Yadav (Migration)

[2021] AATA 357

Yadav (Migration) [2021] AATA 357 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankit Yadav

CASE NUMBER:  1932394

HOME AFFAIRS REFERENCE:               BCC2019/3241363

MEMBER:L. Symons

DATE:10 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 February 2021 at 9:15am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower level than visa requirement – enrolled in original course because of parental expectations – poor results, changes of education provider and cancellation of enrolment – after receiving department’s notice, requested time to apply for appropriate visa, but no application made – non-completion of lower-level course – departed Australia between hearing and decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulation 1994 (Cth), Schedule 8, condition 8202(2)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 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 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 his Student visa was granted. On 14 November 2019, the applicant applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal by telephone on 20 January 2021 to give evidence and present arguments.

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

5. 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 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?

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:

   ·be enrolled in a full time registered course: 8202(2)(a) and

   ·subject to subclause (3), must 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: 8202(2)(b)

8. Subclause 8202(3) does not apply to the applicant as he was not enrolled in a registered course at level 10.

9. The applicant has filed with the Tribunal a copy of the decision of the Department of Home Affairs (the Department) made on 11 November 2019. It indicates that on 15 October 2018 he was granted a Student visa for the purpose of studying a Master of Business Administration degree (AQF Level 9) at the Kaplan Business School Pty Ltd from 11 July 2018 to 20 June 2020. This visa was subject to a number of conditions including condition 8202. On 7 December 2018, his education provider cancelled his enrolment in that course. On 27 November 2018, he enrolled in a Certificate III in Commercial Cookery (AQF Level 3) at the Adelaide College of Technical Education.  

10. On 9 October 2019, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he appeared to be in breach of condition 8202(2)(b) of his Student visa as he was not enrolled in a registered course that, once completed, would provide him 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. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. On 15 October 2019, he provided the Department with a response to the NOITCC.

11. In his response to the NOITCC, the applicant stated that he completed a Bachelor of Commerce degree in 2012 and a Master of Tourism Administration degree in 2014 in India. He worked for a tourism company in India for 2 years prior to coming to Australia in 2016. He always had a passion to work in the hospitality industry but his parents wanted him to study Business or Accounting. He enrolled in a Masters in Accounting at Flinders University. After two semesters he was unable to perform and, after consulting his parents, he transferred to the same course at Torrens University. Because of his lack of interest in Accounting, he did not perform well in this course either.

12. In his response to the NOITCC, the applicant stated that he subsequently enrolled in a Master of Business Administration even though he did not want to study Business. His parents then reluctantly agreed to him enrolling in a Certificate III in Commercial Cookery. He enjoyed this course, did well in it and expected to complete it in November 2019. He wished to thereafter study a Certificate III in Commercial Cookery and a Diploma of Hospitality Management. After receiving the NOITCC, he consulted a migration agent who informed him that he could not study a course at a lower level than the course for which he was granted the Student visa. He had found a course of his choice and was planning to apply for another (Student) visa in the next week or so. He requested and was given time to do so.

13. The applicant did not apply for another Student visa. The Department subsequently cancelled his Student visa on 11 November 2019.

14. During the hearing, the applicant agreed that he had not complied with condition 8202(2)(b) of his Student visa because his enrolment in the Master of Business Administration degree (AQF Level 9) was cancelled on 7 December 2018 and he had not enrolled in an AQF Level 9 course or higher after that date.

15. There is no evidence before the Tribunal to indicate that the applicant enrolled in a registered course that, once completed, would provide him with a qualification that was at the AQF Level 9 or higher after the cancellation of his enrolment in the Master of Business Administration degree (AQF Level 9) on 7 December 2018.

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

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of his 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?

18. The applicant gave evidence that he has a Bachelor of Commerce degree and a Master of Tourism Administration degree from India. His purpose in coming to Australia was to study and obtain a Master’s degree in Accounting because it is highly valued in India. He planned to work as an Accountant in India.

