Federal Court of Australia

Kostandy v Minister for Immigration and Citizenship [2026] FCA 486

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs of the application to be taxed or agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    In this matter, the applicant, Mr Maged Kostandy, seeks judicial review of a decision of the Administrative Review Tribunal (Tribunal) to affirm a decision of a delegate of the Minister not to revoke a mandatory cancellation of Mr Kostandy’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act): Kostandy and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1047 (21 July 2025) (T).

2    Mr Kostandy appeared in this Court by Mr Smith of Counsel and Ms McMahon of DWF Law Australia, both of whom appeared pro bono. The Court is grateful for their assistance in properly articulating the real matters in dispute. Their involvement ensured that the applicant was afforded the very best chance of success.

3    Despite the efforts of Mr Smith and Ms McMahon, in the circumstances of this case it needs to be concluded that there was no error in the Tribunal’s decision. For that reason, the application must be dismissed with costs.

Background

4    The applicant was born in Egypt. He remains an Egyptian national and, so he claims, a Coptic Christian.

5    In 2008, he was granted an Australian skilled visa based on his qualifications as a pharmacist. Between 2008 and 2014, he lived between Australia and the United Arab Emirates, though his four children were born during that time in Australia and therefore are Australian citizens.

6    Mr Kostandy’s wife became an Australian citizen in 2020, though it is apparent that she remains an Egyptian national and entitled to live there.

7    Between 2017 and 2018, Mr Kostandy engaged in a series of significant frauds upon a number of friends and associates. This resulted in his conviction for fraud and other fraud-related offences for which he received a sentence of imprisonment of six years and six months, to be served concurrently with other sentences. In essence, the offences involved him dishonestly inducing the payment of money to advance false business opportunities, through which he received over $900,000. It is apparent that the victims of his fraud suffered significant losses.

8    Mr Kostandy’s wife and children left Australia for Egypt in 2019 and stayed there until they returned in 2022. They subsequently returned to Egypt soon after Mr Kostandy’s conviction in 2023 and have remained there ever since.

9    On 13 August 2024, Mr Kostandy’s visa was mandatorily cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act.

10    Subsequently, he made representations seeking revocation of the cancellation decision, but on 23 April 2025 a delegate of the Minister decided not to do so.

11    On 3 May 2025, he applied to the Tribunal for review of the non-revocation decision. A hearing occurred between 7 and 9 July 2025, and on 21 July 2025 the Tribunal affirmed the delegate’s decision.

The Tribunal’s decision

12    Though only a small part of the Tribunal’s decision is contested, it is not inappropriate to contextualise the issues on this application by assaying in some detail the reasons given for dismissing Mr Kostandy’s application.

13    After reviewing the facts, largely as set out above, the Tribunal noted that Mr Kostandy was still in prison at the relevant time, though he had made an application pursuant to s 671AC(2) of the Criminal Code Act 1899 (Qld) for leave to make a further appeal against his conviction. However, that did not inhibit his ability to adduce evidence and prosecute his application before the Tribunal.

14    In relation to the operation of s 501CA(4) of the Act, the Tribunal correctly observed that the Minister could revoke cancellation of a visa if satisfied that the person passes the character test under s 501(6) of the Act, or if satisfied that there is some other reason in favour of revocation. It noted that, since Mr Kostandy did not pass the character test, the real question was whether there was another reason why the original cancellation decision should have been revoked: T [22] – [23].

15    On that question, the Tribunal identified that it was bound to apply Direction 110, Visa Refusal and Cancellation Under s 501 and Revocation of a Mandatory Cancellation of a Visa Under s 501CA (the Direction), issued under s 499 of the Act, and observed that it contained certain “primary” and “other” considerations relevant to its determination.

16    The Tribunal subsequently considered the fact-finding principles upon which it was to base its decision and, within that framework, made an assessment of Mr Kostandy’s credit: see T [33] – [41]. It was noted that his honesty and credibility were essential to the making of reliable findings of fact, because his evidence was the sole source of information as to his and his family’s circumstances: T [37]. Ultimately, it doubted that Mr Kostandy was an honest or reliable witness, largely based on the circumstances surrounding his convictions for fraud and the manner in which he gave evidence: T [38]. There were also other issues which raised a great deal of scepticism as to his honesty: T [39] – [41].

