Poturak and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1748

Poturak and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1748 (9 September 2025)
Applicant:Arnel Poturak
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4156
Tribunal:Deputy President K Millar
Place:Adelaide
Date:9 September 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 09 September 2025 at 9:17am
CATCHWORDS
MIGRATION – visas – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) (“the Act”)– consideration of Ministerial Direction No. 110 – consideration of ss 501(3A), 501(6) and 501(7) of the Act – extensive offending – protection of the Australian community – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143.
Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273.
Plaintiff M1/2021 [2022] HCA 17.
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 117.
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252.
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
Minister for Home Affairs v HSKJ [2018] FCAFC 217.
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
INTRODUCTION

Mr Poturak is a citizen of Bosnia and Herzegovina who arrived in Australia in 2002 at 17 years old, joining his mother and half-sisters as the holder of a Child (Subclass 101) visa. His childhood in Bosnia was marked by his mother leaving when he was a baby, and he was raised by his grandmother in the context of his father’s alcohol use and claimed physical violence. He experienced war in Bosnia before coming to Australia, and on his arrival only enjoyed a relatively brief period of stability with his family, finding it difficult to adjust to life in Australia and falling into drug use.
Mr Poturak has an extensive criminal history and is currently serving a sentence of imprisonment of four years, five months and 23 days imposed for trafficking in methamphetamine. As a result of his sentence for this offending, his visa was cancelled, and a request to revoke the cancellation was refused by a delegate of the Minister. Mr Poturak seeks a review of the decision not to revoke the cancellation of his visa.
THE HEARING
Mr Poturak appeared before the Tribunal unrepresented and, while doing his best to answer questions, was a relatively poor historian. This can be explained in part by recent cognitive testing. This testing was conducted following screening tests conducted as a precursor to attending a Violence Prevention Program (VPP) recommended by the Sentence Management Unit. This testing showed he is in the very poor range of intellectual functioning, and his neuropsychological abilities is in the extremely low range of functioning.
Mr Poturak answered questions fluently but briefly and expressed disagreement with propositions put to him as well as agreeing with propositions. He answered appropriately when he could not recall events and was straightforward with his responses.
His presentation was not entirely consistent with the test results as he presented as functioning at a higher level than these tests suggest. However, he did not often seek clarification of a question without being prompted about his understanding of the question, and generally agreed with propositions put to him without reflection.
In terms of his general functioning, he said in the community he does not have difficulty with day-to-day tasks such as managing bank accounts and his Centrelink payments, paying rent and doing shopping which indicates a higher level of functioning than suggested by the tests.
Given the reports from this testing his lack of recall of events does not reflect a deflection of the question, but rather a genuine lack of recall. In the circumstances where his answers to the questions asked of him were brief and excluded information elicited by the psychologist who assessed him, I have relied on the information in the psychology reports about his background and circumstances, in particular the report of Dr Lim dated 3 December 2020.[1] I have placed greater reliance on Mr Poturak’s evidence where he provided an explanation, rather than those where a simple yes or no was elicited.
[1] Hearing Bundle (‘HB’), 277.
A Bosnian interpreter was available, however Mr Poturak preferred to speak in English, and says he now has some difficulty understanding Bosnian.
BACKGROUND
Mr Poturak was born in Bosnia and was taken into the sole care of his father from two months old. He was largely cared for by his paternal grandparents, and while at times they had difficulty having enough food and other necessities he otherwise describes a close relationship with his grandmother. Mr Poturak had difficulty at school and left school at either grade five or grade seven and has poor literacy. He reports starting drinking alcohol at eight years old.
Mr Poturak is reported to have experienced war in Bosnia from seven years of age, resulting in ceasing education, hearing the sounds of warfare, and witnessing the bodies of people he knew being returned to the village for burial.
At the end of the war, his father left Bosnia for Holland and Mr Poturak remained in the sole care of his grandmother, reporting feeling abandoned and neglected when his father returned approximately two and a half years later with a wife and child. He also reports intermittent physical abuse from his father.
