Anant Gadhvi and Minister for Infrastructure and Regional Development
[2014] AATA 65
•11 February 2014
[2014] AATA 65
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2644
Re
Anant Gadhvi
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Senior Member N A ManettaDate 11 February 2014 Place Adelaide The Tribunal:
(a) sets aside the decision under review; and
(b) remits the matter to the Respondent with a direction that he approve the importation of the Motorcycle subject to such conditions, if any, that in his view ought to be attached to the approval.
.........................[Sgd]...............................................
Senior Member R W Dunne
CATCHWORDS
TRANSPORT – importation of vehicle (motorcycle) – nonstandard vehicle – no identification plate – vehicle not owned and used for a continuous period of at least 12 months – grounds for exercise of discretion – decision set aside – matter remitted to respondent with direction that he approve importation subject to conditions.
LEGISLATION
Motor Vehicle Standards Act 1989 ss 18, 19 and 20
Motor Vehicle Standards Regulations 1989 regs 9, 11 and 13
CASES
Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government (2011) 120 ALD 40
REASONS FOR DECISION
Senior Member R W Dunne
Senior Member N A Manetta11 February 2014
Mr Anant Gadhvi has applied to the Tribunal for review of a decision of the Respondent’s delegate denying him approval to import a new “Bajaj Pulsar” motorcycle (VIN MD2DHDJZZUCK16916) (“Motorcycle”) into Australia. He had bought the Motorcycle in India in 2012 and used it there for some 11 months before emigrating to Australia in April 2013.
It is clear that Mr Gadhvi required the Respondent’s approval for the importation of the Motorcycle as it did not meet the Australian Design Rules. We set out the legislative framework at paragraphs 11 to 18 below. For the purposes of the Motor Vehicle Standards Act 1989 (“Act”), it is a “non-standard” vehicle. Nor does it bear an “identification plate”.
The Respondent’s delegate, the Administrator of Vehicle Standards, refused Mr Gadhvi’s application for an import approval under the Motor Vehicle Standard Regulations 1989 (“Regulations”)[1] He maintained that, of the two possible discretions he had, the preconditions for the exercise of one (in reg 13) were not all satisfied.[2] He further decided, for reasons that are not clear, that he would not exercise the other discretion (in reg 11) in Mr Gadhvi’s favour.[3]
[1] T19 pp 205-207.
[2] T19 p 206.
[3] T19 p 206.
The question for the Tribunal, re-exercising the Respondent’s powers afresh on the evidence before us, is whether we should approve the importation of the Motorcycle.
DECISION
Our decision is to set aside the determination under review and to remit the matter to the Respondent with a direction that he grant approval, subject to conditions. Our reasons follow.
RELEVANT FACTS
The relevant facts in chronological order may be summarised as follows. Mr Gadhvi bought and registered the Motorcycle in India on 21 May 2012.[4] He applied on 30 August 2012 for permission to migrate permanently to Australia and was granted a visa on 21 February 2013.[5] On 25 February 2013, he gave notice to his employer of his intention to resign.[6]
[4] T5 pp 128, 134.
[5] T7 p170.
[6] T5 p 138.
On 14 March 2013, Mr Gadhvi applied to the Respondent’s delegate for permission to import the Motorcycle.[7] He was advised on 15 April 2013[8] that he should not ship it to Australia before he had received an import approval.
[7] T5 p 133.
[8] T6 p 164.
He apparently stopped work on 12 April 2013[9] and gave evidence that, in anticipation of his imminent departure for Australia, he stopped using the Motorcycle in India on 17 April 2013, when he had it deregistered. He delivered it to a shipping company a couple of days later. He also gave evidence that he left India for Australia on 20 April 2013 and arrived here the next day.[10] As at the date of his arrival in Australia, he had owned his Motorcycle for exactly 11 months (from 21 May 2012 to 20 April 2013) and he had it available for his personal use all that time, with the exception of the period of four days beginning on 17 April 2013 (when the Motorcycle registration was cancelled).
[9] T17 p 201.
[10] At T23 p 214, there is an email indicating he arrived on 20 April 2013, but nothing turns on the exact date of his arrival in Australia.
