Hamm and Minister for Home Affairs (Migration)

The case of Hamm and the Minister for Home Affairs concerned the mandatory cancellation of Ms Hamm's visa due to her failure to pass the character test, stemming from a substantial criminal record. The dispute brought before Deputy J W Constance P involved an application to revoke this cancellation. Ms Hamm had resided in Australia since 1993 and possessed a criminal record comprising 81 convictions between 2000 and 2017, including serious offences such as assault with intent to rob, weapons offences, theft, and drug-related offences. At the time of the decision, she was serving a sentence for offences committed in 2016.

The primary legal issue before the court was whether the discretion to revoke the visa cancellation should be exercised in Ms Hamm's favour, having regard to Ministerial Direction No. 65. This required the court to consider various factors, including the protection of the Australian community from criminal conduct, the nature and seriousness of Ms Hamm's offending, the potential for future harm, the expectations of the Australian community, and any impediments Ms Hamm might face if removed from Australia. The court also had to assess the strength, nature, and duration of her ties to Australia, the impact on Australian business interests and victims, and her health and potential for employment and housing if she were to be removed.

In reaching its decision, the court applied the principles outlined in Ministerial Direction No. 65. While acknowledging Ms Hamm's long residence in Australia and her view of it as home, the court noted that her offending began at a young age and continued throughout her adult life. Despite periods of employment and tax contributions, the court found that her ties to Australia, particularly her relationships with her family members, were not sufficiently close to warrant revocation. The court was not satisfied that revoking the cancellation was justified, finding no other compelling reasons to do so.

Consequently, the court affirmed the reviewable decision made on 1 August 2018, which was the decision of the delegate of the Minister for Home Affairs not to revoke the earlier decision of 2 February 2017 to cancel Ms Hamm's visa.