Federal Court of Australia

Cristobal Fida v Minister for Immigration and Citizenship [2026] FCA 1471

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the second respondent’s decision under the Migration Act 1958 (Cth) made on 11 December 2025 affirming the decision of a delegate of the first respondent which refused to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 501(1) of the Act.

2.    The matter be remitted to the second respondent for determination according to law.

3.    The first respondent pay the applicant’s costs of the proceedings, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    Mr Cristobal Fida is a 33 year old citizen of Uruguay. He first arrived in Australia on 21 March 2018 on a previous Working Holiday (Class TZ) (subclass 417) visa. He most recently arrived in Australia on 17 October 2024 on a Bridging B (WB-020) visa. On 14 April 2021, he was sentenced in the Dubbo Local Court to an aggregate Intensive Correction Order of 15 months in respect of drug supply, drug possession and drug-driving offences. On 12 December 2022, Mr Cristobal Fida applied for another Working Holiday (Class TZ) (subclass 417). On 1 September 2025, a delegate of the Minister decided to refuse to grant the visa. Thereafter, Mr Cristobal Fida sought review of the delegate’s decision. On 11 December 2025, the Tribunal affirmed the delegate’s decision: Cristobal Fida and Minister for Immigration and Citizenship (Migration) [2025] ARTA 3051 (Tribunal’s decision or TD). By application before this Court, Mr Cristobal Fida seeks to review the Tribunal’s decision.

2    It was not in dispute before the Tribunal that Mr Cristobal Fida did not pass the character test {TD [18]} because of the sentence received and the ICO. The issue before the Tribunal was whether, having regard to Ministerial Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA, the discretion under s 501(1) of the Migration Act 1958 (Cth) should be exercised to refuse the visa. {TD [17]; AS [6]}

3    By an amended application filed on 13 April 2026, Mr Cristobal Fida advances five grounds of review. In broad terms, grounds 1 and 2 concern the Tribunal’s consideration of the purpose and duration of Mr Cristobal Fida’s intended stay under [8.1.2(2)(c)] of Direction 110; grounds 3 and 4 concern the Tribunal’s consideration of the best interests of a minor child, N under [8.4] of Direction 110; and ground 5 concerns the Tribunal’s consideration of the possible future involvement of N’s biological father under [8.3] of Direction 110. Mr Cristobal Fida seeks orders in the nature of certiorari and mandamus, an order that the matter be remitted to the Tribunal differently constituted, and costs.

4    For the reasons that follow, the application is allowed.

Background

5    Mr Cristobal Fida was born in Uruguay and first arrived in Australia on a working holiday visa on 21 March 2018. Between 2018 and 2022, he lived in Australia as the holder of various working holiday visas. His parents and sister presently live in Atlanta in the United States of America. {TD [5]}

6    On 16 August 2020, Mr Cristobal Fida was charged with several offences. On 14 April 2021, he was convicted in the Dubbo Local Court of driving with an illicit drug present in his blood, two counts of possessing a prohibited drug and three counts of supplying a prohibited drug in a quantity greater than the indictable quantity but less than the commercial quantity. He was sentenced to an aggregate ICO of 15 months, fined $500 and disqualified from driving. {TD [6], [20]-[22]}

7    The offending arose after police stopped Mr Cristobal Fida, whilst driving, at about 3.30 am on 16 August 2020. A roadside test returned a positive result for cannabis and methamphetamine. Police located 16 MDMA tablets and approximately 9 grams of cannabis in the vehicle and, following a search of Mr Cristobal Fida’s home to which he consented, located a further 126 MDMA tablets, 80 LSD tablets and two jars of cannabis oil. {TD [35]}

8    Before the Tribunal, Mr Cristobal Fida gave evidence that he entered into a de facto relationship with Ms Bella Haman on 9 August 2025 (three and a half months before the Tribunal hearing on 26 and 27 November 2025). {TD [8], [80], [83]} At the time of the Tribunal’s decision, they were living together in Huonbrook, New South Wales, with Ms Haman’s young daughter, N. {TD [8], [88]} Mr Cristobal Fida and Ms Haman gave evidence in person, and three further witnesses gave evidence by telephone. Both Mr Cristobal Fida and the Minister were legally represented. {TD [2]-[4]}

Statutory framework

9    Section 501 of the Act, relevantly, provides:

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:     Character test is defined by subsection (6).