19. The applicant gave evidence that he has enrolled in three different courses in Australia and has not completed any of them. The last course he studied was a Certificate III in Commercial Cookery. He has not studied since October 2019. He did not apply for a Student visa after October 2019.

20. It is not clear to the Tribunal why the applicant stopped studying in October 2019 when his Student visa was not cancelled until 11 November 2019 and his evidence is that he would have completed his Certificate III in Commercial Cookery in November 2019.

21. The records of the Department indicate that the applicant was granted a subclass 573 Student visa on 29 June 2016 that was valid until 30 August 2018. He was subsequently granted a subclass 500 Student visa on 15 October 2018 which was cancelled on 11 November 2019. The records of the Department of Education indicate that he was enrolled in a Master of Accounting and Finance degree from 25 July 2016 to 30 June 2018. On 5 August 2017, his enrolment in that course was cancelled as he notified his education provider that he was ceasing his studies in that course.

22. The applicant then enrolled in a Master of Professional Accounting degree from 17 July 2017 to 12 May 2019. His enrolment in that course was cancelled on 3 September 2018 because he left his education provider and transferred to another education provider and another course. He then enrolled in a Master of Business Administration degree from 11 July 2018 to 20 June 2020. His enrolment in that course was cancelled on 7 December 2018 because he  notified his education provider that he was ceasing his studies.

23. The applicant then enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management to be undertaken between 19 November 2018 and 6 December 2020. His enrolment in those courses was subsequently cancelled on 12 November 2019. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that he had been in Australia since 2016 and had not completed a single course here. The Tribunal noted that he had a very poor record as a student in Australia. The Tribunal stated that it may find that he had not fulfilled the purpose for which his Student visa was granted and that his Student visa should be cancelled.

24. The applicant responded that he needed time to respond and requested that he be granted 2 weeks. The applicant was granted 2 weeks to provide a response.

25. On 3 February 2021, the Tribunal received a letter by email from the applicant’s migration agent informing the Tribunal that the applicant had departed Australia on or about 29 January 2021 and this was confirmed on the Department’s VEVO which indicated that he no longer held a valid Bridging visa (meaning that he had departed Australia). He stated that the applicant’s former housemate learned of his departure from Australia after the fact. He stated that he was informed by the applicant that his mother suggested that he should return home regardless of the outcome of his application before the Tribunal and it appears that this was always his intention.  

26. The records of the Department confirm that the applicant departed Australia on 29 January 2021 and that his Bridging visa ceased on that date.

27. Having considered all the evidence and the submissions from the applicant’s migration agent the Tribunal is not satisfied that the applicant has fulfilled his purpose in coming to Australia. The Tribunal is also not satisfied that he has demonstrated a compelling need to return to Australia.

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

    The extent of compliance with visa conditions

29. The applicant was granted the subclass 500 Student visa on 15 October 2018 for the purpose of completing a Master of Business Administration degree (AQF Level 9). He has not been enrolled in a registered course that, once completed, would provide him with a Master’s degree or a higher degree since 7 December 2018. This was a substantial period of time during which he was in breach of condition 8202(2)(b) of his Student visa.

30. The Tribunal asked the applicant whether he had breached any other condition of his Student visa. He responded that he had not.

31. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal gives this consideration no weight in his favour.    

    Degree of hardship that may be caused

32. The Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that when he returns to India, he will not be able to get a good job or a good education as there is a gap of 4 ½ years. It would be difficult for him to get married and especially difficult for his parents. If he does not have a good job life would be difficult in India. If he returns to India without a degree it would be shameful for his parents and painful for him. When he decided to do the Commercial Cookery course, he was hoping to get permanent residence in Australia.

33. The applicant’s migration agent provided written submissions to the Tribunal in which he submitted that the applicant comes from an educated family. Both his parents worked/work in the education sector and his sister has a Bachelor of Commerce degree and is working as an Auditor. As he is the only male child in the family, there are cultural and other responsibilities to provide for and care for his parents. Both his parents are in good health and have not been affected by the Covid 19 pandemic. Oral submissions were made that he has a strong obligation to have a good career.