At 15 years of age he reconnected with his mother who sponsored him to come to Australia when he was 17 years old. His mother and two half-sister migrated at an earlier time, but also experienced war in Bosnia.
On arriving in Australia, he studied English for a year before working in a market for approximately one year, and was reported to have lost this position due to periods of homelessness. He worked in automotive industry until his mid-20’s when he started at a recycling plant. He suffered an injury to his back at the recycling plant and was on Workcover for a period. He reported to his psychologist he was sacked after returning to work and refusing to engage in more labour-intensive work. Following this he is reported as being largely unemployed with occasional seasonal work except for one period of five months’ employment with a dry cleaner.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), the Minister must cancel a non-citizen’s visa if (among other things) the person does not pass the character test because they have a substantial criminal record as defined by s 501(6)(a), and the person is serving a full-time sentence of imprisonment for an offence against the Commonwealth, a State or Territory. A decision to cancel a visa under s 501(3A) of the Act is not reviewable by the Tribunal (s 500(4A)(c) of the Act).
The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act. A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).
A person who has a visa cancelled under s 501(3A) may seek revocation of that decision in accordance with s 501CA of the Act.
As soon as practicable after a visa is cancelled under s 501(3A) of the Act, the person must be sent a notice including relevant particulars and invited to make representations about revocation of the decision to cancel their visa.
Under s 501CA(4) of the Act, the Minister may revoke the original decision to cancel if the person makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked.
If the Applicant does not meet the character test, the remaining issue is whether there is another reason the decision to cancel his visa should be revoked.
On 15 October 2021, Mr Poturak was sentenced to a term of imprisonment of four years, five months and 23 days and he does not meet the character test. The remaining issue is whether there is another reason the cancellation of his visa should be revoked.
THE DIRECTION
Under s 499 of the Act, the Minister can give written directions about the performance of function or the exercise of power to a person or body having functions or powers under the Act. The power to review the decision not to revoke the cancellation is a power provided to the Tribunal by s 500 of the Act.
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act. In making a decision about whether to refuse a visa or revoke the cancellation of a visa under these provisions, the Tribunal must comply with the Direction.
Principles to guide decision making
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, 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.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of 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.
(7)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 or refusing the visa, or revoking a mandatory cancellation.
(8) 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 or refusing the visa, or revoking a mandatory cancellation, 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.[2]
[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.[3]
[3] Ibid cl 7.
THE PRIMARY CONSIDERATIONS
The Direction contains five primary considerations, which are:
(1) The protection of the Australian community from criminal or other serious conduct;
(2)      Whether the conduct engaged in constituted family violence;
(3)     The strength, nature and duration of ties to Australia;
(4)  The best interests of minor children in Australia;
(5)       The expectations of the Australian community.[4]
[4] The Direction, cl 8.
The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
The primary and other considerations have been considered in turn.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[5]
[5] Ibid cl 8.1(1).
Mr Poturak’s criminal activity and other serious conduct
Mr Poturak’s criminal offending commenced in 2005 when he was convicted of driving without due care. From 2015 until his current term of imprisonment he has been convicted of over 80 offences.
His early offending involved motor vehicle offences but included throwing a missile to cause injury or damage to property. In 2007 he was imprisoned for six weeks for driving disqualified. In 2009 he was first convicted of assault. In 2010 he was sentenced to a term of six months imprisonment with a suspended sentence bond for aggravated driving dangerously to avoid police pursuit.
In 2011, he was convicted of hinder police, driving while disqualified and failing to comply with a bail agreement and sentenced to two months’ imprisonment cumulative to the six months imprisonment that followed the breach of bond. He has been convicted of providing false information on a bail agreement, failing to pay taxi fares, and carrying an offensive weapon. In 2014 he was convicted of dishonestly taking property without consent and failing to comply with a bail agreement and sentenced to one month in prison.
His first drug offence was unlawful possession in 2014. In 2015 he was sentenced to five months, four weeks and three days imprisonment for breaches of bonds, aggravated assault and assault. The circumstances of the assault are recorded in the police facts and were not disputed by Mr Poturak. These were that Mr Poturak grabbed the victim from a chair and threw him to the ground. The victim went to hospital and was treated for a large cut and graze to his face and a laceration to his arm.
