Kostandy and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 1047
•21 July 2025
Kostandy and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1047 (21 July 2025)
Applicant/s: Maged Sobhy Naguid Kostandy
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/3787
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:21 July 2025
Decision:Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review.
Statement made on 21 July 2025 at 4:42pm
Catchwords
MIGRATION – whether to revoke the mandatory cancellation of applicant’s visa – character test – substantial criminal record – fraud – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – citizen of Egypt – pending application for leave to appeal against conviction – children Australian citizens living in Egypt – Coptic Christians facing discrimination – decision under review affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501.
Cases
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
R v Kostandy [2024] QCA 190
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Secondary Materials
Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
The applicant was born in Egypt. He completed his education there, including university studies, and graduated as an industrial pharmacist. Between 2006 and 2014, he lived in Dubai. In 2008 he was granted an Australian skilled visa based on his qualifications as a pharmacist, and between 2008 and 2014, he and his wife spent periods of time in Australia. The periods he spent in Australia were relatively brief as he continued to work in Dubai. He did however come to Australia with his wife for the delivery of each of his children. Consequently, they are Australian citizens.[1] His wife was granted Australian citizenship in 2020.
[1] G-Documents, G15, 87-88.
From 2014, the applicant began spending the majority of his time in Australia. He was based initially in Sydney where his brother lived, but moved with his family to the Gold Coast in early 2014. He has never held a job in Australia. He has lived off his personal savings and earnings from a medical supply business he operates which is based in the middle east.
While living on the Gold Coast, the applicant made friends through the Coptic Orthodox Church. From 2017 through to 2018 he perpetrated a very significant fraud on a number of these friends.[2]
[2] R v Kostandy [2024] QCA 190.
In late 2019 his wife and children went to Egypt for a holiday to visit family and became stranded there when COVID-19 related restrictions on travel were introduced. In early 2020, the applicant’s home was raided by police and in April 2020 he was charged with a number of fraud-related offences. The applicant was released on bail pending trial.
His family stayed in Egypt even after the COVID-19 travel restrictions were lifted, but they returned to Australia in late 2022 and took up residence in Melbourne.
The charges against the applicant were dealt with by the Queensland District Court in a five-day trial that commenced on 29 May 2023. He was convicted on five fraud type offences. In relation to the four more serious charges, he was sentenced to six years and six months in prison with a non-parole period of two years and six months. In relation to the less serious charge, he was sentenced to four years and four months jail to be served concurrently.[3] He is eligible for parole from December 2025.
[3] G-Documents, G4, 37-38.
Soon after the applicant’s conviction, his family returned to Egypt. They remain there. The applicant has four children, twin daughters aged 15, a son who has been diagnosed with autism aged 13 and another daughter aged five.
The applicant appealed against his conviction. The appeal was dismissed by the Queensland Supreme Court (Court of Appeal) on 11 October 2024.[4]
[4] R v Kostandy [2024] QCA 190.
On 13 August 2024 the applicant was notified that his visa was mandatorily cancelled by a delegate of the respondent under s 501(3A) of the Migration Act 1958 (Cth) (‘Migration Act’).[5] On 4 September 2024 Mr Kostandy made representations seeking revocation of the cancellation decision.[6] On 23 April 2025 a delegate determined that Mr Kostandy did not pass the character test. The delegate was not satisfied that there was another reason why the cancellation decision should be revoked.[7]
[5] G-Documents, G16, 89-96.
[6] Ibid, G8, 48-51.
[7] Ibid, G3, 22.
He has sought review of that decision by the Administrative Review Tribunal (‘Tribunal’).[8] A hearing was conducted from 7 to 9 July 2025. Mr Kostandy was the only person who gave evidence in support of his application.
[8] Ibid, G2, 5.
The Tribunal received into evidence the following documents:
Exhibit ID
Description
-
G-Documents (G1 to G18; pages 1 to 121)
-
Respondent’s Tender Bundle (TB1 to TB5; pages 1 to 143)
-
Respondent’s Supplementary Tender Bundle (TB6 to TB10; pages 144 to 157)
R1
Extract of transcript of proceedings, R v Maged Sohby Naguib Kostandy (District Court of Queensland, Judge Jackson KC, 29 May 2023), consisting of pages marked 327 and 331
R2
Extract of the Consulate General of the Arab Republic of Egypt in the UK, consisting of six pages
A1
Applicant’s Statement of Facts, Issues and Contentions dated 25 June 2025 and attachments marked ‘Attachment A’ to ‘Attachment I’
A2
Applicant’s reply to the respondent’s Statement of Facts, Issues and Contentions and attachments marked ‘Attachment 1’ to ‘Attachment 2’
Tr1
Letter from Mr Kostandy to Tribunal dated 24 June 2025 and email from Madeleine S to the Palen Creek Corrections Visits e-mail address dated 13 of June 2025 and attachments, consisting of 16 pages.
The applicant is still serving his sentence and is not yet eligible for parole. The applicant attended the hearing by video on 7 and 8 July 2025. Closing submissions were heard on 9 July 2025 by telephone.
The hearing was conducted in circumstances where the applicant has made an application pursuant to s 671AC(2) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’) to the Queensland Court of Appeal, for leave to make a further appeal. The application must be brought on the ground that there is fresh and compelling evidence or new and compelling evidence. The application for leave will be heard by the Court on 18 September 2025.[9] In the event that leave is granted, the Court will hear his subsequent appeal against his conviction.
