Poturak and Minister for Immigration and Citizenship (Migration)

Case [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

  1. 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.

  2. 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

  3. 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…

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Poturak and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1748
Case
[2025] ARTA 1748
Decision Date

CaseChat Overview and Summary

In the case of Poturak and Minister for Immigration and Citizenship, the court was required to consider the cancellation of Mr Poturak's visa on character grounds, specifically due to his substantial criminal record. The legal issues the court had to decide included the interpretation and application of Ministerial Direction No. 110, and sections 501(3A), 501(6), and 501(7) of the Migration Act 1958 (Cth). The court had to balance the protection of the Australian community against the personal circumstances of Mr Poturak, who has a history of extensive offending and significant mental health issues.

The court examined the provisions of the Migration Act and the Ministerial Direction, which outline the criteria for visa cancellation and the factors to be considered in such decisions. The court noted the substantial criminal record of Mr Poturak, which included numerous convictions for serious offences, and his high risk of reoffending as assessed by relevant authorities. The court also considered Mr Poturak's history of trauma, mental health issues, and efforts towards rehabilitation. Despite these mitigating factors, the court found that the primary consideration of protecting the Australian community from criminal conduct outweighed the other considerations.

Ultimately, the court affirmed the decision to cancel Mr Poturak's visa under section 501(3A) of the Act, and rejected his application for the revocation of the cancellation decision under section 501CA of the Act. The court held that the risk Mr Poturak posed to the Australian community, given his extensive criminal history and high risk of reoffending, justified the visa cancellation. The court's decision was in line with the principles set out in Ministerial Direction No. 110, which prioritizes the protection of the Australian community and the expectation that non-citizens will not cause harm.

The final orders of the court affirmed the decision of the Minister to cancel Mr Poturak's visa and rejected his application for revocation of that decision. The court emphasised the importance of the primary consideration of protecting the Australian community from criminal conduct, and found that this consideration outweighed the other factors in Mr Poturak's case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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’).

Ratio Decidendi

Legal Principle Established

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.