new COE for the course commencing on 6 January 2020 and concluding on 9 February 2020. The course is a level 4 course under the AQF.

20. The applicant supplied to the Tribunal a COE for the Diploma of Business at SIBN commencing on 10 February 2020 and concluding on 9 August 2020. The course is a level 5 course under the AQF and the applicant has a future enrolment in that course.

21. The applicant gave evidence that he intends studying the Diploma of Business at SIBN and that he wanted to study a Diploma of Business at UTS, at the same time, leading to a Bachelor’s degree at Latrobe University as part of a package of courses. It was unclear why he wanted to study to diploma of business courses at the same time, and when asked about it, he said that he enjoined studying.  When pressed about what Bachelor’s degree he would undertake, he was unsure whether it was in Design or Business. He gave evidence that he intended to undertake the Bachelor’s degree and return to China to work in the family’s factory.

22. Later in the hearing the applicant clarified his evidence as to what he meant when he stated that he wanted to study two diploma of business courses at the same time was that he wanted choose to study one of those courses.

23. In any event as at the date of the hearing, the applicant is not enrolled in a bachelor’s course, and if he continues to study the Certificate IV and the Diploma of Business as contained in the COE then the outcome would be that the applicant would remain in breach of his visa even if the cancellation of the visa was set aside, as he would be enrolled in a course that was not at the same or a higher level than a level 7 course, and it is a breach of condition 8202(2)(b) of the visa. The applicant was unable to provide supporting evidence of any bachelor degree that he could successfully enrol in Australia if the cancellation of the visa was set aside. He was unable to present any letter of offer or letter from a tertiary institution that it would be prepared to consider an application for enrolment by the applicant.

24. On 22 October 2019, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa.

25. On 28 October 2019, the applicant provided a detailed explanation letter to the Department in response to the NOICC with numerous supporting documents (the Letter), including:-

    a.    SIBN Statement of Attainment for Certificate III in Business dated 24 June 2019;

    b.    SIBN Statement of Attendance for Certificate III in Business dated 28 October  2019;

    c.     Letter from SIBN dated 28 October 2019 confirming course progress in Certificate IV in Business; and

    d.    Text message and email exchange dated 29 September 2019 and 29 October 2019 confirming application to enrol in a bachelor’s degree at Latrobe University.

26. The applicant has been unable to obtain an enrolment in a bachelor’s course as at the date of the hearing and was unable to present a letter of offer.

27. The applicant gave evidence that he was aware that he was in breach of his visa by not being enrolled in a course at level 7 of the AQF or higher.

28. The applicant conceded in evidence that he was not enrolled in a course at level 7 of the AQF or higher from 21 December 2017 to the cancellation of the visa on 18 November 2019, being a period of nearly 23 months, and he was enrolled in lower level courses for a significant period of that time. By reason of not being enrolled in a level 7 course of the AQF or higher for that period of time, he did not meet condition 8202(2)(b) of his visa. As the applicant was not enrolled in a course at level 10 of the AQF, the exemption at condition 8202(3) of the visa does not apply to the applicant and he is required to be enrolled in a course at level 7 of the AQF or higher.

29. On the evidence before the Tribunal, 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 the visa was granted, for the period from 21 December 2017 to 18 November 2019. Accordingly, the applicant has not complied with condition 8202(2) of his visa. As this was a condition that was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

30. 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 purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel or to remain in Australia

31. The applicant gave evidence that he came to Australia to study and undertake the courses as discussed above.

32. As discussed above, the applicant has generally been continuously enrolled in courses and studied since his arrival in Australia.

33. The applicant initially studied a Foundations Course at Trinity College, which was to lead to a Bachelor of Design at the University of Melbourne. Due to poor academic results, he enrolled in Certificates III and IV in Business at SIBN. He failed his studies undertaken in Certificate III of Business at SIBN in 2018 and lost his enrolment, but he re-enrolled and applied himself. He has completed the Certificate III in Business and he has almost completed Certificate IV in Business, which is expected to conclude on 9 February 2020.

34. The applicant intends to continue studying in Australia in the future. The applicant has an enrolment for the Diploma of Business at SIBN, which is expected to conclude on 9 August 2020, whereby he will seek to enrol in a Bachelor of Business or Design. Alternatively after completing a Certificate IV in Business he will seek to enrol in a suite of courses at Latrobe University including a bachelor’s degree.

