Gulina and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 71 (9 February 2011)

Last Updated: 9 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 71

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3933

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Liudmila Gulina

Applicant

And

Minister for Infrastructure, Transport, Regional Development & Local Government

Respondent

DECISION

Tribunal

M D Allen, Senior Member

Date 9 February 2011

Place Sydney

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is AFFIRMED.

................[sgd]....................
M D Allen, Senior Member

CATCHWORDS

TRANSPORT: Application to import non-standard vehicle. Applicant owned vehicle in New Zealand for less than 12 months. Deep attachment to vehicle. Vehicle purchased when moved from New Zealand to Australia not within the contemplation of Applicant or her family. Decision Affirmed.

LEGISLATION
Motor Vehicles Standards Act 1989. S5, 10.

Motor Vehicles Standards Regulations 1989. Regulations 11, 13.

CASES

Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

REASONS FOR DECISION

9 February 2011

M D Allen, Senior Member

1. By Application made 15 September 2010 the Applicant sought review of a decision not to approve the importation of a Volkswagon (“VW”) Golf GTi automatic motor vehicle, manufactured in 2003.
2. The general circumstances giving rise to the request for approval were set out in the Respondent’s Statement of Facts and Contentions, namely:

“3. The Applicant was originally from Russia. She relocated to New Zealand with her family in 2002.

4. In, or about, May 2009, the Applicant’s husband’s employment contract came to an end.

5. On, or about, 13 June 2009, the Applicant received the vehicle as a birthday present from her family. The vehicle was registered in the Applicant’s name on 16 June 2009 and she used the vehicle as her regular mode of transport from that point onwards.

6. In, or about, October 2009, the Applicant received a letter from her employer, advising that in early 2010, her position would be made redundant, as the company was closing its business in New Zealand.

7. In January 2010, the Applicant and her family decided to move to Australia, as they perceived the Australian employment market to be stronger than the New Zealand employment market.

8. On 19 March 2010 the Applicant and her family arrived in Australia to live permanently.

9. On 16 August 2010 the Applicant applied to import the vehicle. In her letter to the Administrator, the Applicant said that:

- ‘at the time of purchase of the vehicle she had no intention to relocate to Australia in the near future;

- her family purchased the vehicle as a gift to her as it was a car that she had dreamt about for years; and

- she is asking for ‘some humanity’ because she was only short by 116 days of the 12 months continuous ownership and use requirement’.”

3. Regulation 13 of the Motor Vehicle Standards Regulations 1989 enacted pursuant to the Motor Vehicles Standards Act 1989 (“the Act”) states:

“(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.”

Whereas Regulation 11 states:

“(1)   The Minister may approve an application to import a nonstandard 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.

(3)   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.

(4)   An approval must be given by signed instrument.”

4. There is no dispute that at the time the Applicant arrived in Australia that she had not owned the said motor vehicle for the required period of 12 months, however Regulation 11 gives an unfettered discretion to the Minister (or his delegate) to approve the importation of a non-standard vehicle or a vehicle without an identification plate.
5. Section 5 of the Act defines “identification plate” as a plate declaring the status of a road vehicle in relation to the national standards and approved to be placed on vehicles of that type or description under procedures and arrangements provided for in subsection 10(1) of the Act.
6. National Standards are defined by Sections 5 and 7 of the Act as Vehicle Standards determined by the Minister.
7. In evidence to the Tribunal the Applicant explained that prior to emigrating to New Zealand she had owned a Golf III motor vehicle and became “crazy about this model”. Initially in New Zealand the family was unable to afford a VW Golf motor vehicle but the desire remained. In early 2009 it became possible to purchase a second-hand 2003 Golf GTi.
8. The Applicant has a strong, one might almost say obsessive, attachment to this vehicle. It was explained that the Golf GTi has more power than a Golf two litre vehicle (which adds to safety) and more particularly no 2003 Golf GTi with automatic transmission has ever been imported into Australia although the manual version has.
9. The Applicant’s attachment to the motor vehicle was summed up in her statement (Exhibit A1):

“The whole long path I went through to become the owner of this car and the circumstances around how it was eventually purchased makes this Golf GTi truly emotionally unique to me as it is really hard to fully express the level of emotional attachment to this “means of transportation” that has become almost like a family member.”

