Smit (Migration)

[2022] AATA 861

Smit (Migration) [2022] AATA 861 (8 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Desmond Alexander Smit
Mrs Anna Delina Susanna Smit

CASE NUMBER:  1832443

HOME AFFAIRS REFERENCE(S):          BCC2017/2255231

MEMBER:Nicola Findson

DATE:8 April 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.243 of Schedule 2 to the Regulations.

Statement made on 08 April 2022 at 5:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Labour Agreement stream – position of Minister of Religion – applicant was ordained as a minister of religion – applicant has at least five years’ relevant structured training or instruction – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.243, Schedule 4

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 19 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 26 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Labour Agreement stream, to work in the nominated position of Minister of Religion (ANZSCO 272211).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.243 of Schedule 2 to the Regulations.

6. On 5 November 2018, the applicant applied to the Tribunal for review of the Department’s decision, and with the application provided a copy of the delegate’s decision record

7. The applicants appeared before the Tribunal on 2 March 2022, to give evidence and present arguments. The Tribunal also received oral evidence from Archbishop, The Most Reverend Kay Goldsworthy AO.

8. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the further delay to the matter if the hearing was not to be conducted by video. The applicants did not raise any concerns in relation to holding a video hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Qualifications, experience and other attributes

11. Clause 186.243 requires an applicant in the Labour Agreement stream to have qualifications, experience and other attributes that are suitable for the position.

12. The Labour Agreement between the applicant’s employer and the Commonwealth, signed on 11 November 2020, and currently in effect, sets out the minimum qualifications and experience requirements for Ministers of Religion.  Specifically, Schedule 4, Item 1 requires:

    Ministers of Religion must:

    (a) be ‘ordained’ or have taken ‘profession to religious life’ as a minister of religion; and

    (b) have minimum qualifications equivalent to an appropriate Australian Qualification Framework (AQF) bachelor degree; or

    (c) have undertaken at least five years of relevant structured training or instruction.

13. The Tribunal notes that the Labour Agreement signed on 11 January 2016, in effect at the time of application, as well as the Labour Agreement signed on 28 March 2018, in effect at the time of the delegate’s decision, contain the same qualifications and experience requirements as the current Labour Agreement, described above.

14. The applicant has provided to the Tribunal a copy of the delegate’s decision record.  It records that the delegate was not satisfied that the applicant met the minimum qualifications and experience requirements in relation to the nominated occupation. Although the delegate found that the applicant had provided evidence of his ordination which occurred in 2010, and therefore subparagraph (a) of Schedule 4, Item 1 of the relevant Labour Agreement is met, the delegate went on to find that the evidence provided in support of the application did not satisfy her that the applicant held minimum qualifications equivalent to an appropriate AQF bachelor degree as required by subparagraph (b), or that he had undertaken at least five years of relevant structure training or instruction as required by subparagraph (c).

15. On 22 February 2022, the Tribunal received from the applicants’ representative a detailed written submission, and accompanying documents. The submission provides a chronology of the formal religious training the applicant has undertaken, both in South Africa and the United States, over the years.  It is submitted that the applicant’s full-time study, along with the many years of structured training between 1985 to 2011, is equivalent to at least 5 years of relevant structured training or instruction. It is submitted by the applicant’s representative that the applicant meets the requirements of the relevant Labour Agreement, and therefore the Regulations, of being ordained as a minister of religion and having undertaken at least five years of relevant structured training or instruction.

16. The submission notes that the Australia and New Zealand Standard Classification of Occupations (ANZSCO) describes the occupation of Minister of Religion as requiring high levels of personal commitment and interest as well as, or in place of, formal qualifications or experience.

17. The submission clarifies that the applicant completed a (three-year) Diploma in Theology over two years in 1985 and 1986, at St Paul’s College in South Africa.  He then undertook training as a lay preacher at St Hilda’s in Pretoria North between February 1987 and November 1988. The submission explains that in 1988, the applicant was arrested under the then ‘Security Act’ brought in under the Apartheid Government of South Africa and moved to Botswana, where he was accepted as a political refugee and granted access to the United States of America.  While in the United States, the applicant held several employment positions in various locations and undertook a Bachelor of Science in Business Management.  He also held several church positions between 1988 and 2005 in the States of Oregon and Washington.  During this period, he undertook courses – in Hospital and Juvenile Detention Chaplaincy as well as Counselling.  The submission goes on to explain that in 2005, after the Apartheid Government was disbanded and he and his family were granted amnesty, the applicant returned to South Africa.  On his return, he took up a position at St Francis of Assisi Anglican church in Alberton initially as a lay person, then as Deacon, later Curate and then Assistant Priest.  The submission explains that it is common for clergy in South Africa to hold down employment outside the church to support themselves and their families, as the church cannot provide full-time remuneration to all clergy.  The submission explains that in 2007, the applicant was accepted as a postulant (candidate for Holy Orders, trainee priest).  This subsequently led to a very extensive part-time training period, from February 2007 at Preachers College to November 2009 leading up to his ordination on 16 December 2010.  The submission sets out that pre and post ordination training was conducted from February 2010 to May 2011, when the applicant was then posted as Priest in Charge at All Saints Primrose, South Africa.  He then, in June 2011, became Rector and held this position until he came to Australia in mid-2016. 

