Bastian and Minister for Transport and Regional Services
[2007] AATA 1646
•8 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1646
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0634
GENERAL ADMINISTRATIVE DIVISION ) Re CAROLE BASTIAN Applicant
And
MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date8 August 2007
PlaceMelbourne
Decision The decision under review is affirmed.
John Handley
Senior Member
TRANSPORT AND REGIONAL SERVICES – applicant inherited vehicle – did not own it for 12 months before application was made to import it – vehicle nonstandard – approval to import not granted before it arrived in Melbourne – exceptional reasons (permitting departure from Ministerial policy) to exercise discretion not shown – decision affirmed
Motor Vehicle Standards Regulations 1989 (Cth) reg 9, reg 10, reg 11, reg 13 and reg 15
Motor Vehicle Standards Act 1989 (Cth) s 3, s 5, s 7, s 18, s 20, s 20(1)(b), s 20(3) and s21B
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
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fraser and Department of Transport and Regional Services (2002) 73 ALD 94
Re Hoopes and Department of Transport and Regional Services [2006] AATA 11
Re Lai and Department of Transport and Regional Services [2003] AATA 861
Re Lewis and Department of Transport and Regional Services [2006] AATA 337
Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Re Pantos and Minister for Transport and Regional Services [2006] AATA 332
Re Patel and Department of Transport and Regional Services (2001) 67 ALD 236
Re Redmond and Department of Transport and Regional Services [2003] AATA 985
Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457
Re Van Duyker and Department of Transport and Regional Services (2004) 83 ALD 268
REASONS FOR DECISION
8 August 2007 Mr John Handley, Senior Member 1. This is an application to review a decision made by the respondent on 22 December 2006 refusing approval sought by the applicant to import a motor vehicle from England. The motor vehicle had arrived in Australia at the time the decision under review was made.
2. The vehicle in issue is a two door 599cc Smart Car coupe manufactured in France in 2003. It was not fitted with an identification plate (refer later). At the commencement of the hearing it was learnt that the vehicle was eligible for import to Australia by a registered automotive workshop (RAW) because it was included in a schedule issued by the Minister pursuant to reg 15 of the Motor Vehicle Standards Regulations 1989 (the Regulations). The schedule of approved vehicles concerned vehicles which were manufactured and used overseas after 31 December 1988. RAWs are licensed or authorised to issue motor vehicle identification plates after inspection and modification, if necessary, to ensure compliance with Australian automotive standards. An RAW is an approved corporation within the meaning of s 21B of the Motor Vehicle Standards Act 1989 (the Act).
3. The applicant was the person who arranged for the vehicle to be imported into Australia. The vehicle was not imported by an RAW. Subject to the outcome of these proceedings, the applicant may apply to an RAW that is authorised to modify (if necessary) used Smart Cars and seek to be recorded as the importer of the vehicle. Again, unfortunately, for the applicant, it was also learnt that the only RAW in Australia authorised to inspect and modify Smart Cars is located in Queensland.
4. The decision made by the respondent was pursuant to reg 13 of the Regulations. The decision-maker decided that the applicant had not been the owner of the vehicle for a continuous period of 12 months before the application was made to import the vehicle. That was conceded by the applicant and in my view properly so. The motor vehicle in issue was first registered in the name of Jacqueline Tipler, the applicant’s sister, on 31 July 2003. Ms Tipler at all times was the registered owner of the vehicle until her death on 2 August 2006. Ms Tipler died intestate. On 4 September 2006, the Probate Registry at the High Court of Justice in Birmingham issued Letters of Administration to the applicant as the personal representative of Ms Tipler. It was from that date only that the applicant was the owner of the motor vehicle. The application to import the vehicle was made on 18 September 2006 (T15).
5. The hearing therefore proceeded by enquiry only with respect to reg 11 of the Regulations, where a discretion may be exercised to approve a nonstandard road vehicle or a road vehicle without an identification plate.
6. The applicant said that her sister purchased the vehicle in 2003 when she then suffered from lung and breast cancer and emphysema. As a disability pensioner, she was exempt from a number of statutory charges. The vehicle was purchased because its design permitted her to enter and exit the vehicle comfortably. The applicant arrived in England in August 2003 and cared for her sister at least until October 2004 and for many subsequent periods prior to her death. The applicant said that she frequently drove her sister on trips throughout the United Kingdom and she became attached to the vehicle.
