Tasman Funds Management Pty Ltd (Migration)

[2018] AATA 2917

Tasman Funds Management Pty Ltd (Migration) [2018] AATA 2917 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tasman Funds Management Pty Ltd

CASE NUMBER:  1709964

DIBP REFERENCE(S):  BCC2016/1774016

MEMBER:Penelope Hunter

DATE:27 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 27 June 2018 at 10:45am

CATCHWORDS

Migration – Nomination – Direct Entry Nomination stream – Not a genuine position – Corporate General Manager – Discrepancies in profit loss statement – Issue of capacity to cover nominated employee’s wages – Capacity to provide full-time employment for at least two years – No recent payments to an industry training fund – Not demonstrated an equivalent of 1% of payroll on training – Decision under review affirmed

LEGISLATION

Migration Act 1958

Migration Regulations 1994, Schedule 2, r 5.19

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 Immigration on 26 April 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 18 May 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3.      In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the delegate was not satisfied that there was a need for the nominated position as required by regulation 5.19(4)(a)(ii).

Background

5.      The applicant company is one of a number of companies in the Tasman Group. It is claimed that the business scope includes investment management, consulting and advising services for financial instruments, shares and life and general insurance products. The business was established in February 2014, it is set out in the application that at that time, it had 8 employees. The applicant is seeking to nominate Jun Zhou for the position of corporate general manager with a total remuneration package of $190,000 per annum.

6.      In support of the nomination, a number of documents were provided to the Department, they relevantly included the following;

i.ASIC company details for the applicant.

ii.Genuine needs statement.

iii.Various advisory mandates.

iv.Business Activity Statements (BAS) from 1 June 2015 to 30 June 2017.

v.Profit and Loss statement to the year ending 20 June 2016 and 30 June 2017.

vi.Employment contract.

vii.Payroll Activity statement 1/5/15 to 30/4/16 and1/5/17 to 30/04/18.

viii.Advertising brochure.

ix.ANZ Bank statement for the period 31/12/15 to 29/01/16.

x.Various training receipts.

xi.Submission as to genuine need for the nominated position.

1. The delegate who considered the matter found the following issues;

   1. The nominated position was a new position, however it was reasonable to conclude the duties listed in the position description would have been undertaken within the pre-existing business structure.
   2. There was no evidence of expansion in the number of projects or new contract to support the claims by the applicant as to the need for the position.
   3. The salary offered was significantly higher than that offered by the market value for the occupation. The applicant had provided no explanation for the significantly higher salary level. The delegate also noted that approval of the nominated position at the proposed salary offered exemptions for skills and English requirements.
   4. The position had not become vacant through natural attrition and it was clear that the position was not previously filled on a full time basis.

   Taking these matters into account the delegate was not satisfied that the applicant needed a full time Corporate General Manager and found that the criteria in r.5.19(4)(a)(ii) was not met.

   Information to the Tribunal

2. On 2 May 2018 the applicant submitted the following further documents to the Tribunal;

   1. Profit and Loss Statement from July 2016 to June 2017.
   2. Business Activity Statements (BAS) from 1 June 2015 to 30 June 2017.
   3. Tasman Group Profile Brochure.
   4. Market Salary Statement.
   5. Payroll Activity Summary from 1/5/17 to 30/04/18, total $176,140.53.
   6. Invoices for Training services in the sum of $3,049.
   7. Company extract.
   8. Organisation chart
   9. Submission as to genuine need for the nominated position.

   Tribunal hearing

   9.      Mr Yihao Zhang, on behalf of the applicant, appeared before the Tribunal on 9 May 2018 to give evidence and present arguments. Mr Zhang was a director of the applicant and of the parent company Tasman Development Holdings Pty Ltd. Mr Zhang confirmed for the Tribunal that he had knowledge of business, administration and finance of the applicant and that the information provided to the Department and the Tribunal on behalf of the applicant was true and correct.

