Gwilt and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 14 (14 January 2011)

Last Updated: 17 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 14

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2817

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GEOFFREY GWILT

Applicant

And

MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

DECISION

Tribunal

Mr A Sweidan, Senior Member

Date 14 January 2011

Place Perth

Decision

The Tribunal affirms the decision under review.

...(sgd) Mr A Sweidan.........
Senior Member

CATCHWORDS

Customs - prohibited imports - import of non-standard motor vehicle whether ministerial discretion should be exercised - discretion not exercised - decision under review affirmed

LEGISLATION

Motor Vehicle Standards Act (Cth) ss 3, 18 and 20
Motor Vehicle Standards Regulations 1989 (Cth) regulations 11, 12 and 13
Motor Vehicle Standards Amended Regulations 2009 (No. 1) regulations 11 and 13

CASES
Da Silva and Department of Transport and Regional Services [2004] AATA 1355
Murase and Department of transport and Regional Services [2005] AATA 705
Williamson and Department for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
Gwilt and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 69
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40
Marra and Minister for Transport and Regional Services [2003] AATA 323

REASONS FOR DECISION

14 January 2011	Mr A Sweidan, Senior Member
BACKGROUND

1. The applicant seeks review of a decision made by the Administrator of Vehicle Standards (Administrator) on 11 June 2010 to refuse his application to import a 2002 Triumph Thunderbird, Vehicle Identification Number SMT395DJX2J153177 (Vehicle).
2. The Administrator was not satisfied that the Vehicle was available for use in transport during the period of 12 months immediately before the applicant arriving in Australia to remain here permanently, as required by paragraph 13(1)(ad) of the Motor Vehicle Standards Regulations 1989 (Regulations), enacted under the Motor Vehicle Standards Act 1989 (Act).
3. The Administrator also considered that the applicant's circumstances did not warrant exercising the discretion under regulation 11.

RELEVANT FACTS

4. The following facts are not in dispute:
5. The applicant purchased the Vehicle in the United Kingdom (UK) on 3 March 2008 from Mr Peter Gregory of Blandford Forum Dorset UK (T8, p110). The receipt was in the name of Mr Nicholas Holt who purchased the Vehicle on behalf of the applicant, who was not living in the UK at the time of purchase.
6. The Vehicle was registered on 5 March 2008 in the name of Mr Holt and stored at Mr Holt’s residence in the UK, on the applicant's behalf (T8, p111).
7. The Vehicle remains in the UK and is not fitted with an Identification Plate that says it is compliant with Australian Design Rules as required (by the Motor Vehicle Standards Act 1989) (T8, p107).
8. The applicant used the Vehicle whilst on holiday in the UK from 4 September 2008 to 30 September 2008 (T8, p119). Accordingly, the Vehicle was only available for use by the applicant for a period of less than one month.
9. On 4 April 2009 the applicant moved to Australia for the purpose of remaining here indefinitely (T8, p119).

PREVIOUS APPLICATION

10. The applicant first applied to import the Vehicle in 2009. The Administrator refused that application and the applicant applied to the Tribunal for review of the Administrator's decision. On 1 February 2010, the Tribunal affirmed the Administrator's decision; see Gwilt and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 69 (T7, p96).
11. In that review hearing, Mr Gwilt accepted that he had only used the Vehicle in England for one month and therefore did not meet the requirements of regulation 13 (as it stood then) (T7, p99). He also accepted that the Vehicle did not comply with the Australian Design Rules (ADRs) when it was first manufactured, and therefore did not meet the requirements of regulation 12 (T7, p99).
12. However, Mr Gwilt argued in that hearing that the Vehicle did not comply with ADRs in only two respects: first, the speedometer was in miles per hour (not kilometres per hour) and, secondly, a noise label needed to be fitted. He argued that because these two matters could be easily addressed (and he undertook to modify the vehicle accordingly) this was an appropriate case for the exercise of the discretion under regulation 11 (T7, p100).
13. The Tribunal considered Mr Gwilt's argument, saying (in the published decision) (T7, p100-105):

[17] If it is the case that the only respects by which the Thunderbird did not comply with the Australian Design Rules when it was first manufactured and delivered for use in transport was the two respects which have been identified, there is much to be said in support of the exercise of the discretion provided by regulation 11 in favour of the applicant, particularly the applicant’s undertaking to attend to those two matters.

[18] The fate of this application therefore in large part turns on whether or not the evidence does in fact establish that they are the only respects in which the Thunderbird did not comply with the Australian Design Rules when it was first manufactured and delivered for use in transport.

