Fraser and Department of Transport and Regional Services [2003] AATA 44 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 44

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/449

GENERAL ADMINISTRATIVE DIVISION )

Re HILDA MARIE FRASER

Applicant

And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date 17 January 2003

Place Brisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that approval is granted for the importation of a Ford Telstar vehicle.

..................(Sgd).......................

Ms J Cowdroy

Member

CATCHWORDS

IMPORTATION - motor vehicle - whether vehicle has been owned and used continually for a period of 12 months - effect of incorrect advice - discretion - whether discretion to waive requirements should be exercised - whether exceptional circumstances exist

Motor Vehicles Standards Act 1989

Motor Vehicle Standards Regulations 1989

Re Albanus and Department of Transport and Regional Services [2001] AATA 12

Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073

Re Anthony and Department of Transport and Regional Services [2001] AATA 543

Re Patel and Department of Transport and Regional Services (2001) 67 ALD 236

REASONS FOR DECISION

17 January 2003 Ms J Cowdroy, Member

Background to the Application

1. By decision dated 10 April 2002, a delegate of the Minister for the Department of Transport and Regional Services refused the applicant permission to import a non standard road vehicle pursuant to the provisions of the Motor Vehicles Standards Act 1989 (the Act) and the Motor Vehicles Standards Regulations 1989 (the regulations). That decision was reviewed and affirmed on 16 July 2002. Another delegate of the Minister reconsidered the matter and refused the application on 4 October 2002.

Hearing

2. The matter was heard by the Tribunal on 18 November 2002. The applicant appeared, accompanied by her husband, Mr I Fraser, who gave evidence and presented the applicant's case. Mr D Rangiah of counsel appeared for the respondent. The T-documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were admitted into evidence as Exhibit 1. The following documents were also admitted into evidence:

Exhibit 2 Application for Vehicle Import Approval;

Exhibit 3 Respondent's outline of submissions;

Exhibit 4 Bundle of documents comprising tax invoice from Interpack, extracts from Mr Fraser's passport and statement of Alan Gascoyne;

Exhibit 5 Statement of Mr Fraser;

Exhibit 6 Bundle of documents comprising copy of application to import vehicle, copy of reference schedule of contract of sale, letter from Aussie Home Loans, tax invoice from Interpack, tax invoice from McCarthy Durie Ryan Neil Solicitors, and letter from Mr Fraser dated 20 October 2002.

3. The matter was decided on the basis of the T-documents, the exhibit material and the written and oral submissions of both parties.

4. The factual basis of this matter is not in dispute. The applicant purchased a Ford Telstar vehicle in England on 16 January 2001. The applicant used the vehicle until 23 May 2001 at which time she left England for Australia. She remained in Australia pending the grant of a migration visa. She returned to England on 15 January 2002 and used the vehicle until her return to Australia on 3 February 2002.

5. The applicant's husband, Mr Ian Fraser gave evidence. He is an Australian born citizen, who settled in England with his wife in 1987. Following a number of holidays in Australia, a decision was made for the family to move to Australia and, in September 2000, he flew to Brisbane for the purpose of making arrangements for the impending move.

6. He attended the Wynnum office of the Department of Main Roads and made inquiries about bringing a vehicle to Australia. He was given a photocopy of the documents regulating such importation, which he took back to England with him. The document indicated that specified persons who owned and used a motor vehicle abroad for at least three months were eligible for vehicle import approval. The applicant would become eligible to make such application once her permanent residency visa had been granted.

7. Mr Fraser returned to England, and on 16 January 2001, a 1994 Ford Telstar was purchased, with the intention of bringing it to Australia when the applicant's visa was granted. It was registered and the applicant used it daily from the time it was purchased.

8. On 5 February 2001, an application was made by the applicant for a migration visa to Australia, which she was told would take approximately four months. Consequently, the family sold their home in England and shipped the bulk of their belongings to Australia, including a vehicle owned by Mr Fraser. They kept some personal effects which they intended to ship with the applicant's car, once her visa had been granted. Whilst waiting for the visa to be granted, they lived in rented accommodation.

9. The family expected to depart England in late May or early June 2001, based on the information they had been given by the Department of Immigration. However, they were subsequently informed that the granting of the visa would take longer. They had, by that time, already arranged to depart at the end of May, which they did, leaving the car in storage.

