Bene and Department of Transport and Regional Service
[2002] AATA 1288
•13 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1288
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/293
GENERAL ADMINISTRATIVE DIVISION )
Re MICHAEL EDWARD BENE
Applicant
And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICE
Respondent
DECISION
Tribunal Mr O Rinaudo, Member
Date13 December 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd)......................
Mr O Rinaudo
Member
CATCHWORDS
IMPORTS – motorcycle – whether approval to import motorcycle can be granted after motorcycle brought into the country
Motor Vehicle Standards Act 1989
Motor Vehicle Standards Regulations 1989
Re Chalmers Nurseries and Department of Transport and Regional Services [2001] AATA 307
Frost v Collector of Customs (Qld) (1985) 9 FCR 174
Mather v Classic Radio Television Pty Ltd [1960} VR 595
Re Hall and Department of Transport and Regional Services (unreported, oral decision, 21 May 2002)
Re Marra and Department of Transport and Regional Services (unreported, oral decision, 20 June 2002)
REASONS FOR DECISION
13 December 2002 Mr O Rinaudo, Member
Decision under Review
On 5 March 2002 a delegate of the Minister for Transport and Regional Services refused an application made by Mr Bene on 4 February 2002 to import one Honda Ace 750 Shadow motorcycle (VIN JH2RC4404WM00981).
This matter was heard by the Tribunal on 2 July 2002. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), as well as the following documentary exhibits:
Exhibit 2: Letter from AGS dated 3 June 2002, and letter from Vanguard Logistics dated 6 June 2002;
Exhibit 3: Affidavit of Keith Seyer dated 23 June 2002.
The affidavit (Exhibit 3) was produced to explain the terms "compliance plate" and "identification plate". It appears that the two words are used interchangeably. There was no issue about this and Mr Bene was prepared to accept this.
The respondent was represented by Counsel and the Tribunal was grateful for the extensive submissions both oral and in writing made by him.
FactsMr Bene is the owner of the Honda Ace Motorcycle. He and Mrs Bene decided to move to Australia to care for Mrs Bene's elderly mother. Mrs Bene is Australian. They have purchased a house and have decided to move here permanently. To this end they have shipped out all their belongings. It was decided to ship in Mr Bene's Honda motorcycle as it would be used for transportation.
Mr Bene made the necessary arrangements for the motorcycle to be transported to Australia. He was not aware nor was he made aware that he would need to apply for approval for the importation of the motorcycle before it was shipped to Australia. It duly arrived in Australia and, of course, without the necessary approval Mr Bene was not allowed to remove the motorcycle from the dock. The vehicle does not have a compliance plate.
On 4 February 2002 Mr Bene made application for approval of the importation of the motorcycle. By then the motorcycle had already arrived in Australia, having arrived on 29 January 2002. The application was refused on 5 March 2002. The delegate was satisfied that Mr Bene met the requirements of regulation 9D of the Motor Vehicle Standards Regulations 1989 (the Regulations), save that the motorcycle had been imported prior to the date of the decision. The delegate decided that he did not have the power under the Act or the regulations to retrospectively grant an approval (see written submission of counsel for the respondent).
Mr Bene seeks to have his motorcycle released to him.
LegislationThe legislation relevant to this review is contained in the Motor Vehicle Standards Act 1989 (the Act) and the Motor Vehicle Standards Regulations 1989 (the Regulations). In particular section 18(1) of the Act is relevant. That section says:
"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."
Section 19(1) of the Act provides that:
"A person may import a nonstandard road vehicle, a road vehicle that does not have an identification plate, or a non standard prescribed vehicle component with the approval of the Minister, which may be approval subject to written conditions determined by the Minister."
Further section 20 provides:
"(1) A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate: …
(b) in prescribed circumstances.
…
(3) Regulations for the purposes of paragraph (1)(b) … may provide for the importation, whether generally or in specified circumstances, of a road vehicle…:
(a) with the written approval of the Minister; or
(b) with such approval subject to written conditions determined by the Minister."