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

Grounds 1 and 2: Whether by the Tribunal giving consideration to the substantive visa criteria, it took into account irrelevant considerations or misconstrued or misinterpreted its statutory task

10    Grounds 1 and 2 concern the legality of the Tribunal’s purported consideration of whether Mr Cristobal Fida could satisfy the substantive criteria for the grant of a Working Holiday visa when applying [8.1.2(2)(c)] of Direction 110. {AOA pg 4-6; AS [14]-[29]}

11    Mr Cristobal Fida submitted that the Tribunal, by the effect of Direction 110, was to give consideration to the primary considerations including the “nature and seriousness of the conduct ([8.1.1]) and the “risk to the Australian community” ([8.1.2]). Mr Cristobal Fida posits that the Tribunal erroneously strayed off course and rather considered whether Mr Cristobal Fida may be able to satisfy any of the substantive visa criteria under Sch 2 of the Migration Regulations 1994 (Cth), as evident from particularly TD [71]-[72] and TD [171]. By such an approach, it is submitted that the Tribunal impermissibly took into account non-character related criteria which was irrelevant to the Tribunal’s task and therefore misapplied or misconstrued the statutory task required of it under s 501 of the Act and, after, failed to undertake the exercise required of it.

12    The Minister accepted that a failure to comply with a Direction issued under s 499 can result in the ultimate decision being affected by a jurisdictional error: FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [34]. As submitted by the Minister, the determination of non-compliance with the Direction, or a part of it, depends on the identification of the relevant obligations under the Direction and whether the Tribunal acted in accordance with those obligations.

13    The gravamen of Mr Cristobal Fida’s claim concerns the first primary consideration which is the “protection of the Australian community”. Ancillary to that consideration, the decision-maker is required to give consideration to (a) the nature and seriousness of the non-citizen’s conduct to date; and (b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

14    As part of the second ancillary consideration (risk to the Australian community of the person committing further offences or engaging in other serious conduct), the Direction mandates the following:

8.1.2.    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen reoffending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

15    Relevantly, as can be seen from the above, as part of the risk assessment, the decision-maker must have regard (cumulatively) to a number of matters, including at [8.1.2(2)(c)], where consideration is being given to whether to refuse to grant a visa to a non-citizen: whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

16    Paragraph 8.1.2(2)(c) imposes an obligation on the decision-maker, “where consideration is being given to whether to refuse to grant a visa to the non-citizen”, to: first, consider whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay; secondly, consider whether the risk of harm may be affected by the type of visa being applied for; and thirdly, consider whether there are strong or compassionate reasons for granting a short stay visa. {RS [14]} For example, the delegate in his decision considered whether the “Working Holiday Program”, which provides for young people to have an extended holiday period, would affect the risk of harm, in the following way: {CB 111}

In my view, the long stay and the likelihood of socialising with other young holidaymakers could increase the risk of holders continuing to be exposed to the consumption of alcohol and possibly illicit drugs during their time in Australia, which could potentially increase the risk of adverse conduct.

17    The Tribunal, when assessing the risk to the Australian community, at TD [54]-[74]: considered the Government’s view that the community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases; detailed Mr Cristobal Fida’s submissions that the risk was “forward-looking” and detailed his self-improvement and self-examination, his subsequent good behaviour and efforts to turn his life around (including the accounts of his partner and other witnesses) and the nature of the offending (it being a one-time incident).

18    The Tribunal thereafter determined that if Mr Cristobal Fida were to engage in further criminal or other serious conduct, the Australian community would suffer health, social and economic harms to members of the community, it considered that there was a very low risk of Mr Cristobal Fida engaging in further criminal or other serious conduct.