10. Upon being notified of the granting of a visa, Mrs Fraser returned to England on 15 January 2002 when she taxed and registered the vehicle for use and used it until she returned to Australia on 3 February 2002. On 25 March 2002 an application to import the vehicle was lodged. Mr Fraser was aware by that time that the regulations governing importation of vehicles required continuous ownership and usage for a period of twelve months. He had made inquiries of a number of importation agents to ascertain whether there was an alternative method by which the car could be imported without success.

11. Mr Fraser stressed that the sole reason for purchasing the vehicle was to provide a reliable car for use in Australia, which his wife could use for several years. If the information he had been given in September 2000 from the Department of Main Roads had been correct, he would have been granted approval to import the vehicle, as it vehicle would have been owned and used for three months. He considered it unfair that he was given incorrect information on which he relied.

12. The car is still registered and insured and is being stored at a friend's house in England. If he had been aware that the vehicle needed to be owned and used for twelve months, the car would not have been purchased.

13. Whilst the respondent suggested to Mr Fraser that prudence would have indicated that he make contact with the inquiries number on the application form provided by the Main Roads Department, he responded that he did not feel he needed to make such inquiries. He acknowledged that more than twenty months had elapsed since being given the application form and the subsequent lodgement of the application for import on 25 March 2002. He thought it likely that he had ascertained that the requirements had been changed to twelve months ownership and usage after his wife's visa was granted on 4 January 2002.

14. He had made no inquiries in the period from September 2000 when he was provided with the forms until the car was purchased in January 2001, and assumed that the regulations were the same. However, he pointed out that the information provided to him in September 2000 had been superseded at the time of their receipt.

15. The vehicle cost £700 and it will cost about $2500 to ship the vehicle to Australia. If it were sold, it would first need some work on it, and he would recoup about the same price as he paid for it.

16. The applicant stated that one of the reasons why the vehicle was purchased was that the family might not be in a financial position to purchase a similar vehicle in Australia and they expected to have the use of it for some time.

17. Mr Rangiah pointed out that the regulations governing the importation of motor vehicles which do not have identification plates, were amended on 25 July 2000. The effect of the amendment was to increase the period requiring continuous ownership and usage from three months to a period of twelve months in the case of those making application after 8 November 2000. The regulation had been amended some three months before Mr Fraser visited the Wynnum Office of the Department of Main Roads.

18. The applicant's circumstances do not meet the current regulations. Although she had owned the vehicle continuously for more than twelve months, she had not used it continuously for twelve months, when regard is had to the applicant's two periods of residency in England.

19. Although the regulations provide that the Minister may approve an application to import a road vehicle that does not have an identification plate, members of the Tribunal have consistently taken the view that the exercise of that discretion should only occur in exceptional circumstances, referring to Re Albanus and Department of Transport and Regional Services [2001] AATA 12, Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073, Re Anthony and Department of Transport and Regional Services [2001] AATA 543 and Re Patel and Department of Transport and Regional Services (2001) 67 ALD 236.

20. The respondent contended that there were a number of circumstances which mitigate against the exercise of the discretion in the applicant's favour:

* The applicant had not made inquiry with the appropriate authority; he had the opportunity to do so and he chose not do so; he cannot claim that he was mislead;

* It is clear that with reasonable diligence the applicant would have been able to acquire the correct information - the fact that he ultimately did so supports this assertion;

* The initial inquiry with the Main Roads Department was made in relation to Mr Fraser's vehicle, whereas the applicant's vehicle was not purchased until some three months later;

* The mistake made by the applicant is one of law, not of fact, which, of itself, is not an appropriate indicator for the exercise of the discretion in her favour;

* There is no evidence of personal financial hardship; there is no cogent reason why the vehicle cannot be sold, nor is there any reason why another vehicle could not be purchased in Australia which would fulfil the family's needs;

* Any recourse in relation to the provision of incorrect information should be sought through the Department of Main Roads.

Consideration

21. It is not in dispute, and I find accordingly, that the applicant purchased a Ford Telstar motor vehicle on 15 January 2001 and made application for its importation into Australia on 23 March 2002. At that time she had owned the vehicle continuously for more than twelve months, but as she had resided in Australia for a substantial period between 15 January 2001 and 25 March 2002, the vehicle was used continuously for considerably less than twelve months.

22. The relevant legislation is contained in the following sections of the Act. Subsection 18(1) states that:

"Subject to sections 19 and 20, a person must not import a road vehicle that:

(a) is non standard; or

(b) does not have an identification plate.

Penalty: 120 penalty units."

