1. 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.
2. 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.
3. 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]
4. 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.

1. Mr Poturak's elder sister has three minor children and his younger sister has two minor children.
2. 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.
3. 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.
4. His eldest sister expressed no concern about the children having ongoing contact with Mr Poturak despite his criminal history.
5. 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.
6. The best interests of these minor children weigh somewhat in favour of revoking the cancellation of his visa.

1. 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.
2. 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]
3. 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.
4. 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.

(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):

Legal consequences of decision under s 501 or 501CA

1. 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]
2. 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.
3. 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.
4. 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]
5. 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.
6. 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.
7. 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.
8. 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]
9. 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]
10. 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.
11. 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]
12. 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.

1. 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.

2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. The extent of impediments weighs heavily in favour of revoking the cancellation of his visa.

1. 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.
2. 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.

1. 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.
2. 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]
3. 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]
4. 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]
5. 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.
6. 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.
7. 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.
8. 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.

1. The Tribunal affirms the decision under review.

[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').

[6] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.

[9] See also the Direction, cl 8.1(2)(b).

[21] See Special Return Criterion 5001(c), Schedule 5, Migration Regulations 1994.

[22] [2025] FCA 143.

[24] [2024] FCA 1273.

[26] [2016] FCAFC 117.

[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] HCA 48; (2010) 243 CLR 164 at 176 [33].

[30] Tauluhi v Minister for Immigration and Border Protection at [84].

[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].

[33] [2023] FCA 252.

[34] [2023] FCAFC 138, [23].