This was followed by further convictions in 2015 and 2016 for drug offences, breaches of bail agreements, a community service order and estreatment of bail. In 2016 he was convicted of driving with a combination of drugs in his fluid or blood, further driving offences, dishonestly taking property without consent, possessing a controlled drug, stating false personal details, and breach of bond was found proved twice. In the same year he was convicted of serious criminal trespass and dishonestly taking property without consent and was sentenced to term of imprisonment of seven months. On the same day he was sentenced cumulatively to imprisonment for one month for damaging a building or motor vehicle and failing to pay a taxi fare.
In relation to the serious criminal trespass and dishonestly taking property without consent, Mr Poturak said that he entered a property to take a television that he owned, however this is not consistent with the conviction. As the Tribunal must accept the essential facts underlying the conviction,[6] it is not accepted that it was his television he removed from the property.
[6] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
In this period Mr Poturak commenced with the Drug Court and in 2019 was convicted in the Drug Court for offences from 2017 including breach of bond, multiple driving offences, failing to comply with bail, assault including throwing a missile (reckless as to damage to property) and throwing a missile (reckless as to harm to a person), damage to property, assault, and carrying an offensive weapon. He was given a suspended sentence for these offences by Magistrate Dixon in the Drug Court who described the offences of throwing missiles, stating that Mr Poturak threw a hammer at a motor vehicle, narrowly missing it, and throwing a bottle at a passing car, smashing the windscreen. Another of the offences involved punching a person and stomping on his glasses of a person who had crossed the road to avoid him, and another was possession of hammer.
Magistrate Dixon commented favourably on Mr Poturak’s engagement with rehabilitation services in the Drug Court program with two detention breaches and one breach for testing positive to methamphetamine. He was sentenced to a term of imprisonment of eight months and 23 days which was wholly suspended.
As became apparent at the time of his sentencing by Magistrate Dixon, Mr Poturak was also trafficking in methamphetamine on behalf of a person who was in home detention. The sentencing remarks of Judge Stretton states he played an indispensable part as a runner and assistant to the housebound supplier committing the offences on seven separate occasions against ‘a background of repetitive ongoing trafficking.’[7]
[7] HB 37.
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[8]
[8] Ibid cl 8.1.1(1)(a).
The Directions sets out at clause 8.1.1(1)(a) and (b) crimes or conduct regarded as very serious or serious, without limiting the range of conduct that may considered verry serious or serious.
Mr Poturak has been convicted of crimes of violence, with convictions for assault on three occasions and on one occasion for aggravated assault. The assaults involved throwing a man to the ground and injuring him to the extent he attended hospital and punching a man at the back of his head. Offences involving violence which are considered very serious.
Other conduct considered to be serious by clause 8.1.1(1)(b)(ii) are crimes committed against government representative or official due to the position they hold or in the performance of their duties. The Correctional Services report includes sentencing remarks from 2015 which state that Mr Poturak spat at a police officer and was convicted of aggravated assault, with the aggravating fact being the police officer was acting in the course of his duties. Mr Poturak acknowledged he spat at a police officer, and should not have done this because police have to do what is right. This is also serious.

Mr Poturak has been the subject of several custodial sentences, with the most recent conviction resulting in a term of four years, five months and 23 days, with a non-parole period of three years and five months. He has been sentenced to various other terms of imprisonment from 14 days to several months, many of which he was required to serve after breaching suspended sentence bonds. He was sentenced to a term of imprisonment of seven months for serious criminal trespass and dishonestly taking property without consent.
Mr Poturak has been before the Court every year from 2005 until 2019 except 2018 and 2020, often on several occasions. His offending has increased in seriousness, escalating to trafficking in a controlled drug. That his offending is frequent and of increasing severity weighs against him.
