Phan (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, and a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought review of a delegate's decision to refuse to grant the visa. The primary dispute arose because the applicant's relationship with the sponsor had ceased, and the sponsorship had been withdrawn. A key element of the applicant's case was his claim to have custody of, or access to, a child of the relationship.

The Tribunal was required to determine whether the applicant met the criteria for the visa, particularly in light of the cessation of the relationship and withdrawal of sponsorship. Specifically, the Tribunal had to consider whether the applicant satisfied the requirements of clause 820.221 of Schedule 2 to the Migration Regulations 1994, which outlines alternative pathways for visa grant when a relationship has ended. This involved assessing the applicant's claim to custody or joint custody of, or access to, the child of the relationship.

The Tribunal found that the applicant no longer met the primary criterion of being the spouse or de facto partner of the sponsor. However, it considered the alternative criteria under clause 820.221. While there was no evidence of the sponsor's death or family violence, the Tribunal gave greater weight to the applicant's oral evidence and documentary material, including correspondence from a childcare centre and photographs, which supported his claim to have access to and custody of the child. The Tribunal concluded that the applicant met the criterion relating to shared rights and obligations towards the child, even in the absence of a court order.

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under cl.820.211 and cl.820.221(1) of Schedule 2 to the Regulations.