Wolfram and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 214
•13 March 2025
Wolfram and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 214 (13 March 2025)
Applicant/s: Mark Anthony Wolfram
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/1639
Tribunal:General Member Gallagher
Place:Perth
Date of decision: 13 March 2025
Date of written reasons: 13 March 2025
Decision:The Tribunal affirms the decision under review.
......................[SGD].................
General Member Gallagher
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –Australian Citizenship Act 2007 s 22B(1)(a) – whether Tribunal satisfied Applicant meets eligibility criteria under s 21(4)(d) – citizen of the United Kingdom – special residence requirements reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Statement of Reasons
An oral decision was issued at the conclusion of the hearing held in the Perth Registry on 13 March 2025 with a note that written reasons would be provided in a reasonable time. These are those written reasons.
APPLICATION FOR REVIEW
The Applicant seeks review of the decision of the Delegate of the Respondent dated 20 March 2024[1] to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australia Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
[1] Exhibit R3, T3, 33.
The basis for the refusal was that the Delegate was not satisfied that, at the time of the decision, the Applicant had met the requirements of s 21(4)(d) of the Act.[2]
[2] Exhibit R3, T3, 39.
The application for review of the Reviewable Decision was made on 20 March 2024 in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Review Tribunal (the Tribunal) for review of a decision made under s 24 of the Act.
ISSUE
The issue before the Tribunal is whether the Tribunal is satisfied that the Applicant meets the requirements for Australian citizenship set out in s 21(4)(d) of the Act, being whether the Applicant satisfied the general residence requirement, the special residence requirement, or the defence service requirement at the time of making his citizenship application.
BACKGROUND
The background to this matter is set out at [3]-[6] of the Respondent’s Statement of Facts, Issues, and Contentions.
LEGISLATIVE AND POLICY FRAMEWORK
The legislative and policy framework is set out at [11]-[17] of the Respondent’s Statement of Facts, Issues, and Contentions.
THE HEARING AND EVIDENCE
The hearing was heard in Perth on 13 March 2025. The Applicant was self-represented. The Respondent was represented by Ms Lily Butterfield of Minter Ellison. Both parties appeared by video.
The following materials were tendered as exhibits:
(a)Statement of Mark Wolfram dated 5 December 2023, filed 18 December 2024 (Exhibit A1);
(b)Email from Applicant responding to Respondent's Statement of Position dated and filed 28 June 2024 (Exhibit A2);
(c)Letter from Lynn Cash dated 10 March 2025, filed 11 March 2025 (Exhibit A3);
(d)Letter from James Keane, CEO of Greenroom Robotics dated 16 July 2024, filed 17 July 2024 (Exhibit A4);
(e)Email from Megan Del Borrello, Founder of We are Emersyn dated 7 August 2024, filed 9 August 2024 (Exhibit A5);
(f)Land contract dated 25 February 2025, file 11 March 2025 (Exhibit A6);
(g)Respondent’s Statement of Facts, Issues, and Contentions dated and filed 10 September 2024, including Annexures A-C (Exhibit R1);
(h)Respondent's Statement of Position dated and filed 13 June 2024, including Annexures A-C, noting the Annexures are duplicates (Exhibit R2);
(i)T-Documents, labelled T1-T20, comprising 213 pages, filed 18 April 2024 (Exhibit R3).
The Tribunal heard oral evidence from the Applicant and his wife, Ms Lynn Cash.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were given the opportunity to address all the evidence either orally or in writing.
Applicant’s submissions and evidence
The Applicant gave evidence that he had nine letters of recommendation in relation to his work and the impact that his work had had on Australia.[3] He also relied on a media release in relation to increased flexibility to citizenship applicants and said that on that basis, and on the basis of the attachment to that media release titled ‘Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021’ (the Instrument), that ministerial discretion ought to apply.
[3] See Exhibit R3, T2, 16, 17 20, 22-5; Exhibit A2; Exhibit A4.
After some discussion, it was established that the instrument commenced in 2021. This was after the time the visa was granted but before the decision was made in relation to the Applicant’s application for citizenship. The Tribunal is satisfied that the instrument applied at the time of the decision.
The Applicant said that the Instrument applies to offer additional flexibility and discretion to consider his circumstances, particularly his nine letters of recommendation and the impact that his work has had.
The Applicant submitted that the Tribunal ought to read this document to offer flexibility to those visa holders who undertake significant travel overseas for work, but including persons such as himself who were invited to apply for their visa.
The Tribunal maintains, having read the media release and having considered the Instrument, that it is still the case that those persons who are invited to apply for the visa are excluded from the relevant talent visa definition, and that on that basis alone, s 22B(1)(a) of the Act cannot be satisfied.