   10.       The applicant was also represented in relation to the review by its registered migration agent.

   11.       The Tribunal questioned Mr Zhang on the employees of the applicant and he gave evidence that the applicant only now had one actual employee. Ms Xinran Lin, the company secretary. He claimed that there had been a restructure of the Tasman Group of companies at the end of the previous financial year and the employees of applicant were now employees of Tasman Development Holdings Pty. The Tribunal referred to the list of employees contained in the payroll statement for the period 1 May 2017 to 30 April 2018 provided to the Tribunal by name. Mr Zhang confirmed that these were actually employed by Tasman Development Holdings Pty Ltd.  The Tribunal raised concerns with Mr Zhang over the accuracy of the information submitted to the Tribunal in support of the application, particularly the payroll activity statement and the figures for wages reflected in the financial statements.

   12.       The Tribunal drew the attention of Mr Zhang to the profit and loss statement for the 2015/2016 financial year submitted to the Department, and the profit and loss statement for the 2015/2016 financial year submitted to the Tribunal. Mr Zhang was asked to explain the discrepancy in the amount recorded for fund management income of over $550,000 between the two statements for the same period, and the discrepancy also in service income. Mr Zhang claimed that the fund management income was a management fee that was generally paid upon the completion of the relevant property developments, and it was recorded in the profit and loss because the applicant was entitled to that fee. Mr Zhang gave the example that the development at Epping was approximately 2 months away from completion and after that, the applicant would be entitled to significant management fees. The Tribunal questioned the treatment of the fees in the profit and loss statement if there were contingent. The Tribunal also questioned why there had also been significant changes to the expenses for the applicant for the 2015/2016 in the profit and loss statement provided to the Tribunal, compared to that provided to the Department. Mr Zhang said that the accountant might be able to provide to the Tribunal more detail. The Tribunal discussed that the advice that the accountant had not yet finalised the income tax returns for the applicant for the previous two financial years. The Tribunal also questioned what financial information could be verified.

   13.       The Tribunal asked Mr Zhang who was currently performing the role of the nominated employee. He claimed that he was. In this role, he said that he was constantly travelling between Australia, America and China trying to generate funds and revenue streams for the investment and property development of the Tasman Group. He was required to meet with investors and institutions, ensure that everything was in order at an administrative and operations level. He explained that funds management had a couple of levels, and one function of the nominated position would be to generate and source funds and the other would be to ensure investment compliance and legal compliance. Mr Zhang claimed that he was currently taking on too many roles for the Tasman Group and he needed to simplify his responsibilities in order to grow the business.

   14.       In submission to the Tribunal, it was claimed that the nominated employee had been sourced through a rigorous selection process, and the Tribunal asked Mr Zhang about this process. He claimed that finding someone through normal channels was not successful and the type of person required was hard to find, because they had to be willing to work in Australia. He had known the nominated employee through his business dealings, and he had approached her, and she liked Australia. The Tribunal questioned the evidence submitted to demonstrate the qualifications and experience of the nominated employee, the Tribunal noted that it had not been provided with a CV, evidence of qualifications or the nominees English language ability. Mr Zhang claimed that the nominated employee was able to speak English. Mr Zhang claimed that funds products in China had very similar compliance requirements to Australia and he considered that the nominated employee would be able to adapt.

   15.       The Tribunal questioned Mr Zhang about the expenditure of the applicant on training. Mr Zhang claimed that the salary of the current employee for the company, Xinran Liu was $85,000 per annum. Once more, the Tribunal questioned the accuracy of the financial information the applicant has presented as this salary was not reflected in the payroll activity summary for Ms Liu. According to the receipt submitted, Ms Liu undertook a Certificate IV in Property Services in August and September 2017 with Real Estate Education/Training NSW. The Tribunal questioned why this was necessary for a staff member who held a Masters qualification in economics. Mr Zhang claimed it was necessary for the marketing of the Tasman Group properties.

   16.       At the conclusion of the hearing, in response to a request by the applicant, leave was requested for the applicant to provide further information from their accountant addressing the discrepancies in the profit and loss statement and other matters raised by the Tribunal.