[9] Exhibit A2, attachment 2.
Early on in the process the applicant indicated that he would prefer not to have his application to the Tribunal dealt with before his application to the Court had been decided. I determined that because the decision of the delegate will be confirmed by the operation of law if no decision is substituted within 84 days of the applicant being notified of the delegate’s decision (ie 22 July 2025),[10] it is not in the applicant’s interests to defer the hearing until the further appeal application has been resolved. The applicant acquiesced in that approach.
[10] Ibid, G18, 121; Migration Act 1958 (Cth), s 500(6L).
One consequence of the Tribunal application being heard in the context of a further appeal, is that the applicant was required to deal with questions of remorse in circumstances where there are other proceedings on foot where he contends that he did not commit the crime of which he was convicted. To accommodate the difficulty this poses for the applicant, the Tribunal adopted an unconventional procedure which allowed him to decide whether he was willing to answer questions concerning the criminal charges without needing to establish any basis grounded in the law of privilege for refusing to answer. It was up to him to determine whether it was in his interests to answer questions in light of his application to the Court. The applicant was advised that the Tribunal had only limited capacity to make findings inconsistent with the facts underpinning the conviction the subject of appeal. The applicant largely exercised the latitude the Tribunal gave him and did not answer questions that had the potential to affect his application to the Court.
The applicant also relied upon the fact that he had a further appeal pending as a consideration relevant to determining whether there was another reason why the cancellation should be revoked. I deal with those submissions later in these reasons.
For the time being, as the applicant’s conviction and sentence remain in place, I can only proceed on the basis that the applicant does not pass the character test and the cancellation of his visa will remain in place unless I am persuaded that there is another reason why the cancellation should be revoked.
Framework
The Tribunal has jurisdiction under s 500(1)(ba) of the Migration Act to review the decision.
Section 501CA(4) of the Migration Act provides that the Minister may revoke the cancellation decision if (following representations) the Minister is satisfied, that the person passes the character test, or, that there is another reason why the original decision should be revoked.
The applicant has put in issue whether he fails the character test. The foundation of the argument is that Annexure A to the Direction[11] prevents a finding that he fails the character test in circumstances where criminal charges have not been finalised.
[11] Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
That argument misunderstands the effect of the relevant provision of Annexure A. It provides:
4)In considering a person with unresolved criminal matters, decision-makers should note:
a)where a person already fails the character test, any other outstanding criminal matters would not generally prevent consideration of their case under section 501;
b)a person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined;
Paragraph (b) does not prevent a finding that the applicant does not meet the character test, it merely notes that it is good practice to wait until charges have been finally determined before the question is considered. In this case, the charges have been determined at trial and the convictions survived appeal. It may be that if leave is granted, the Court of Appeal may be persuaded by new evidence to overturn the convictions. But at this point the charges have been finally determined and the applicant does not pass the character test. He has a substantial criminal record as a result of having been sentenced to a term of imprisonment of 12 months or more. Nothing in Annexure A prevents decisions proceeding on that basis.
Consequently, the critical question in issue is whether I am satisfied that there is another reason why the original cancellation decision should be revoked.
In considering that question, I must have regard to the matters contained in a ministerial direction issued under s 499 of the Migration Act. The relevant direction is Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which was executed on 7 June 2024 and commenced on 21 June 2024 (‘the Direction’). Informed by the principles identified in the Direction, I must take into account the considerations identified in ss 8 and 9 when I am considering the question of whether there is another reason why the original decision should be revoked.
The remainder of these reasons deal with the substantive provisions of the Direction. The discussion below of the principles and considerations I must take into account under the Direction is drawn largely from one of my earlier decisions on this issue,[12] but it has been revised to appropriately reflect the circumstances of this case.
[12] Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3363.
The Direction is divided into 'Primary' and 'Other' considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The protection of the Australian community consideration should generally be given greater weight than other primary considerations and primary considerations should generally be given greater weight than 'other' considerations. There is however scope to weight 'other' considerations more highly in appropriate circumstances, and similar flexibility is available in the relative weighting of primary considerations.
The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
The other considerations are:
(a)The legal consequences of the decision;
(b)The extent of impediments to the applicant establishing and maintaining basic living standards if removed from Australia;
(c)The impact on Australian business interests.
I am also required to give consideration to any other considerations raised by the applicant. The applicant has raised a number of considerations which can be summarised as follows:
(a)He has a further application pending that may result in the convictions being quashed;
(b)He has children and a wife in Egypt who are Australian citizens and his removal to Egypt may result in them remaining in Egypt, against their interests;
(c)He has a son who suffers from autism who will get appropriate medical care in Australia and who does not speak Arabic and is unable to learn it and so it is inappropriate for him to remain in Egypt. These submissions only have weight if the effect of the applicant have his visa returned to him is that his family will return to Australia;
(d)His son is likely to be required to participate in compulsory military service if he remains in Egypt;
(e)Various procedural complaints about the termination of his citizenship process and the speed with which decisions were made to cancel his visa.
The Principles set out in paragraph 5.2 of the Direction make it clear that the safety of the Australian Community is the highest priority of the Australian Government. Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of, staying in Australia. The Australian community expects that the Australian Government can and should cancel non-citizen's visas if they engaged in conduct, in Australia, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. With respect to a decision to cancel a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling a visa. The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling the visa, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Having considered each of the considerations and weighed them appropriately, I have decided that the decision under review should be affirmed.
My reasons for that decision are set out below.