18. The submission also details that records of the applicant’s structured training have proved difficult to obtain from South Africa.  It explains that after the fall of apartheid in 1994 and the coming in to power of the ANC government in 1998, many of the old institutions - including the Joint Board of Education as well as the three seminaries (St Paul’s College in Grahamstown, St Bede’s College in Umtata, Ciskei and Fedsem (Federal Seminary) in Pietermaritzburg) -  were either disbanded or closed.  In addition, the submission details that several unsuccessful attempts have been made by the applicant to contact the seminary which does continue to operate – the College of the Transformation and Theological Education through Extension College (TEEC) – in order to obtain a transcript of studies undertaken by him in that country.

19. A letter of support dated 15 February 2022, from the Archbishop, The Most Reverend Kay Goldsworthy AO of the Anglican Diocese of Perth, Western Australia accompanying the submission, sets out that prior to the applicant being offered the position of Rector of the Parish of Whitfords, safe ministry checks were undertaken, together with a check of the applicant’s good standing and competency as a priest in the Diocese of The Highveld.  The responses received were positive and met the requirements needed for a person to be licensed as a priest in the Diocese of Perth.  The letter also sets out that given Clergy in the Diocese of Perth are expected and encouraged to undertake ongoing professional development through the Diocese with regular professional development sessions in safe ministry, preaching and further theological training through the Wollaston Theological College, as well as a biennial week-long clergy school, the applicant has undertaken further periods of structured training whilst in Australia. 

20. At hearing, the applicant confirmed that he and his wife had arrived in Australia, as holders of a Subclass 401 visa, in the Religious Worker stream, granted on 24 May 2016. He also confirmed that the Anglican Diocese of Perth had lodged a nomination for the position of a Minister of Religion in relation to him on 20 April 2017, which was approved, and that he continues to work in the position - specifically a Rector of the Parish of Whitfords, Western Australia – today.  

21. The applicant gave more detailed evidence to the Tribunal about his formal religious journey, including the studies and periods of training he undertook both in South Africa as well as America.  He told the Tribunal that when he completed his Diploma in Theology in 1986, the Dioceses of Johannesburg and Pretoria had started a system of in-service training, called ‘St John the Baptist’ - which involved lay preachers being assigned to a parish to receive practical training while also undertaking studies through TEEC.  He told the Tribunal he was assigned to St Hildas to continue his practical experience under the guidance of Rev Jake De Jonge, the Archdeacon in charge of training for the Pretoria diocese, and between February 1987 and October 1988, in addition to working full-time, he undertook at least 8 hours of training each week. He said he received training in conducting services outside of the norm – Baptism, Funerals, Weddings, Holy Week Services (Tenebrae, Stations of the Cross, 3-hour services), as well as guidance in conducting bible studies, administration and pastoral ministry.  He told the Tribunal that this training was interrupted when he had to leave South Africa for America as a refugee. 

22. The applicant told the Tribunal that while he was residing in America, he took up an opportunity to undertake hospital chaplaincy training, for 4 hours each week, between November 1991 and April 1992.  Also, in 2002 and 2003, while in Wenatchee, Washington, the applicant undertook prison chaplaincy training, specifically, a juvenile detention chaplaincy course, as well as counselling training offered by the Department of Justice.  This training commitment was also for 4 hours each week, and each course ran for a duration of 6 months.    

23. In February 2007, after being able to safely return to South Africa, the applicant resumed his Lay Pastoral Minister training at St Michael and All Angels Benoni, with Archdeacon Ziphozonke Munyando.  He said that this training occurred every Saturday morning (for 3 hours) and involved assisting with Holy Communion, conducting funerals, baptism preparation and confirmation classes.  The applicant told the Tribunal he was licensed as a Lay Pastoral Minster at the completion of this training at the end of October 2007. 

24. In February 2007, the applicant also commenced ‘Preacher’s College’ at St Michael and All Angels Benoni, with five others.  This training was for a period of 3 years (between February 2007 and November 2009) and took place on a part-time basis - each Saturday afternoon.  In the first year, the applicant indicated he was under the tutelage of Canon Tom Amoore, and received training in pastoral care, the Seven Sacraments, Vestments and Vessels, the roles of the Clergy, protocols of the parish and 39-Articles.  In his second year, the learning focus was church history as well as preaching (which was critiqued) at other churches.  In his third, and final year, the applicant said that he was trained by Examining Chaplain Reverend Anne McGuinness, and there was an emphasis on Anglicanism, Liturgies, Spirituality, Protocols of the Deaneries, and continued Baptism and Confirmation preparation classes.