   Post hearing

   17.       Following the hearing the applicant provided;

   i.Letter of submission

   ii.A letter from the accountant.

   iii.A finalised 2015/2016 financial year profit and loss statement.

   iv.2015/2016 income tax return

   v.Business Activity Statements.

   6. PAYG summaries
   7. Bank statements from Tasman Funds Management showing payment of the employees.
   8. Training receipts.

3. The submissions provided the following further information;

   1. The 2015/2016 profit and loss statement which was submitted to the Tribunal was not the finalised version of the statement. This was a draft extracted from the accounting software, and there were therefore discrepancies between it and the finalised version now submitted to the Tribunal.
   2. In response to the Tribunal concerns about the employees of the applicant it was submitted that all of the employees set out in the payroll statement provided to the Tribunal were genuine employees during that period. Due to company restructuring, however, some had since transferred to an associated entity of applicant that is part of Tasman Group and are now under their payroll, or have left the company. The Tribunal was directed to the PAYG summaries and bank account statements to support this claim.

   19.       For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   20. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Term of employment of the visa holder: r.5.19(4)(d)

   21.       The financial information presented by the applicant regarding its position is fluid. The Tribunal has been provided with 3 different sets of figures for the same period. The financial position for this period has varied as follows;

   2015/2016 Profit and Loss provided to the Department

   Income
   Services Income   $1,127,161,63
   Fund Management Income                   $595,454.55
   Total Income   $1,722,616.18

   Total Expenses  $748,295.49

   2015/2016 Profit and Loss Statement provided to the Tribunal on 2 May 2018

   Income
   Services Income   $1,206,462.36
   Fund Management Income                   $37,546.70
   Total Income   $1,244,012.06

   Total Expenses  $764,789.63

   2015/2016 Profit and Loss Statement provided to the Tribunal on 15 May 2018

   Income
   Management Fees  $1,040,514.00
   Interest received  $3,546.00
   Capital Gain (loss) on Investment        ($40,321.00)
   Total Income   $1,003,757.00

   Total Expenses  $901,976.00

   22.       On these figures the operating profit of the applicant has varied from $974,320.69 to $325,773.68 to finally a profit before income tax recorded in the finalised version received 15 May 2018 of $101,781.00. The Tribunal can have little confidence in the accounts submitted. The explanation provided to the Tribunal was that the two sets of accounts were drafts, this does not satisfactorily explain for the Tribunal the reasons for the discrepancies.  Aside from the vast discrepancies recorded in income and expenses for the same period, static expenses such as rent vary across the figures from $86,375.71 to $95,634.48 to $108,015.00. The payroll activity (summary) provided to the Department records that there were 9 employees of the applicant for the period 1 May 2015 to 30 April 2016, a period that largely encompasses the 2015/2016 financial year, in this document  it is recorded that Ms Xinran Liu received wages in the sum of $35,968.45. Yet the PAYG payment summary for the year ending 30 June 2016 records that she received a salary or wage from the applicant in the sum of $288,522.00, a figure that is similar to the entire wages expenses of the applicant for the financial year recorded in the successive profit and loss statements. The Tribunal is not satisfied that it can rely upon the financial documents submitted to demonstrate that the applicant has the capacity to pay the salary for the nominated employee in the sum of $190,000. On the finalised figures for the 2015/2016 financial year the profit before tax was only $101,781. The previous year it is recorded as $2,349.00.