Fact finding principles
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection (‘HZCP’), that '…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'.[13] The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.
[13] (2019) 273 FCR 121, 135 [68].
I do note however that the Applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Bromberg J in HZCP. The principles are stated concisely in the following passage from Secretary to the Department of Justice and Regulation v LLG, cited with approval by Bromberg J:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[14]
[14] [2018] VSCA 155, [42].
In this matter, the applicant’s fraud convictions provide the foundation for the cancellation decision and the Tribunal’s jurisdiction. As a result of those convictions and the resulting incarceration, the applicant fails the character test. I am therefore bound by the essential findings made in relation those convictions. The factual foundation for the convictions are canvassed in the sentencing remarks of the trial judge and more fulsomely in the Court of Appeal decision following the applicant’s appeal against his convictions. I have based my findings as to the applicant’s criminal offending on the facts set out in those documents.
The applicant also has a number of traffic violations including multiple speeding offences and handling his mobile phone while driving. The applicant denied that he was the driver in relation to the recent offences. I give some consideration to those offences in my reasons but only for the purposes of assessing the applicant’s credit. In my view the offences are not sufficiently serious or numerous to have any bearing on whether his visa should remain cancelled.
The applicant’s credit
The applicant was the only person who gave evidence on his behalf. Despite the fact that he has a brother in Sydney and is in very regular phone contact with his wife and children, none of them provided any evidence to support his application. No other witness connected with the applicant’s church, his son’s kindergarten or daughters’ schools was called to give evidence on his behalf. As a consequence, apart from facts revealed in the course of the criminal trial and in a small selection of documents, the principal source of information about the applicant and his circumstances comes exclusively from the applicant. His honesty and credibility are therefore essential to the making of reliable findings of fact.
There are however significant reasons for doubting that the applicant is an honest and reliable witness. First, he was found guilty of serious dishonesty offences. Second, the Court of Appeal made multiple findings criticising the applicant’s approach to the appeal, preferring instead the evidence of other witnesses when they were in conflict with the evidence of the applicant. The Court ultimately concluded that when the applicant’s statements were the subject of any disciplined analysis, ‘his assertions prove to be false or nonsensical’.[15] Third, in the evidence that he gave, the applicant gave the impression that what he said in oral evidence was whatever came into his head which might be helpful to him, rather than the truth as he recalled it. For example, the applicant said in evidence and maintained in final submissions, that it was his belief that the Tribunal had access to the full appeal book prepared for the purposes of his appeal against conviction. This had become an issue during the course of the hearing because the applicant wished to rely on material in the appeal book that had never been provided to the Tribunal. He said he held the belief that the Tribunal had access to the entire appeal book because the Tribunal had issued a summons to the Court of Appeal in terms that picked up the appeal book. This claim was made in circumstances where there was clear correspondence between the Tribunal and the applicant, providing him with the documents returned on summons by the Court of Appeal. The return consisted of only two documents and did not include the appeal book.[16] Further, when the applicant prepared his response to the respondent’s Statement of Facts, Issues and Contentions, he created a document, ‘Attachment 3’ which consisted of a few additional pages from the applicant’s own copy of the appeal book. These facts are consistent with the applicant being informed of the true state of affairs concerning the documents available to the Tribunal and acting in a manner consistent with that state of affairs. Later, when it suited him, the applicant claimed to have the belief that the Tribunal had the entire appeal book. I do not accept that the applicant was being honest when he gave that evidence.
[15] R v Kostandy [2024] QCA 190, [148], [164], [168],
[16] Exhibit Tr1.
Fourth, the applicant, in explaining why his wife had not provided a statement in support of his case said that he did not know that he needed to get a statement from her. He said he had not understood that he needed to do that. He thought he could rely on a statement he believed his wife had provided to the Department on an earlier occasion. I am satisfied that these statements were untrue. The applicant had been advised of the utility in providing statements from relatives by the Tribunal during a directions hearing. The applicant made comments that were consistent with him understanding that such statements should be attended to. Further, there was no reason for the applicant to believe that the Department had received any statement from his wife. No statement was produced in the G-Documents or subsequently. The applicant’s account of what he believed to be the case in relation to his wife’s statement varied each time he made statements about it. I am satisfied that he was deliberately untruthful when these matters were discussed with the Tribunal.
Fifth, the applicant denied being the driver of the vehicle when speeding fines were incurred in the state of Queensland in early 2023. He said that he did not have a car registered in his name at the time. However, the records held by Queensland Department of Main Roads record accurately his name, address and driver’s licence.[17] The applicant speculates that maybe his wife was driving a car in Queensland that he rented in Victoria and she is responsible for the speeding fines. The circumstances in which this hypothesis was advanced make it unlikely that it was the truth. The applicant speaks regularly to his wife. He knew after the filing of the respondent’s Statement of Facts, Issues and Contentions that the respondent put in issue his fitness to remain in Australia in part based on his driving record and that was an important matter that he needed to explain. It cannot be the case that in circumstances where the applicant genuinely believes his wife is responsible for the speeding fines that he did not ask her about the fines if he was not responsible for them. Yet, the evidence he gave was not, for example, a hearsay account of his wife having driven the vehicle and been fined, but baseless speculation as to the possibility that she was responsible. Ultimately, his evidence on this issue was incoherent. I am satisfied that the applicant was not being truthful when he denied being the driver of the vehicle when fines were incurred by a vehicle registered to him between 22 January 2023 and 12 March 2023.
