Sisira Herath (Migration)

This matter concerned an appeal by Sisira Herath (the applicant) against the decision to refuse the nomination of a position under the Temporary Residence Transition nomination stream. The applicant contended that the nominee, Ms Bandara, had met the requirement of being employed full-time in the nominated position for at least two years immediately preceding the nomination application, which was lodged on 30 June 2017. The applicant submitted that Ms Bandara commenced employment on 1 July 2015. The court was the Administrative Appeals Tribunal, with Member Keith Kendall presiding.

The primary legal issue before the Tribunal was to determine whether Ms Bandara had satisfied the requirement under regulation 5.19(3)(c) of the Migration Regulations 1994, specifically the criterion that she had been employed in the nominated position for at least two years in the three years immediately before the nomination application was made. This involved ascertaining the precise point at which the two-year service requirement was met, given the nomination application was lodged on 30 June 2017, one day prior to what would have been the clear fulfilment of the two-year period if employment commenced on 1 July 2015.

The Tribunal considered the evidence presented, including a statutory declaration from Ms Bandara and documentary evidence, which supported the applicant's assertion that employment commenced on 1 July 2015. While Ms Bandara's contract of employment indicated an earlier start date of 2 February 2015, the applicant explained this discrepancy was due to notice periods with a previous employer and relocation. The Tribunal noted that the later start date of 1 July 2015, as submitted by the applicant, did not favour the review application. Ultimately, the Tribunal was not satisfied that the applicant had met the requirements of regulation 5.19(3), and therefore affirmed the decision under review to refuse the nomination.