7. Some documents lodged pre‑hearing indicate that the applicant purchased a 20 foot shipping container on 18 September 2006 to convey the motor vehicle and household effects to Melbourne. The container was purchased on the same day that application was made to import the vehicle (T15). The vehicle was taken onboard the vessel OOCL QINGDAO on 5 November 2006 and arrived in Melbourne on 18 December 2006.
8. The applicant said that she had telephone discussions with an officer of the Australian Customs Service located at the Australian Embassy in Brussels and with an officer of the respondent located in Melbourne. She said she made enquiry as to the importing of the vehicle and was informed by each person – having informed them that she wished to import the vehicle for sentimental reasons – that there should not be a problem. In a statement completed by the applicant on 19 July 2007 and received into evidence, the applicant referred to her discussions with those officers and recorded as it was a modest car for my personal use, I was under the impression there would not be a problem. In a memorandum lodged pre‑hearing, the applicant referred to a telephone discussion with Astrid at the Brussels Embassy and with Andrew who both informed her that there should not be a problem to import the car because I had inherited it.
9. The applicant acknowledged in cross‑examination that at the time she applied to import the car into Australia, she had not been given approval for that purpose. She also acknowledged that the discussions she had with the officers referred to above may have occurred after arrangements had been made to transport the vehicle to Australia. She acknowledged that she was very upset following the death of her sister, that she was not functioning properly and was attempting to settle her sister’s estate quickly and return to Australia.
witness statements
10. The respondent lodged two witness statements from the officers referred to above. The applicant indicated that each person was not required for cross‑examination.
11. Astrid Mercier-Picco is the officer employed by the Australian Customs Service at the Australian Embassy in Brussels. She recorded that she had no memory of speaking with the applicant but it was her practice when an enquiry was made about importing a vehicle into Australia to refer persons to the website of the respondent and recommend downloading information concerning an application for approval to import a vehicle. She recorded that she also had the practice of referring persons to the website of the Australian Customs Service. She also recorded that she had a handwritten note of listening to a voice mail message on 5 September 2006 from a female person in the United Kingdom regarding inheriting a motor vehicle and seeking forms for permission to ship the vehicle to Melbourne. Ms Mercier-Picco recorded that she telephoned that person on 8 September 2006 and was advised that she had contacted the Australian Customs Office in Canberra and was awaiting for application forms to be sent to her.
12. Andrew Tsipiras is an officer of the respondent and is employed as a Vehicle Imports Assessor in Melbourne. In September 2006 he said he worked as a member of a team of nine assessors each of whom receives between 60 and 100 telephone calls per day. He recorded his responsibility and those of other assessors is to give information to persons who make enquiries but subject to receiving and processing application forms and other supporting documentation. He recorded that approvals to import vehicles are not given over the telephone. He recorded that he had no recollection of having a telephone discussion with the applicant but he could recall speaking with her after she was advised that her application was refused. He recalled that the applicant seemed angry but she did not mention to him that she had previously been told she would be eligible to import an inherited vehicle. He recorded that he arranged to send a copy of the decision refusing the application to her by email (the notice of refusal had been sent to the address where the applicant resided in the United Kingdom) on 13 February 2007 (T25, p61) Mr Tsipiras also recorded that he does not hold any record of the conversation he had with the applicant (where the refusal was discussed) and also recorded that he was certain that he did not tell Ms Bastian that because she had inherited the vehicle she would be able to import it into Australia. I have not advised any clients that they can import a vehicle because it was inherited.
findings
13. Having regard to the evidence heard in these proceedings and from the documents received into evidence and lodged pre‑hearing, I make the following findings of fact.
(i)The applicant acquired the Smart Car vehicle following the issue of Letters of Administration over the estate of her late sister on 4 September 2006. Prior to 2 August 2006, the vehicle was owned by her sister. The applicant did not own the vehicle for 12 months before she applied to import it. The applicant decided to import the vehicle to Australia for a number of reasons, being her sentimental attachment to it (it also providing her with a memory of her sister), her intention to use it as her own motor vehicle in Australia and the modest cost associated with operating the vehicle in Australia.