[17] Respondent’s Tender Bundle, TB5, 141-142.
In light of these matters (any one of which is damaging enough to the applicant’s credibility), I have approached the applicant’s evidence with scepticism. Generally speaking, if the applicant is the only source of information on a controversial issue, I have treated that evidence as insufficient to establish the fact. If any detail of the applicant’s account is contradicted by any document, I have either disregarded the applicant’s account or based my findings on the alternative source. In relation to the applicant’s offending, there are multiple witnesses who gave versions of events that were largely consistent with each other. I am satisfied that the material of that kind extracted in the Court of Appeal decision[18] gives an accurate picture of the applicant’s offending and I have used that material as the basis for many of my findings.
[18] R v Kostandy [2024] QCA 190.
Facts
I have outlined my broad factual findings at the start of these reasons. Where other factual matters are relevant, I identify them in the context of analysing the relevant considerations. Where a finding is controversial, I have referenced the evidence on which the finding is based.
CONSIDERATION
Primary considerations
Protection of the Australian Community
When examining this consideration, I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
In the present case the offending did not involve any physical harm to the victims. The impact was purely financial. It is however criminal activity that the Australian community should be protected from.
When analysing this consideration I need also to give specific consideration to:
(a)The nature and seriousness of the applicant's conduct to date; and
(b)The risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h) of the Direction. Before applying those factors, I will set out my findings concerning the applicant’s criminal offending.
On 5 June 2023 the applicant was convicted of five counts of fraud after a trial in the District Court. The charges against the applicant were pursuant to s 408C(1)(c) and (d) of the Criminal Code. Four of the charges were that he dishonestly induced people (who were his friends) to deliver bank credits to him in the value of at least $100,000. The fifth was that he dishonestly induced another friend to give him a bank credit to a value of at least $30,000.
The first count concerned George and Lillian Ibrahim, who were friends of the applicant and his family from the Gold Coast Coptic Christian church. The applicant told Mr Ibrahim that he wanted funding for a business opportunity which would involve him purchasing medical supplies for over-the-counter medicines from overseas; getting approval from the Therapeutic Goods Administration to sell the drugs in Australia, and then importing and selling the drugs in Australia. In response the Ibrahim’s transferred the applicant $100,000. There was in fact no business opportunity and the applicant used the money for his own purposes.
The second count concerned the applicant approaching Emad Tadros, in October 2018 to invest in the same medical supplies importation scheme. Mr Tadros invested $30,000.
The third count concerned the applicant dishonestly inducing the Ibrahim’s to give him bank credits at least to the value of $100,000 at the beginning of 2018. They paid the money thinking they were investing in a business venture based on importing adult diapers into Australia. The applicant said he had a contract with Chemist Warehouse to supply them with the diapers and the sales to Chemist Warehouse would yield good profits. No such opportunity existed.
The fourth count concerned the applicant dishonestly inducing Emad Tadros to invest an amount of over $100,000 in the same adult diaper scheme.
The fifth count concerned the applicant dishonestly inducing Emil Botros to pay him more than $100,000 in relation to a supposed investment in the adult diaper scheme.
The Crown case at trial was that there never were any business ventures in respect of importing medical supplies or adult diapers, and that bank records showed that after the complainants deposited money into accounts as directed by the applicant, he took that money and used it for his own purposes. The applicant accepted that the payments that were alleged to be made to him had in fact been made to him in the sums alleged. His defence advanced at trial (including by way of cross examination of the complainants) was that he was given money by them to transfer to third parties in Egypt.
The applicant advanced the deceptive scheme by various means including:
(a)Provision of documents appearing to belong to a legitimate business venture;
Arranging for an associate, Steven Haigh to pretend to be from Chemist Warehouse to give the impression that there was a supply arrangement between the applicant and Chemist Warehouse for adult diapers when there was not one;
Providing false email addresses to the Ibrahims and Mr Tadros that purported to be Chemist Warehouse business email addresses used by Steven Haigh;
Producing false bank statements and invoices to make it appear that funds had been received from Chemist Warehouse to pay for adult diapers delivered in response to orders; and
Closing the main bank account into which the complainants had paid money after being confronted about the lack of any deposits by Chemist Warehouse into that account.
When it appeared to the complainants that the applicant was not engaged in the business ventures that he represented he was involved in, they confronted him. He paid back to them the amount of $378,500. When he was convicted and sentenced, the amounts that had not been returned to the complainants exceeded $500,000.[19]
[19] G-Documents, G5, 41.
The inducing conduct was engaged in between 30 November 2017 and 20 February 2019. The applicant used the fact that his friends from the church trusted him to mislead them about business opportunities and take money from them.[20]
[20] Ibid.
While the crimes do not fall within any of the categories identified as very serious or serious in the Direction, the fact that they have not been specifically identified as crimes of a kind falling within those categories does not mean that they cannot be categorised as such. I am satisfied that fraud on this scale where the applicant engaged in deception resulting in around $900,000 being handed over, should be classified as serious.
The conduct resulted in a custodial head sentence of six years and six months along with a concurrent sentence of four years and four months for the lesser charge. The length of these sentences indicate the seriousness of the conduct.
The offending had a significant impact on the Ibrahims retirement savings.[21]
[21] Respondent’s Tender Bundle, TB4, 81, 84.