Subsection 20(1)(b) of the Act provides that:

"A person may import a non standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances."

Subsection 20(3) provides that:

"Regulations for the purposes of paragraph (1)(b) ... may provide for the importation, whether generally or in specified circumstances, or a road vehicle ...

(a) with the written approval of the Minister; or

(b) with such approval subject to written conditions determined by the Minister."

23. The regulations to the Act set out various methods by which approval may be given. Regulation 9 provides:

"For the purposes of section 20(1)(b) of the Act, a person may import a non standard road vehicle or a road vehicle that does not have an identification plate if the Minister has approved an application by the person to import the vehicle."

Regulation 11 provides:

"(1) The Minister may approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate.

(2) An approval may be given subject to conditions specified in the instrument of approval."

Regulation 13 provides:

"The Minister must approve an application to import a non-standard road vehicle or road vehicle that does not have an identification plate if:

(a) the vehicle has been owned and used by the applicant for a continuous period of at least:

(i) for a vehicle owned by the applicant on or before 8 May 2000 - 3 months; or

(ii) for a vehicle to which subparagraph (i) does not apply but for which the application is made on or before 8 November 2000 - 3 months; and

(iii) in any other case - 12 months."

24. There is no dispute that the vehicle under discussion does not have an "identification plate" within the meaning of that term as defined in section (1) of the Act.

25. As the applicant made application to import the vehicle after 8 November 2000 and she did not own and use the vehicle for twelve months, the requirements of regulation 13 are not met.

26. Regulation 11 is a general discretion which may be exercised to permit the importation of a vehicle that does not have an identification plate. Counsel for the respondent referred to Tribunal decisions which provide guidance as to when it is appropriate for such discretion to be exercised. The consensus is that when there is a clear policy in relation to the importation of non standard road vehicles, there must be cogent reasons why the adoption of that policy should not be adhered to. In Re Trajkovski, Deputy President Purvis QC stated that such circumstances "must of necessity be exceptional".

27. In Re Patel, the regulations had been amended from a three-month period to a twelve-month period six months prior to the application and before the applicant purchased the vehicle. The applicant claimed that the discretion should be exercised in his favour on two bases: he sought advice about prior ownership prior to making application and had been given inaccurate advice by the respondent by telephone, and information contained on the Australian Legal Information Institute website one month later was also incorrect.

28. Deputy President Purvis QC declined to exercise the discretion on that basis for a number of reasons. Firstly, the applicant did not give evidence and his assertion that he was given incorrect information could not be tested. In any event, the applicant had used a form which was provided by his shipping agent, and thirdly, the website was not that of the respondent.

29. The other argument advanced in Re Patel related to financial hardship, which involved the cost of importation, the cost of storage and either re-exporting or scrapping the vehicle. In that matter, the vehicle had been brought into Australia without prior application and approval and the Tribunal considered both the costs which the applicant had incurred in shipping the vehicle into Australia as well as the costs likely to be incurred for either re-export or scrapping of the vehicle.

30. In Re Anthony consideration was given to the precursor to regulation 9 (reg 9D), which laid down the requirement of a three month continuous period of ownership and usage. There were two vehicles under consideration, both of which were owned for three months. The longest continuous period of use for Mr Anthony was one month and for Mrs Anthony not even one month. The applicants' unintended return to Australia to attend to personal business caused an interruption to their respective continuous use of the vehicle. Senior Member Fayle found that the circumstances of the applicants' return to Australia to Australia were not sufficiently special and nor was hardship demonstrated sufficient to warrant a favourable exercise of the discretion.

31. The Tribunal considers it significant that the applicants in Re Anthony and Re Patel had failed to comply with the legislation, in that they had chosen to import their vehicles without permission.

32. In Re Albanus, the applicant, who worked on Christmas Island, became aware of the changes in the regulations and arranged to take possession of a vehicle before 8 August 2000 in order for him to take advantage of the provisions relating to three months ownership and usage. He made arrangements for a vehicle to be shipped from Singapore to Christmas Island to arrive by that date. However, due to shipping delays, he did not obtain ownership of the vehicle until 16 August 2000. As at 8 November 2000 (the date on which the period of ownership and control changed from three months to twelve months), he had not owned and used the vehicle for three months.