14. The Tribunal held that there was insufficient evidence to conclude that the only respects in which the Vehicle did not comply with the ADRs when it was first manufactured were in regard to the speedometer and noise label. The Tribunal said:

[29] ... I am simply unable to find on the evidence provided by the applicant that which needs to be found in order to exercise the discretion in the applicant’s favour, namely that the extent to which the Thunderbird does not satisfy regulation 12 is effectively de minimus.

THE PRESENT APPLICATION

15. On 14 May 2010 the applicant made a second application to import the Vehicle (T8, p106). In that application he stated that he stopped using the Vehicle on 24 March 2009 (T8, p 108). On 11 June 2010 the Administrator decided to refuse the Application (T1, p5) and on 7 July 2010 the applicant applied for review of that decision by the Administrative Appeals Tribunal (T1, p2).
16. At the hearing of this application the applicant gave evidence that he had in fact only used the Vehicle for the period referred to in para 8 – above. However, he claimed that the Vehicle was available for his use at all times since the date of purchase, albeit that he did not use it due to the fact that he was living in Australia.
17. The applicant acknowledged that he had not used the vehicle for a continuous period of 12 months.

LEGISLATION

18. It is clear that the main object of the Act, with respect to used vehicles, is to regulate the first supply to the market (see section 3 of the Act).
19. Under section 7 the Minister may determine vehicle standards for road vehicles and vehicle components. "Vehicle standard" is defined in section 5 to mean:

a standard for road vehicles or vehicle components that is designed to:

(a)  make road vehicles safe to use; or

(b)  control the emission of gas, particles or noise from road vehicles; or

(c)  secure road vehicles against theft; or

(d)  promote the saving of energy.

20. Section 5 also defines the standards determined under section 7 as "national standards". National standards are also known as Australian Design Rules.
21. Section 5 defines "nonstandard" in relation to a road vehicle or vehicle component to (relevantly) mean not compliant with the national standards.
22. Section 5 defines an "identification plate" to mean a plate declaring the status of a road vehicle in relation to the standards. An identification plate affixed to a motor vehicle establishes that the vehicle complies with the national standards.
23. The importation of a non-standard motor vehicle or a vehicle without an identification plate is prohibited under section 18 of the Act, which relevantly provides:

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

(a) is nonstandard; or

(b) does not have an identification plate.

Penalty: 120 penalty units.

24. The section 18 prohibition is relaxed by section 20, which permits a person to import a non-standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. The prescribed circumstances are set out in the Regulations at regulations 9 to 21A. Only regulations 11 and 13 are relevant to this application for review.

REGULATION 13

25. The Tribunal notes that on 17 November 2009, after the Tribunal's decision on the applicant's first application for review, the Motor Vehicle Standards Amendment Regulations 2009 (No. 1) (amending regulations) commenced. The amending regulations include an amendment to regulation 13. The Regulations, as amended by the amending regulations apply to this application.
26. Regulation 13, as amended, provides:

(1) The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister is satisfied that:

(aa) the applicant owns the vehicle at the time the application is made; and

(ab) the applicant acquired ownership of the vehicle overseas; and

(ac) the applicant owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph(b);and

(ad) during that period of ownership the vehicle was available to the applicant for use in transport; and

(a) the application is made not later than 6 months after the applicant arrived in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and

(b) at the time the application is received by the Minister, the applicant is:

(i) an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely; or

(ii) a person who has applied to become an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely if granted Australian citizenship or permanent residency; or

(iii) a person who is entitled to remain in Australia indefinitely and provides evidence that he or she intends to do so; or

(iv) the holder of a visa that entitles him or her to apply to become a permanent resident (whether or not after a specified period or in specified circumstances) and provides evidence that he or she intends to remain in Australia indefinitely; and

(c) the applicant is of an age that entitles him or her to hold a licence or a permit to drive a road vehicle of that type; and

(d) the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister; and

(e) the applicant has not been granted an approval under this regulation within the period of 5 years ending on the day on which the vehicle in respect of which the application is made is landed in Australia.

(2) An approval under subregulation (1) is subject to any written conditions determined by the Minister.

REGULATION 11

27. Regulation 11 provides that:

(i) The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.

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

(iii) Without limiting the generality of subregulation (2), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.

(iv) An approval must be given by signed instrument.

TRIBUNAL’S FINDINGS

Regulation 13

28. The Tribunal finds that regulation 13 is not satisfied as the applicant does not meet the requirements of paragraphs 13(1)(ad) and (a).

Use of the Vehicle- paragraph 13(1)(ad)

29. Paragraph 13(1)(ad) requires the Vehicle to have been available to the applicant for use in transport for the period of at least 12 months immediately before moving to Australia to remain indefinitely. The combined effect of paragraphs 13(1)(ac) and (ad) is clearly that the applicant needs to have been overseas with the Vehicle so that the Vehicle was available for use, for a continuous period of at least 12 months immediately before moving to Australia to remain indefinitely.
30. The vehicle was only ever available for the applicant's use in transport when he returned to the UK, from 4 September 2008 to 30 September 2008. This is substantially less than 12 months and was not immediately before his moving to Australia. Accordingly, the applicant does not satisfy the requirements of paragraph 13(1)(ad).