Between 2017 and 2019, the applicant engaged in dishonest conduct on multiple occasions developing new and deceptive ways to persuade the Ibrahims and then associates of the Ibrahims to hand over funds. The deception moved from simply presenting a business opportunity that didn’t exist, to later using third parties to pretend to represent Chemist Warehouse to create an urgent need for more capital to perpetuate the scam.[22] The applicant engaged in similar conduct on five separate occasions and the cumulative effect of the repeated offending was to deplete almost completely at one point in time, the savings of his friends, the Ibrahims.[23]
[22] R v Kostandy [2024] QCA 190, [29],[30], [53]; Respondent’s Tender Bundle, TB4, 82-83, 88, 94,
[23] Respondent’s Tender Bundle, TB4, 81, 84.
There is no suggestion that the applicant provided false or misleading information to the Department (factor (g)),[24] nor has the applicant re-offended since being made aware about the consequences of any further offending (factor (h)). There is no relevant offending in another country (factor (i)).
[24] Noting that all of the other matters required have been considered in the earlier paragraphs.
Considering all of the identified factors, the conduct is serious.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must 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. The applicant's criminality is not of that kind, but fraudulent conduct on the scale engaged in by the applicant is a serious crime and is damaging to the community. If there is a reasonable risk of the conduct re-occurring it may not be appropriate to release the applicant into the community.
In assessing the risk to the community, I have had regard to the factors identified in paragraph 8.1.2(2) of the Direction. I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in further criminal conduct, taking into account the applicant's risk of reoffending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence. My analysis is as follows.
Nature of the harm from further criminal conduct
The harm to others should the applicant engage in further conduct of a criminal or serious nature consists of being deprived of large sums of money by deception.
Likelihood of further criminal conduct
I am satisfied that the risk of the applicant engaging in further criminal or serious conduct should be assessed as at least moderate.
The applicant relies heavily on the following matters to suggest that his risk of reoffending is low.
First, he was free in the community from 2019 until 2023 and did not engage in any criminal behaviour. Second, this is his first offence, and it was a ‘momentary lapse of good judgement’.[25] Third, he has insight into his offending and is remorseful, and this is demonstrated by his repayment of sums to his victims. Fourth, he has been assessed as low risk of reoffending by Queensland Corrections. Fifth, he is devoted to his family and would not do anything again to risk separation.[26] Sixth, on release he will be subject to strict parole conditions which will diminish any likelihood of re-offending. Seventh, he has undertaken the few steps at rehabilitation available to him as a person with a cancelled visa. Eighth, his behaviour in prison has been exemplary.
[25] G-Documents, G9, 62.
[26] Applicant’s statement of facts, issues and contentions dated 25 June 2025 (Exhibit A1), 3, [2]-[10].
The respondent contends that the applicant’s risk of re-offending should be assessed as unacceptable.[27]
[27] Respondent’s statement of facts, issues and contentions dated 27 June 2025, 10, [45].
The respondent contends that the applicant lacks insight into his offending. By pleading not guilty, instructing his counsel to cross examine the victims of his criminal offending and then appealing and continuing to deny his guilt in legal applications after his appeal was dismissed, the applicant has a demonstrated a lack of insight and lack of remorse. Further, his account of the fraud has changed from a claim that the funds were given to him to transfer to third parties on instructions from the complainants,[28] to a claim that the fraud was just a ‘business transaction that went totally wrong’.[29] He has never explained the motivations for his offending and has never sought appropriate assistance of any kind to overcome the factors that contributed to his offending. His family did not operate as a protective factor in the past and there is no guarantee that they will act as a protective factor in the future. It would be inappropriate to assume that the applicant will be released on parole or speculate about what the conditions might be and whether they will significantly reduce his risk of offending.
Consideration
[28] R v Kostandy [2024] QCA 190, [12].
[29] G-Documents, G10, 69.
It is the case that the applicant was free in the community and did not commit offences prior to 2017 or after 2019. However, this may reflect a lack of opportunity to defraud rather than any personal commitment not to engage in criminal conduct. Because the applicant has not been clear about the reasons for his offending it is difficult to judge why the offending occurred and what might cause it to happen again. It was a first offence but the applicant has never explained why he began to offend and over time his explanations for the offending have changed. The applicant’s lack of expressed remorse is striking. He continues to make applications to the Court of Appeal which are premised on him being innocent of the crimes. In the Tribunal hearing the applicant tried to walk both sides of the street - expressing insight into his offending while denying that this position was inconsistent with his conduct in bringing a further application in the Court of Appeal. The applicant relied very heavily on having made repayments to his victims as demonstrating insight. I do not accept that. The repayments were only made following his victims confronting him with his own wrongdoing. The repayments were incomplete. The applicant’s evidence of his plans to earn money and return funds to his victims was unconvincing.
As previously noted, I am satisfied that the applicant gave knowingly false evidence in the Tribunal, and the Court of Appeal rejected his evidence in favour of evidence from other witnesses that contradicted the basis of the applicant’s defence at trial and on appeal.
The ‘Risk of Reoffending’ tool used to give the applicant a risk of reoffending score of 1 – the lowest possible risk rating – in my assessment is not an appropriate tool for assessing whether a person is likely to commit a further fraud upon release from prison.[30] The tool is no doubt very accurate at predicting inmate behaviour but is a very limited one. The tool does not appear to have the sophistication to assess the likelihood of an applicant committing a further fraud – particularly in circumstances where the applicant has no insight, has only accepted any past wrongdoing to a limited extent and the drivers of the previous fraud remain shrouded in mystery. The applicant’s result on the re-offending tool does not persuade me that I should rate his risk of re-offending as low. Nor does his good behaviour in prison.
