Australian Securities and Investments Commission v Saad [2026] FCA 110

1. By 4.00 pm on 20 February 2026, the defendant file and serve an affidavit annexing a copy of the ticket(s) and flight itinerary for his flights from Melbourne to Saudi Arabia via Dubai and from Saudi Arabia to Melbourne via Dubai in the period from 8 March 2026 to 20 March 2026.
2. Subject to the defendant filing and serving an affidavit as referred to in paragraph 1 above:

(a) Paragraph 1 of the orders made on 17 July 2025 (as varied by paragraph 3 of the orders made on 17 November 2025) does not prevent the defendant travelling to Saudi Arabia via Dubai and returning to Australia via Dubai in the period from 8 March 2026 to 20 March 2026.

(b) Paragraph 3 of the orders made on 17 July 2025 does not prevent the defendant collecting his passport from the Victoria Registry of this Court at any time in the period from 1 March 2026 to 8 March 2026.

1. The defendant promptly return his passport to the Victoria Registry after 20 March 2026 and, in any event, by 4.00 pm on 23 March 2026.
2. The case management hearing listed on 1 May 2026 be relisted at 9.30 am on 30 April 2026.

1. Costs be reserved.
2. There be liberty to apply.

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

1. This is an application by the defendant, Osama Saad, for a 'carve out' from the travel restraint orders that are currently in place, to enable him to travel overseas from 8 to 20 March 2026. Mr Saad also sought a 'carve out' from the current asset preservation orders to enable him to withdraw $15,000 from his accounts to fund the overseas travel. However, ultimately, he did not press that part of his application.
2. By way of background, on 17 July 2025, I gave judgment on applications by the plaintiff (ASIC) for travel restraints in respect of both Mr Saad and the defendant in another proceeding, Ferras Merhi: Australian Securities and Investments Commission v Merhi [2025] FCA 829 (the July 2025 Reasons). These reasons should be read together with the July 2025 Reasons.
3. On that occasion, I granted ASIC's application for travel restraint orders against Mr Saad. The travel restraint which I ordered on 17 July 2025 lasted until 4.00 pm on 12 December 2025. This was a period of six months from the date from which Mr Saad had effectively been the subject of a travel restraint (13 June 2025): see the July 2025 Reasons at [86].
4. Subsequently, on 17 November 2025, I made orders by consent extending the travel restraint in respect of Mr Saad to 4.00 pm on 31 May 2026.
5. On each occasion, the orders gave the parties liberty to apply. Thus, it has always been open to Mr Saad to apply to the Court for a 'carve out' to enable him to travel overseas.
6. Mr Saad has now made an application to travel overseas from 8 to 20 March 2026, to enable him to make an Umrah to Mecca in Saudi Arabia during the last 10 days of Ramadan.
7. At the hearing of this application on 13 February 2026, Mr Saad relied on four affidavits of himself, dated 14 January 2026, 2 February 2026, 9 February 2026 and 12 February 2026.
8. ASIC opposed the 'carve out' and relied on a number of affidavits that have been filed in this proceeding: see the list in [3] of ASIC's outline of submissions. The most recent of these was an affidavit of Brody Wons affirmed on 9 February 2026.
9. At the conclusion of the hearing I indicated that, subject to Mr Saad giving an undertaking to return to Australia and providing an affidavit annexing a copy of his ticket and flight itinerary for a return flight from Melbourne to Saudi Arabia, I was minded to make the 'carve out' sought by Mr Saad from the travel restraint orders that are currently in place. I considered it appropriate that Mr Saad give the undertaking himself in Court so that it was clear that he had given the undertaking. The matter was stood down for several hours to enable Mr Saad to come to Court to give the undertaking. Later on the same day, Mr Saad appeared in Court and gave the undertaking to return to Australia (in a form that had been the subject of discussion with the parties' representatives at the hearing). I then made orders for the 'carve out' from the travel restraint and said that I would publish my reasons later. The undertaking and orders were as follows (omitting a procedural order relating to case management):

THE COURT NOTES THAT:

A. The defendant, Osama Saad, has given an undertaking to the Court as follows:

"I, Osama Saad, undertake to the Court that I will travel in accordance with the flight itinerary that I will provide to the Court and to the plaintiff and that I will return to Australia on 20 March 2026, and that I will not depart from that itinerary without good reason, in which case I will promptly inform the Court and the plaintiff of the change in the itinerary and the reason for the change."