19    Then, when addressing [8.1.2(2)(c)] at TD [69], the Tribunal stated the following at TD [70]-[74] (and about which Mr Cristobal Fida claims there is error):

[70]    The respondent has provided a copy of Departmental records (Exhibit 2) and the applicant agrees that he has been granted a number of working holiday visas since he first arrived in 2018. His current application for a visa grant is fur a further working holiday visa and that application was made on 12 December 2022.

[71]    The applicant and his witnesses have all given evidence that his intention is to remain in Australia to continue with his current de facto relationship, to continue studying carpentry and to make a permanent home in Australia. The Tribunal notes that one of the requirements for the grant of a working holiday visa at the time of the application is that the decision maker must be satisfied that the applicant seeks to remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia; cl. 417.211(4)(a) of Schedule 2 to the Migration Regulations 1994.

[72]    Thus, the evidence relating to the duration and purpose of the applicant’s intended stay conflicts with the nature of the visa for which he applied for in December 2022. The applicant’s lawyer submitted that if the visa was granted there were a number of other visas the applicant could apply for onshore, however, there is no information or evidence which might clearly indicate which visa for which the applicant might be eligible.

[73]    The Tribunal considers that the applicant’s lawyer was speculating on those categories of visa he might apply for if his visa was not refused on character grounds. However, the applicant did not provide any submissions on how he could overcome the significant hurdle he faced in establishing that he had a genuine intention to remain in Australia as a visitor.

[74]    Taking into account all the aspects of this consideration and despite finding there is a low risk of re-offending, the Tribunal considers that, overall, primary consideration 8.1 weighs in favour of exercising the discretion to refuse the visa.

20    Mr Cristobal Fida submitted that the Direction is concerned wholly with addressing issues relevant to character and not to whether the visa applicant does or does not satisfy the Sch 2 visa criteria. According to Mr Cristobal Fida, [8.1.2(2)(c)] required the Tribunal to consider whether the risk of harm was affected by the duration and purpose of his intended stay, the type of visa sought and any strong or compassionate reasons for granting a short-stay visa. {AS [22]-[23]} Such consideration did not authorise the Tribunal to consider whether he satisfied the separate substantive criteria in Sch 2. The Minister conceded in his submissions that the Direction does not call upon the decision-maker to consider whether an applicant is able to satisfy the substantive Sch 2 criteria. {RS[15]}

21    The substantive criteria in Sch 2 required (unless cl 417.211(1A) applied) that the applicant: hold an eligible working holiday passport, be aged between 18 and 35 years (cl 417.211(2)), satisfy the Minister that he seeks to enter and remain in Australia as a “genuine visitor whose principal purpose is to spend a holiday in Australia”, has sufficient money, a reasonable prospect of obtaining employment, will not be accompanied by dependent children during his stay (cl 417.211(4)) and that he held only one Subclass 417 visa in Australia (cl 417.211(5)) or otherwise satisfy the conditions in cl 417.211(6).

22    The purported error said to be disclosed by the Tribunal’s reasoning at TD [71]-[72] (extracted above), was said to be reinforced, by the Tribunal’s reasons later in the decision at TD [171]:

The Tribunal accepts that the applicant feels settled in Australia and would like to remain, however, he has applied for a working holiday visa which is a temporary visa with a requirement that a visa applicant must have an intention to visit for the purpose of a holiday. The evidence before the Tribunal indicates that he may not be able to satisfy that requirement. The Tribunal has taken this into account in considering 8.1.2(c) [sic] of the Direction. It also does give some context to the applicant’s situation.