The number of Mr Poturak’s offences at over 80 convictions means that there is a significant cumulative effect to his offending. He has been undeterred by bonds, bail agreements, suspended sentences and periods of imprisonment. He did respond positively to interventions from the Drug Court in terms of his usual pattern of offending, however this has little effect when at the time he was sentenced by the Drug Court he was also trafficking in a controlled drug.
There is no information before me that Mr Poturak has provided false or misleading information or has reoffended since being on notice of the potential effect on his migration status.
Mr Poturak’s offending is of a serious nature and is frequent and of increasing seriousness.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[9]
(1)In considering the need to protect the Australian community (including individuals, groups, or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[9] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[10] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[11]
[10] The Direction, cl 8.1.2(2)(a).
[11] Ibid cl 8.1.2(2)(b).
Nature of the harm
To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or to the Australian community should the Applicant reoffend.[12]
[12] The Direction, cl 8.1.2(2)(a).
Mr Poturak has committed many driving offences, some which have involved the use of alcohol and other drugs. There is a risk to other road users should he reoffend in the same way. He has been convicted of assault which on one occasion resulted in the victim attending hospital, with the potential for ongoing harm to the victim’s mental health and physical wellbeing. He has thrown missiles at people and cars and damaged property.
Mr Poturak acknowledged that assault causes harm because it hurts another person, and that driving while affected by alcohol or methamphetamine could result in someone being hurt or killed. He acknowledged that trafficking in prohibited drugs can separate families and cause drama as it has destroyed his life.
Given his previous conduct, the likely harm if Mr Poturak commits further offences is causing mental or physical injury to others, the risk of causing death through driving offences or throwing missiles at people or motor vehicles and destroying lives through addiction to prohibited drugs.
Likelihood of the Applicant engaging in further criminal or other serious conduct
This likelihood is to be assessed taking into account information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision (clause 8.1.2(2) of the Direction).
Information and evidence on the risk of the Applicant engaging in further criminal or serious conduct
In 2022, Mr Poturak was assessed using the Level of Service / Case Need Inventory[13] as having a risk / need level of very high.
[13] HB 290.
In 2025, the Parole Board Report relied on this test to find Mr Poturak was a high risk of general recidivism.[14] Based on a screening test he was assessed in the Parole Board Report as being a very high risk of violent offending. The Parole Board Report recommends that he completes a Violence Prevention Program (VPP) and that a post treatment report is given consideration prior to any possible release on parole. This recommendation was accepted by the Parole Board, who resolved to interview Mr Poturak on a date to be determined after completion of the VPP and receipt of the post treatment report.
[14] HB 198.
Mr Poturak was assessed for entry to the more general VPP, however it was considered he required a more tailored program following assessment of his intellectual functioning. The cognitive assessment reports he has a very poor level of intellectual functioning and an extremely low level of neuropsychological functioning,[15] although the parole report states these results should be interpreted with caution due to his English language skills. He started the more tailored ‘VPP-me‘ program in April 2025, and said this involves one group and one individual session per week. The approximate completion date of the VPP-me program is April 2026.
[15] HB266.
The psychology report of Dr Lim from 2020 records diagnoses of chronic delayed onset post-traumatic stress disorder and a severe methamphetamine use disorder.[16] Dr Lim considered Mr Poturak was relying on illicit drugs to managing his PTSD and associated symptoms such as depression and anxiety. Dr Lim states she is unsurprised he relapsed into drug use following successful graduation from the Drug Court as she considers rehabilitation programs are only effective if the person’s psychological needs have been properly assessed and appropriately targeted and managed.[17]
[16] HB 287.
[17] Ibid.
It follows that Mr Poturak’s level of risk relates to the treatment and management of his mental health, drug use, and violent behaviour.
Rehabilitation
The parole report notes Mr Poturak’s need regarding drug and alcohol use, pro-criminal attitude / orientation and his companions were seen as areas that needed addressing.
As stated by Magistrate Dixon in sentencing, Mr Poturak was relatively successful at abstaining from drugs while on the Drug Court program, with one positive result for methamphetamine. After he completed the Drug Court program he said was contacted by his co-offender’s wife as his co-offender was on home detention. He was offered methamphetamine and reported to his psychologist he started doing ‘favours’ in return for methamphetamine for his own use. Judge Stretton noted Mr Poturak was engaged in actively trafficking methamphetamine on the same day he entered a bond imposed by Magistrate Dixon.