35. The applicant gave evidence that he is very keen to return home with a bachelor’s degree, either in Design or Business, as it will provide him with an opportunity to work in the family business, being a factory and if he did not obtain the degree he was concerned that his parents would not allow to work in the family business.

36. Having regard to the applicant’s evidence and his conduct of continued study during the time he has been in Australia, the Tribunal accepts that the applicant has travelled to Australia and stayed here to study, and he intends to study in the future.

37. The applicant was not enrolled in the appropriate level of course for a period of nearly 23 months, but the Tribunal accepts that the applicant has changed courses because of his failed studies in the Foundations Course at Trinity College. The applicant was generally continuously enrolled in a registered course, as set out above. For these reasons, the Tribunal gives these matters marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

38. The applicant was not enrolled at the appropriate level course from 21 December 2017 to 18 November 2019. Therefore, the applicant has not complied with condition 8202(2) for a very long period of time. The non-compliance with condition 8202(2) for such a very long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason of non-enrolment.

39. As discussed above, the applicant’s non-compliance with the visa condition relates to his failed studies in the Foundations Course, which lead to the cancellation of his enrolment in the Bachelor of Design and his inability to enrol in another bachelor’s degree.

40. Whilst the Tribunal accepts that the applicant may have needed to change courses due to his failed studies, the applicant was obliged to meet his visa conditions and it was his responsibility to maintain enrolment in the appropriate level of course. If he could not maintain that level of enrolment, it was open to him to apply to the Department for a new visa.

41. The applicant in his Letter made telling admissions about compliance with the conditions of the visa and he stated at page 2 that:

    Therefore, I did feel that due to my personal learning ability at that time, going to the University of Melbourne immediately after Trinity college would be a challenge for me. Then I discussed with my parents about my study and my future. They understood that the University of Melbourne may have be too high of a starting point to start. They suggested me to study from basic and gradually build up my knowledge, therefore, they encouraged me to find another school and courses which are more suitable for me. Upon receiving their encouragement, I was greatly empowered and is pumped to start it all over again. Then I found a student agent by chance, helped me do the application for a new applicable school.

    The student agent recommended SIBN college for my further study, she told me this school is a pathway to La Trobe University and MQ university, and many of my classmates after finishing courses in SIBN, they already move up to La Trobe University or MQ university for bachelor course. It made me believe if I keep studying at SIBN College and got certificate, I can entry Bachelor course as well. I then transferred to SIBN College as to give myself a leeway before entering university officially, and to continuously building knowledge at the school in order to prepare my study at university in the future.

    Seeing me had some doubt about the successful rate of such procedure, the student agent made promises that she could arrange me enter the bachelor course after I finished course in SIBN college, and I would be completely out from visa problems, because I supposed to back to Bachelor course.

42. The Letter confirms that the applicant was aware that he had visa problems and that these problems would not exist if he was able to enrol in a bachelor’s degree at the conclusion of the Certificate III and IV courses. The Letter confirms that the applicant was aware that he was in breach of his visa conditions by not being enrolled in a bachelor’s degree or a course at a higher level. The Tribunal finds based on the content of the Letter, that applicant was aware at the time he enrolled at SIBN that he would be in breach of his visa conditions in enrolling in a Certificate III and Certificate IV in Business alone.

43. The Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that he would be in breach of his visa by not enrolling in a bachelor’s degree. The applicant had attempted to enrol in a bachelor’s degree at Latrobe University after the cancellation of his enrolment with the University of Melbourne, but that application failed to obtain an enrolment.

1. The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa

2. Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a bachelor level course or higher. If he could not secure enrolment in a bachelor’s degree or higher course, he ought have applied to the Department for a new visa.

3. The Tribunal finds that the reasons for not being enrolled in a bachelor level course or higher were the responsibility of the applicant.

4. Having regard to the very long period of the breach, that the applicant could have applied for a new visa, and that the applicant was responsible for not being enrolled at the appropriate course level, the Tribunal gives substantial weight towards the visa being cancelled.

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

5. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

6. The applicant gave evidence that the visa cancellation would cause him and his family a substantial degree of hardship as:

   a.It would be a blow to his parents and his grandparents who would despair at the applicant returning home without a bachelor’s degree, which would impact on his future;

   b.It would impact the development of the family business, as it was unlikely he could return home and work in the family business without a bachelor’s degree; and

   c.It would have a substantial impact on his girlfriend who is studying in Australia on her own student visa. The applicant and his girlfriend are living together and have been sharing accommodation with another student since 2018. She is expected to conclude her studies at the University of Sydney in 2022. The applicant gave evidence that if his visa is cancelled, his relationship with his girlfriend will break down.