The Regulations set out the "prescribed circumstances" in Regulation 9 and 9D as follows:
"(9) For the purposes of section 20(1)(b) of the Act a person may import a non-standard road vehicle that does not have a compliance plate if the Minister has approved an application by the person to import the vehicle.
…
(9D) The Minister must approve an application to import a non-standard road vehicle or vehicle that does not have a compliance 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 on or before 8 May 2000 – 3 months…"
Evidence at the Hearing
Mr Bene and Mrs Bene attended the hearing and gave oral evidence. He was cross examined by Counsel for the respondent. Mr Bene was unable to be of any great assistance. He said that he wanted to bring his bike, which he owned, to Australia, as it would be a cheap and convenient means of transport for he and Mrs Bene. He said that the exporter had told him that he could put everything in the container.
He Bene produced a letter from the customs agent, which he said did not alert him to the need to get approval prior to the motorcycle leaving for Australia. He said that if he had been informed he would have applied for the approval.
Mr Bene told the Tribunal that it was likely to cost $1,800.00 dollars to ship the motorcycle back to America and return. Some discussion was had about the possibility of sending the Motorcycle to New Zealand.
Mr Bene said that he found the whole matter extraordinary and could not see why he should be put to the expense of sending the motorcycle out of Australia and having it shipped back. He asked why common sense could not apply and he be allowed to remove the motorcycle from the dock and start using it.
Consideration of the IssuesEssentially Mr Bene wants his motorcycle back. He does not want to be put to the time and expense of sending the motorcycle out of the country and having it returned as it is already in Australia. He made the point that he had experts undertake the importation on his behalf and the position he now found himself in was not of his making. It is clear to the Tribunal that Mr Bene would have done what was necessary to get the motorcycle to Australia if he had been aware of the requirements.
To this extend and without having all of the material available it appears that he has been let down by the customs agent he engaged to import his goods. This is an issue which Mr Bene can take up.
The Tribunal has a great deal of sympathy for the proposition put by Mr Bene that common sense should prevail and the Minister simply approve the importation now that it is here. The approval could be given with conditions. Mr Bene has said that he is prepared to make any necessary alterations to the motorcycle as may be necessary.
Having said that, however, it is necessary to look at the legal position. In submissions from Counsel for the respondent, Mr Rangiah, I was urged too consider the comments of Senior Member Kiosoglous in the decision of Re Chalmers Nurseries and Department of Transport and Regional Services [2001] AATA 307 when he was asked to consider an application to vary the conditions of an approval to import in circumstances where the importation had occurred before the application was made. The Tribunal said:
"[A]pplication for review of a decision made pursuant to subsection 20(1) of the Act needs to be made prior to the importation of the vehicles to which the decision related, as section 20 operates as an enabling provision. What is importation. Where importation has already occurred, variation of the conditions of the importation will achieve nothing, as that action which the section enables has already been acted upon. Upon the importation being acted upon, there will no longer be a vehicle that is rightly the subject of the original application.
In the Tribunal's opinion, the effectiveness of the decision under review only lasts as long as the vehicle specified in the schedule to which the decision relates are able to fall into the category of vehicle that 'a person may import'. The existence of the vehicle that may be the subject of importation is akin to a condition precedent to the making of a decision pursuant to section 20 of the Act."
It was submitted that the reasoning in this case supported the proposition that "the Minister or his delegate may not approve the importation of the motorcycle after the motorcycle has been imported … A vehicle which is already in Australia cannot be imported. Therefore, there is nothing left to approve". It was further submitted that the reasoning in this case was "logical and cogent".
The Tribunal was also referred to the decisions of Frost v Collector of Customs (Qld) (1985) 9 FCR 174 where the Federal Court considered the Customs Act 1901 and the Customs (Import Licence) Regulations 1956. Wilcox J, who considered the effect of Regulation 7 which provided that the importation of certain goods was prohibited unless a licence to import the goods was in force, said:
"The Australian Customs Service has apparently been willing to administer the import licensing regulations upon the basis that an application for a licence may be lodged, and will be considered upon its merits, after the vehicle has been imported into Australia. If the licence is then granted, the vehicle is treated as having been lawfully imported and, subject to the payment of any applicable duty, is released to the importer. But it is not easy to see the legal justification for this procedure. The effect of the Act and regulations is that at the moment of the importation, without the requisite licence, the vehicle was forfeited to the crown. There appears to be no statutory basis for retrospective licences or for the waiver of the Crown's title to forfeited goods. It appears that the customs authorities have developed the practice of modifying the legislative provisions by adopting an attitude which is generous to importers but unwarranted in law.