Mr Poturak was first prescribed suboxone for opioid dependence in 2017 and continued on suboxone until 2020 or 2021 but this did not assist with his methamphetamine use. He is currently on anti-depressant medication. He completed rehabilitation through Drug Court testing and rehabilitation programs through Drug and Alcohol Services, the Matrix program and the Making Changes program.
The assessment of Mr Poturak’s intellectual and neuropsychological functioning was at odds with his presentation to the Tribunal but may explain the lack of lasting success with the Drug Court program and his ongoing criminal activity in addition to Dr Lim’’s observations about untreated PTSD.
Mr Poturak commenced VPP-me in April 2025. The program runs for one year and he is in the relatively early stages of this program.
Mr Poturak’s previous attempts at rehabilitation for his drug use have not been successful in preventing him from relapsing into drug use or from committing further offences. His underlying mental health remains untreated other than with anti-depressants, and he would return to the community with much the same vulnerabilities. It does not appear he will be immediately released as the Parole Board recommended he was interviewed after completing the VPP-me which ends in April 2026. Mr Poturak’s sentence ends 6 April 2026.
Mr Poturak’s immediate risk to the community is low as he is in prison, and it appears he will remain in prison until April 2026. The level of risk after he is released is uncertain, however there is currently a high risk of violent reoffending and a high risk of general offending.
Protective factors
Mr Poturak has a supportive mother and sisters, with his older sister stating she could obtain work for him through her husband’s construction company. He can live with his mother, although that has had variable success in the past with this arrangement, with psychology reports stating he was asked to leave the home intermittently from 19 years of age due to his drug use. He plans to remain with his mother until he can find work and other accommodation.
Conclusion on the protection of the Australian community
The nature of the harm and the high likelihood Mr Poturak engaging in further criminal conduct together with his lack of success with previous rehabilitation means that the risk of reoffending is high, at least until Mr Poturak has completed the VPP-me program which is more tailored to his circumstances. While his family are supportive, they have been unable to prevent his drug use and offending in the past. He does not have broader supports in the community.
Cumulatively, this means that the protection of the community weighs heavily in favour of not revoking the cancellation of his visa.
FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision. There is no information before me that Mr Poturak has committed actions of family violence, and this consideration does not weigh for or against revoking the cancellation of his visas.
THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Immediate family
The Applicant’s immediate family in Australia are his mother and two sisters.
His mother said she suffered a lot when Mr Poturak went with his father at two months of age, and she did not see him again until he was two years old. His mother reports that Mr Poturak’s father was an alcoholic who was abusive and aggressive. She had to fight hard to bring Mr Poturak to Australia, and being separated from him a second time would be devastating. The area from where she if from in Bosnia was part of Serbia and there were instances of ethnic cleansing during the war. She said it would mentally and physically affect her if Mr Poturak’s visa remains cancelled and he is removed from Australia, and she would not sleep as the situation in Bosnia is bad.
His elder sister gave evidence that if Mr Poturak’s visa remains cancelled it will be devastating for her, and that being separated from him during the war until he came to Australia had an effect on them. She has three children and Mr Poturak has met the eldest in person but has not met the younger two children in person as she moved away before they were born. In her statement she says that Mr Poturak was there to give a helping hand, and that the trauma of being separated from him again will not heal a second time around.
His younger sister was not available to give evidence but provided a statement that emphasises the strength of the bond between Mr Poturak and his sisters and that separating him would create even deeper scars. His younger sister has two children who he saw once a week until he was imprisoned.
Having Mr Poturak in Australia did not resolve all the issues for the family, with Mr Poturak intermittently being required to leave the home due to his drug use before being described as homeless. His mother said he stayed with her all the time for two to three years after he arrived in Australia, and they had a lot of ups and down when he went to prison.
