Heath and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 9; (2009) 110 ALD 222 (8 January 2009)

Last Updated: 3 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 9

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4575

GENERAL ADMINISTRATIVE DIVISION		)
	Re		TIMOTHY HEATH

Applicant

And

MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Date 8 January 2009

Place Sydney

Decision

The decision under review is set aside and the matter is remitted to the Respondent with a direction that pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989, the Applicant’s application to import a BMW R1200 RT motorcycle be approved on condition that he undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister.

...................[Sgd].....................
Ms N Isenberg, Senior Member

CATCHWORDS

TRANSPORT – importation of motor vehicle into Australia – non standard vehicle - non-compliance with regulations – whether applicant met prescribed circumstances to enable importation of the vehicle – whether the discretion available under the regulations should be exercised – the decision under review is set aside

Motor Vehicle Standards Act 1989 – s 3

Motor Vehicle Standards Regulations 1989 – regs 11, 13 and 15

Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457

Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355; (2004) 85 ALD 756

Re Bastian and Minister for Transport and Regional Services [2007] AATA 1646; (2007) 98 ALD 485

Re Marra and Minister for Transport and Regional Services [2003] AATA 323; (2003) 73 ALD 704

Re Lewis and Department of Transport and Regional Services [2006] AATA 337

Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417

Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054

REASONS FOR DECISION

8 January 2009	Ms N Isenberg, Senior Member
BACKGROUND

1. Timothy Heath and his wife moved to Canada in 2006. Mr Heath had established, with 4 Canadians, a business called Nulogx Inc. He worked for that company pursuant to a Canadian work permit valid until July 2008 around which time Mr Heath applied for, and obtained a renewal for a further 12 months. His intention was to work in Canada until 2010.
2. In January 2007 Mr Heath’s wife was diagnosed with Pick’s disease, a form of degenerative dementia. Mrs Heath’s health status deteriorated in August 2008 at which time they decided to return immediately to Australia.
3. In an application to the Department of Infrastructure, Transport, Regional Development and Local Government (the Department) dated 28 August 2008 Mr Heath applied for approval to import a vehicle, named in his application as a BMW R1200 RT motorcycle which he had purchased in June/July 2008. It is not disputed that the vehicle is a non-standard vehicle. His application was refused and he now seeks review of that decision.

LEGISLATIVE SCHEME

4. The main objects of the Motor Vehicle Standards Act 1989 (“the Act”) are to achieve uniform vehicle standards to apply to new vehicles and to regulate the first supply to the Australian market of used imported vehicles: section 3 of the Act. The importation of vehicles is carefully controlled, and the main object is safety. However, the importation of a non standard motor vehicle is permitted if, among other criteria, the vehicle was owned and used overseas by an applicant for a continuous period of at least 12 months: regulation 13 of the Motor Vehicles Standards Regulations 1989.
5. Regulation 11 provides a general discretion to approve an importation, but does not specify the criteria for exercise of the discretion.

ISSUE

6. There was no dispute that Mr Heath did not meet the 12 month criterion of regulation 13. He asked me to permit importation of the vehicle ‘on compassionate grounds’. The issue therefore is whether I should exercise the discretion in regulation 11.
   

THE EVIDENCE

7. Mr Heath told me that he had worked in the US in 2005 prior to he and his wife going to Canada in mid 2006. He was one of the principal shareholders in an IT software company, and expected to work in Canada for 4-5 years before selling the company.
8. At the beginning of 2007 his wife was diagnosed with Pick’s disease, a form of degenerative dementia. They were referred to a neurologist, Dr Serebrin who offered to refer Mrs Heath to a behavioural neurology clinic which provided access to occupational physicians, respite care, and the like. Although she was no longer able to attend to the family finances as she had previously done, she was coping reasonably well.
9. In June 2008 Mr Heath contracted to buy the BMW motorcycle (the BMW), and took delivery in early July. They had owned a large motor cycle in Australia and had taken long holidays such as a 3 week, 5000km trip to Cairns and return through outback Queensland and NSW. An earlier trip had been through the Snowy Mountains. They enjoyed touring by motorcycle, rather than regarding it as a means of transportation to a destination. While in the US in 2005 Mr Heath had bought another motorcycle, which he traded in for the BMW. The 2005 motorcycle was of a style that was not conducive to long distance travel. After no more than 1½ hours such motorcycles are very uncomfortable especially for the passenger, whereas the BMW has large panniers and a ‘top box’ which provides a back rest for the passenger.
10. Mr Heath said he bought it so that he could take his wife touring again while her health still permitted it. He took her to the scenic Prince Edward Island, and they now plan to tour Tasmania next spring. He does not have funds to purchase another vehicle in the meantime, and currently has no means of transport in Australia.
11. In about August 2008 Mrs Heath’s condition seriously deteriorated: she got lost on the way to Mr Heath’s office – a distance of only 500m and it was then that he realised she could not be left alone. The behavioural neurology clinic did not provide access to that level of ongoing care and he decided he would have to work from home. There was then no need for him to be in Canada and with the agreement of his partners, he and his wife immediately returned to Australia, breaking their lease.
12. Since his return he has worked from home. The company was sold and in October the new owners decided working from home to be unacceptable. His employment has been terminated from February 2009. They are temporarily accommodated at his mother in law’s. They are looking for a home and their adult children will move in to share the care load.
13. The BMW remains in storage in Canada. Mr Heath thought he may be able to ask one of his former business partners to sell it for him if necessary although he has not broached this matter with them.
14. Evidence was given by Mr Spencer, Section Head, Policy, Legislation and Imports, Vehicle Safety Standards, at the Department to the effect that there were 4 aspects of the BMW R1200 RT model vehicle available for sale in Canada that differed from the equivalent Australian version:

a) The headlamp does not meet the photometric and intensity requirments of Australian Design Rule (ADR) 46/00.

b) Side Reflex Reflectors are not fitted as required by ADR 47 and ADR 19

c) A Stationary Noise label is not fitted as required by ADR 83/00

d) The speedometer is not set to km/hr as required by ADR 18

As to each, he understood that those differences were capable of being remediated. Mr Heath was also of that belief, noting however, that the speedometer is already in kms/hr.