In Annexure C to Exhibit R1, there is evidence that the Applicant was in fact invited to apply and, during cross-examination, the Applicant accepted that this was the case.
The Applicant also gave evidence and submitted that he was not arguing that he sought to apply, and did indeed seek to apply, for the visa.
The Tribunal heard evidence that in the four-year period prior to the Applicant’s citizenship application, that is July 2019 to July 2023, that he was coming and going from Australia sporadically, as evidenced in his movement records.[4] The Applicant gave evidence he had a temporary abode in Australia during that time and he was trying to determine where he would be living and wording at that time, although his permanent home was in the United States.
[4] Exhibit R3, T15, 137.
Ms Cash confirmed that they did in fact spend time travelling around Australia in the last five years, including the period July 2019 to July 2023, and indeed again said that the permanent home that she shared with the Applicant was in the United States prior to moving into their home in New South Wales.
The Applicant also wished for the Tribunal to consider again his highlighting of his commitment to Australia over the last 20 years, his Australian wife and Australian children, the impact he has made on Australia with the work that he’s undertaken, and his belief that his visa warrants the ministerial discretion to be exercised on that basis.
Respondent’s submissions
The Tribunal heard from the Respondent, in closing, that it maintains its position that the Applicant is unable to satisfy s 21(4)(d) of the Act, with this being the determinative issue before the Tribunal.
CONSIDERATION
The issue for review by the Tribunal is whether the Applicant satisfies the resident requirement at s 21(4)(d) of the Act.
The Tribunal turns to a number of matters in Exhibit R1 and all written submissions, which are detailed at [9] above, and which were established at the outset of the hearing.
The Applicant accepts and understands that he does not satisfy the defence service requirement in s 23 of the Act.
In relation to the special residence requirement in s 22A of the Act, the Applicant does not meet the requirements. Therefore, the special residence requirement under s 22A of the Act cannot be met and the Applicant does not dispute this is the case.
Whether the Tribunal is satisfied that the Applicant meets the special resident requirement under s 22B of the Act
Therefore, what remains to be considered is the special residence requirement under s 22B of the Act. The Applicant contended that he meets the relevant requirements of s 22B, such that the special resident requirement is satisfied. The Tribunal notes the relevant principles in relation to this section as they are set out at [30]-[32] of Exhibit R1, and notes in agreement. The Tribunal also notes in agreement the matters set out at [33]-[34] of Exhibit R1.
At hearing, the Respondent submitted the Applicant does not meet the requirements of s 22B, on a number of bases. While it is acknowledged that the Applicant has made significant contributions to Australia with his work and the time that he spent in Australia and in the community, he does not meet the requirements of s 22B(1)(a) of the Act.
The question is whether, at the time of the Applicant’s application and two years prior, the Applicant was engaged in work specified in the instrument, and this includes the relevant talent visa, but excludes visas that an applicant is invited to apply for.
There is indeed evidence that the Applicant was invited to apply, and this is set out in Annexure C to Exhibit R1, and the Applicant indeed agrees that he was invited.
The Applicant relies on the media release that was referred to in the hearing, and how it relates to the introduction of the instrument on which he also relies.
In the Tribunal’s view, there is nothing in the instrument or in the media release to change the express exclusion of visas for which an applicant is invited to apply. There is no discretion to do otherwise and in any event, the Tribunal would need to meet the requirements of s 22B(1)(a) for the discretionary power to be considered in any event, which the Tribunal notes and was emphasised by the Respondent, which was a personal power of the Minister in any event.
For completeness and in relation to this matter, the Tribunal acknowledges that the movement records show that the Applicant was not in Australia for the required period. The Applicant does not dispute this and neither does Ms Cash.
As such, the Applicant does not satisfy s 22B(1)(a) of the Act and is not eligible to meet the special residence requirement in s 22B of the Act.
There is no administrative error, or evidence of administrative error, or suggested administrative error, that any ministerial discretions ought to apply. The Tribunal refers to [44]-[48] of Exhibit R1 and, for completeness, notes the matters in [49].
CONCLUSION
For these reasons, the Tribunal cannot be satisfied that the Applicant satisfies the requirements of s 21(4)(d) of the Act.
DECISION
The Reviewable Decision, being the decision of a Delegate of the Respondent, dated 20 March 2024, to refuse to grant the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) is affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of General Member L M Gallagher
............[SGD]............................................................
Associate
Dated: 13 March 2025
Date of hearing: 13 March 2025 Applicant: Self-represented Solicitors for the Respondent: Ms Lily Butterfield, Minter Ellison
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