The effect on Mr Poturak’s mother and sisters must be considered in the context of their family history. The adverse effect his immediate family is compounded by the circumstances in which Mr Poturak previously remained in Bosnia, and his family members’ experience of war in Bosnia. Mr Poturak’s mother and sisters are acutely aware of the difficulties Mr Poturak may face in Bosnia. There is a very significant adverse impact on his mother and sisters.
Other ties
Mr Poturak has been in Australia for 23 years, arriving as a 17-year-old. His offending commenced relatively shortly after arriving, with his first convictions recorded less than three years after he arrived.
A document submitted on behalf of Mr Poturak refers to many friends and states he values this support network and credit them with his periods of sobriety. Through no fault of Mr Poturak, this document was not provided to the Minister two business days before the hearing, attracting the operation of s 500(6J) of the Act.
Mr Poturak was recalled to give further evidence in response to questions asked of him by the Tribunal. In this evidence, he said he does not have other friends who are supportive. He gave further evidence that this statement was prepared by other prisoners who helped him because he cannot read and write, and that extra details had been added. The psychology report records that prior to incarceration Mr Poturak largely spent time alone and did not have a positive support network in the community.[18]
[18] Hb 268.
Overall, the nature and duration of ties weighs moderately in favour of revoking the cancellation of his visa.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
Mr Poturak’s elder sister has three minor children and his younger sister has two minor children.
Mr Poturak’s elder sister moved interstate after the birth of her first child who is now five years old, and Mr Poturak has not met her younger two children who are four and two years old. His sister said he has met her eldest child ‘a couple of times.’ The interests of each of these children do not differ for the purposes of this decision.
Mr Poturak has contact with these children by electronic means when he contacts his sister. The children’s care needs are met by their parents, and Mr Poturak’s relationship with them is not parental. He has not met two of them in person and has had limited in person contact with the eldest child. There is no information about the impact his behaviour has had on the children, or whether this will have a negative impact in the future. There is likely to be little effect of being separated from the children, as Mr Poturak acknowledged he can maintain contact with them electronically as he does now.
His eldest sister expressed no concern about the children having ongoing contact with Mr Poturak despite his criminal history.
Mr Poturak’s younger sister has two children aged nine and five years old. He said he would see them every week when he was not in prison. The children’s parents provide them with care and Mr Poturak does not have a parental role. He is in contact with them electronically and can maintain contact in this way if he is removed from Australia. There is little other information on the effect on these children of a decision not to revoke his visa cancellation.
The best interests of these minor children weigh somewhat in favour of revoking the cancellation of his visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[19]
[19] The Direction, cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As the Australian community expects the visa to be cancelled as specified in the Direction, this consideration weighs in favour of not revoking cancellation of the visa.
OTHER CONSIDERATIONS
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)       legal consequences of the decision;
b)       extent of impediments if removed;
c)       impact on Australian business interests.
Legal consequences of decision under s 501 or 501CA

The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[20]
[20] Ibid cl 9.1.
In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and must be removed from Australia in accordance with s 198 of the Act.
Under s 197C of the Act, for the purposes of removal under s 198, it is irrelevant whether Australia has non-refoulment obligations. However, under s 197C(3) of the Act, the duty to remove a non-citizen does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made.
If Mr Poturak’s visa remains cancelled, he must be detained under s 189 of the Act and removed from Australia in accordance with s 198 of the Act. He will be prevented by s 501E of the Act from applying for visas other than a protection visa or a Bridging Visa R (Removal Pending) while in the migration zone. Mr Poturak will also be subject to special return criteria that provides for permanent exclusion from some types of visas should he apply for those visas.[21]
[21] See Special Return Criterion 5001(c), Schedule 5, Migration Regulations 1994.
Mr Poturak and his family members expressed concern about his safety if he were removed to Bosnia and Herzegovina due to their experiences of the war and the current political situation. His mother said the situation in Bosnia and Herzegovina is bad, and the current Serbian leader is arresting people, troops are gathering, and she fears there will be another war. Mr Poturak said he would not feel safe in Bosnia but could not expand on the reasons he would currently feel unsafe. Given his reported experience of the civil war as a child, including seeing those who had been killed, and the reported abuse from his father it is understandable he may not feel safe. However, this does not itself show he would meet the requirements in the Act to be a refugee or that there is a real risk he would suffer significant harm if returned to Bosnia and Herzegovina.