Mr Gadhvi had the Motorcycle shipped to Australia without approval. But, in answer to a question from us, the Respondent’s counsel submitted that Mr Gadhvi had done nothing unlawful in acting this way. We were invited to determine the application for review on that basis. The advice Mr Gadhvi received on 15 April 2013 was in the nature of a strong recommendation not to ship the Motorcycle (for the obvious reason, we assume, that if an approval were refused, it would be detained at the port of entry).
Mr Gadhvi’s personal circumstances were the subject of sworn testimony by him that was accepted by the Respondent. In summary, Mr Gadhvi has decided to settle in Australia permanently. He is married with a dependent spouse, who is studying (at least she was studying at the time of the hearing before us). He earns approximately $400.00 per week as a casual driver and pays rent of some $850.00 per month. He owns a second-hand six-cylinder car, which he finds expensive to run. He gave evidence that it costs him approximately $1.00 in petrol for every six kilometres travelled. He chose to come to Australia on 21 April 2013 because his visa only allowed entry up to 31 August 2013.[11] He had given notice some months earlier, and he had come to the end of his employment contract in accordance with his notice on 12 April 2013.[12] He said he preferred to get started on his new life in Australia rather than to remain employed for what could only have been a maximum of a few additional months, given the need to arrive by the end of August that year.
[11] T7 p 170.
[12] T5 p 138 and T17 p 201.
KEY LEGISLATIVE PROVISIONS: ACT AND REGULATIONS
We have already pointed out that the Motorcycle is a “non-standard” road vehicle and that it does not bear an “identification plate” for the purposes of the Act. That is to say, and at the risk of simplifying matters, the Motorcycle is not one of those routinely admitted to Australia because they meet local design requirements.
(1) The Act
Section 18(1) of the Act provides that, subject to ss 19 and 20, a person must not import a road vehicle that is non-standard or does not have an identification plate.
Section 19(1) confers a discretion on the Minister to permit such a vehicle to be imported, subject to written conditions. Section 20(1)(b) also permits a person to import a vehicle in circumstances prescribed by the Regulations.
(2) The Regulations
The Regulations made under the Act contain three provisions that are presently relevant. First, reg 9 provides that, for the purposes of s 20(1)(b) of the Act, a person may import a “non-standard” road vehicle when the Minister has approved an application to import the vehicle. Ministerial approval is a “prescribed circumstance” for the purposes of s 20(1)(b), which relieves the person holding the approval from the prohibition in s 18 of the Act.
Secondly, reg 11 confers a general discretion on the Minister to approve the importation of a “non-standard” road vehicle. An approval under reg 11 is a “prescribed circumstance” for s 20(1)(b). For reasons not clear to us, reg 11 effectively duplicates the discretion conferred in s 19(1) of the Act. We observe that the discretion in s 19 is available as an alternative to the discretion in reg 11, but in this case nothing turns, in our opinion, on whether any exercise of discretion is formally sourced to reg 11 or s 19.
Thirdly, reg 13 confers a discretion on the Minister to approve the importation of a non-standard vehicle when the Minister is satisfied as to a number of matters. An approval under reg 13 is also a prescribed circumstance for the purposes of s 20(1)(b). Regulation 13 is in the following terms:
Approval to import vehicle without an identification plate if owned and used by applicant overseas
(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.
Generally speaking, reg 13 addresses cases where the Applicant (usually a present or prospective Australian citizen or permanent resident) purchases and personally uses a vehicle overseas for 12 months. It is drafted as a discretion, the exercise of which is enlivened if, but only if, the Minister is satisfied in respect of some nine preconditions.
In our view, the very detailed preconditions imply that the Minister is intended to grant approval for the importation of the vehicle when all preconditions are satisfied, subject to a residual discretion to refuse approval given any concerns that might be held as to the suitability or safety of the particular vehicle for use on Australian roads.[13] It may also be the case that, where the Minister believes that the vehicle is not acquired genuinely for personal use, he or she might refuse approval. Generally speaking, however, we infer that applicants who satisfy the preconditions in reg 13 are intended to receive an approval in the absence of any such concerns. We believe that this is a reasonable inference to draw, given the quite specific criteria in reg 13 (including the final precondition in para (e) that allows the discretion to be exercised no more than once in five years for an Applicant). We do not see why criteria would have been specified so carefully if a broad discretion to refuse approval had been intended.
