Pudasaini (Migration)

This matter concerned an appeal by Nitesh Pudasaini against the decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The appeal was heard by the Administrative Appeals Tribunal. The core of the dispute revolved around whether Mr. Pudasaini had met the criteria for being a "genuine student" as required by his visa conditions and the relevant provisions of the *Migration Act 1958* (Cth).

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(fa)(i) of the Act, which relates to a student visa holder not being, or likely not to be, a genuine student, was made out. This involved assessing whether Mr. Pudasaini's conduct and study history demonstrated he was genuinely undertaking studies in Australia. The Tribunal also had to consider whether, if the ground for cancellation was established, the discretion to cancel the visa should be exercised, taking into account all relevant circumstances, including those presented by the applicant.

In reaching its decision, the Tribunal considered extensive evidence of Mr. Pudasaini's study history, which revealed a pattern of frequent course changes, cancellations of enrolment, non-commencement of studies, and a lack of academic progress across multiple educational institutions. The Tribunal noted significant periods where Mr. Pudasaini did not hold a valid Confirmation of Enrolment (CoE) or undertake any study, amounting to approximately seventeen months. While Mr. Pudasaini raised issues such as financial hardship and the impact of the Nepal earthquake, the Tribunal was not satisfied that these constituted extenuating circumstances beyond his control that explained his lack of genuine student conduct. The Tribunal applied the principles from *MIMA v Hou* [2002] FCA 574 regarding the "genuine student" concept and had regard to the prescribed matters under reg 2.43 of the *Migration Regulations 1994* concerning deferrals or suspensions of study.

Ultimately, the Tribunal concluded that the ground for cancellation under s 116(1)(fa)(i) was established due to Mr. Pudasaini's failure to act as a genuine student. After weighing the various discretionary factors, including limited hardship to the applicant if the visa remained cancelled against the significant adverse matters related to his study history, the Tribunal affirmed the decision to cancel his visa.