El Mustapha (Migration)

This matter concerned an appeal by Mr El Mustapha against the cancellation of his Partner (Provisional) (Class UF) visa, Subclass 309. The visa was cancelled following the cessation of his relationship with the sponsor. The applicant sought to have the cancellation decision reviewed by the Tribunal, raising issues related to his child custody proceedings and his desire to remain in Australia.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, it should affirm the cancellation of Mr El Mustapha's visa. This required the Tribunal to consider various factors, including the purpose of the visa, the applicant's compliance with visa conditions, and the degree of hardship that might be caused by cancellation. The Tribunal also had to assess the applicant's claim of a compelling need to remain in Australia due to his relationship with his son.

The Tribunal reasoned that the purpose of a provisional partner visa is to allow a holder to be in Australia with their partner, a purpose no longer fulfilled given the relationship breakdown. While acknowledging the applicant's desire to remain in Australia and his child custody proceedings, the Tribunal found insufficient evidence to establish a meaningful relationship with his son or that significant hardship would be caused by cancellation. The Tribunal noted the applicant's lack of demonstrated involvement in his son's upbringing and the current restrictions on access due to an apprehended violence order.

Ultimately, the Tribunal affirmed the decision to cancel Mr El Mustapha's Subclass 309 visa, concluding that, on the balance of the circumstances, cancellation was warranted.