Armstrong and Minister for Transport and Regional Services

[2006] AATA 444

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 444

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/1175

GENERAL ADMINISTRATIVE  DIVISION

Re:            JAMES ARMSTRONG

Applicant

And:MINISTER FOR TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal:       Mr Egon Fice, Member

Date:23 May 2006

Place:Melbourne

Decision:The decision made by a delegate of the Minister on 1 December 2005 referring to grant approval for the import of the applicant's BMW F650 motorcycle should be set aside and the applicant's application to import that motorcycle should be allowed.

(sgd) Egon Fice

Member

TRANSPORT - motor vehicle importation – exemptions – migrant importing personal possessions – non-standard road vehicle – no identification plate - use for a continuous period

Motor Vehicle Standards Act 1989(Cth) ss 18, 19, 20, 39 (1) (f)

Motor Vehicle Standards Regulations 1989 reg 13

Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317

Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756

REASONS FOR DECISION

23 May 2006  Mr Egon Fice, Member

1. By an application made on 31 October 2005, Mr Armstrong sought to import into Australia a 2001 BMW F650GS motorcycle. The motorcycle did not have Australian compliance plates fitted nor did Mr Armstrong have a letter of compliance from the manufacturer. A delegate of the Minister for Transport and Regional Services (the Minister) made a decision on 1 December 2005 refusing Mr Armstrong’s application. Mr Armstrong has applied for a review of the decision of the Minister pursuant to s 39(1)(f) of the Motor Vehicle Standards Act 1989 (MVS Act).

BACKGROUND

2.      Mr Armstrong purchased the BMW Motorcycle in December 2002 at which time he was a citizen of the United States of America.  He was living in Valdez, Alaska at that time.  The seller of the motorcycle lived in Portland, Oregon. Therefore, Mr Armstrong had a friend of his collect the motorcycle and keep it at his home in Port Angeles, in Washington State.   Mr Armstrong first registered the motorcycle in Alaska in January 2003.  The odometer reading on the motorcycle at the time of purchase was 3800 miles.  At the time he purchased the motorcycle, Mr Armstrong had no intention of importing it into Australia.

3.      Mr Armstrong purchased the motorcycle for his personal use and in the two years following its purchase, he travelled to Port Angeles on occasions to visit his friends and to ride the motorcycle.  At that time, he owned another 650cc motorcycle which he kept with him in Alaska.  He did not ride it frequently because, understandably, the weather is not particularly suitable for that form of transport.  While the BMW motorcycle was stored for him at Port Angeles, it was always available for his use and nobody else used it.

4.      In December 2004, Mr Armstrong was offered a job in Iraq, which he accepted.  He spent approximately 18 months there.

5.      In January 2005, Mr Armstrong married an Australian citizen.  In April 2005, he applied for Australian residency.  In order to be granted a permanent resident visa, Mr Armstrong was forced to leave his job in Iraq to live in Australia.

6.      Mr Armstrong, in his oral evidence, said that he had used the motorcycle on about six occasions since he first purchased it.  This was contrary to what he stated in his letter of 2 November 2005 to the Administrator of Vehicle Standards; but, Mr Armstrong explained, he was attempting to impress upon the Administrator that the vehicle was near new rather than an old machine.  Mr Armstrong confirmed that at all times the motorcycle was available for his use and that it had not been used by any other persons.

CONSIDERATIONS

7.      The importation of non-standard vehicles is prohibited under s 18 of the MVS Act, which provides:

18.(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.

(2)          Subject to sections 19 and 20, a person must not import a nonstandard prescribed vehicle component. 

Penalty: 60 penalty units. 

8. Section 19 of the MVS Act provides that a person may import a non-standard road vehicle or a road vehicle that does not have an identification plate with the written approval of the Minister. Section 20 of the MVS Act 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 exceptions, or prescribed circumstances, are set out in the Motor Vehicle Standards Regulations 1989 (MVS Regulations). The exception relied on by Mr Armstrong is to be found in reg 13, which provides:

13          The Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if:

(a)the vehicle has been owned and used by the applicant for a continuous period of at least:

(i)for a vehicle owned by the applicant before 9 May 2000 — 3 months; or

(ii)in any other case — 12 months; and

(b)at the time the vehicle is imported, the applicant is:

(i)an Australian citizen or an Australian permanent resident; or

(ii)a person who has applied to become an Australian citizen or an Australian permanent resident; 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 imported a road vehicle owned by him within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.

9. The parties agreed that Mr Armstrong met all of the requirements set out in reg 13(b) to (e). There was no dispute that Mr Armstrong owned the vehicle for a period of 12 months. The only dispute was whether Mr Armstrong met the requirements of reg 13(a) regarding use of the vehicle for a period of 12 months prior to applying to import that vehicle into Australia.