[30] Ibid, G14, 86.
The applicant also relied heavily on his family as a protective factor. He said he would never do anything that would separate him from his family again. This may be true but it is difficult to evaluate the claim when there is no evidence available from independent sources about why the applicant’s family is currently in Egypt. Even accepting the applicant’s claim that the separation is one brought about by economic necessity, the fact remains that the applicant pursued a course of conduct over many months that he must have known could result in a lengthy prison term. His family was not a sufficient protective factor to avoid those crimes and there is no guarantee that it will operate that way again in the future.
In relation to parole conditions being a protective factor, there is doubt that he will be released on parole given his ongoing applications protesting his innocence, nor will the conditions of parole necessarily be well tailored to manage the risks of further dishonesty offences although I accept that some conditions might ensure that he does not handle other people’s money. Relying on parole conditions that have not yet been imposed as a basis for reducing the risk of re-offending in my view involves a degree of speculation. It is not appropriate to give such future possibilities much weight.
Finally, the applicant’s attempts at rehabilitation have been modest. He engaged in no counselling or reform attempts while free in the community following the laying of charges. He has faced difficulties qualifying for courses as a result of his visa status while in prison. It is hard to be optimistic about the attempts at rehabilitation the applicant has made (including trying to identify job pathways and enrolling in Bible study courses) in circumstances where his mindset, as revealed by his continuing appeals, is that he didn’t do anything wrong. Other steps he has advised he will take in the future, including getting a financial advisor, provide little assurance of future good behaviour. So long as the drivers of the offending remain obscure, the means of avoiding re-offending are similarly obscure.
In these circumstances, given the lack of insight concerning the offending and the absence of any expressed remorse or explanation for it, I am satisfied that there is a moderate risk that the applicant will re-offend if an opportunity presents itself upon release.
The protection of the Australian community consideration weighs against the applicant.
Family violence committed by the non-citizen
The applicant has not committed family violence. This factor is neutral.
Strength, Nature and Duration of Ties to Australia
The applicant’s ties to Australia are weak. At present his immediate family is living in Egypt. They only lived in Australia in a substantial way from 2014 to 2019, and then from 2022 to 2023.
The applicant claims that if he is released into the community, his family will return to Australia and that the only reason they left Australia was because they could not afford to live in Australia without him providing income for them. I am not satisfied that that is the case. The only evidence for that proposition comes from the applicant. There is no corroboration by any member of his family.
The only document that deals directly with the departure of the applicant’s family from Australia back to Egypt around September 2023 is an email from the applicant’s twin daughters. They wrote:
Hi dad Im [name redacted] we are ok mum has decided to take us to Egypt because she thnks this is the best option for us not to live in Australia and to be surrounded around our family and we still love you very very very much and Im sorry that I didn’t let you know earlier about this decision but it was not up to me if theres a way to call you please tell us and if there is we will give you our Egyptian phone numbers…[31]
[31] Ibid, G12, 78.
This suggests that the applicant’s wife may have had other motivations for taking the children back to Egypt and it is by no means certain that the family will return to Australia if the applicant is released, even though all of them are Australian citizens.
The applicant has never worked in Australia. He has not produced a single letter of support from a friend or relative. He has a brother who lives in Sydney who has four children. On the applicant’s evidence, which I am prepared to accept, he has seen his brother and his family occasionally since the applicant moved his family from Sydney to the Gold Coast in 2014. The relationship does not appear to be close. No letter of support of any kind was provided by any member of his brother’s family.
The applicant has only treated Australia as a home since 2014. In that time, he has lived in Sydney, Melbourne and the Gold Coast.
I am prepared to accept that he has done the volunteer work that he claims he has done,[32] but it is notable that no letters of support were forthcoming from any organisation.
[32] Ibid, G9, 64.
The applicant’s ties to Australia are very weak. This consideration weighs in favour of revocation but only slightly.
Best interests of minor children in Australia
I must determine whether revocation of the cancellation is or is not in the best interests of a minor child in Australia affected by the decision. There are two minor children in Australia affected by the decision.[33] They are the applicant’s brother’s children. His brother has three children but only two are still minors.
[33] Ibid, G9, 61.
The respondent accepts that revocation is in the best interests of each minor child.
However, the consideration should be given very little weight. The applicant is the children’s uncle. He has seen them infrequently. He is not in communication with them currently. The relationship is not parental. None of the other considerations listed in paragraph 8.4(4) affect the matter to any great degree.
Under the Direction, I am obliged to give each child’s interests individual consideration to the extent that they may differ. In this case, the interests of the children are indistinguishable based on what is known.
This consideration weighs in favour of revoking the cancellation but to an almost imperceptible degree.
Expectations of the Australian Community
As the Direction makes clear, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. As a person who has committed serious fraud, the applicant has not met the expectation that non-citizens obey the law.
The Direction goes on to say that non-revocation of visa cancellation may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person should not continue to hold a visa. The nature of the applicant's crimes do not fall into that category.
These expectations apply regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
This consideration weighs against revoking the cancellation of the applicant's visa. The applicant's breaches of the law are serious and the expectation of the community is that he would not be allowed to stay in Australia.