34. The applicant’s migration agent made written submissions that the applicant will face cultural and family humiliation if he is required to return to India without completing his desired Australian qualifications. He and his parents would have lost substantial sums of money.

35. The Tribunal notes that some of the submissions made by the applicant’s migration agent are at odds with the applicant’s own evidence and his conduct. For instance, the submission in relation to the cultural expectation on the applicant to care for his parents is at odds with the applicant’s evidence that when he decided to do the Commercial Cookery course he was hoping to get permanent residence in Australia. His conduct in voluntarily returning to India before the outcome of his application for review before the Tribunal is also at odds with the submission in relation to the humiliation he will face on return to India and his own evidence of his concerns about returning to India.

36. Notwithstanding the above, the Tribunal accepts that the applicant and his parents have invested considerable sums of money in his education in Australia without obtaining the desired outcome. The Tribunal accepts that it would be embarrassing for the applicant to explain why he returned to India, after studying in Australia for 4 ½ years, without any Australian qualifications. The Tribunal does not accept that he will not be able to obtain a good job in India without an Australian qualification. The Tribunal notes that his sister was able to obtain a job as an Auditor with only a Bachelor of Commerce degree. He has a Bachelor of Commerce degree and a Master of Tourism Administration degree. The Tribunal does not accept that it would be difficult for him to get married if he does not have an Australian qualification.

37. The Tribunal accepts that if the Student visa is cancelled it would cause the applicant and his parents emotional and financial hardship. The Tribunal gives this consideration some weight in his favour.

    Circumstances in which the ground for cancellation arose

38. In his response to the NOITCC, the applicant stated that he was “unable to perform” in the  Masters in Accounting degree he was enrolled in at Flinders University and transferred to the same course at Torrens University. Because of his lack of interest in Accounting, he did not perform well in this course either. He subsequently enrolled in a Master of Business Administration degree even though he did not want to study Business. His parents then reluctantly agreed to him enrolling in a Certificate III in Commercial Cookery. He enjoyed this course, did well in it and expected to complete it in November 2019. He wished to thereafter study a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.

39. In his response to the NOITCC, the applicant stated that after he received the NOITCC he consulted a migration agent who informed him that he could not study a course at a lower level than the course for which he was granted the Student visa. He had found a course of his choice and was planning to apply for another (Student) visa in the next week or so. He requested and was given time to do so. He did not apply for another Student visa that would have allowed him to continue the Commercial Cookery courses and the Diploma of Hospitality Management.

40. During the hearing, the applicant gave evidence that he did well in his first semester at Flinders University. He had problems in his subjects from the start of the second semester. He spoke to his parents who told him that no matter what he had to complete his degree. Because of this he was not able to concentrate on his studies. He was able to pass assignments but could not pass the final examinations. Despite the family pressure on him to complete the degree, he was not able to do it. After the second semester he transferred to Torrens University with his parents’ consent. 

41. The applicant gave evidence that at Torrens University he had difficulty with the Accounting subjects but not the supplementary subjects like Business which he passed. He did three Accounting subject and was able to do the assignments but failed the final examinations. He consulted a migration agent to get his (Student) visa extended. He was advised to study a Master of Business Administration degree if he was having difficulty with his course. However, he found the Master of Business Administration degree to be difficult. He then decided to study Commercial Cookery.

42. The Tribunal asked the applicant why he enrolled in a Master of Business Administration degree if he was not interested in Accounting or Business. He responded that he consulted a migration agent who is an expert. He wanted to do the Commercial Cookery course but his migration agent did not advise him. His migration agent advised him to get his (Student) visa extended and then do the Commercial Cookery course. When asked whether it was his migration agent or his education agent who advised him to study the Master of Business Administration degree, he responded that he consulted Mr Babu Kanal who is both an education agent and a migration agent. He subsequently terminated Mr Babu Kanal’s services in July 2018. He consulted Mr Khan in October 2018, after he had enrolled in the Master of Business Administration degree, because he did not like Mr Babu Kanal’s advice and he lost a lot of money.