25. In addition, from the beginning of 2007 until the end of 2008, the applicant said he undertook further theological studies through the TEEC.  He indicated that he ceased these studies before course completion after he was informed by Archdeacon Munyando that he had already (previously) covered much of the remaining course work and met the requirements for ordination, and because the cost was significant. He said he completed about 11 out of 30 units, at a cost of R2,000 each term. 

26. The applicant told the Tribunal that also between February and July 2009, at St Dunstan’s Cathedral, he trained and became licensed in trauma, HIV/AIDS, family, marriage and grief counselling.  This he said, was a commitment of approximately 3 hours each week.  He said that after July 2009, ongoing monthly sessions on different topics occurred, as a way of continuous training and supervision.

27. At the hearing, the applicant confirmed, and the material before the Tribunal supports, that he commenced extensive pre-ordination training in February 2010.  He was then ordained in December 2010 and assigned to the parish of St Francis of Assisi as a Deacon.  He then commenced his post-ordination training, which occurred bi-weekly, and which he completed in May 2011 when he was licensed to the All Saints Anglican Church in Primrose as the Priest in Charge.    

28. The Tribunal was told by the applicant that since becoming a Church leader he has done, or been required to do, ongoing and regular professional development through the Church, to benefit both himself and his congregations, including further theological training and a biennial week-long clergy school.  The applicant noted to the Tribunal that, in addition,  outside of the Church, in recent years, he has undertaken training including to be a Disaster Relief Chaplain, as well as a Team Leader for Disaster Relief Chaplains through the Uniting Church and Council of Churches WA; he has undertaken training through the WA Health Service to be a member of Human Research Ethics Committees for both Sir Charles Gairdner Hospital and Fiona Stanley.

29. The applicant told the Tribunal that since he began his religious journey, it feels like he has never stopped training.  He said that no matter what the training, however, it has always been of benefit. He said that he cannot imagine getting up in the morning and doing anything else.  He considers that his work is his way of life. 

30. The Most Reverend, Kay Goldsworthy AO, confirmed the contents of her letter of support to the Tribunal, and reiterated that the Church undertakes very stringent professional standards checks in respect of any Priest coming in to the diocese of Perth.  She told the Tribunal that the Royal Commission into Institutional Responses to Child Sexual Abuse strengthened the safe ministry practices of the Church in Western Australia and that it remains very zealous about its Professional Standards Unit carrying out thorough checks in respect of those people applying new or being invited in to a diocese.  The Archbishop confirmed that the applicant was recognised as a person of good standing before the nomination application in relation to him was lodged.

31. Archbishop Goldsworthy indicated to the Tribunal that the training the applicant had undertaken over the years would amount to considerably more than the practical training required to be done by students enrolled in a tertiary course in Theology in Australia.  She indicated that it is her view that the applicant’s practical training and the huge personal commitment he has made, has been never ending.  Mention was made of the applicant currently acting as the President of the Council of Churches of WA, and his experience being very helpful to chaplaincy work in the State’s hospitals and prisons.  Archbishop Goldsworthy observed the personal cost of this lengthy visa process to the applicants, and the uncertainty of the unresolved outcome for the Parish community. 

32. The Tribunal observes that at the hearing, it found the applicant to be a reliable witness and, accordingly, is confident to rely on his evidence.  

33. The Tribunal finds, on the basis of material in the Departmental file as well as the oral evidence before it, that the applicant was ordained as a minister of religion in 2010. Accordingly, the requirement in subparagraph (a) of Schedule 4, Item 1 of the relevant Labour Agreement is met.   

34. Having considered the material before it, the Tribunal is satisfied the applicant completed a Diploma in Theology, over two years, in 1985 and 1986.

35. The Tribunal is also satisfied on the basis of the applicant’s oral and written evidence, including a letter of support from Bishop Charles May, that the applicant has undertaken training as claimed.  Overall, the Tribunal is satisfied that the evidence before it, including evidence that was not available to the delegate at the time of decision, demonstrates that the applicant has at least five years’ relevant structured training or instruction, and that the training serves as a substitution for the Australian qualifications otherwise required by ANZSCO as well as satisfies subparagraph (c) of Schedule 4

36. , Item 1 of the relevant Labour Agreement. 

37. The Tribunal therefore finds that the applicant has the qualifications, experience and other attributes that are suitable for the position of Minister of Religion. 

38. Accordingly, cl.186.243 is met.

39. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, her application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

1. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

   ·cl 186.243 of Schedule 2 to the Regulations.

   Nicola Findson
   Member