7. The applicant gave evidence that if his visa was cancelled and he returned to China, he would attempt to obtain tertiary qualifications in China, which would give him the qualification to take up a position in the family business.

8. The Tribunal notes that the applicant will have completed two certificates in Business and he will not return to China empty-handed if the visa is cancelled. Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and his family if the visa is cancelled, in the cost of tuition fees that have been paid, but they are lost whether he undertakes any further study in Australia or not.  

9. The Tribunal also finds that there is nothing preventing the applicant and his girlfriend conducting their relationship long distance between China and Australia, and she is likely to return home on regular intervals.

10. In any event the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

11. The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

12. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

13. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

14. Ultimately, the responsibility regarding enrolment rests with the student.  

15. The applicant knew and was aware that by not being enrolled in a registered course of study at the appropriate level he would be in breach of condition 8202 and that his visa may be cancelled. However the applicant made an attempt to enrol in a bachelor’s degree course, but his application was most likely refused due to his academic record.

16. The primary purpose of the applicant under the visa is to be enrolled and undertake a registered course at a level appropriate to his visa. The applicant was not enrolled in a registered course at an appropriate level for a period of nearly 23 months, which is a very long period of time to be in breach of the visa.

17. The Tribunal has considered the applicant’s explanations for why he was not enrolled in a registered course at a level appropriate to his visa for such a very long period of time and therefore in breach of condition 8202(2). The Tribunal does not accept those circumstances were beyond his control, or circumstances that provided a reasonable explanation for not being enrolled at the appropriate level of course for such a long period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

18. According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

19. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

20. If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then 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. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa.

21. Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

22. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.

23. The applicant gave evidence that if the visa remained cancelled he would return to China and undertake his studies there, and therefore there is no indication that he would become unlawful or be subject to detention.

24. Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    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

25. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to China, and he did not give any reasons as to why he could not return to China, and he has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

27. The Tribunal considers that it is a relevant matter as to whether the applicant is able to obtain enrolment in a registered course at an appropriate level to his visa. If the applicant is unable to obtain enrolment in a course that is at an appropriate level to his visa it will weigh towards his visa being cancelled, as there would be little utility to set aside the cancellation of the visa if the applicant would remain in breach of his visa condition.

28. The applicant gave evidence that he would seek to gain enrolment in a bachelor’s degree in the future but the only evidence he submitted about future studies was a COE to study a Diploma of Business at SIBN and an unsuccessful attempt to enrol at Latrobe University to undertake a bachelor’s degree.

29. If the applicant undertakes the Diploma of Business at SIBN on its own, without any other enrolment, it is a course at level 5 of the AQF, and he will not be compliant with the visa condition of maintaining an enrolment at level 7 of the AQF or higher.

30. The applicant submitted that he would endeavour to enrol in a suite of courses with a bachelor’s degree in the future but there was no supporting evidence by way of letter of offer or evidence from the applicant that a university was prepared to offer him a position subject to cancellation of the visa being set aside.

31. In such circumstances, the Tribunal finds that on the evidence before it that the applicant will study the Diploma of Business at SIBN and not be enrolled in a bachelor’s degree in the near future and the applicant will be unable to obtain the necessary enrolment to be compliant with the visa for a number of months.

32. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

33. Further, the applicant’s migration agent made a submission at the conclusion of the hearing that the cancellation of the visa ought to be set aside on the basis that returning the applicant to China would endanger his life because he would be subject to the coronavirus. I note that the applicant does not reside in Wuhan, which is the area primarily affected by the virus and is in lock down.

34. The Tribunal has considered the applicant’s submission and notes that:-

    a.The applicant’s home area is not part of the city of Wuhan;

    b.The applicant is not precluded to returning to other parts of China not affected by the virus, even if his home area becomes affected by the virus; and

    c.The virus has reached Australia and there are a number of persons diagnosed in Australia with the virus, and he may subject to the virus in Australia.

    In light of those matters, the Tribunal gives this factor no weight towards the visa not being cancelled.

    Conclusion

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

    DECISION

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

    Michael Biviano
    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.