43. When the Tribunal noted that Mr Khan is a migration agent and not an education agent, the applicant responded that he is an education agent. When asked whether he understood the difference between an education agent and a migration agent, he responded not clearly. When asked whether he understood what type of agent Mr Parish (his current migration agent) is, he responded that he is a migration agent and he checked that he was registered with OMARA. Mr Khan told him that he could do the Commercial Cookery course. When asked whether he checked whether Mr Khan was registered with OMARA, he responded no.

44. The Tribunal asked the applicant why he did not inform his parents that he was not interested in studying Accounting or Business and return to India. He responded that he did tell his parents and they asked him what he was going to tell people in India. They said he came to Australia and wasted 2 years. He is their only son and he was under “mental pressure” from family. They spent $30,000.00 on his education. He kept thinking about what he would do if he returned to India. He was doing well in Commercial Cookery but could not complete it due to his visa problem. If he returns to India without a degree it would be shameful for his parents and painful for him. He has wasted 4 ½ years.

1. The Tribunal asked the applicant whether his parents agreed to him doing a Certificate III in Commercial Cookery. He responded that his mother told him that he could do the course if he wanted to but he had to do it properly. When asked what was meant by that, he responded that he already has a Master of Tourism degree and it would be a good combination. He could use it in hospitality and also be a good chef. His parents supported him financially to study the Commercial Cookery course.  

2. The Tribunal pointed out the inconsistency in the applicant’s evidence on the one hand claiming that his parents said it would be shameful to go back to India without a degree and on the other hand stating that his parents supported him studying Certificates in Commercial  Cookery and a Diploma of Hospitality Management which do not lead to a degree. He responded that if he returns to India he cannot enrol in a course because he has a gap of 4 ½ years. When asked what course he wanted to enrol in in India, he responded that he would have to do a Master’s degree in Commercial Cookery because there are no Diploma courses in India.

3. The Tribunal asked the applicant what universities in India offered Bachelor of Commercial Cookery degrees or Master of Commercial Cookery degrees. He responded it is not just cookery and he would have to do a Bachelor of Hotel Management degree. When asked whether he wanted to do a Bachelor of Hotel Management, he responded no. When the Tribunal pointed out that he has a Master of Tourism Management degree, he responded that the qualification he gets in Australia is better than in India. When asked what value a diploma from Australia has in India, he responded that degrees from Australia have greater value than what he does in India. They are considered foreign qualifications.

4. The applicant gave evidence that he did not inform the Department that he was changing his course to a Certificate III in Commercial Cookery. When asked why he did not complete his Certificate III in Commercial Cookery, he responded that he received the NOITCC in October 2019. He then applied for a Bridging visa in November 2019 and was given work rights but no study rights. When asked whether he applied for study rights, he responded that he spoke to Mr Khan and was advised that he had a “low chance” of being successful so he did not do so. He is not enrolled in any course now as he has no study rights.

5. The applicant’s migration agent submitted that the applicant does not understand the difference between an education agent and a migration agent. He did not get the correct advice about changing courses. He comes from a professional family and being the only son in the family creates a strong obligation on him to get a good career. It is not possible for him to study a degree in Commercial Cookery in India. It is his intention to remain here as a genuine student. He has a short time to complete the first year of study in Commercial Cookery.

6. The Tribunal raised a number of concerns with the applicant. The Tribunal noted that his student history in Australia may lead it to the conclusion that he either did not have the English language skills or the capacity to study a Master’s degree in Australia and that he realised that. The Tribunal also noted that his evidence may lead it to the conclusion that he changed to a Commercial Cookery course as a means of obtaining permanent residence in Australia and not because he has any passion for studying cookery. The Tribunal also noted that his actions may lead the Tribunal to the conclusion that he is seeking to have his Student visa restored to extend his stay in Australia and not because he is a genuine student.

7. The applicant responded that he needed time to respond. He requested and was given 2 weeks in which to respond. He thereafter voluntarily departed Australia 9 days later without responding to the issues raised with him and without informing his migration agent or his housemate until after the fact.