17    As a consequence, the Tribunal generally considered that if he was the only source of evidence on a controversial issue, the evidence would be insufficient to establish the fact: T [41].

18    The Tribunal then turned to the primary considerations required to be addressed under the Direction, of which four were relevant. As to the first, after considering the nature and degree of Mr Kostandy’s criminal behaviour, it considered there to be a moderate risk that, upon his release, he would reoffend if an opportunity arose: T [77]. That being so, the protection of the Australian community weighed against revocation: T [78].

19    It was then noted that he had weak ties to the Australian community, and as such, that primary consideration weighed only slightly in his favour: T [80] – [87].

20    As to the primary consideration of the best interests of minor children in Australia, the Tribunal observed that the interests of two children of Mr Kostandy’s brother, who lived in Australia, weighed to “an almost imperceptible degree” in favour of revoking the cancellation: T [88] – [92].

21    Conversely, the expectations of the Australian community, particularly that non-citizens obey the law, weighed against revoking the cancellation: T [93] – [96].

22    The Tribunal then addressed the other relevant considerations, being the matters which Mr Kostandy had raised in his submissions. In general terms, his “weak and very general” claims that he and his family, as Coptic Christians, would suffer from discrimination in Egypt, and that Egypt is potentially dangerous by virtue of its location within a volatile region, did not weigh strongly in his favour: T [97] – [101]. Similarly, the extent of any impediments to him if he were removed, weighed only slightly in his favour: T [102] – [105].

23    The Tribunal then turned its attention to the further considerations raised by Mr Kostandy, one of which was that his removal would result in his wife and four children remaining in Egypt, rather than returning to Australia, which he said was contrary to their interests. It is appropriate to address this issue, which is central to the present application, in some detail.

24    Mr Kostandy’s primary submission was that his family’s best interests would be served by him being permitted to remain in Australia, as they would join him upon his release from prison. That submission was advanced on the basis that Egypt is an unsuitable environment for the children, as they are Coptic Christians, three are female, and the son has autism.

25    In relation to that submission, the Tribunal held:

[116]    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. 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. 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.

[117]    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.

[118]    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.

26    Thereafter (at T [120]), the Tribunal found that it was not satisfied that there was any evidence that Mr Kostandy’s wife would return to Australia for economic reasons. In that regard, it observed that it was likely that he, having never worked in Australia, would not be in a position to support her financially beyond basic government assistance. There was also no satisfactory evidence that he had any future employment prospects in Australia.

27    After addressing other issues raised by Mr Kostandy, the Tribunal concluded:

[123]    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.

28    Finally, after weighing all of the relevant considerations, the Tribunal concluded that there was no other reason to revoke the cancellation decision, with the consequence that the application should be dismissed: T [124] – [129].

The grounds of review

29    The Originating Application initially filed by Mr Kostandy was a confused document and did not appear to raise any supportable grounds. That has been superseded by a further amended Originating Application, and the two grounds of review now relied upon are as follows:

8.    In relation to what the Applicant's family would do, or were likely to do, if the decision to cancel his visa was or was not revoked (at, inter alia, T [116]-[118] and [123]):

a.    the Tribunal irrationally or illogically failed to have regard to a concession by the First Respondent that the interests of the Applicant’s children favoured them living in Australia, rather than Egypt;

b.     the Tribunal erred in law by reasoning on the basis that it was required to reach a positive state of satisfaction with respect to what the Applicant’s family would do if the decision to cancel his visa was or was not revoked;

c.     alternatively, its reasoning in that regard was irrational or illogical.

