Campoy Sanchez (Migration)

[2024] AATA 679

Campoy Sanchez (Migration) [2024] AATA 679 (6 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Caridad Campoy Sanchez

CASE NUMBER:  2017213

HOME AFFAIRS REFERENCE(S):          BCC2020/2331435

MEMBER:P. Maishman

DATE:6 February 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Work (International Relations) (Class GD) Subclass 403 visa.

Statement made on 06 February 2024 at 4:03pm

CATCHWORDS 
MIGRATION – Temporary Work (International Relations) (Class GD) – Subclass 403 – Foreign Government Agency stream – applicant is not employed as a ‘representative’ of the Spanish Consulate – does not enjoy official status in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 403.232, 402.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 November 2020 to refuse to grant the visa applicant a Temporary Work (International Relations) (Class GD) Subclass 403 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 September 2020 seeking to be considered against the Foreign Government Agency stream. The delegate refused to grant the visa on the basis that she did not meet the requirements of cl 403.232 or cl 403.233 of Schedule 2 to the Regulations because she was not employed as a representative of a foreign government agency nor would her employment be of benefit to Australia.

3. The applicant appeared before the Tribunal by MS Teams video on 1 February 2024 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal had before it a copy of the Department’s file. The applicant was in Australia and applied for the visa indicating she sought to fill the role of Foreign Government Representative with the Consulate of Spain in Melbourne. The applicant provided a letter from her employer, the Consul General of Spain, Antonio Polidura Alvarez-Novoa dated 2 September 2020.   

6. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The applicant provided a letter from the Consul General of Spain dated 20 April 2012, a copy of the letter from Mr Alvarez-Novoa dated 2 September 2020, a statutory declaration dated 17 September 2020, and written submissions dated 27 November 2020. On 25 January 2024 the applicant sent the Tribunal a list of names of interns who had told her they obtained a SC 403 visa during the years of their internships around 2016 to 2018.    

7. The issue in the present case is whether the applicant seeks to enter Australia to be employed as a representative of a foreign  government agency that does not enjoy official status in Australia.

8. Clause 403.232 requires:

   The applicant is:

   (a) a person who:

   (i) seeks to enter Australia to be employed as a representative of a foreign  government agency that does not enjoy official status in Australia; and

   (ii) would not, as a representative of that kind, enjoy official status in Australia; or

   (b) a foreign language teacher intending to work in an Australian school but as an employee of a foreign government. 

9. The applicant gave oral evidence that she had previously been granted the same visa while employed in the same circumstances. The applicant submitted that as an employee of the Consul General she acted as its representative attending staff meetings and various cultural festivals. The applicant described her duties to include administrative support to the Vice Consul and Consul General, but also advising people how to establish business in Spain, providing forms required by the Spanish government and training new staff. The applicant said the Consul General’s letter of 2 September 2020 did not include all her representative duties because he was new and not cognisant of the importance of his support.        

10. The Tribunal explained the list of names of people claimed to have been granted a SC 403 visa was of little assistance to the Tribunal’s deliberations. The Tribunal acknowledges the applicant’s evidence that her employer (the Consulate of Spain) would not provide details of the people she listed for privacy reasons. It is beyond the Tribunal’s authority to obtain details of the alleged visa recipients and, in any case, their historical individual circumstances have no application to her present case.

11. The Tribunal acknowledges the applicant’s submission she has been in Australia for 18 years, has previously been the holder the SC 403 visa based on being employed by the Spanish Consulate, and has paid all her taxes while working in Australia.

12. The Tribunal understands the applicant’s disappointment at having her application refused in circumstance she believes to be the same as those for which she was previously granted a SC 403 visa. However, the Tribunal is required to consider the applicant’s current application and does not have the discretion to make a favourable decision on the basis of what might have occurred in relation to her previous visa application(s).

13. The Consul General, Mr Alvarez-Novoa, letter dated 2 September 2020 describes the applicant as a locally engaged staff member of the Consulate undertaking administrative support duties:   

    ·assisting the Consul General at the notary department

    ·assisting the Consul General in the support and communications with Spanish citizens detained in Australia

    ·preparing Spanish administrative documents for the Consul General’s approval (digital certificates, tax ID numbers, foreigners identity numbers, certified copies of official documents, etc)

    ·preparing documents demanded by the Spanish labour ministry for those Spanish workers who decide to return to Spain.         

14. The Tribunal asked the applicant if she had sought a more detailed letter of support from her employer detailing her claimed ‘representative’ functions beyond the described administrative duties. The applicant said the letter dated 2 September 2020 is all that they would provide. The applicant said she has been on sick leave from the Consulate since 2021 but retained her position and could return to her employment when she was well.

15. The Tribunal gives weight to the information provided by the Consul General of Spain in his letter dated 2 September 2020. The applicant is employed by the Spanish Consulate, a foreign government agency, to provide administrative support at the Consulate. The applicant is an employee engaged in Australia to undertake administrative functions. The administrative support she provides is to assist the Consular officials in their representation of the Spanish Consulate. She is not employed as a ‘representative’ of the Spanish Consulate.      

16. For these reasons, the Tribunal is not satisfied the applicant seeks to enter Australia to be employed as a representative of a foreign  government agency that does not enjoy official status in Australia.

17. Therefore, the applicant does not satisfy cl 403.232(a)(i).  

18. On the basis of the above findings, the Tribunal finds that the applicant does not meet cl 403.232. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 403 visa and the decision under review will be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Temporary Work (International Relations) (Class GD) Subclass 403 visa.

    P. Maishman
    Member

    
    

    403.23  Criteria for Foreign Government Agency stream

    Note:    These criteria are only for applicants being assessed against the primary criteria for a Subclass 403 visa in the Foreign Government Agency stream.

    403.231 

    If the applicant was in Australia at the time of application:

    (a)  at that time, the applicant held a substantive temporary visa that was not:

    (i)  a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream; or

    (iii)  a Subclass 771 (Transit) visa; or

    (iv)  a special purpose visa; or

    (b)  if the applicant did not hold a substantive visa at that time:

    (i)  the last substantive temporary visa held by the applicant was not a visa mentioned in paragraph (a); and

    (ii)  the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005. 

    403.232 

    The applicant is:

    (a)  a person who: 

    (i)  seeks to enter Australia to be employed as a representative of a foreign government agency that does not enjoy official status in Australia; and

    (ii)  would not, as a representative of that kind, enjoy official status in Australia; or

    (b)  a foreign language teacher intending to work in an Australian school but as an employee of a foreign government. 

    403.233 

    The employment or engagement of the applicant would be of benefit to Australia.

    403.234 

    The application has the support, in writing, of the foreign government agency.

    403.235 

    (1)  The applicant satisfies public interest criterion 4005.

    (2)  If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

    Reg 2.57 defines:

    foreign government agency includes the following: 

    (a)  an organisation:

    (i)  that is conducted under the official auspices of a foreign national government; and

    (ii)  that is operating in Australia;

    including foreign tourist and media bureaus, trade offices and other foreign government entities;

    (b)  a foreign diplomatic or consular mission in Australia;

    (c)  an organisation:

    (i)  that is conducted under the official auspices of an international organisation recognised by Australia; and

    (ii)  that is operating in Australia.