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

This Federal Court decision arose during an ASIC investigation into Osama Saad and entities associated with him. The Court had already made travel restraint orders against Mr Saad in July 2025 under section 1323 of the Corporations Act, and those orders were later extended by consent in November 2025. The present judgment is not the full dispute about ASIC's investigation. It is a later application about whether Mr Saad should be allowed to leave Australia for a short overseas trip despite the restraint already being in place.

Mr Saad wanted to travel from 8 to 20 March 2026 to undertake Umrah in Mecca during the last 10 days of Ramadan. He asked the Court for what the judgment calls a 'carve out' from the travel restraint. He also initially sought a carve-out from asset preservation orders so he could withdraw $15,000 to fund the trip, but he did not pursue that part of the application by the end of the hearing. ASIC opposed the travel request. After hearing from both sides, Justice Moshinsky allowed the trip, but only on strict conditions.

The procedural history matters because the Court was not deciding the issue from a blank slate. On 17 July 2025, Justice Moshinsky had already granted ASIC's application for travel restraint orders against Mr Saad. The judgment says that, in practical effect, Mr Saad had been subject to a travel restraint from 13 June 2025. The July orders were to last until 12 December 2025.

Later, on 17 November 2025, the Court made consent orders extending the restraint to 31 May 2026. Importantly, the orders on each occasion included liberty to apply. That meant Mr Saad was always able to come back to Court and ask for a specific variation. The February 2026 application was exactly that: a request for a temporary exception within an existing restraint regime, not a challenge to whether any restraint should exist at all.

The legal question was whether the Court should grant a carve-out from existing travel restraint orders so Mr Saad could travel overseas for 12 days. The judgment makes clear that the Court approached this by returning to the same general principles relevant to travel restraint orders in the first place. Justice Moshinsky referred back to his earlier July 2025 reasons and to the five factors identified by Gordon J in ASIC v ActiveSuper Pty Ltd (No 4).

The Court highlighted three general principles from the earlier reasons. First, these decisions involve risk assessment and risk management. Secondly, restraining a person from travelling internationally is a serious matter. Thirdly, a person's private right to travel may be outweighed by the public interest in ASIC being able to pursue its investigations. Those principles point in different directions, so the Court had to weigh them again in the circumstances as they existed in February 2026.

The judgment does not restate the five ActiveSuper factors in full, but it does explain how the judge used them. He had considered each of those factors in July 2025 when deciding to impose the restraint. For the carve-out application, he reassessed them afresh. The key change was not a new finding that risk had disappeared. The key change was the amount of time Mr Saad had already spent under restraint.

The judgment says the main difference between July 2025 and February 2026 was duration. In July 2025, Mr Saad had only been subject to a travel restraint for a matter of weeks. By February 2026, he had been under restraint for more than six months. By the time of the proposed departure on 8 March 2026, that period would exceed eight months.

Justice Moshinsky said this change was relevant to the second of the five ActiveSuper factors, namely the length of time the respondent had been subject to the travel restraint order. In July 2025, that period was 'not a long period of time'. By February 2026, the judge considered that Mr Saad had been subject to the restraint for a substantial period of time.

The Court did not say the other factors had shifted in Mr Saad's favour in any major way. In fact, the judge said his analysis of the other four factors was substantially the same as before. That included the third factor, the risk that the respondent might leave the jurisdiction and not return. The Court expressly said that while there was no clear evidence that Mr Saad was a flight risk, there was still at least some risk that he might leave and not return to Australia.

That point is important for business readers. The carve-out was not granted because the Court thought there was zero risk. It was granted because, after reassessing all five factors, the judge concluded that the longer period already spent under restraint changed the balance enough to justify a short, controlled exception. The decision was therefore a fresh weighing exercise, with duration playing the central role.

The Court granted the carve-out, but only on conditions. Mr Saad had to file and serve an affidavit by 4.00 pm on 20 February 2026 attaching copies of the tickets and flight itinerary for flights from Melbourne to Saudi Arabia via Dubai and back to Melbourne via Dubai during the period 8 to 20 March 2026. The travel permission was expressly subject to that affidavit being filed and served.