It may be thought that there is no harm in this administrative modification of the legislation. But, leaving aside the question of principle which arises, such course presents very real dangers to individuals who, for whatever reason, find themselves denied an import licence."
The Tribunal was also referred to the decision in Mather v Classic Radio Television Pty Ltd [1960} VR 595 as authority to support the contention that approval under the Act and Regulations may not be given after importation of a vehicle has occurred.
Mr Rangiah noted that the decision in Chalmers Nurseries had recently been considered in matters before the Tribunal. In Re Hall and Department of Transport and Regional Services (unreported, oral decision, 21 May 2002) heard before Deputy President Purvis QC, the Tribunal followed Chalmers Nurseries and held that the importation of a motor vehicle may not be retrospectively approved. The other was the case of Re Marra and Department of Transport and Regional Services (unreported, oral decision, 20 June 2002) in which Deputy President Hotop did not follow Chalmers Nurseries.
The Tribunal was informed that Deputy President Hotop in his oral reasons determined that the Act gave the power to retrospectively approve the importation of a vehicle because:
The Tribunal was not bound by the decision in Frost v Collector of Customs because it related to a different legislative scheme and because the Act does not contain any provision equivalent to regulation 8(2) of the Customs (Import Licensing) Regulations.
He disagreed with the decision in Chambers Nurseries.
While, as a general rule, applications for import approvals should be made prior to the importation of a vehicle, in exceptional cases injustice could be done if there were no retrospective powers to approve importation.
The Tribunal's decision would not frustrate the policy of the Act because an importer is not able to take possession of the vehicle until approval is given. Further, approval can be given subject to conditions and regulation 9(1) allows the approval to be revoked if the conditions are not satisfied.
The Tribunal was unable to fully consider these decisions, as the reasons are not available.
The Tribunal his considered the submission of Mr Rangiah on the point of which decision is to be followed. The Tribunal considers that the preferred view is that the Act and Regulations require that the approval be sought and approved (or not) before the vehicle is in Australia.
In particular the Tribunal noted the submission that Deputy President Hotop has given consideration to the "perceived injustice in exceptional cases". It is not difficult to have some sympathy with this view. However the legislation seems to be clear. In particular section 20 refers to a person importing a vehicle, "with the written approval of the Minister" and regulation 9 refers to, "if the Minister has approved an application by the person to import the vehicle". It appears clear to the Tribunal that these words, given their ordinary meaning, must leads one to the conclusion that approval must be requested and approval given prior to the vehicle being imported.
The Tribunal accepts the submission that if injustice occurs as a result it is a matter for the legislature.
Whilst the example provided by Mr Rangiah about commercial importers flooding the market with defective vehicle may be a little exaggerated, the basic point to the argument is that to interpret the legislation as suggested by Deputy President Hotop in Marra is to invite motor vehicle importers to use the interpretation to their advantage. Clearly the Minister must be able to ensure that vehicles coming to Australia comply with the Act and meet the standards for vehicle sold in this country before they arrive in Australia.
The Tribunal is satisfied that the motorcycle has been imported as in has landed in Australia.
DecisionIn the circumstances the Tribunal determines that the motorcycle has been imported into Australia without the necessary approval having been obtained. The Act does not allow for approval now that the motorcycle is in Australia and accordingly it will need to leave Australia, approval will need to be sought and received, before the motorcycle can be imported in Australia in accordance with the approval and any conditions attaching.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 2 July 2002
Date of Decision 13 December 2002The Applicant Appeared in Person
Counsel for the Respondent Mr D Rangiah
Solicitor for the Respondent Ms A Bishop, Australian Government Solicitor
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