9.     There was a constructive failure to exercise jurisdiction by reason of the Tribunal’s failure to make an obvious inquiry about a critical fact, the existence of which would have been easily ascertained (at, inter alia, T [83], [115]-[120] and [123]):

a.    the Applicant’s statement of fact, issues and contentions asserted that Egypt was a “dangerous” place and that Australia had issued a travel warning about it, and the former assertion was repeated during the hearing before the Tribunal;

b.     the security situation in Egypt, or alternatively whether Australia had issued a travel warning about Egypt, was a critical fact or matter to the consideration of what the Applicant’s family would do if the decision to cancel his visa was or was not revoked;

c.     the Tribunal failed to make an obvious inquiry about that fact or matter, namely by undertaking searches, or otherwise inquiring, as to the security situation in Egypt or alternatively whether Australia had issued a travel warning about Egypt.

Ground 8

30    By Ground 8 it is alleged that the Tribunal erred in finding that no weight should be accorded to Mr Kostandy’s contention that his removal from Australia would have a deleterious impact on his wife and children. In particular, Mr Kostandy asserts that the Tribunal failed to consider certain concessions which he said had been made by the Minister.

General principles

31    The applicable principles concerning vitiating irrationality in the formation of a decision-maker’s state of satisfaction under s 501CA(4) of the Act – namely, whether the decision-maker was satisfied that there was another reason to revoke the cancellation decision – were not in dispute. Indeed, they were accurately stated by Mr Smith of Counsel in his thoughtful written submissions. Reference was specifically made to the decision in EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409 at 430 – 434 [73] – [88] (EHF17). There, it was observed at 433 [84]:

The prevailing view on the above authorities indicates that the assessment of the fulfilment of a subjective jurisdictional fact is, in essence, a matter of whether the state of mind of a designated person accords with that which the legislature requires, and that it is reached in accordance with the implicit requirements of, inter alia, an absence of illogicality or irrationality, and it is not based upon illogical fact finding. If the state of mind actually reached by the repository of power could be reached by a logical or rational person on the same material and complies with the other requirements, it is a state of mind which will enliven the relevant power. That will be so even where the probative evidence can support different reasoning processes by logical or rational people resulting in a different conclusion. But, if the actual state of mind reached was arrived at by a path which was illogical and irrational, the required state of mind will not have been attained. …

32    In other words, no operative illegality will arise if any logical and rational person could have reached the relevant state of satisfaction in the manner in which it was reached by the decision-maker. In this way, the scope for illogicality or irrationality is narrow, and confined to those comparatively rare cases where the process by which a state of satisfaction was reached was capricious or arbitrary. In addressing that question, the Court must have regard to the wide decisional freedom afforded to administrative decision-makers, including their entitlement to prefer particular evidence over other material, and the fact that they are not required to weigh evidence in the manner expected in a curial setting.

33    In his submissions, Mr Smith, on behalf of Mr Kostandy, identified a nice question of law said to arise from the Full Court decisions in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 and Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277. It concerns the proposition that a decision-maker’s ultimate conclusion will be valid if a logical or rational decision-maker could have reached the same conclusion on the same material, even by a different path of reasoning. In that sense, the suggestion is that it is irrelevant whether the path of reasoning adopted by the decision-maker was irrational or illogical. For reasons which will become clear, in this case, there is no need to address this question in detail, though it is appropriate to make the following observations.

34    In general terms, the suggestion just described is one which tends not to accord with the general policy of administrative law. It necessarily carries the implication that a person adversely affected by an irrational and illogical administrative decision must suffer the burden of it merely because some hypothetical person could have reached the same conclusion on the material, despite not having actually done so. In effect, the hypothetical decision-maker becomes a vehicle by which a court may substitute its own reasoning for that of the decision-maker. That risks further erosion of the perilously fine boundary between judicial review and impermissible merits review.