15. Mr Spencer also said that regulation 15 provides a scheme for the importation of non-standard vehicles with a view to modification by automotive workshops.

CONSIDERATION

16. It was submitted on behalf of the Respondent that allowing the importation of the BMW in these circumstances would frustrate the policies and objectives of the legislation. Further, it was submitted that the case law confirms that the discretion should be exercised only in exceptional circumstances, and Mr Heath’s circumstances are not so unusual in that people often fail to meet the 12 month ownership requirement of regulation 13 because of the need to return to Australia unexpectedly.
17. Regulation 11 gives to the decision-maker a wide discretion to approve an application to import a non-standard road vehicle, and provides no guidance as to what factors should be taken into account in exercising the discretion. A number of previous decisions have described the circumstances which must be present before the discretion is exercised as: “exceptional”, “extraordinary” and “special” (see for example, Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457). In that case the Tribunal stressed the need for consistency in decision making when exercising the discretion in (the predecessor to) regulation 11.
18. I, however, agree with Senior Member Allen in Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355; (2004) 85 ALD 756 that such adjectives are actually unhelpful and that the real question is whether, having regard to the policy and objectives of the Act and regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretion in favour of an applicant.
19. Part of the policy and objectives of the Act and Regulations is to establish National Standards to apply to the importation of used vehicles. Those standards include, in particular, appropriate road safety standards to protect the community.
20. The solicitor for the Respondent referred me to Re Bastian and Minister for Transport and Regional Services [2007] AATA 1646; (2007) 98 ALD 485 and other authorities, including Re Marra and Minister for Transport and Regional Services [2003] AATA 323; (2003) 73 ALD 704 (‘Marra’) dealing with the exercise of the discretion in regulation 11. It was contended that while Mr Heath's situation is unfortunate, there was no unfairness or injustice to Mr Heath as there was in Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355; (2004) 85 ALD 756 where incorrect advice had been provided.
21. I was referred to Re Lewis and Department of Transport and Regional Services [2006] AATA 337 where the Tribunal set out points of distinction between the facts in that case, and those in Marra, where the discretion was exercised in favour of the applicant. While there is some logic in that approach, regulation 11 gives a wide discretion, which, as the Tribunal recently discussed in Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417 , is

“obviously intended to allow a decision-maker flexibility and to apply some justice and fairness to the many and varied circumstances which might arise”.

Each matter is different.

22. As I have said, regulation 11 is not subject to any words limiting its scope, and the cases suggest that the discretion be exercised in a manner consistent with the objects of the Act and to ensure that unfairness is avoided.
23. With that in mind, I have concluded that this matter is one in which it is appropriate to exercise the discretion, for the following reasons:
    • Mr and Mrs Heath had planned to remain in Canada until 2010. Mr Heath already had an extension of his work permit to July 2009. They only left Canada due to a sudden deterioration in his wife’s condition.
    • Mr Heath and his wife were motorcycle enthusiasts, having undertaken long tours over some years. He had wanted to take his wife on touring holidays again while she was still well enough to do so.
    • He had traded in his 2005 motorcycle to buy the BMW to provide his wife greater comfort as passenger. Presumably, had he retained the 2005 vehicle it could have been imported under regulation 13.
    • Mr Heath has not brought the BMW to Australia, and is waiting for authorisation. In doing so has incurred storage costs and related expenses.
    • I accept Mr Heath’s evidence that to sell the BMW in Canada he must rely upon the goodwill of his former partners. Given his wife’s state of health it is unlikely he could travel without her in order to make any arrangements for sale himself.
    • He does not have funds to purchase another vehicle in the meantime, and currently has no means of transport in Australia.
    • I accept that the BMW is intended for their personal, mainly recreational, use and that there is no evidence that Mr Heath was seeking to bring the BMW into Australia to sell it.
    • The BMW is a recent model which can be readily modified to meet Australian standards.
    • There was no evidence that Mr Heath was in any way an attempting to subvert the regulatory scheme by seeking to import the vehicle.
24. There is consensus in Tribunal decisions with respect to the exercise of the discretion in regulation 11 that what is required is some element of unfairness or injustice to the applicant if approval were not granted. I am satisfied that those grounds are made out here. Further, I have concluded that an exercise of the discretionary power in Mr Heath’s case does not undermine or frustrate the objects of the Act and Regulations.
25. Accordingly, I have concluded that the circumstances are such that the discretion should be exercised.
26. Because, as I have said, each matter is different, I do not regard this as setting ‘an unfortunate precedent’: Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054.

DECISION

27. The decision under review is set aside and the matter is remitted to the Respondent with a direction that pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989, the Applicant’s application to import a BMW R1200 RT motorcycle be approved on condition that he undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister.
    

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: [Sgd] Tim Ngui, Associate

Date of Hearing 23 December 2008

Date of Decision 8 January 2009

Appearance for the Applicant Self-represented

Solicitor for the Respondent Andrew Klein, DLA Phillips Fox

ANNEXURE OF EXHIBITS

1. Statement of Stephen Spencer, Section Head, Policy, Legislation and Imports, Vehicle Safety Standards, Department of Infrastructure, Transport, Regional Development and Local Government dated 19 December 2008

2. Additional documents provided by Mr Heath to the Respondent dated 18 December 2008

3. Section 37 T Documents prepared 28 October 2008.