23    Mr Cristobal Fida submitted that the Tribunal’s statement that it had taken that matter into account when considering [8.1.2(2)(c)] demonstrated that it had treated satisfaction of the substantive visa criterion as relevant to its task under Direction 110. {TD [171]; AS [26]-[27]}

24    In addition, Mr Cristobal Fida posited that the Tribunal had not addressed the question that [8.1.2(2)(c)] required it to consider, namely, whether and how the duration or purpose of his intended stay affected the risk of harm to the Australian community. {AS [28]} He submitted that the Tribunal had thereby assigned weight to an irrelevant consideration and failed to perform the task required by Direction 110. {AS [28]-[29]}

25    It is clear, as the Minister suggested, that [8.1.2(2)(c)] permitted the Tribunal to enquire as to the duration and purpose of Mr Cristobal Fida’s stay and the type of visa being applied for. However, the issue is the lens through which the Tribunal considered those matters. The Tribunal did not, as the delegate had, consider those matters for the purpose of assessing risk. Rather, it is clear from the Tribunal’s reasons, that its concern related to Mr Cristobal Fida’s ability to satisfy the substantive eligibility criteria.

26    Accordingly, I accept ground 2 is made out. The Tribunal, whilst able to consider how the duration and purpose of the intended stay affected the risk of harm to the Australian community, misapprehended its task by considering the issue through the wrong lens (possible visa ineligibility).

27    The Minister submitted that, in effect, the permissible matters (identified in [8.1.2(2)(c)]) allowed the Tribunal to consider the duration and purpose of Mr Cristobal Fida’s stay, which were identified in the impugned paragraphs and ultimately, the Tribunal was not required to make any finding (as allowed by [8.1.2(2)(c)]) that Mr Cristobal Fida’s risk of offending was affected by the duration of stay or the type of visa applied for. Whilst it may be accepted that the Tribunal was not required by [8.1.2(2)(c)] to make a finding but rather consider the question of whether the risk of harm may be affected by those matters, a fair reading of TD [69]-[74] and TD [171] suggests that it did and that the finding was an adverse one (contrary to the Minister’s submission).

28    The Tribunal commenced its consideration of this issue, by reference to the “requirements for the grant” of such a visa namely that the decision-maker must be satisfied that the principal purpose was to spend a holiday in Australia. The Tribunal says nothing about what effect these matters would have on its assessment of risk, but rather goes on to consider the disjunct between Mr Cristobal Fida’s evidence and the duration and purpose of the visa, such that the Tribunal went on to find that Mr Cristobal Fida had “not provide[d] any submissions on how he could overcome the significant hurdle he faced in establishing that he had a genuine intention to remain in Australia as a visitor”. Accordingly, the Tribunal’s focus was potential ineligibility for the visa not an assessment of risk.

29    I do not accept the Minister’s submission that the Tribunal was merely noting an argument with Mr Cristobal Fida’s solicitor which was not resolved and for which no adverse finding was made. For these reasons, this error was material. Rather, I accept Mr Cristobal Fida’s argument that, at TD [74], the Tribunal made the finding as to primary consideration 8.1 weighing in favour of exercising the discretion “taking into account all the aspects of this consideration”, from which it could be inferred, included the immediately preceding paragraphs TD [69]-[73]. Further, this is fortified by the Tribunal’s conclusion at TD [171] that the evidence “indicates that [Mr Cristobal Fida] may not be able to satisfy that requirement” and that “[t]he Tribunal has taken this into account in considering 8.1.2(c) [sic] of the Direction”. (Emphasis added.)

30    For these reasons, it is my view that ground 2 is made out. I am not satisfied that ground 1 is established.

Grounds 3 and 4: Whether the Tribunal failed to understand and address Mr Cristobal Fida’s claims as to the impact of a refusal on the best interests of the minor child

31    Grounds 3 and 4 concern the Tribunal’s consideration of how a decision affirming the refusal of Mr Cristobal Fida’s visa would affect the best interests of N, the minor daughter of Mr Cristobal Fida’s Australian citizen partner. {AOA pg 6-8; AS [30]-[43]}

32    Grounds 3 and 4 are closely related and overlap: Ground 3 concerns a failure to understand and address Mr Cristobal Fida’s claim, while Ground 4 concerns a failure to take relevant matters into account.