35    Moreover, it is doubtful that parliaments intend to preclude a person from challenging an illogical and irrational exercise of power merely on the basis that some notional decision-maker might have reached the same conclusion. Citizens expect executive power to be exercised in a logical and rational manner, which includes full consideration by the decision-maker of any submissions and arguments advanced. Similar observations were made in EHF17 at 433 – 434 [84], continuing from the passage extracted above (supra [31]):

… That remains so even if there were an alternative path to the same conclusion, because the state of mind will not have been formed in accordance with the implicit requirements of the Parliament. In other words, Parliament can be taken to have required that the person who may be affected by the exercise of power founded upon the subjective jurisdictional fact is only to be so affected where the exercise is preceded by the formation of a state of mind in the manner required. It can be fairly assumed that the Parliament intended the person is to be given the chance of a favourable outcome (at least in the sense of overcoming the initial jurisdictional hurdle) by the repository’s engagement in a process that is not illogical or irrational. Even where the application of logic and rationality might permit of diverse outcomes, it is difficult to accept the Parliament intended that the pre-requisite to the exercise of power could be satisfied through a capricious process. In simple terms, if the state of mind is reached by the toss of a coin, it will not satisfy the subjective jurisdictional fact even if, through a proper evaluation of the evidence and appropriate reasoning, the same conclusion could be reached. The process by which the subjective jurisdictional fact is reached is important. That is especially so in provisions such as s 65 of the Act where the formation of a state of mind actually dictates the exercise of statutory power.

36    As mentioned, in this case there is no need to embark upon a full consideration of this question.

The Tribunal’s determination

37    At the heart of Mr Kostandy’s complaint is the Tribunal’s conclusion at T [123]. There, it indicated that it was not satisfied that a likely consequence of revocation was that his family would return to Australia upon his release from prison, and accordingly found that no weight could be attributed to that matter. It was contended that this finding was illogical or irrational, in the sense identified, because the Tribunal failed to take into account an alleged concession by the Minister that the matter should be given at least some weight.

38    In order to evaluate this alleged error, it is necessary to first contextualise that which was under consideration.

39    In his statement of personal circumstances provided to the Minister in support of his request for revocation of the cancellation decision, Mr Kostandy asserted that a decision not to revoke the cancellation of his visa would have a deleterious impact on his wife and children. He said that, if revocation were refused, either his wife and children would reside in Australia without him – which was said to be harmful because his wife would be unable to support their four children alone – or they would remain in Egypt, which he described as being “very dangerous”, particularly for Coptic Christians.

40    In response, the Minister contended in his Statement of Facts, Issues and Contentions (SFIC) that, firstly, minimal weight should be given to the impact of a non-revocation decision upon Mr Kostandy’s wife, because she had chosen to reside in Egypt with the children during his incarceration and, in any event, had not provided any evidence. Second, the Minister submitted that the interests of Mr Kostandy’s children should be afforded less weight on the basis that they do not reside in Australia, have had limited contact with their father throughout his incarceration, and no evidence had been provided from their mother regarding their circumstances in Egypt.

41    At paragraph [65] of the Minister’s SFIC, the following proposition was made in relation to that which might occur if Mr Kostandy’s visa was not restored:

Should the Tribunal consider the applicant’s wife and children are likely to remain in Egypt, the children’s interests should be given limited weight, especially considering they would be reunited with the applicant and have the support of their extended family in Egypt. Should the Tribunal consider the applicant’s wife and children are likely to return to Australia, the Minister contends their interests should be given moderate weight given there is no reason why the applicant could not maintain a relationship with them through visits, telephone and video calls (paragraph 8.4(4)(d)).

42    In response, Mr Kostandy made a number of submissions in his SFIC as to the alleged deleterious consequences of non-revocation for his wife and children and reiterated that it would result in one of two detrimental outcomes for them. At [47] of his SFIC he said:

The Department’s decision not to revoke the original decision negatively affecting my minor children, and will result in one of two disastrous scenarios either my children will always live without a father or they will continue to live in a country where there safety is a huge concern along the lack of medical attention for my son.

43    The impact of a non-revocation decision on Mr Kostandy’s wife and children remained a live issue throughout the hearing. There, the Minister submitted to the Tribunal that the prospect of them returning to Australia was low, because they had chosen to live in Egypt, a country to which they have significant connections. As such, the Minister submitted that any weight given to the impact of non-revocation on them should be tempered.