OTHER CONSIDERATIONS
Legal consequences of the decision
The applicant has raised concerns about returning to Egypt. He is a Coptic Christian and he contends that Coptic Christians are subject to discrimination in Egypt. He also made claims about the danger and volatility about what is occurring in the Middle East at present and the fact that Egypt borders Israel and Iran.
I accept that there is discrimination against Coptic Christians in Egypt and that Egypt sits in a volatile region of the world. However, the applicant has not sought a specific protection finding or made an application for a protection visa. He has noted that his mother came to Australia in 2011 and was granted a protection visa, but otherwise the claims are very general.
The applicant’s circumstances are covered by paragraph 9.1.2 of the Direction. He has, in a half-hearted way, raised some claims with the potential to give rise to non-refoulement obligations, but which have not been the subject of a protection finding.
In circumstances where the applicant’s family has freely chosen to live in Egypt it is difficult to accept that Australia’s non-refoulement obligations are engaged. If the applicant does have more substantial concerns than those that have been articulated in the course of the proceedings, then he will be able to raise them in the context of an application for a protection visa when they will be fully considered. For present purposes it is enough to note that the claims raised are weak and very general.
This factor does not weigh in favour of revoking the visa cancellation.
Extent of Impediments if Removed
I am also obliged to consider the extent of any impediments that the applicant may face if removed from Australia to Egypt, in establishing himself and maintaining basic living standards, taking into account:
(a)The non-citizen's age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to him in Egypt.
The applicant is a citizen of Egypt. There are no substantial language or cultural barriers which the applicant will experience living there. He lived there until he was 27 years old and so he will be familiar with the society and how it functions. His immediate family is currently living there.
The applicant is physically well. He may not be able to work in Egypt due to the discrimination against Coptic Christians, but to date his family has been able to rely on support from family and there is no evidence that satisfies me that the applicant will be unable to do the same. The applicant expressed a concern that his mother-in-law may not be able to house the family into the future, but again, the only evidence of this came from the applicant. In the past the applicant has been able to travel to other parts of the Middle East to work. I have not been advised of any reason why he could not do the same if his visa is cancelled.
This consideration weighs only slightly in favour of revocation.
Impact on Australian business interests
Decision makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under ss 501 or 501CA of the Migration Act would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no business interest that would suffer an impact if the applicant were removed from Australia. This consideration is neutral.
FURTHER CONSIDERATIONS RAISED BY THE APPLICANT
In addition to the considerations which I must consider according to the terms of the Direction, I must also consider any other submissions made by the applicant when determining whether there is another reason to revoke the visa cancellation. The applicant has raised three further bases to consider when deciding whether to revoke the cancellation.
They are:
(a)The applicant has made a subsequent appeal to the Queensland Court of Appeal that may result in his convictions being quashed;
(b)The applicant has children and a wife in Egypt who are Australian citizens and his removal to Egypt may result in them remaining, against their interests, in Egypt;
(c)He has a son who suffers from autism who will get appropriate medical care in Australia which he will not in Egypt and who does not speak Arabic and is unable to learn it. It is in his interests that the applicant’s visa is returned to him. These submissions assume that if the applicant’s visa is returned to him, when he is released into the community his family will re-join him;
(d)The applicant’s son will be required to undertake national service if he does not return to Australia upon his father’s release into the community;
(e)Various procedural complaints about the Department’s conduct.
Pending application in the Court of Appeal
The applicant submits that there should not have been any consideration by the respondent of whether his visa cancellation should be revoked in circumstances where he still has an application pending that has the potential to quash his conviction.
The application the applicant has made is under Chapter 67, division 3 – Subsequent Appeals of the Criminal Code. That Chapter provides under s 671AC for a right of subsequent appeal that can be made where an appeal under division 2 has been determined and dealt with. Section 671AC(2) provides:
The person [whose appeal has been dealt with] may make a subsequent appeal to the Court, with the leave of the Court, against the person’s conviction on a ground that there is fresh and compelling evidence or new and compelling evidence.
The applicant’s application for leave is listed for a hearing to determine whether leave will be granted.[34] That will be heard on 18 September 2025.
[34] Exhibit A2, attachment 2.
As the respondent points out, applications of this kind can be made at any time after an appeal has been determined and there is no limit on the number of times such an application can be made. In those circumstances, I do not give any significant weight to the fact that the applicant has made an application of this kind to the Court of Appeal. In the absence of any grant of leave it is impossible to know whether the application has any merit. What we do know is that the Court of Appeal has heard a comprehensive appeal relatively recently and dismissed it. If it turns out that the applicant’s subsequent appeal has merit and the conviction is quashed, there are means by which any injustice arising from the visa cancellation can be remedied. One possible remedy is the grant of a visa under s 195A of the Migration Act and the respondent has identified others.
In circumstances where the merit of the application to the Court of Appeal is unknown and there is a means whereby any injustice arising from any successful subsequent appeal can be remedied, I do not consider it appropriate to give weight to the fact that the applicant has engaged the subsequent appeal process provided for in the Criminal Code.
Interests of the applicant’s wife and children in Egypt
The applicant submits that it is in his family’s best interests if he is given a visa that will allow him to remain in Australia. He contends that if his visa is restored to him, when he is released into the community, his family in Egypt will come and join him. That is in their best interests because Egypt is an unsuitable environment for his children, as they are Christian, three are female and his son suffers from autism. His wife also has medical conditions and the applicant notes that the International Covenant on Civil and Political Rights requires protection of the family.