As there is no other information before me on the current conditions in Bosnia and Herzegovina, and neither Mr Poturak nor his mother could specify the particular risk to Mr Poturak’s safety if he were to return, if he claims to be owed protection this should be considered in an application for a protection visa as he could then present further information about the current political situation in Bosnia and Herzegovina.
Turning to the weight to be attributed to this consideration, The Minister submits that the legal consequences of the decision are the consequences intended by the legislature, and that this consideration attract a neutral weight.
The Minister relies on of the decision of Stoneley v Minister for Immigration and Multicultural Affairs.[22] In this decision, Charlesworth J considered Parliament ‘must also be understood to have intended that a cancellation decision mandated under s 501(3A) may be revoked under s 501CA(4) of the Act, resulting in that person’s visa being restored,’ and could attract neutral weight if correctly considered.[23]
[22] [2025] FCA 143.
[23] Ibid [36].
In coming to this conclusion, Charlesworth J distinguished Singh v Minister for Immigration, Migrant Services and Multicultural Affairs,[24] where Justice Rangiah stated the Tribunal treated as possible a known legal consequence of detention and removal from Australia in error because the Tribunal considered these consequences were inevitable given the Tribunal’s deferral of the Applicant’s claims for protection. Attributing a neutral weight in the circumstances of that case attributed to Parliament ’a preference for the making of an adverse decision to an applicant such that these consequences will ensue’, where no such intention is in s 501CA(4) of the Act.[25]
[24] [2024] FCA 1273.
[25] Ibid [34].
The Full Court of the Federal Court in Taulahi v Minister for Immigration and Border Protection[26] found that where a decision is made by the Minister personally under s 501(3) of the Act, the Minister is bound to take into account the legal consequences of the decision. In that case this was because of the legal framework in which the decision is made,[27] however in the current context this is because the Direction requires the legal consequences to be taken into account. The consequences to be taken into account are the direct and immediate consequences of the decision.[28] In this case these legal consequences are that Mr Poturak will be detained and removed from Australia, as intended by the legislation.
[26] [2016] FCAFC 117.
[27] Ibid [84].
[28] Ibid.
However, the weight to be ascribed to representations of an Applicant is a matter for the Tribunal on the facts of the individual case.[29]
[29] Plaintiff M1/2021 [2022] HCA 17 at [24] citing Peko-Wallsend (1986) 162 CLR 24 at 41; Abebe v Commonwealth (1999) 197 CLR 510 at 580 [197]; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 176 [33].
Mr Poturak has not applied for a protection visa, but fears for his safety if he is returned to Bosnia and Herzegovina. The Tribunal must consider the direct and immediate consequences of the decision,[30] and at present this requires Mr Poturak to be detained and removed on his release from prison. In circumstances where he will return to a country where he fears for his safety and has little or no support, suffer a mental and physical conditions and has been assessed a having low cognitive capacity, I do not accept that this should be a ‘neutral’ consideration and find it weighs in favour of revoking the cancellation of Mr Poturak’s visa.
[30] Tauluhi v Minister for Immigration and Border Protection at [84].
Extent of impediments if removed
The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia. This is to take into account the Applicant’s:
(a)Age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
While he is relatively young at 39 years of age, Mr Poturak has unmet treatment needs for his mental health and complains of stomach conditions that he says are untreated in prison. He considers he needs surgery but has been told he does not by medical staff in the prison. The nature of any medical conditions he has, and any treatment he needs for these conditions is unclear. He said he injured his back at L4 and L5 when working at a recycling company and has a 30% incapacity, which is consistent with the history in the psychology reports. Mr Poturak says he can work despite his past injury and gave evidence that he would seek any type of work in the Australian community if released. He may also seek work in Bosnia and Herzegovina, however having not worked for many years will find this difficult. He is reported to have problems with his intellectual and neuropsychological functioning, and this will pose an additional impediment if he is removed from Australia.