33    It is without dispute that the Tribunal was required to consider primary consideration 8.4 (the best interests of minor children in Australia). Here the affected minor child, N, was two and a half years old and was the child of Mr Cristobal Fida’s then recent de facto partner, Ms Haman. By the time of the Tribunal hearing, Mr Cristobal Fida and Ms Haman had been in a relationship for three and a half months and had been living together for approximately two to three months.

34    Paragraph 8.4 of the Direction provides:

8.4.    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)    whether there are other persons who already fulfil a parental role in relation to the child;

f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct

35    The impugned error is said to be the Tribunal’s characterisation of the relationship between Mr Cristobal Fida and N as being limited to “warm and positive” descriptors. {TD [123]; AS [36]} Mr Cristobal Fida noted that the Tribunal had concluded, having regard to N’s age and the short duration of the relationship, that her interests would not be significantly affected if the visa were refused. {TD [123]; AS [37]} The Tribunal had therefore concluded that N’s best interests weighed only slightly against refusal. {TD [124]; AS [38]}

36    According to Mr Cristobal Fida, his case before the Tribunal had gone substantially beyond the proposition that his relationship with N was merely “warm and positive”. {AS [39]} He relied upon evidence that he had participated in N’s ongoing daily care and that N was deeply attached to him. {TD [90], [112], [116], [118]; AS [40]}

37    Mr Cristobal Fida’s submission as to the alleged multiplicity of claims said to have not been referred to, nor engaged with, by the Tribunal (and about which no weight was attributed to them) were articulated as follows:

[40]    To the contrary, there was evidence presented to the Tribunal on behalf of the applicant to the effect that the applicant had been involved in the ongoing daily care of the child (paragraphs 90, 112, 116 and 118); that the child is “deeply attached” to the applicant (paragraph 90); that the removal of the applicant from Australia consequent upon the refusal of his visa application would sever the emotional and developmental bond between the applicant and the child (paragraph 117); that the removal of the applicant from Australia would have a “devastating impact” on the child and that losing the bond with the applicant would cause the child “significant distress” (paragraph 119); and that the removal of the applicant from Australia would leave the applicant’s Australian partner as “a single mother without emotional, financial and practical support” and the home lives of the partner and the child would be “completely disrupted” (paragraph 91).

38    I reject Mr Cristobal Fida’s characterisation of the Tribunal’s reasons.

39    Judicial review of an administrative decision involves a reading of the reasons under challenge as a whole, considered fairly and without the use of a fine appellate tooth comb: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 291 per Kirby J. As recently observed by the Full Court in Ulan Coal Mines Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127 at [42] and [43]:

[42]    The rationale for reading reasons as a whole includes the presumption that decision-makers ordinarily review the whole of the evidence and consider all of the issues before they write, such that this must be taken into account when reading the reasons and therefore passages of the decision sought to be impugned should not be read in isolation: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 at [76] per Bell P.

[43]    An inference ought not be too readily drawn that a Tribunal failed to consider an issue where the reasons are otherwise comprehensive and the issue has been identified at some point. Consideration must be given to whether it was unnecessary to make a finding on a particular matter because it was subsumed in findings of greater generality or there was a factual premise upon which the contention was based which has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593 at [47].

40    The Tribunal considered Mr Cristobal Fida’s relationship with N, both as part of primary consideration 8.3 (the strength, nature and duration of ties to Australia) (TD [76]-[109]) and 8.4 (best interests of minor children in Australia affected by the decision) (TD [110]-[124]).

41    The Tribunal noted at TD [105] that Mr Cristobal Fida has “a warm and loving relationship with Ms Haman and her daughter N”, as well as there being “an impact on Ms Haman and N” if Mr Cristobal Fida were removed. Further the Tribunal noted, at TD [107], that it appears that Mr Cristobal Fida had “formed a warm and caring relationship with N” and that an impact of removal for her may include confusion and being “upset for a short period of time”.