These submissions fail at the first hurdle. I am not satisfied that if the applicant’s visa was returned to him that his family would return to Australia on his release into the community. It appears at least as likely that the applicant’s family will remain in Egypt. The reasons for his family spending an extended period in Egypt away from him following the end of the COVID-19 lockdowns have only ever been explained by the applicant.[35] I am not willing to accept his uncorroborated evidence on the subject. Further, their reasons for returning to Egypt in 2023 after a brief stint in Australia are obscure. The only reliable evidence concerning those reasons is in the email correspondence from his twin daughters.[36] It is clear that the applicant was not consulted in relation to the decision to return and it was made despite the fact that the family understood that he would be against the move. In my assessment, the applicant does not know whether his family would be willing to return to Australia if he were released into the community. It is quite possible that the applicant’s wife considers that she can better depend on her relatives in Egypt than on the applicant for appropriate support. In the absence of any evidence from the applicant’s wife and any reliable evidence from the applicant, it is a matter of speculation as to what the family would do if the applicant were released with a visa.
[35] He relates it to the completion of the school year.
[36] Ibid, G12, 78.
I am not satisfied that giving the applicant back his visa would result in the applicant’s family returning to Australia when he is released into the community. Accordingly, whether the applicant holds a visa or not will not determine the living arrangements that his wife and children face.
At present, if the applicant’s visa is not restored to him, it is difficult to discern what will happen but a range of options seem possible. The evidence is simply not sufficient to allow firm conclusions to be reached. In the absence of a visa, upon release, the applicant will be able to rejoin his family in Egypt. If he gains work in Egypt or another part of the Middle East and the relationship with his wife is otherwise sound, then the family will be able to stay together. If there are difficulties in Egypt for the family, the applicant’s family have options concerning where they live because they are Australian citizens. There is a risk that the family may separate if conditions in Egypt are particularly adverse, but at present the evidence supports the conclusion that the applicant’s wife assessed that the better option was for the family to return to Egypt and she has not provided any evidence to support the applicant’s claims that Egypt is unsuitable.
In relation to his son’s autism, I do not accept that the status of the applicant’s visa will affect where his son lives. At the moment he lives in Egypt and his mother has determined that is in his best interests. I am not satisfied that if the applicant were released into the Australian community that the assessment would be any different.
The applicant contends that his wife would return to Australia for economic reasons upon the return of his visa. I am not satisfied on the evidence available to me that that is her position. There is no reliable evidence to support such a conclusion. The applicant provides the only evidence in support of that contention. Even if that was her view, it is unclear that the applicant will be in a position to provide any economic support to her beyond basic government assistance, once released into the community. The applicant has never worked in Australia. He has never had a job of any kind. He is confident that he will find work driving trucks or working in the mines – forms of work in which he has never previously engaged. There is no satisfactory evidence that the applicant has any employment prospects in Australia. The only evidence suggestive of any prospect is a connection he has made with Busy Ability who assist former inmates to seek work. Given the total absence of any employment history and convictions for dishonesty offences, I am not satisfied that the applicant has even reasonable prospects of obtaining work in Australia even if it were the case that the applicant’s wife is living in Egypt for purely economic reasons. I do accept that the applicant will struggle to obtain work in Egypt if he returns, but to this point his family has obtained sufficient family support.
National Service
The applicant also claimed that unless his visa is returned and his son rejoins him in Australia, his son would not be able to avoid doing national service in Egypt. This, it was submitted, was inappropriate for a boy who does not speak Arabic, has autism and is Christian. Based on the evidence available it is unlikely that the applicant’s son will be required to perform national service in Egypt. The respondent has provided evidence at short notice from the Consulate General of the Arab Republic of Egypt in the UK’s website, that there are exemptions that can be obtained from national service. Dual nationality is one basis for the exemption. I am not satisfied that the applicant’s visa status will impact upon whether his son needs to perform national service in Egypt.
Procedural defects in earlier decisions
The applicant spent a considerable amount of energy in his written submissions criticising the process by which the respondent’s delegate reached the two decisions concerning his visa cancellation. As the Tribunal undertakes merits review of those decisions, the identification of potential procedural defects in the earlier decisions adds nothing when the question of whether there is another reason to revoke the visa cancellation is examined.
Summary
I am not satisfied that a likely consequence of the applicant’s release into the community with his visa restored is that his family will return to Australia. Having concluded that that is an unlikely prospect, the matters raised concerning his family add no weight to the case for the revocation of the visa cancellation.
CONCLUSION
Informed by the principles in paragraph 5.2 of the Direction, I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision and all the other considerations that the applicant has advanced.
The following considerations weigh in favour of a decision to affirm the cancellation of the visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The expectations of the Australian community.
The following considerations weigh in favour of setting aside the cancellation but only weakly:
(a)The strength, nature and duration of the applicant's ties to Australia;
(b)The best interests of minor children;
(c)The extent of impediments if the applicant is removed.
The family violence consideration, the impediments the applicant may face if deported consideration, and the impact on Australian business interests consideration are all neutral.
The other factors the applicant has raised add little or no weight to the case for revocation.
In circumstances where two primary considerations, the protection of the Australian community and the expectations of the Australian community weigh against the applicant and no other consideration pulls significantly the other way, I am not satisfied that there is another reason to revoke the cancellation of the applicant’s visa. The decision under review is affirmed.
Dates of hearing: 7, 8 and 9 July 2025
Representative for the applicant: Self-represented litigant
Solicitors for the respondent: Sparke Helmore Lawyers
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