Timing of application - paragraph 13(1)(a)

31. Paragraph 13(a) requires that an application is made by the applicant within six months of arriving in Australia for the purpose of remaining here indefinitely.
32. The applicant made the application on 14 May 2010, substantially more than six months after he arrived in Australia for the purpose of remaining in Australia indefinitely, on 4 April 2009. Therefore the applicant does not satisfy the requirements of paragraph 13(1)(a).
    

Regulation 11

33. Regulation 11 is a broad discretion allowing the Minister to approve an application to import a nonstandard vehicle or a vehicle without an identification plate. The wording of regulation 11 is general and neither the Act nor the Regulations set out specific factors to be taken into account in applying it. However, as was established in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40, [15], an unconfined discretion must be exercised consistently with the limitations implied from the subject matter, scope and purpose of the legislative scheme it forms a part.
34. In Marra and Minister for Transport and Regional Services [2003] AATA 323 (Marra), Deputy President Hotop of the Tribunal said that it must be:

exercised in accordance with the policy and objects of the Act and the Regulations, having regard to all relevant considerations, and disregarding any irrelevant considerations, as determined from a consideration of the subject matter, scope and purpose of that legislation.

35. In discussing the application of the discretion in regulation 11 in Da Silva and Department of Transport and Regional Services (2004) AATA 1355 (Da Silva), Senior Member Allen stated at paragraph 55:

...I believe that it is sufficient to pose the question in terms of whether, having regard to the policy and objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretionary power in favour of the applicant.

36. And at paragraph 59 stated:

In my opinion, the exercise of the discretion in r 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour. The totality of the relevant circumstances must be considered...

37. This approach to the application of regulation 11 has been followed by the Tribunal in numerous cases such as Murase and Department of Transport and Regional Services [2005] AATA 705 (Murase); Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079 (Bowering); Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 926 (Bradshaw); Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054 (Dunsby) and Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 (Williamson); Heiner and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 67 (Heiner).
38. It is clear that, consistent with the above decisions, an appropriate approach to the application of the regulation 11 discretion is to undertake two inquiries. First, if there is some unfairness or injustice that would flow to the applicant if the application was not approved, it may be appropriate to exercise the discretion in the applicant's favour. Secondly, however, the application should not be approved if doing so would undermine or frustrate the policy and objects of the legislative scheme established under the Act.

Elements of unfairness or injustice

39. The Tribunal is of the view that no unfairness or injustice would flow to the applicant if the application were refused.
40. There is no evidence that the applicant was given incorrect advice by the Department (see Marra and Brassington and Minister for Transport and Regional Services [2006] AATA 724) or out of date and misleading documents (see Re Fraser and Department of Transport and Regional Services [2003] AATA 44 upon which he relied to his detriment.
41. While the refusal of the application may be inconvenient and disappointing to the applicant, this does not amount to unfairness or injustice and is not a proper basis for the exercise of the discretion at regulation 11 (Re Bastian and Minister for Transport and Regional Services [2007] AATA 1646.
    

The policy and objects of the legislative scheme

42. The object of the Act is clearly to achieve uniform vehicle standards to apply to new vehicles and to regulate the first supply to the market of used imported vehicles. The primary position or policy as expressed by the legislature is that non-standard road vehicles should not be imported into Australia. There must be cogent reasons to depart from the policy.
43. Regulation 13 "sets out a clear policy in relation to the importation of non-standard road vehicles which have been owned and used overseas" (Re Patel and Department of Transport and Regional Services [2001] AATA 957).
44. Regulation 13, as amended, emphasises that in order to satisfy the "ownership" and "use" requirements an applicant is to be overseas, with the vehicle, during the 12 months immediately preceding their move to Australia. These requirements are clearly not met by the applicant. The regulation also provides that an application to import a vehicle must be made within six months of arriving in Australia for the purpose of remaining here indefinitely. That requirement is also not met.
45. The Tribunal is of the view that to exercise the discretion in these circumstances would undermine the clear purpose of the legislative scheme.

DECISION

46. The Tribunal finds that the applicant does not meet the requirements of regulation 13 and that a favourable exercise of the regulation 11 discretion is not appropriate in the circumstances.
47. The Tribunal affirms the decision under review, pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
    

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:..(sgd) T Freeman.............

Associate

Date/s of Hearing 9 December 2010

Date of Decision 14 January 2011

Representative for the Applicant Self represented

Representative for the Respondent Mr M Palfrey
Clayton Utz