APPLYING THE REGULATIONS
[13] At least, concerns that cannot be met through the imposition of conditions under reg 13(2).
(1) Applying Regulation 13
The Respondent’s delegate found that all preconditions for the exercise of the discretion in reg 13 had been satisfied with the exception of one. Regulation 13(1)(ac) provides that an Applicant should have owned the vehicle in question while overseas and for “at least 12 months” before arriving in Australia.
Mr Gadhvi owned the cycle for a continuous period of only 11 months before he arrived in Australia (namely, from 21 May 2012 to 20 April 2013). In our view, reg 13(1)(ac) must be read in accordance with its plain meaning. Mr Gadhvi does not satisfy this precondition.
The Respondent accepted that all other preconditions in reg 13 had been satisfied, but submitted that the delegate lacked power to exercise the discretion in reg 13 given the period stipulated in reg 13(1)(ac). We agree with this submission. We accept that all preconditions must be met before the discretion in reg 13 is enlivened. It followed in the Respondent’s submission, which we also accept, that the Tribunal, exercising the discretion afresh, is similarly constrained.
The Respondent’s submissions implied that had Mr Gadhvi delayed his departure from India for a month or so and continued to use his Motorcycle during that time, all preconditions for the exercise of the discretion in reg 13 would have been satisfied. We agree with this view. Given our construction of reg 13, we also infer that in that case, Mr Gadhvi would have received approval from the Respondent to import the vehicle subject to any concerns about its safety and any doubts about its acquisition for personal use.
In our view, that fact is itself relevant to the exercise of the discretion in reg 11, which we now consider.
(2) Applying Regulation 11
Regulation 11 (and also s 19) confer on the Minister a general discretion to permit the importation of a non-standard vehicle. As the Tribunal understood his argument, counsel for the Respondent submitted that reg 11 cannot be used as a “back-door way” of avoiding the strict preconditions to the exercise of the discretion in reg 13. He submitted that although Mr Gadhvi had fallen short of the 12-month period stipulated in reg 13 by just one month, this was not a relevant factor for the Respondent to take into account when weighing up the exercise of the discretion in reg 11 (and was similarly irrelevant to this Tribunal’s fresh exercise of the discretion).
We do not agree that, as a matter of construction, reg 13 qualifies reg 11 in this way.
In specifying a period for continuous ownership of at least 12 months, reg 13 uses an objective measure to ensure for practical purposes that a vehicle was acquired genuinely for personal use. In his helpful supplementary note to the Tribunal, the Respondent’s counsel drew our attention to an explanatory statement concerning earlier Regulations[14] where this point is, in fact, expressly made (when the stipulated period of ownership was first enlarged from three months to 12 months). There was a concern that a period of three months would see “abuse of the scheme”. Twelve months was seen to be more prudent and would ensure imported non-standard vehicles had been acquired genuinely for personal use. As with most stipulations of this type, however, it is inevitably somewhat arbitrary.
[14] The Explanatory Statement to the 2000 Amending Regulations.
Mr Gadhvi has fallen marginally short of the 12-month period of continuous ownership, but we understand the Respondent to have accepted that the Motorcycle had been acquired by Mr Ghadvi genuinely for his personal use. All other preconditions in reg 13 have been satisfied. We do not believe these facts are irrelevant to the exercise of the discretion in reg 11. As a matter of construction, there is nothing in the Regulations or the Act that indicates, expressly or by implication, that the Respondent is not permitted to have regard to these facts when weighing up the exercise of the discretion in reg 11 (or s 19). To the contrary, we believe that when regs 11 and 13 are read together, the fact that a person has failed to satisfy, and then in a minor way, one only of the preconditions in reg 13, is relevant to the exercise of the discretion in reg 11.
The point becomes clearer, perhaps, when one considers an Applicant who has owned a vehicle and had it available for his or her personal use for, say, 12 months less a day, who otherwise satisfies all preconditions specified in reg 13, and who would have received approval for importation if there had been an additional day’s continuous use and ownership. The Tribunal would find it anomalous if these facts were irrelevant to the exercise of the discretion in reg 11 (or s 19). To the contrary, in such a case, we believe the discretion is reg 11 could be used to alleviate the arbitrariness of the 12 months precondition in reg 13.