   23.       The Tribunal has had regard to the profit and loss statement for the 2016/2017 financial year, and remains unsatisfied that these figures can be relied upon. There are several reasons for this, firstly the discrepancies which arise in the various figures provided by the applicant for the previous financial year. Additionally, the profit and loss statement records a wages and salary expense of $354.842.59. Yet, the PAYG Summary for Ms Xinran (Yvonne) Lin provided for the year ending 30 June 2017, records that she alone received a salary of $343,390.00. This is difficult to reconcile with the payroll activity (summary) provided to the Tribunal for the period 1 May 2017 to 30 April 2018 which records that there were 6 employees of the applicant receiving various wages. It was the evidence of Mr Zhang that these were all these employees for the 2016/2017 financial year, post hearing submissions also claimed that they were genuine employees. The Tribunal cannot therefore account for the wages figure in the profit and loss report. It was also difficult to reconcile Mr Zhang’s evidence on this matter overall as he gave evidence that Ms Lin’s annual salary was in the vicinity of $85,000.  This is a figure that is not reflective of the amount she is recorded as earning in her PAYG Summary. Although the address of the applicant has not changed, and the number of staff has reduced, the rental expense has now increased to the sum of $224,972.26 the 2016/2017 financials, more than double the various figures presented the previous year. Furthermore, the BAS submitted record for the 2016/2017 financial year there were reported sales of $168,543 for the applicant. However, according to the profit and loss statements the applicant received income from services in the sum of $691,597.37, in addition to fund management income of $445,256.54. Accepting that all this income may not be reportable for gst purposes, it is considered that a significant proportion of services income would be subject to a goods and services tax.

   24.       Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

   25.      The Tribunal has great difficulty reconciling the various documents submitted by the applicant, together with the oral and written submission. The Tribunal is unable to be satisfied on the material before it that the applicant has the capacity to cover the nominated employee’s wage of $190,000.00 per annum plus the compulsory 9.5% superannuation for the next two years. The financial documents submitted by the applicant are not considered reliable and the Tribunal is not satisfied that the applicant has demonstrated that it would have the financial capacity to meet its employment obligations.

   26. The Tribunal has considered all the information provided by the applicant. The Tribunal is not satisfied that the applicant has demonstrated that the nominee will be employed by the applicant on a full-time basis in the nominated position for at least two years. Accordingly, the requirement in r.5.19(4)(d) is not met.

   Tasks of the position and training requirements r.5.19(4)(h)

   27.       Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

   28. The applicant’s business is situated in North Sydney, New South Wales, and the contract records that the nominated employee’s place of work is also at this location. As North Sydney is not situated in regional Australia the Tribunal must assess whether the applicant meets r.5.19(4)(h)(i). This requires the applicant, whom the Tribunal is satisfied on the evidence has operated a business for at least 12 months, meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in the instrument.

   29.      The relevant instrument provides for applicants to meet either training benchmark A or training benchmark B.

   30.      Under benchmark A, the applicant is required to demonstrate recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business. To satisfy benchmark B an applicant must show recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

   31.      The applicant has not provided any evidence to indicate that it has made any recent payments to an industry training fund that operates in the same industry as the business, accordingly, the applicant does not satisfy benchmark A.

   32.      As to what is considered payroll, the Tribunal has had regard to the Department policy set out in PAM 3 ;

   Payroll refers to the amount of money an employer pays in wages to their employees, in the 12 months prior to application lodgement. Payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions (mandatory or otherwise) or eligible termination payments that are defined as wages in the Act relating to payroll tax in the relevant State/Territory.

   For the purposes of the training benchmarks, irrespective of whether they are included for payroll tax purposes or not, payments made to contractors or sub-contractors should be included as payroll expenditure if the contractor provides some labour services in fulfilling the requirements of the contract and the labour provided relates to the service provided by the applicant’s business (that is, the contractor is a bricklayer and the applicant is a construction company). Payments made to contractors, such as an accountant or a migration agent, who provide a service to the applicant that is not directly related to the service the applicant provides to its customers should not be included as payroll expenditure. If payments to contractors are included as payroll expenditure, any eligible training expenditure in respect of the contractors may also be counted towards meeting the benchmarks.

   33.      The Tribunal observed that while it may be guided by policy it is not bound to follow it. However in the interests in consistency in decision-making, the Tribunal considered that it should have regard to the policy in this case.

   34.       The different profit and loss statements for the 2015/2016 financial year record only a staff training expenses variably of $88.18 or $4,285 for the period. The Department file contains receipts for training in the sum of $3,150.00 from realestate education/training NSW and ALand Realty.