8. The Tribunal raised as a concern with the applicant his motivation for being in Australia. The Tribunal noted that he came to Australia on a Student visa to study. He has not completed any studies in Australia. However, he has been working here for a considerable period of time. He wrote to the Department in November 2019, in response to the NOITCC, indicating that he was going to apply for a Student visa in a week or so. The Tribunal noted that he had the opportunity to fix his problem by applying for the correct type of Student visa (vocational studies) so that he could continue with his Commercial Cookery course but did not do so. The Tribunal noted that it may find that his Student visa should be cancelled.

9. The applicant responded that when he received the letter, he delayed answering it because he did not have enough funds to apply for a new Student visa and he lost a lot of time. When asked whether he sought financial assistance from his parents, he responded that they are both working for the government and it would take some time for them to get the money. This is not consistent with his evidence that his parents supported him financially to study the Commercial Cookery course. His lack of financial capacity to apply for a Student visa is also not consistent with his evidence and the submissions that he is a genuine student.  

10. The applicant’s migration agent made written submissions that the Department and the Education System for international students had let the applicant down and his education agent and former migration agent also let him down by providing him with bad advice. The Tribunal informed the applicant that these are matters that the Tribunal has no influence over. The Tribunal noted that the facts are that he has been granted two Student visas; one when he was in India and one when he was in Australia. When granted those visas, he would have received a letter each time informing him of the grant of the Student visas, the conditions attached to the Student visas and an explanation about each condition.

11. The Tribunal noted that it was the applicant’s responsibility to read the letters, make sure he understood the conditions and make sure he complied with the conditions. His migration agent conceded that it was his responsibility to do so. The Tribunal informed the applicant that it had difficulty accepting that he bore no responsibility (for his current situation) and that he knew nothing about it. 

12. The applicant responded that he made a mistake and accepts that it is his mistake. He stated that the advice he received from his (former) migration agent was bad.

13. Having considered the evidence and the submissions, the Tribunal accepts that the applicant may have received bad advice or may have been misled by his education agent and former migration agent. However, the Tribunal does not accept that the circumstances that led to the cancellation of his Student visa were beyond his control. He chose to enrol in courses relating to Accounting and Business when he claims that he had no interest in those courses. The Tribunal accepts that he may have been under some family pressure to do so and was unable or unwilling to resist that pressure. He changed his goal of obtaining an Australian qualification and returning to work in India to obtaining permanent residence in Australia. This led to him choosing to do a course in Commercial Cookery and breaching condition 8202(2)(b) of his Student visa.

14. The Tribunal gives this consideration some weight in his favour.

    Past and present behaviour of the visa holder towards the Department

15. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.  

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

16. 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. The Tribunal gives this consideration no weight in his favour.

    Legal consequences of a decision to cancel the visa

17. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. The Tribunal notes that he has voluntarily departed Australia.

18. 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. The Tribunal gives this consideration no weight in his favour.   

    Australia’s international obligations

19. The Tribunal asked the applicant whether there was any reason why he could not return to India. He responded that if he completes his studies in Commercial Cookery he can return to India and say that he has a degree in Commercial Cookery. When the Tribunal pointed out that he would not have a degree and would, at best, have a diploma, he responded that a diploma from Australia is as good as a degree in India. It is considered one and the same and will give him a start to begin a career. When asked how his parents would feel about him working as a cook or a chef instead of working as an accountant, he responded that they would be happy that he was “doing something by doing a degree”.

20. 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. The Tribunal gives this consideration no weight in his favour.

    Any other relevant matter

21. The Tribunal asked the applicant whether there was any other reason why his Student visa should not be cancelled and he responded “nothing else”. He stated that if he does not do anything it would be shameful for him and his parents as he has been here for 4 ½ years.

22. The Tribunal notes that, despite this evidence, the applicant voluntarily returned to India without responding to issues raised with him by the Tribunal, without informing his migration agent or his housemate of his departure until after the fact and before the finalisation of his application for review before the Tribunal.

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

    CONCLUSION

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

    DECISION

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