TRIBUNAL’S EXERCISE OF DISCRETION
The Tribunal has taken a cautious approach to the exercise of the discretion in reg 11 in many cases. We are content to adopt that approach here. In the circumstances of this case, we have decided to exercise the discretion in Mr Gadhvi’s favour. The following factors are relevant to our exercise of discretion.
First, we find it relevant that all preconditions in reg 13 have been satisfied except for one which, as noted, was not satisfied because of a shortfall of just one month’s continuous ownership. We accept that Mr Gadhvi’s decision to leave India was motivated by a reasonable desire to begin his new life in Australia promptly once he had received his visa.
The Respondent submitted that it was Mr Gadhvi’s choice to leave India earlier than 21 May 2013 (when he would have satisfied the 12 month period prescribed in reg 13) and he could have stayed on with his employer a little longer. We accept that is true, but, like the Federal Court in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government (2011) FCA 43; 120 ALD 40, we find it rather artificial[15] to view Mr Gadhvi’s decision to leave India when he did as a factor militating against the exercise of the discretion when his decision to do so is a reasonable one when it is judged in the overall context of his plans to emigrate and begin a fresh life in Australia.
[15] See at paragraph 27.
Secondly, we exclude from consideration any hardship to Mr Gadhvi that would arise from having to return the Motorcycle to India if the discretion were exercised against him. He chose to ignore the warning that he not import the cycle before obtaining an approval.
Thirdly, we find it relevant that Mr Gadhvi has only modest means and has a dependent spouse. Understandably, whenever possible, he would prefer to use the Motorcycle rather than his car, given the cost of petrol. We have already referred to his evidence, accepted by the Respondent, that he earns about $400.00 per week with rental obligations of approximately $850.00 per month. In our view, the fact that Mr Gadhvi would benefit substantially in a practical sense from an approval to allow importation of the Motorcycle is a relevant factor in favour of the exercise of the discretion.
Fourthly, there is no evidence that Mr Gadhvi wishes to bring the vehicle into Australia for the purposes of resale. We understand the Respondent to have accepted that Mr Gadhvi acquired it genuinely for personal use. We accept Mr Gadhvi’s evidence that he wishes to use the Motorcycle as an alternative to his more costly Ford car and intends to retain it.
Fifthly, we do not see this as a precedent case where, inevitably, large numbers of non-standard vehicles would be imported if it were followed and applied in practice. That is, we do not see the exercise of the discretion in Mr Gadhvi’s favour as setting a precedent that would prejudice the integrity of the regulatory system.
Sitting as a tribunal re-exercising the decision-maker’s discretion afresh, we have not found it necessary to recapitulate the many cases that have analysed and applied the discretion. Each case must ultimately turn on its own facts. However, we have paid particular attention to the decision of the Federal Court in Selway (supra) and believe our reasoning is consistent with the approach in that case. We accept, in particular, that a favourable exercise of discretion does not require the demonstration of exceptional circumstances.
Finally, although we were not explicitly addressed at the hearing in respect of this matter, we understand the Motorcycle has not been judged unfit on safety grounds to be imported into Australia. We would have expected an explicit submission to this effect were that the case.
We are concerned, however, that there may be conditions that it would be advisable to attach to any approval. We do not see any reference in the “T” documents to conditions that the Respondent’s delegate would have attached to any approval had he decided to approve importation of the Motorcycle, but we were not addressed on the matter.
CONCLUSION
In our view, the circumstances in Mr Gadhvi’s case warrant the exercise of the discretion in reg 11 and it is appropriate that an approval be granted. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the Respondent’s refusal be set aside and the matter be remitted to the Respondent with a direction that he grant an approval for importation subject to such conditions, if any, that he considers appropriate. We have in mind here conditions relating to the need to modify the Motorcycle in some way so that it may be safely used on Australian roads.
DECISION
For the reasons outlines above, the Tribunal:
(a)sets aside the decision under review; and
(b)remits the matter to the Respondent with a direction that he approve the importation of the Motorcycle subject to such conditions, if any, that in his view ought to be attached to the approval.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne, Senior Member N A Manetta .........................[Sgd]...............................................
Administrative Assistant
Dated 11 February 2014
Date of hearing 12 November 2013 Applicant In person Advocate for the Respondent Mr David McLaren Solicitors for the Respondent Sparke Helmore, Canberra
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