44    The Tribunal’s reasons (see supra [24] – [27]) demonstrate that it gave careful consideration to the submissions on this issue. After assessing the available evidence, it concluded (at T [116]) that it was not satisfied that, if the cancellation decision were revoked, Mr Kostandy’s wife and children would return to Australia to live with him following his release from incarceration. It considered that they were at least equally likely to remain in Egypt. In those circumstances, the precise impact – if any – of the restoration of his visa on his family’s residential arrangements was not known. Ultimately, it regarded the future conduct of Mr Kostandy’s wife and children as speculative, and therefore incapable of being afforded any real weight.

Was the Tribunal’s conclusion unreasonable?

45    The essence of Mr Kostandy’s argument is that it was illogical for the Tribunal to attribute no weight to the impact of a non-revocation decision on the interests of his family, on the basis that it was axiomatic that his wife and children would suffer to some degree, whether or not they returned to Australia. It was submitted that, whatever may be the circumstances, at least some weight should have been attributed to those interests in favour of revocation. That argument was sought to be supported by what was said to be a “concession” by the Minister at [65] of his SFIC (see supra [41]), which was relied upon before the Tribunal. So the submission went, that statement demonstrated the Minister’s acceptance that Mr Kostandy’s wife and children would suffer a degree of detriment if the cancellation decision was not revoked, regardless of whether they remained in Egypt or returned to Australia.

46    Whilst the submission is not without some merit, ultimately it cannot succeed. The issue before the Tribunal was the impact upon Mr Kostandy’s wife and children were his visa to remain cancelled. Had the Tribunal been able to identify evidence establishing a likelihood that the family would pursue a particular course in that event, it would have been required to assess the detriment flowing from it and weigh that as part of the evaluative task of determining whether there was another reason to revoke the cancellation decision. The difficulty, however, was the absence of evidence of what the family might do in the event of non-revocation and, consequently, what detriment they might suffer. In the absence of such evidence, the Tribunal was unable to make findings on those matters and, therefore, could not attribute any weight to them.

47    In that regard, it bears emphasis that the only source of evidence as to the circumstances of Mr Kostandy’s family, and the potential impact of non-revocation on them, was Mr Kostandy himself. The Tribunal had found him to be so unreliable that if his was the only evidence on a particular fact, it was regarded as insufficient to establish the fact. As the Minister identified, there was no challenge to that assessment of credibility, though there was no real possibility of dislodging it in any event. It follows that it was not possible for the Tribunal to determine what the wife and children would do following a non-revocation decision.

48    The Tribunal took care to identify the family’s circumstances as best it could from the material. It noted their movements over time, recording that they left Australia for Egypt in 2019 and remained there until 2022. This occurred while Mr Kostandy was facing the charges which eventually led to his imprisonment. Though the family returned to Australia in 2022, they lived in Melbourne whilst Mr Kostandy remained in Queensland. Soon after his conviction in June 2023, the family returned to Egypt and they have remained there since.

49    Later, when considering the strength, nature and duration of Mr Kostandy’s ties to Australia, the Tribunal recorded that his wife and children were then living in Egypt, having only resided in Australia in a substantial way from 2014 to 2019, and again from 2022 to 2023. There was some evidence as to the circumstances in which they left to live in Egypt, from which it is apparent that Mr Kostandy had no involvement in that decision. However, the specific reasons for the family opting to live in Egypt were not apparent, and it was by no means certain that they would return to Australia should the visa be restored.

50    Ultimately, the Tribunal found at [81] that the available evidence was insufficient:

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.

51    Accordingly, it was unable to ascertain what Mr Kostandy’s wife and children would do following a non-revocation decision. That uncertainty was recorded at T [115] – [117] which are set out above (see supra [25]), and it was not said that this conclusion was in any way unjustified. It follows that, in the absence of reliable evidence as to what the family would do in the event of non-revocation, it was not possible to embark upon an analysis of what detriment they might suffer as a result.

52    The uncertainty was compounded by a lack of evidence as to why the family had preferred to live in Egypt, rather than Australia, since 2023. The Tribunal would not accept Mr Kostandy’s uncorroborated evidence as to their reasons for living there away from him, nor their reasons for returning for a brief time between 2022 and 2023. Further, it inferred that it was possible that Mr Kostandy’s wife considered that she and her children were better off in Egypt, where she was able to rely upon relatives for support. Though it was recognised that there may be some hardships endured by them there, the Tribunal noted (at T [118]):

… 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.