His mental health and prospects of relapse into drug use will pose impediments for him if returned to Bosnia. His mother says that basic medical care is only available to people who are wealthy, and there is otherwise no information before me about medical support available to him in Bosnia.
Mr Poturak states he does not understand Bosnian well, however he came to Australia when he was 17 years old and has language skills in Bosnian despite his time in Australia. He had little education in Bosnia and will struggle with literacy and numeracy.
Mr Poturak’s biggest concern is that he will have nowhere to live and no support in Bosnia. He said he fears for his safety and says there is currently civil unrest in Bosnia. His mother also said the political situation is poor in Bosnian and there is a likelihood of further war.
Mr Poturak has an aunt and two uncles in Bosnia, however he says he does not have contact with them. His mother said she has four sisters and a brother in Bosnia, together with nieces and nephews, but that Mr Poturak has nothing to do with them, and her brother is planning to leave the country. She said with the current situation in Bosnia no-one cares about anyone else. Mr Poturak’s grandmother, who cared for him as a child, died after he came to Australia. There are mixed reports about contact with his father, however it has been consistently reported his father has problems with alcohol and is unlikely to provide support. While Mr Poturak has family members in Bosnia and Herzegovina, it is accepted he does not have contact with them and could not expect any significant support.
The extent of impediments weighs heavily in favour of revoking the cancellation of his visa.
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 would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no information before me that the cancellation of Mr Poturak’s visa will affect Australian business interests, and this does not weigh for or against revoking the cancellation of his visa.
CONCLUSION
Mr Poturak does not pass the character test under s 501 of the Act, and the Tribunal must consider whether there is another reason the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed. There has been judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Direction, including that the ‘other’ considerations are not ‘secondary’ and the other considerations need not be considered secondary in all cases,[31] and may outweigh primary considerations depending on the circumstances of the case.[32]
[31] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
[32] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] – [37].
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[33] (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[34]
[33] [2023] FCA 252.
[34] [2023] FCAFC 138, [23].
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[35]
[35] Ibid [27].
In the circumstances of this case, where the offending is very frequent and of increasing seriousness, and where Mr Poturak continued to offend while under supervision, including on the day he was sentenced in the Drug Court, the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations.
Bringing the considerations together, the protection of the community weighs heavily in favour of not revoking the cancellation of Mr Poturak’s visa. The expectations of the Australian community weigh in favour of not revoking the cancellation. The best interests of minor children are slightly in favour of revocation, and the strength, nature and duration of ties to Australia are moderately in favour of revoking the cancellation of the visa. The legal consequences of the decision weigh moderately in favour of revoking the cancellation, and the extent of impediments weighs heavily in favour of revoking the cancellation. The impact on Australian business interests does not weigh for or against revoking the cancellation of the visa.
Mr Poturak has clearly been through very difficult times before he came to Australia. His underlying drug problems and mental health combined with his cognitive deficits provide an explanation for his offending, but do not detract from the current risk he poses to the Australian community on his release from prison. He has not addressed the underlying causes of his offending and his previous attempts at rehabilitation have failed. He is in the first half of a new rehabilitation program. If he is removed from Australia, this will cause his family deep distress in the context of their own experiences of war in Bosnia.
However, having considered all the circumstances of this case, the heavy weight attributed to the protection of the Australian community together with the expectations of the Australian community outweigh those considerations that favour revocation. As a result, I am not satisfied there is another reason to revoke the cancellation of the Applicant’s visa and the decision under review is affirmed.
DECISION
The Tribunal affirms the decision under review.

Date of hearing:

27 and 28 August 2025

Self-represented:

Mr Arnel Poturak

Solicitor for the Respondent:

Ms Maria Pappas,
Australian Government Solicitor

Date of hearing:	27 and 28 August 2025
Self-represented:	Mr Arnel Poturak
Solicitor for the Respondent:	Ms Maria Pappas, Australian Government Solicitor