   35.       As set out above, the Tribunal has found considerable difficulty in establishing what is the actual payroll of the business on the evidence provided.  For the 2015/2016 financial year the various financial reports disclose somewhat consistently  payments of wages and salaries of $288,522.23 and superannuation payments of $26,691.93. This amount is also consistent with the wages and salary for Ms Liu disclosed in her PAYG summary. However, the Tribunal is unable to ascertain what further payments were made to other claimed employees of the applicant although the other evidence indicates there were some payments. The ANZ Bank statements submitted for the period show payments to Henry C. His name corresponds to that set out the payroll activity (summary) for the period 1 May 2015 to 30 April 2016. The periodic multiple payment in the ANZ statement dated17 April 2016, is record payment to Miduo Tian, Lan Wu and Shuohui Li, who are also named as employees. Additionally, the financial statements for this period  record a consistent consultant’s fees of $192,270. The Tribunal has had regard to the amount for consultant fees in calculating the payroll expenses. The Tribunal is satisfied on the evidence that, the payroll expense for this period for the applicant was at least $507,483.23. Even if the Tribunal accepts, in the absence of receipts, that training expenditure was $4,285 and this was all spent on Australian residents and/or permanent citizens, this figure is still less than the equivalent of 1% ($5,075.83) of payroll on training.

   36.       For the following financial year the Tribunal has been provide with a receipt was provided from realestate education/training NSW in the sum of $550 for a Certificate of Registration course on 5 May 2017. The 2016/2017 profit and loss statement records only an expense of $590.00 for training for this financial year.  The profit and loss statement only discloses wages and salaries of $343,389.86 and superannuation of $32,289.53. Again this is only proximate to the wages of salary recorded for Ms Liu in her PAYG statement, and does not account for the other claimed employees. There is no figure for consultants fees in this year. However, the figure of $590.00 is less than the equivalent of 1% of the documented payroll amount ($3,756.79) expended by the applicant on training.

   37.       A further receipt has been provided with evidence of payment to realestate education/training for training undertaken by Ms Liu on 29 August 2017 to 1 September 2017 by way of a Certificate IV in Property Services, in the sum of $1700, and an unquantified receipt for a 4 hour course in decision making, undertaken in February 2018 at the Kaplan Institute. The Tribunal has not been provided with the payroll expenditure of 2017/2018. However, the evidence is that Ms Liu remains an employee of the applicant, and on the basis of past payments the Tribunal is not satisfied that her salary plus superannuation would be less than $300,000. The Tribunal has also considered that the BAS statements record salary and wages of $101,829 for 6 months of the 2018/2017 financial year.  The Tribunal is again not satisfied that the applicant has demonstrated and equivalent of 1% of payroll on training.

   38. Therefore, on the totality of the evidence provided the Tribunal is not satisfied that the applicant has demonstrated recent expenditure to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business who are Australian citizens or permanent residents. The applicant therefore does not meet r.5.19(4)(h)(i)(B)(I).

   39. Accordingly, given the above findings, the requirements of r.5.19(4)(h) are not met.

   40. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3).

   41.       Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

   DECISION

   42.       The Tribunal affirms the decision under review to refuse the nomination.

   Penelope Hunter
   Member

   
   

   ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   5.19Approval of nominated positions (employer nomination)

   …

   (2)The application must:

   (a)be made in accordance with approved form 1395…; and

   (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

   (b)be accompanied by the fee mentioned in regulation 5.37.

   …

   Direct Entry nomination

   (4)The Minister must, in writing, approve a nomination if:

   (a)the application for approval:

   (i)       is made in accordance with subregulation (2); and

   (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

   (i)       is actively and lawfully operating a business in Australia; and

   (ii)      directly operates the business; and

   (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

   (d)both of the following apply:

   (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

   (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i)       are provided; or

   (ii)      would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   (f)either:

   (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

   (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

   (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

   (h)either:

   (i)       both of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (B)either:

   (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).