53    It also concluded that it was not in a position to ascertain whether Mr Kostandy’s son, who suffered from autism, would be better off in Egypt or Australia: T [119]: or that the family would be better off economically in Australia: T [120].

54    The clear reality of the circumstances was that there was nothing to suggest that the future country of residence of Mr Kostandy’s wife and children was related to or contingent upon whether or not his visa was restored. That being so, the Tribunal’s decision would not have any relevant impact on them in that respect.

55    It follows that the Tribunal properly considered the issue of the impact of a non-revocation decision on Mr Kostandy’s wife and children. Its conclusion was that the evidence did not permit it to ascertain what the family would do in the event of non-revocation, and nor was it able to ascertain the relative benefits and detriments of the family returning to Australia or remaining in Egypt. That being so, it was not able to afford any weight to the issue raised by Mr Kostandy that his family would suffer detriment were his application not successful.

56    In other words, Mr Kostandy failed to substantiate his assertions as to the consequences for his family if his application was refused. It was not demonstrated, to any sufficient degree, that they would suffer detriment in the circumstances. More importantly, it was also not established that the family would not be better off were they to remain in Egypt, where they presently prefer to live.

57    In such circumstances, the Tribunal did not err in any way in reaching the conclusion that it did. On the contrary, it reached the only conclusion which was open to it in the circumstances.

The alleged concession

58    It was submitted on behalf of Mr Kostandy that the Tribunal failed to give weight to what was said to be a concession by the Minister that a non-revocation decision would occasion at least some detriment to Mr Kostandy’s family, irrespective of whether they remained in Egypt or returned to Australia. The alleged concession is referred to at [41] above.

59    Ultimately, it is not correct to ascribe to that which appeared in the Minister’s SFIC the status of a concession. While the Minister’s statement acknowledged that, depending on the available evidence, it might be open to the Tribunal to make a finding as to potential detriment, it did not amount to a clear acceptance by the Minister that such detriment would inevitably arise. Moreover, importantly, the statement in the SFIC says nothing of the circumstance in which there is insufficient evidence for the Tribunal to make a finding either way as to where Mr Kostandy’s wife and children might live. Therefore, even if it were a concession, it was irrelevant to the circumstances that in fact arose before the Tribunal.

60    It would also be unfair to regard the statements in the SFIC as being absolute statements about the conclusions which the Tribunal could reach. Necessarily, though the Minister might acknowledge that some circumstance might exist, that is ultimately dependent upon the production of evidence of the undergirding facts. So much can be seen in the present case where, if Mr Kostandy’s evidence were accepted, it might have been possible to identify some detriment to his wife and children if they were to remain in Egypt or move to Australia. However, that evidence was unreliable, and, as the Tribunal was required to act on the facts which were established before it, it could not make the relevant finding.

61    Further, the determination of the weight to be given to a particular issue is a matter for the Tribunal after its consideration of the evidence, and it is not required to accede to or adopt any purported concession by the Minister or any other party: Tran v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1178 [45], citing, inter alia, Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 [33] and Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 599 [24]. Indeed, the existence of a concession does not relieve the Tribunal from undertaking its task to reach the correct and preferable decision: AZL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1490 [38]; Repatriation Commission v Warren (2008) 167 FCR 511, 529 [78]; Peacock v Repatriation Commission (2007) 161 FCR 256, 261 – 262 [23].

62    This is not a case in which it might be said that the alleged concession affected the proceedings before the Tribunal. A perusal of the transcript shows that Mr Kostandy was aware that he should adduce evidence of the circumstances on which he relied, particularly in relation to the alleged impact of non-revocation on his wife and children. He attempted to lead evidence of those matters, though his testimony was not regarded as credible.

63    It follows that there was no relevant concession by the Minister by which the Tribunal was bound when ascertaining the impact of non-revocation on Mr Kostandy’s wife and children.