The Court also ordered that the earlier travel restraint orders would not prevent Mr Saad from travelling on that route during that period, and that the earlier passport-related order would not prevent him from collecting his passport from the Victoria Registry between 1 March 2026 and 8 March 2026. He then had to return the passport promptly after 20 March 2026 and, in any event, by 4.00 pm on 23 March 2026.

In addition, the Court required a personal undertaking. Mr Saad appeared in Court and undertook that he would travel in accordance with the itinerary he provided, return to Australia on 20 March 2026, and not depart from that itinerary without good reason, in which case he would promptly inform the Court and ASIC of the change and the reason for it. Costs were reserved, and liberty to apply remained in place.

One of the strongest practical points in the judgment is the treatment of the undertaking. Justice Moshinsky said he considered it appropriate that Mr Saad give the undertaking himself in Court so it was clear that he had personally given it. The matter was stood down for several hours to allow him to come to Court and do so.

The judgment then makes the legal significance explicit: a breach of an undertaking to the Court is akin to a breach of a court order. If Mr Saad were to breach the undertaking, he could be liable to punishment for contempt of court. For business owners and directors, that is a reminder that undertakings are not informal promises or administrative details. They are serious court-supervised obligations.

Where a business is connected to a person subject to court restraints, compliance systems matter. Dates, routes, filings, passport handling and notifications all need to be managed carefully. A narrow exception can be lost, or a more serious problem created, if the person or the business treats the conditions casually.

Most businesses will never deal with a section 1323 travel restraint, but the operational lessons are still useful. If a founder, director or key manager becomes personally involved in ASIC proceedings, the effects can spread quickly into the business. International travel may be restricted. Passports may be held through court processes. Hearings and affidavit deadlines may affect availability. Even where the person wants to travel for a compelling personal reason, the Court may require a formal application and detailed evidence.

This case also shows the difference between a variation and a release. The Court did not say the restraint was no longer justified. It said that, after reassessing the relevant factors, a short and controlled exception was appropriate. Businesses should therefore avoid assuming that one successful application means future travel will also be allowed. Each request may need to be justified on its own facts and timing.

There is also a governance angle. If one person controls banking, approvals, investor communications or overseas relationships, a personal restraint order can create bottlenecks. Businesses should think about delegated authority, backup signatories, document access, and who can manage urgent matters if a key person is unavailable or delayed. Precision matters. In this case, the route, dates, affidavit deadline, passport collection window and passport return deadline were all specified.

A common question is whether a personal or religious reason for travel automatically outweighs ASIC's concerns. This case shows the answer is no. The Court still reassessed the risk factors and still recognised at least some risk of non-return. The trip was allowed only because the judge considered the balance had shifted after a substantial period under restraint and because the exception could be tightly controlled.

Another common question is whether a carve-out means the person is free to travel generally. Again, no. The orders here were confined to one route, one period and one passport collection window. The underlying restraint remained in force. Businesses should read carve-out orders carefully and not assume they create broader freedom than the text actually gives.

A further question is whether the Court will accept informal assurances. This judgment suggests the Court may require more than that. Justice Moshinsky required Mr Saad to give the undertaking personally in Court and to provide documentary proof of the flights and itinerary. That reflects the Court's focus on risk management and enforceability.

The judgment was delivered on 13 February 2026 and the reasons were published on 17 February 2026. The hearing took place on 13 February 2026. The carve-out related to proposed travel between 8 March 2026 and 20 March 2026. The affidavit with tickets and itinerary had to be filed and served by 20 February 2026. The passport could be collected between 1 March and 8 March 2026 and had to be returned promptly after 20 March 2026, and no later than 23 March 2026.

The Court also relisted a case management hearing from 1 May 2026 to 30 April 2026. Costs were reserved. Liberty to apply remained in place, meaning the parties could return to Court if further issues arose.

This page is based on the Federal Court judgment in Australian Securities and Investments Commission v Saad [2026] FCA 110. The judgment is sufficient to explain the carve-out application, the Court's reasoning on the changed circumstances, and the orders that were made. It is not a full account of ASIC's underlying investigation or the original July 2025 reasoning in detail.

The judgment expressly says it should be read together with the earlier July 2025 reasons in Australian Securities and Investments Commission v Merhi [2025] FCA 829. Readers looking for the original basis on which the travel restraint was first imposed should read that earlier decision as well.