THE COURT ORDERS THAT:

Travel restraint

1. By 4.00 pm on 20 February 2026, the defendant file and serve an affidavit annexing a copy of the ticket(s) and flight itinerary for his flights from Melbourne to Saudi Arabia via Dubai and from Saudi Arabia to Melbourne via Dubai in the period from 8 March 2026 to 20 March 2026.

2. Subject to the defendant filing and serving an affidavit as referred to in paragraph 1 above:

(a) Paragraph 1 of the orders made on 17 July 2025 (as varied by paragraph 3 of the orders made on 17 November 2025) does not prevent the defendant travelling to Saudi Arabia via Dubai and returning to Australia via Dubai in the period from 8 March 2026 to 20 March 2026.

(b) Paragraph 3 of the orders made on 17 July 2025 does not prevent the defendant collecting his passport from the Victoria Registry of this Court at any time in the period from 1 March 2026 to 8 March 2026.

1. The defendant promptly return his passport to the Victoria Registry after 20 March 2026 and, in any event, by 4.00 pm on 23 March 2026.

...

Other

5. Costs be reserved.

6. There be liberty to apply.

1. I set out the applicable principles regarding the making of a travel restraint order, in the July 2025 Reasons at [67]-[71]. At [70] of that judgment, I highlighted the following principles:

(a) there is an element of risk assessment and risk management in the judgment the court is called on to make;

(b) it is a serious matter to restrain a person from travelling internationally; and

(c) the private right to travel may be outweighed by the public interest in ASIC being able to pursue its investigations.

1. Further, as I noted at [71], in considering whether or not to make a travel restraint order, the five factors referred to by Gordon J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 (ActiveSuper) are relevant.

1. In the July 2025 Reasons at [83]-[93], I considered each of the five factors referred to in ActiveSuper in relation to Mr Saad. At that time, having regard to the five factors, and the facts and circumstances generally, I considered that the travel restrain orders sought by ASIC were appropriate: see the July 2025 Reasons at [90].
2. The main difference between the circumstances prevailing in July 2025 and now is that, in July 2025, Mr Saad had been subject to a travel restraint for a matter of weeks (since 13 June 2025), whereas now he has been subject to a travel restraint for more than six months. By the time of his proposed travel, he will have been subject to a travel restraint for more than eight months (from 13 June 2025 to 8 March 2026).
3. These matters are relevant to the second of the five factors referred to by Gordon J in ActiveSuper (the length of time that the respondent has been subject to the travel restraint order). As at the time of the July 2025 Reasons, Mr Saad had been subject to the travel restraint since 13 June 2025, which was "not a long period of time": see the July 2025 Reasons at [86]. However, when this factor is assessed now, I consider that Mr Saad has been subject to the travel restraint for a substantial period of time.
4. My analysis of the other four factors referred to by Gordon J in ActiveSuper is substantially the same as it was in the July 2025 Reasons. In particular, in relation to the third factor (the risk that the respondent might leave the jurisdiction and not return) the position is substantially the same. That is to say, while there is no clear evidence that Mr Saad is a flight risk, I consider that there is at least some risk that Mr Saad may leave and not return to Australia.
5. Having considered the five factors referred to in ActiveSuper afresh on the basis of the facts and circumstances that exist now, I consider that it is appropriate to make a 'carve out' from the travel restraint orders to permit Mr Saad to travel from Melbourne to Saudi Arabia and from Saudi Arabia to Melbourne during the period 8 to 20 March 2026. This conclusion is the product of weighing the five factors in view of the changed circumstance that Mr Saad has already been the subject of the travel restraint for a period of more than six months.
6. As indicated earlier in these reasons, I considered it appropriate for Mr Saad to give an undertaking to return to Australia. Mr Saad gave that undertaking himself in Court at the resumed hearing on 13 February 2026. I note that a breach of an undertaking to the Court is akin to a breach of a Court order. Accordingly, if Mr Saad were to breach the undertaking, he could be liable to punishment for contempt of court.
7. For these reasons, I considered that it was appropriate to make the 'carve out' from the travel restraint orders.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.