Conclusion on ground 8

64    The necessary consequence is that Ground 8 of the application fails.

Ground 9

65    By Ground 9, Mr Kostandy asserts that the Tribunal erred by failing to inquire into the security position in Egypt and, in particular, by failing to inquire into the existence of any travel warnings issued by the Australian Department of Foreign Affairs and Trade (DFAT). Evidence was adduced that, had such an inquiry been made, the Tribunal would have ascertained the existence of a travel advice published by DFAT which recommended that people exercise a “high degree of caution” in Egypt due to the threat of terrorism. The submission which followed was that, had the Tribunal been aware of that travel warning, it would have concluded that Mr Kostandy’s wife and children were more likely to return to Australia if his visa was restored.

General principles

66    The principles relevant to this question were not contested. In general terms, it can be accepted that the Tribunal is under no general duty at large to make its own inquiries: EXT20 v Minister for Home Affairs (2022) 291 FCR 55, 90 – 91 [182]. However, circumstances may arise in which a decision-maker acts unreasonably or fails to exercise their jurisdiction by failing to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained…”: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, 1129 [25]. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 280 CLR 265, 278 – 279 [25], it was observed:

The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.

(Footnotes omitted).

67    It can also be accepted that a finding that a decision-maker has acted unreasonably by reason of a failure to make an inquiry is somewhat “rare and exceptional”, and that a mere failure to inquire does not, without more, constitute jurisdictional error: DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 303 FCR 466, 477 [47].

Did the failure to obtain the travel advisory amount to unreasonableness?

68    The difficulty with the applicant’s submissions in relation to this ground is that there was no pressing need for the Tribunal to undertake an inquiry of its own as to the circumstances in Egypt. The issue had been raised by Mr Kostandy as part of his claim that his family were living in a dangerous region for which most countries have travel warnings. This was apparently intended to support the contention that they would suffer detriment by a non-revocation decision, because they would be required to remain living in Egypt. However, for reasons which have been addressed, the Tribunal was not satisfied that Mr Kostandy’s family would be motivated to return to Australia were his visa restored. Indeed, it had been found that Mr Kostandy’s wife had decided that she and the children were better off in Egypt. It was also found that Mr Kostandy had limited employment prospects in Australia, and thus would likely be unable to support the family financially were they to return. That being so, the social and political circumstances in Egypt were not relevant to the Tribunal’s decision.

69    In addition, the Tribunal was confronted with a circumstance in which Mr Kostandy’s wife had voluntarily taken her children to Egypt, where they presently reside. Each of them held Australian citizenship and were able to return to Australia had they wished to do so, but it was apparent that Mr Kostandy’s wife had decided that the preferable option was to remain in Egypt. In this scenario, it might be expected that she – being an Egyptian citizen – would be better informed as to the relative benefits of living in Australia or Egypt for herself and her children in their particular circumstances, as opposed to anything that might be derived from consideration of a travel advisory prepared by an Australian Government department. Therefore, not only was the travel advisory irrelevant to the Tribunal’s decision, but there was also no pressing reason why the Tribunal would consider it. It was certainly not critical to the decision-making process.

70    It follows that the Tribunal did not err by not making inquiries as to the political and social circumstances in Egypt, through travel advisories or other sources of information.

71    It should be added that the Minister submitted that an applicant might ordinarily be expected to obtain any relevant information about the circumstances in a foreign country on which they seek to rely, particularly information such as travel advisories which are relatively easy to obtain. There is no need to consider whether a failure to do so reduces any obligation on the Tribunal to make its own inquiries. However, there is merit in the observation that, if the material in question is so immediately relevant to the issues before the Tribunal, and easily obtainable, there is no reason why an applicant should not provide it as part of the material on which they rely.

Conclusion on Ground 9

72    It follows that Ground 9 of the application cannot succeed either.

Conclusion

73    In the result, neither ground of the application can succeed, and the application must be dismissed.

74    There is no reason why the ordinary rule as to costs should not apply, with the consequence being that the applicant must pay the Minister’s costs of the application.

Associate:    

Dated:    30 April 2026