33. In considering the general discretion to allow the importation of a non-compliant vehicle, Senior Member Webster had regard to the fact that the delay in the arrival of the vehicle at Christmas Island was not of the applicant's making however he considered that this was not sufficient to justify the exercise of the discretion in the applicant's favour. He took the view that the applicant had taken the risk that there would be no shipping delays and that "in an attempt to avail himself of an opportunity to import a non standard vehicle into Australia he took a risk in an attempt to beat the statutory time limits". The comment was made that, as the vehicle was being used by the applicant on Christmas Island, he had the opportunity to make a further application to import the car into Australia at a later time.

34. The Tribunal considers that the circumstances in the present matter set it apart from the facts in the matters discussed above. In the present matter, the applicant owned the vehicle for well in excess of the required twelve months. Unlike the applicants in the matters cited above, she has not imported the vehicle and then sought to demonstrate special or exceptional circumstances.

35. Presumably the Department of Main Roads, in providing information on its behalf, was acting as an agent of the respondent. That being the case, it is incumbent on the respondent to ensure that the material being promulgated by its agent is accurate. That imposed a responsibility to ensure the removal from the Department of Main Roads of the superseded application forms, and the provision of new forms containing the more restrictive requirements. Whilst the provision of incorrect information cannot create any right not provided by the legislation, it is an aspect which I am entitled to consider in assessing whether the discretion to grant the approval should be utilised.

36. Whilst it was suggested by the respondent that the applicant should have contacted the Administrator of Vehicle Standards in Canberra, whose address is given on the form under the heading "applications and enquiries", the applicant's evidence that he did not consider it was necessary to make any further enquiries as he had the information he needed in his possession is understandable. When the information was provided to him, it did not come with a disclaimer as to its accuracy; there was no statement, either written or oral, that he should check that the information contained on the document was correct. He approached a government department, who had the authority to issue information published by another government department. Given that scenario, the applicant understandably held a belief as to its accuracy.

37. Some four months later, she purchased a motor vehicle, and whilst it may have been prudent for her to have made inquiries prior to finalising the sale, the time frame is not so disparate that would necessitate further inquiries being made. The matter is somewhat academic in any case, as, when the forms were provided to Mr Fraser, they were already some three months out of date. It may have been the case that even if he had inquired again at the Wynnum office in January 2001, he would have been provided with the same incorrect information.

38. At the time of purchase of the vehicle, the belief was held that ownership and use needed only to be of three months duration. Such a belief in my opinion was not unreasonable and I reject the suggestion that Mr Fraser should have made further inquiries. I accept his evidence that the vehicle would never have been purchased if the true state of affairs had been made known.

39. The matters in which the discretion has been considered have been refused on the basis that the problems in gaining approval have stemmed from the applicants' own conduct. As I see it, the only conduct in which the applicant, or rather the applicant's spouse, has engaged, has been to rely on information which he had no reason to doubt.

40. Mr Rangiah stressed that the change in the requirement from three months to twelve months was deliberately aimed at attempting to prevent persons gaining financial advantage by purchasing a motor vehicle with a view to importing it into Australia and making a substantial profit. In other words, it is meant to discourage "profiteering" from the sale of motor vehicles. However, the changes also encompassed transitional provisions in order not to disadvantage those who were likely to be affected during the transitional period.

41. I accept that that is the intention of the legislation. However, the discretion contained in regulation 11 is couched in very general terms and conveys a wide discretion. Each matter turns on its individual circumstances, and there is no evidence that Mrs Fraser would be profiteering were the approval to be granted, given that the cost of importation alone is not insubstantial. There is no suggestion that the car is not safe for Australian conditions.

42. As things stand, the applicant can never satisfy the requirements of regulation 13, as she will never be able to demonstrate a continuous period of usage of twelve months. She satisfies regulation 13 in all other respects. I consider it significant that she had not attempted to circumvent the law, by importing the vehicle, irrespective of the knowledge that to do so was contravening the Act.

43. I do not find that financial hardship has been demonstrated, although I accept that considerable cost has been incurred and that the car has been in storage for some time. In any event, I do not consider that financial hardship needs to be demonstrated, but rather it is one of a range of factors to which I may have regard.

44. Ultimately, I reached the conclusion that the discretion should be exercised in the applicant's favour. I therefore set aside the decision under review and substitute a decision that the applicant's application for vehicle import approval is granted.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed: Sarah Oliver

Associate

Date of Hearing 18 November 2002

Date of Decision 17 January 2003

The Applicant Appeared in Person with her Husband

Counsel for the Respondent Mr D Rangiah

Solicitor for the Respondent Australian Government Solicitor