10. At the time the vehicle was purchased the Applicant’s husband was without employment as his contract as a business analyst had come to an end. As he explained the family initially were not concerned about this as he had had three such contracts in New Zealand and he fully expected to obtain a further contract. The Applicant was also in employment with a reputable international company and the family had enough money to survive and had no intention of leaving New Zealand.
11. In October 2009 the Applicant was informed by her employer that it intended to close its New Zealand operations and she would be made redundant. Her husband had been unable to obtain employment due to the failing New Zealand economy and her son, when he graduated from Auckland University in December 2009, was told by recruiters not to expect success in getting a job until at least mid 2010. The decision was therefore made to move from New Zealand to Australia as the Australian employment market had much better opportunities and prospects.
12. It was not until the removalist handling the shipping of the family’s household goods to Australia informed them in March 2010 that there might be difficulties in shipping their car to Australia that they became aware of potential problems.
13. At that time arrangements for the move had been made and air fares booked. There was no prospect of their delaying their move.
14. According to the Applicant, the cost of shipping her motor vehicle to Australia will be NZ$8,000.00. I am satisfied that although the motor vehicle was advertised for sale no real attempt was made to dispose of the motor vehicle. Although I do accept the Applicant’s evidence that a motor vehicle dealer declined to purchase the car, stating he was only interested if they intended to use it as a “trade-in”.
15. Questioned regarding the availability of similar models in Australia, I accept and fully understand the Applicant’s evidence that having driven for most of her life on left-hand drive vehicles she is unable to drive a right-hand drive manual car.
16. As stated above the discretion imposed by Regulation 11 is unfettered. However, as was said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at paragraph 15 an unconfined discretion must be exercised consistently with the limitations implied from the subject matter, scope and purpose of the legislative scheme of which it forms part.
17. In Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48, Senior Member McCabe said:

“The objects of the legislative scheme are referred to in s 3 of the Motor Vehicle Standards Act 1989 (“the Act”). They are:

(a) to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b) to regulate the first supply to the market of used imported vehicles.

It follows that any exercise of the discretion in reg 11 must be consistent with those objectives. By its nature, the discretion must be exercised sparingly: there is no point having a national scheme if the discretion is used to make so many exceptions that the standards become meaningless. But the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised. The Act does not attempt to define what facts or circumstances might justify the exercise of the discretion. I must instead consider each application on its merits, while keeping a careful eye on the objects of the Act.”

18. As pointed out by the solicitor for the Respondent the crux of this matter is:
    • (a) Would the refusal to exercise the discretion result in any unfairness or injustice to the Applicant; and
    • (b) Would the exercise of the discretion frustrate the legislative scheme?
19. In this matter I do not regard there being anything unjust or unfair to the Applicant. She did not make any enquiries prior to deciding to move from New Zealand to Australia regarding the importation of the motor vehicle.
20. For her part, the Applicant has pointed out that she falls short of the 12 months ownership required by Regulation 13 by 116 days (actually 89 days). This may be so but the regulation specifies 12 months and it would be totally contrary to the legislative scheme to impose other arbitrary periods depending upon the whim of the decision maker. As pointed out in the seminal matter of Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 639:

“Inconsistency is not merely inelegant: it brings the process of deciding into disrepute suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”

21. I appreciate that at the time of purchasing the motor vehicle the Applicant and her family had no intention of moving from New Zealand, but this factor does not, to my mind, outweigh the requirement to have owned the motor vehicle for 12 months. That the Applicant is being treated in accordance with the Regulations is neither unfair nor unjust.
22. There is no doubt that the motor vehicle in question is, if not unique, at least rare in Australia as the Respondent conceded that no automatic 2003 VW Golf GTi vehicles were imported into Australia. This is not to the point. There are vehicles in Australia which could meet the Applicant’s needs (not wants). The Applicant does have a deep attachment to the vehicle but life is full of compromises. The decision was made to move from New Zealand to Australia and that decision has consequences.
23. Further I am satisfied that to permit the Applicant to import the subject motor vehicle would be to subvert the objects of the Motor Vehicle Standards Act. As pointed out by Senior Member McCabe in Re Williamson supra, there is no point in having a national scheme if the discretion is used to make so many exceptions the standards become meaningless.
24. For the above reasons I decline to exercise my discretion in this matter and the decision under review is AFFIRMED.
    

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: ................[sgd]................................

K. Lynch, Associate

Date of Hearing 14 January 2011

Date of Decision 9 February 2011

Representative for the Applicant Ms Liudmila Gulina (Self)

Solicitor for the Respondent Mr A Klein, DLA Phillips Fox