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Administrative Appeals Tribunal of Australia |
Last Updated: 2 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 67
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4100
Applicant
Respondent
DECISION
......................[sgd]............................
Senior Member
CATCHWORDS
TRANSPORT – motor vehicle importation – nonstandard vehicle – vehicle owned but not used for a continuous period of 12 months – whether to exercise general discretion to approve importation – decision under review affirmed
Motor Vehicle Standards Act 1989 (Cth), ss 3, 5
Motor Vehicle Standards Regulations 1989 (Cth), regs 11, 13
Re Anthony and Department of Transport and Regional Services [2001] AATA 543
Re Duck and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 402
Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054
Re Marra and Minister for Transport and Regional Services [2003] AATA 323; (2003) 73 ALD 704
Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
REASONS FOR DECISION
LEGISLATIVE SCHEME
2. The Motor Vehicle Standards Act 1989 (“the Act”) and the Motor Vehicle Standards Regulations 1989 (“the Regulations”) govern the import of vehicles, and allow a person to bring into Australia a vehicle which he or she has owned and used for a continuous period of 12 months (reg 13). Section 5 of the Act states that, in relation to a road motor vehicle, use means drive. Reg 11 provides a general discretion to the Minister to approve an importation. In explaining the objectives of the legislation, the Minister stated in his Second Reading speech:
Provision will also be made in the regulations for the importation of vehicles which are bona fide personal possessions. This will apply to migrants or Australian citizens returning from long periods overseas.
ISSUES
3. There was no dispute that Mrs Heiner has owned the vehicle continuously for 12 months. The issues are:
DID MRS HEINER USE THE VEHICLE CONTINUOUSLY FOR 12 MONTHS?
4. Mrs Heiner told the Tribunal that when she purchased the 2001 National Caribbean 4340 motor home in 2004 her intention was to satisfy the legal requirements for importation by using the vehicle to travel throughout the USA and Canada after her husband’s planned retirement in 2005 before bringing the vehicle permanently to Australia in 2006. She said that they used the vehicle during the following trips to the USA:
5. Mrs Heiner said that in late 2005 she was diagnosed with a serious illness and was forced to stay in Australia for intensive treatment. The vehicle remained in the USA and was not used during this time. After her treatment Mrs Heiner and her husband resumed their use of the vehicle in the USA as follows:
6. Mrs Heiner acknowledged that she was not living in the USA at the time she used the vehicle, although she said the vehicle had been used for an accumulated total of 383 days, which exceeds the 12 months specified in the regulations.
7. I find that, although the total number of days the vehicle was driven exceeds 12 months over a five-year period, Mrs Heiner was residing in Australia and used the vehicle for holidays in the USA not exceeding 90 days per trip. Consequently the vehicle was not available to be driven in the ordinary course of her usage (Re Anthony and Department of Transport and Regional Services [2001] AATA 543), so she did not have the requisite 12 months’ continuous usage of the vehicle. Therefore she does not satisfy reg 13.
SHOULD THE DISCRETION IN REG 11 BE EXERCISED IN MRS HEINER’S FAVOUR?
8. Mrs Heiner said that the discretion in reg 11 should be exercised in her favour as she intended to comply with the legislative requirements when she purchased the vehicle. She explained that she would not have purchased the vehicle if she had known that she would be diagnosed with a serious illness that would prevent compliance, and continues to prevent compliance due to ongoing monitoring of her medical condition in Australia. (A letter from Mrs Heiner’s general practitioner confirmed that she is required to undergo medical checkups every three months). Mrs Heiner said that refusal of her application would result in unfairness to her, and that allowing importation would not undermine or frustrate the policy and objectives of the legislation. She described her circumstances as exceptional.
9. In Re Duck and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 402 the facts were somewhat similar, involving a motor home purchased for holidays in New Zealand. In my decision, I noted that the legislative scheme is designed to ensure that vehicles imported into Australia meet uniform safety and environmental standards, and, as a general proposition, an exercise of the discretion in reg 11 must be consistent with the objectives referred to in s 3 of the Act, relevantly, the objective at s 3(b) of the Act:
(b) to regulate the first supply to the market of used imported vehicles.
I also emphasised that, by exercising the discretion in a particular
case, the decision-maker must take into account considerations
of
unfairness.
10. A number of earlier decisions of the Tribunal have described the circumstances which must be present before the discretion is exercised as: exceptional, extraordinary and special (for example Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 and Re Marra and Minister for Transport and Regional Services [2003] AATA 323; (2003) 73 ALD 704). In more recent decisions, the Tribunal has adopted a more flexible approach by asking whether the refusal of an application would result in unfairness or injustice to the applicant (for example, Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054 and Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48).
11. In deciding whether it is appropriate to exercise the discretion in favour of Mrs Heiner, I have taken into account that she resides in Australia and had purchased the vehicle while living in Australia. All the use of the vehicle has been during Mrs Heiner’s holidays in the USA. She is neither a migrant nor an Australian citizen returning after a lengthy absence from Australia.
12. For these reasons, I conclude that to allow Mrs Heiner to import a non-standard vehicle in these circumstances would undermine the policy and objectives of the legislation, regardless of any assurance that she intends to convert the vehicle to right-hand drive.
13. Undoubtedly Mrs Heiner would suffer disappointment or inconvenience if the discretion is not exercised in her favour. I accept that she was diagnosed with a serious medical condition that prevented her from using the vehicle between late 2005 and 2007, and that ongoing monitoring every three months in Australia presents difficulty in satisfying the legislative requirements in the immediate future. However, I am not persuaded that Mrs Heiner would suffer any injustice or unfairness. Other than expressing a desire to continue enjoying holidays in the motor home, she has not explained why the particular vehicle is required to be imported. There is no evidence before me to suggest that she is prevented from selling the vehicle in the USA and purchasing a similar right-hand drive vehicle in Australia with the proceeds, or that she is not otherwise in a financial position to purchase such a vehicle.
14. For these reasons I find that, in all the circumstances, the discretion in reg 11 should not be exercised in Mrs Heiner’s favour.
DECISION
15. The Tribunal affirms the decision under review.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.
Signed:........................[sgd]..............................................
Emily Clarke, Associate
Date of Hearing: 20 January 2010
Date of Decision: 1 February 2010
Advocate for the Applicant: Mr E.G. Stewart
Solicitor for the Respondent: Mr M Palfrey, Clayton Utz Lawyers
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