42    In the context of the Tribunal’s engagement with primary consideration 8.4, the Tribunal acknowledged Mr Cristobal Fida’s claims regarding the “important parental role” he was playing in N’s life (TD [112]), the fact that, whilst the de facto relationship with Ms Haman was new, they had known one another for several years (TD [113]), that Mr Cristobal Fida was the only father figure N had known, and the potential for a future positive relationship (TD [114]). However, the Tribunal did not accept this submission because of the short duration of the relationship which had therefore been relatively untested. The Tribunal thereafter considered Mr Cristobal Fida’s evidence and claims regarding the degree of his parental role, the “extreme hardship for N”, the evidence of other witnesses and the Minister’s contentions (TD [115]-[122]).

43    What is apparent from the above, and contrary to Mr Cristobal Fida’s submission (extracted above) is that the Tribunal not only referred to each of the matters identified in that submission, but did in fact engage with them. It was not necessary for the Tribunal to scrutinise in detail each piece of evidence, now identified by Mr Cristobal Fida, it was open for the Tribunal, to identify, as it did, each of them and thereafter come to the conclusion it did at TD [123]:

The Tribunal accepts that the applicant has a warm and positive relationship with N, but it considers that given the age of N and the short duration of the relationship, it does not consider that her interests will be significantly impacted if the applicant’s visa is refused. If Ms Haman continues her relationship with the applicant there will be opportunities for electronic communication and possible visits with the applicant in the future. The Tribunal accepts the evidence that she may initially be confused and upset if the applicant returns to Uruguay, but it does not consider that this will necessarily affect her interests in the long term.

44    As the Minister submitted, the Tribunal’s reasons must be read contextually. Prior to the conclusion at TD [123], the Tribunal outlined the substance of the representations that had been made about the impact on N of an adverse decision. The Tribunal traversed these matters in some detail. Accordingly, I do not accept that the Tribunal overlooked nor failed to engage with or address these matters. For these reasons, Grounds 3 and 4 are not made out.

Ground 5: reliance upon matters concerning N’s biological father

45    Ground 5 concerns the Tribunal’s reliance upon the possible future involvement of N’s biological father when analysing the strength, nature and duration of Mr Cristobal Fida’s ties to Australia (primary consideration 8.3 under Direction 110). Mr Cristobal Fida submitted that the Tribunal had relied upon unfounded factual assumptions, speculation and irrelevant matters (namely the speculative nature of the possible future relationship between N and her biological father) (when undertaking the 8.3 assessment) which had the effect that the assessment lacked a logical and intelligible basis. {AS [44]-[48]} Mr Cristobal Fida submitted that the relationship between N and her biological father was irrelevant to the strength, nature and duration of his own ties to Australia. {AS [52]} He submitted that the relevant matter was the nature of the relationship between him and N. {AS [52]} Mr Cristobal Fida contended that the Tribunal’s reliance upon the possible future involvement of N’s biological father had infected its assessment of Mr Cristobal Fida’s ties to Australia and caused its review to miscarry. {AS [59]}

46    For a matter to be an irrelevant matter, in a judicial review setting, there must be some implied limitation in the subject-matter, scope and purpose of the statute to which the decision-maker may legitimately have regard: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39 to 43 per Mason J. For the assessment or conclusion to be illogical, it must not have been possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [35].

47    Here, the Tribunal was charged with having regard to the strength, nature and duration of Mr Cristobal Fida’s ties to Australia. Mr Cristobal Fida claimed, as part of that consideration, that those ties included his recent de facto relationship with Ms Haman and her daughter. The Tribunal referred to this specific claim (and Mr Cristobal Fida’s development of this claim in his submissions and the evidence he relied upon) for the purpose of considering this primary consideration. Part of the evidence before the Tribunal was the status of the child’s biological father. I do not accept that account cannot be given, when considering Mr Cristobal Fida’s ties to Australia, to the other persons involved in the child’s life. Part of primary consideration 8.3 is the strength of those ties. They necessarily include the ties of others. Indeed, it is apparent that Mr Cristobal Fida relied upon evidence as to the role (or lack of role) that the child’s biological father has (or will) play in the child’s life. This is apparent from Mr Cristobal Fida, himself relying in his statement before the Tribunal, as to the comparative role he has played in the child’s life to that of her father stating that he “left for Brazil when she was only six months old. He has had no further contact with [her mother] or [her]” since. (Emphasis added.) {CB 18} But where Ms Haman gave evidence, before the Tribunal, contrary to the evidence of Mr Cristobal Fida, that she has had contact with the child’s father and “seeks his opinion on parental matters from time to time” (TD [93]). It is this issue to which the Tribunal then returned at the impugned paragraph TD [107], namely that Ms Haman does have contact with the child’s father and on the evidence before it, has parental rights and obligations under Australian law and it may be that he will seek to have greater contact with the child with the passage of time.