(ii)The applicant did not obtain approval to import the vehicle prior to it arriving in Australia. Indeed it would appear that the applicant was on notice prior to the vehicle leaving England that arrangements to import should not be undertaken until approval had been granted. The applicant received an email from an officer of the respondent on 25 October 2006 (T17) seeking a number of documents in support of the application. The conclusion to the email records that it is strongly recommended that you do not ship your vehicle to Australia until such time as you are issued with an import approval. At that stage the applicant had purchased a container for shipping the vehicle and other property to Australia. The vehicle was onboard a vessel in Southampton on 5 November 2006 (refer shipping documents attached to applicant’s letter of 12 May 2007). Whilst it would appear that the applicant had telephone discussions with officers of both the Australian Customs Service and the respondent in September 2006, I am not satisfied that she was then advised that she would be permitted to import the vehicle into Australia. Whilst I am satisfied that she was given some advices concerning her rights as a potential importer of the vehicle, the advice given (as alleged) namely, you should have no problems, does not, in my view, amount to nor can it be inferred as amounting to permission to import.
(iii)The cost of shipping the vehicle to Australia was £1800. In Australia, the applicant incurred costs of $2131.60 being quarantine charges, port or terminal handling charges and destination services imports. Storage is continuing at $12.00 per week. The quoted cost of returning the vehicle to England is $4745.00. The value of the car was assessed on 18 September 2006 by a Mercedes dealer in Leicestershire at £4000.
(iv)The applicant agreed that her decision to import the vehicle before obtaining approval was imprudent (refer para 4(b) of her witness statement).
(v)The vehicle arrived in Melbourne without a fitted identification plate.
the act and the regulations
14. The title to the Act records that it is to provide for national vehicle standards and for related purposes. The main objects of the Act are to achieve uniform vehicle standards to new vehicles and to regulate the supply to the Australian market of used imported vehicles (s 3). Vehicles are prohibited from being imported if they are nonstandard or do not have an identification plate (s 18). Section 5 of the Act defines a nonstandard road vehicle as a vehicle which does not comply with national standards. An identification plate is defined as a plate which declares the status of the road vehicle in relation to national standards and is a plate to be placed on vehicles. The national standards are those determined by the Minister pursuant to s 7 of the Act.
15. Section 20 of the Act permits importing a nonstandard vehicle or a vehicle which does not have an identification plate in prescribed circumstances. Section 20(3) of the Act provides that regulations may be issued permitting importing a nonstandard vehicle or a vehicle without an identification plate but will be subject to the written approval of the Minister or approval subject to written conditions determined by the Minister.
16. Regulations 9 and 10 confirm the language of s 20(1)(b) of the Act namely, that a nonstandard vehicle or a vehicle without an identification plate may be imported subject to approval by the Minister.
17. Regulation 11 permits the exercise of a discretion where a person applies for approval to import a nonstandard vehicle without an identification plate.
18. Regulation 11 is reproduced in the following terms:
(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.
19. Counsel for the respondent submitted that the discretion under reg 11 is fettered only by the policy of the Act.
conclusion and reasons for decision
20. The Act and the Regulations clearly demonstrate the intent on the part of the Commonwealth Government to ensure that there are national standards with respect to road vehicles in Australia. Those standards are described as the National Standard within the meaning of the Act (refer s 5 and s 7). For the purposes of the Regulations, the National Standards are the Australian Design Rules.
21. An examination of the respondent’s website ( permits an observation of a summary or index of the Australian Design Rules. The breadth of the Rules clearly manifests an intention on the part of the Commonwealth Parliament to ensure that motor vehicles will only be permitted on Australian roads if they meet these standards. The standards have the character of a legislative instrument (refer s 7 of the Act). In the present case the motor vehicle sought to be imported into Australia is a nonstandard vehicle and it does not have an identification plate. The applicant urges that a discretion should be exercised in her favour pursuant to reg 11 permitting her to have an approval granted for the importation of the vehicle thereby permitting her to drive it in Australia. The Minister opposes the application and relies on the Act, the Regulations and a number of previous decisions of this Tribunal.
22. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J decided that this Tribunal
. . . is as free as the Minister to apply or not apply that policy. The Tribunal's duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. (p642)
However, at p644, His Honour decided that it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own. At p645, His Honour decided that:
These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice.
23. In Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457 the Tribunal decided that in the exercise of the discretion under reg 11 any departure from government policy would have to be in circumstances found to be exceptional. That basis for exercise of the discretion was followed in a number of subsequent decisions of this Tribunal namely, Re Patel and Department of Transport and Regional Services (2001) 67 ALD 236; Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704; Re Lai and Department of Transport and Regional Services [2003] AATA 861;Re Van Duyker and Department of Transport and Regional Services (2004) 83 ALD 268 and Re Pantos and Minister for Transport and Regional Services [2006] AATA 332.
24. In Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317 (Re Anthony), the Tribunal decided that the basis for departure from government policy thereby exercising a discretion to allow a vehicle to be imported under reg 11 would have to be in circumstances which were very exceptional, extraordinary or special circumstances. That basis for interpreting the discretion under reg 11 was followed in subsequent Tribunal decisions of Re Hoopes and Department of Transport and Regional Services [2006] AATA 11 and Re Lewis and Department of Transport and Regional Services [2006] AATA 337.
25. In Re Redmond and Department of Transport and Regional Services [2003] AATA 985 the Tribunal decided that the departure from government policy under reg 11 would be in circumstances which were exceptional or unusual.
26. It is obvious from the above decisions that the Tribunal has had regard for the intention on the part of the Commonwealth to ensure that its road safety standards are implemented and departure would be permitted only in unusual or in circumstances beyond normal practice or expectation, that is to say, exceptional.
27. In the present case, the applicant arranged to import the vehicle from England to Australia without approval. Before the vehicle left England she had received an email from an officer of the respondent advising that a vehicle should not be imported without approval being received. That vehicle had been owned by the applicant for approximately six weeks when arrangements were made to export it and had been owned for about three months when it left England. The applicant acquired the vehicle by an inheritance from her sister’s estate. She expressed a sentimental attachment to it – of which I have no doubt – and as she recorded in her witness statement, the decision to arrange for the vehicle to be transported to Australia was imprudent (refer para 4(b)). The applicant did have prior contact with officers of Australian agencies but the advices given could not in my view be construed as amounting to oral approval being given to import the vehicle.
28. In Re Fraser and Department of Transport and Regional Services (2002) 73 ALD 94 the discretion under reg 11 was exercised in favour of an applicant in circumstances where the vehicle had been owned for more than 12 months, it had not been imported into Australia, approval to import was sought only after the person arrived in Australia and where incorrect advice had previously been given. In Re Marra the vehicle had been owned for less than 12 months but the Tribunal was satisfied that the vehicle was intended for the applicant’s own use, there was no attempt to profit from it being imported, incorrect advice had been given, there was no lack of good faith or due diligence and – I think significantly – the vehicle was relatively new, it was a current model vehicle, all Australian safety requirements had been met and it had the same design specifications of an equivalent vehicle being used in Australia.
29. The Tribunal also exercised the discretion favourably towards an applicant in Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756 where – similar to the decisions of Re Fraser and Re Marra –incorrect advice had been given.
30. I regret the position that the applicant now finds herself. I acknowledge – as she did at the hearing – that she wanted to administer her sister’s estate as quickly as was possible and return to Australia. I am satisfied also she was largely influenced or overwhelmed by her desire to retain the car because of its sentimental connection to her sister and with the intention of using it in Australia. I also acknowledge that she has been exposed to considerable cost to date and will be exposed to additional costs in the event that the vehicle is returned to the United Kingdom (although she retains the opportunity to approach an RAW in the circumstances recorded earlier).
31. Having regard to the standards imposed by the Commonwealth Parliament by the Act and the Regulations with respect to road safety and the standards of vehicles used on Australian roads, I cannot find in the circumstances of this application that there are cogent reasons to permit departure from policy (refer Re Drake).
32. For all of the above reasons I am satisfied that the discretion available under reg 11 should not be exercised.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Grace Carney, Personal AssistantDate of Hearing 24 July 2007
Date of Decision 8 August 2007
Solicitor for the Applicant Applicant self represented
Counsel for the Respondent Mr A Dillon
6
5
0