10.     In a letter dated 1 December 2005, a delegate of the Minister advised Mr Armstrong that:

From the information you have supplied you do not meet Regulation 13(a), to have used the vehicle for 12 continuous months, therefore, I am unable to grant an import approval under the provisions of regulation 13 of the Motor Vehicle Standards Act 1989 [sic] for your 2001 BMW F650 VIN WB10182A81ZE46458.

11. The reference in the letter to the MVS Act 1989 was of course intended to be a reference to the MVS Regulations 1989. Nevertheless, the thrust of the delegate’s argument was that the vehicle must be used continuously during the 12‑month ownership period in order to qualify for the exemption in reg 13(a). Mr Armstrong, on the other hand, argued that the adjective continuous relates to the period of time and not to the frequency of use of the vehicle by the applicant.  In other words, the vehicle is required to be used by an applicant for a continuous period but not used continuously for a continuous period.

12.     Mr Armstrong’s contentions, in my opinion, have substantial weight.  There is no question that the adjective continuous qualifies the period during which the vehicle must be used. However, there is nothing in reg 13(a) which requires the vehicle to be used continuously over the stated period.

13.     The delegate of the Minister has directed my attention to a Minute drafted by the Assistant Secretary, Vehicle Safety Standards Branch, for approval by the then Minister, to amend the guidelines for applicants wishing to import a vehicle under the Personal Vehicle Import Scheme (the Scheme).  This followed an announcement on 8 May 2000 by Mr Anderson and Senator Nick Minchin, regarding changes to the rules for importing personal motor vehicles.  The effect of the change was to increase the qualifying period of ownership and use of the vehicle from a continuous period of 3 months to 12 months.  The Minute stated that the primary reason for extending the qualifying period was to limit abuse of the Scheme, the purpose of which is to allow migrants and Australian citizens returning from long periods overseas to treat their vehicles as bona fide personal possessions.  The Minute noted that the use requirement for a continuous period of three months was previously strictly enforced to the point where any break in that period, such as a trip outside the country where the vehicle was held, was considered to have broken the continuous period of use.  With the extension of the qualifying period to a continuous period of 12 months, the Assistant Secretary noted that a similarly strict approach would create unreasonable restrictions on the movements of individuals who live and work overseas for long periods; who purchase and use the vehicle during their stay, and who then wish to import the vehicle to Australia on their return.  The Minute then proposed that short breaks away from the country of main residence, including up to six weeks annual leave, business trips that are a part of their normal work, and for other unforeseen contingencies, would not normally be considered to breach the continuous use requirement.  Perhaps the most significant point made by the Assistant Secretary, as far as Mr Armstrong is concerned, is that it was envisaged that a vehicle would be available for use over a continuous period of 12 months rather than insisting that there be continuous use over that period.

14. As a matter of common sense, and a normal reading of reg 13(a), continuous use of the vehicle is not a requirement. In fact that was conceded in Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756. According to the respondent in that case, ...whether or not a person has used a vehicle for a continuous period of 12 months is a matter of fact and degree having regard to the number and duration of interruptions that have occurred in that period of time.  Member Allen agreed with that contention.  Senior Member R.D. Fayle, in Re Anthony and Department of Transport and Regional Services  (2001) 33 AAR 317 said (at para 17):

In so far as the word "use" is defined to mean "drive", common sense dictates that reg 9D cannot mean that the vehicle must be driven unabatedly for three continuous or consecutive months.  A common sense approach is that the vehicle should be available to the applicant to be driven in the ordinary course of that person's usage.

15. In my opinion, it is important to bear in mind that the purpose of the exemption set out in reg 13 is to allow migrants and Australian citizens returning from long periods overseas to treat their vehicles as bona fide personal possessions. Given that Mr Armstrong is in fact a migrant and that the motorcycle has formed part of his personal possessions since December 2002, it would seem to defeat the purpose of the exemption if Mr Armstrong were not permitted to import the motorcycle. Furthermore, I believe it is proper to consider Mr Armstrong’s particular circumstances and the fact that he lived in Alaska. I accept that weather conditions did not permit continuous use of a motorcycle in that environment. The fact that he purchased the vehicle and had it stored at Port Angeles in Washington State obviously made it more difficult for him to use the motorcycle regularly. Nevertheless, he did so whenever he could. He also registered the motorcycle in Alaska shortly after purchasing it and it was clearly available at all times for his use. Accordingly, in my view, Mr Armstrong meets the requirements of reg 13 of the MVS Regulations. It follows that the Minister must approve his application to import that vehicle.

CONCLUSIONS

16.     For the reasons I have set out above, the decision made by a delegate of the Minister on 1 December 2005 refusing to grant approval for the import of Mr Armstrong’s BMW F650 motorcycle should be set aside and Mr Armstrong’s application to import that motorcycle should be allowed.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)       Catherine Thomas

Clerk

Date of Hearing:  13 April 2006

Date of Decision:  23 May 2006
Advocate for the applicant:        Self‑represented
Counsel for the respondent:       Mr R. Biall

Solicitors for the respondent:     Phillips Fox