Rai Lama (Migration)

This matter concerned an appeal by Rai Lama against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education. The visa was cancelled on the basis that Ms. Lama was not enrolled in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Administrative Appeals Tribunal was required to determine whether Ms. Lama had breached condition 8202 and, if so, whether the discretion to cancel her visa should be exercised.

The Tribunal found that Ms. Lama had indeed breached condition 8202(2) of the Regulations, as she was not enrolled in a registered course for a period. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. In doing so, it had regard to the circumstances surrounding the breach, including the timing of the notice of intention to cancel and Ms. Lama's inability to articulate her changed circumstances at that precise moment, which were considered to be beyond her control.

The Tribunal was persuaded by Ms. Lama's evidence that she had a genuine intention to study in Australia and to abide by her visa obligations. This was supported by her successful academic progression both before and after the period of non-enrolment, and her efforts to re-enrol in a new study pathway towards nursing. Weighing these factors, alongside Ms. Lama's recognition of the breach and willingness to engage with the Department, the Tribunal concluded that the cancellation of her visa was not warranted. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Ms. Lama's visa.