48    It was open for the Tribunal, when assessing Mr Cristobal Fida’s ties to the child (and their strength) to have regard to the fact that N was not his biological daughter, and that N had a biological father (that had some contact with her mother regarding her care). These matters were expressly raised by Mr Cristobal Fida in his evidence and were relevant and logical to the primary consideration 8.3 of the Direction. As is evident from TD [107], the nature of the relationship, or prospective relationship, between N and her biological father was relevant to assessing Mr Cristobal Fida’s claims to have a (close) parental-style relationship with N (now and in the future) and that, if such relationship were to be physically broken by an adverse decision, it would have an impact on N: see [8.3(1) and (2)] of the Direction.

49    Further, again, as to the best interests of the child, for the purpose of primary consideration 8.4, it was relevant for the Tribunal, when considering Mr Cristobal Fida’s claims regarding his relationship with the child and the harm that would occur if he was removed, to have consideration to other parental influences. I note that the Tribunal stated, at TD [114], “Further N’s biological father has limited but continuing contact with N and thus it may be that he will take on a more active role in N’s upbringing as she grows older. There is little other evidence on the circumstances of his parental role in N’s life”. I do not accept that this was an irrelevant matter.

50    To the extent that the Tribunal stated that “it may be that [the biological father] will seek to have greater contact with N with the passage of time” (TD [107]), and then at TD [114], “it may be that he will take on a more active role in N’s upbringing as she grows older”, I do not accept that they constitute impermissible speculation. They are grounded in evidence and not beyond common human experience: FLS24 v Minister for Immigration and Citizenship [2026] FCA 994 at [24].

51    A detailed survey of the authorities was undertaken by Hill J in FLS24 which reveals (at [22]) that there is no freestanding ground of review based upon purported “unwarranted assumption”. Rather such a claim can be reviewed on rationality grounds, for which the assumption will be “unwarranted” where it was not one that a reasonable decision-maker could make (for example, lacking an evident and intelligible basis). These principles must be understood within the broader jurisprudential arc, including, that a claim as to “implausibility” arises where the event does not accord with the probabilities of ordinary human experience (see [23]). I do not accept that the fact of the Tribunal’s speculation, in and of itself, gives rise to error. It is grounded in fact (that the biological father does have contact with the child’s mother about the child) and common human experience. I do not accept Mr Cristobal Fida’s submission that this was “not remotely permissible”.

52    In any event, the Tribunal’s ultimate conclusion at TD [107] that “it is premature for the applicant to assert that he has a parental relationship with N given the shortness of their relationship” was open to it on the available evidence. {RS [30]}

53    For these reasons, ground 5 is not made out.

Conclusion

54    The Tribunal erred by misapprehending the nature of the inquiry. It was required to consider, under [8.1.2(2)(c)] of Direction 110, how the duration and purpose of the intended stay affected the risk of harm to the Australian community, and misconstrued its task by considering the issue through the wrong lens (possible visa ineligibility). This failure was material and a jurisdictional error. Otherwise, Mr Cristobal Fida has failed to make out his other bases for review. Orders will be made setting aside the Tribunal’s decision and remitting the matter for determination according to law. The Minister should pay Mr Cristobal Fida’s costs of the proceeding.

Associate:

Dated:    8 October 2026