BURNS Applicant And SECRETARY, DEPARTMENT OF INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
[2009] AATA 972
•18 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 972
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1954
GENERAL ADMINISTRATIVE DIVISION ) Re LOUISE BURNS Applicant
And
SECRETARY, DEPARTMENT OF INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date18 December 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in place of that decision, decides that the applicant’s application to import the Subaru Forester vehicle referred to in the application dated 27 February 2009 be approved. The Tribunal reserves liberty to the respondent to make submissions on or before 11 January 2010 as to any conditions to which the approval should be subject, and if no submissions are received by that date, the approval to import the vehicle will be unconditional.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
TRANSPORT – motor vehicle importation – non-standard vehicle – meaning of “use” in Regulation 13 of the Motor Vehicle Standard Regulations 1989 – discretion to approve importation – multiple circumstances not “exceptional” in themselves, but in combination amount to exceptional circumstances – decision under review set aside.
Motor Vehicle Standards Act 1989 (Cth), s 18
Motor Vehicle Standard Regulations 1989 (Cth), Regulations 11 and 13
Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317
Re Bastian and Minister for Transport and Regional Services (2007) 98 ALD 485
Re Duck and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 402
Re Russell and Department of Infrastructure, Transport, Regional Development and Local Government [2009] AATA 515
Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
REASONS FOR DECISION
18 December 2009 Deputy President D G Jarvis 1. On 27 February 2009, the applicant, Louise Burns, made an application to import a 2005 Subaru Forester (the car), which her husband, Shane Horsley, had purchased when they were living in England.
2. On 12 March 2009 the Administrator of Vehicle Standards refused the applicant’s application under s 18 of the Motor Vehicle Standards Act 1989 (Cth) (the Act) because Ms Burns had not satisfied the requirement of Regulation 13(a) of the Motor Vehicle Standards Regulation 1989 (the Regulations) to have owned and used the vehicle for a continuous period of at least 12 months.
3. Ms Burns requested an internal review of the decision on the grounds that although the car had remained in England when she moved back to Australia, she continued to own the vehicle and use it for storage of personal goods. The Administrator did not accept that this met the definition of “use” in s 5 of the Act, and affirmed his decision to refuse the application.
4. Ms Burns has now applied to this Tribunal for review of the Administrator’s decision.
Issues Before the Tribunal
5. The issues before the Tribunal are as follows:
(a)whether the requirement under Regulation 13 of the Regulations to continuously own and use a vehicle for a period of not less than two months is met by “using” the car to store personal effects; and
(b)if this is not the case, whether the discretion contained in Regulation 11 of the Regulations should be exercised to allow the applicant to import the non-standard vehicle which is the subject of her application.
Background
6. Ms Burns and Mr Horsley gave evidence as to the circumstances giving rise to the application to import the car. Their evidence was largely uncontested, and was to the following effect.
7. They moved to England with their daughter on 20 February 2008 because Mr Horsley could not find work in Australia that was suitable for his skill level. He obtained employment in England as a chef in a five star country house hotel.
8. They moved to Frimley Green in Surrey, which was very close to where Mr Horsley was working. Ms Burns’ visa was for two years, and when they moved to England they intended to stay there for at least the length of that visa.
9. On 25 February 2008 Mr Horsley purchased the car from a Subaru dealership in Derbyshire. He chose this dealership because he had a contact there whom he knew and with whom he and his stepfather had had previous dealings. The car had done approximately 28,000 miles and cost £13,450, and was in very good condition.
10. After he had worked for the hotel for some time Mr Horsley accepted an offer of employment from Merrill Lynch. He was promised regular overtime which would make his overall financial position slightly better than if he stayed at the hotel. However, it became apparent soon after he began to work for Merrill Lynch that the amount of overtime promised to him was not available because of a downturn due to the global financial crisis.
11. His place of employment with Merrill Lynch was in London, and this meant that he had to commute there from Frimley Green every day. This was expensive, and Ms Burns and Mr Horsley found that they could manage to pay their bills, but had no money for anything else. In the end they were forced to move in with Mr Horsley’s mother and stepfather.
12. They said that this placed a great strain on their relationship, and they felt constrained to move back to Australia as soon as possible to avoid a break-up of their marriage. They returned to Australia on 13 December 2008, approximately ten and a half months after their move to England.
13. In the process of making arrangements for their return Mr Horsley contacted the dealer from whom he had bought the car. He had previously calculated that the car would have depreciated in value, and believed that it would then be worth approximately £10,000. He conducted an internet search of similar cars selling for £10,000 but did not find many. The dealer advised him that he was valuing the car too highly, and that many more cars similar to his were being advertised at a sale price of around £7,000. The dealer further advised that cars with turbo engines such as Mr Horsley’s were not selling at that time because of the high running costs due to the cost of petrol, and the concern people in the UK had about job security due to economic conditions there.
14. Mr Horsley was cross-examined about printouts of internet searches of Subaru Forester vehicles advertised for sale in the United Kingdom. He agreed that the asking prices shown in these printouts were greater than the value he was quoted when he spoke to his dealer. He said, however, that he had found some such cars advertised at similar prices when he conducted internet searches in England, but there were many more being sold at a lower price. It was his understanding that cars advertised at higher prices did not sell. He believed that this was still the case, based on more recent internet searches that he had conducted, which revealed that cars previously advertised remained unsold. The dealer also told him that a vehicle traded in by his stepfather in December 2007 had not been sold, and that he was unwilling to purchase the car from Mr Horsley because of the likely difficulty in selling it.
15. After Mr Horsley spoke to the dealer, Ms Burns and Mr Horsley decided that the loss they would sustain if they sold their car was too great, and decided instead to bring the car back to Australia. Mr Horsley transferred the car into Ms Burns’ name, because she thought that this would facilitate the importation, as she is an Australian citizen.
16. In his evidence Mr Horsley said that they had bought the car intending to keep it for many years. He said that it is a solid car with good child restraints and lots of room in the back for their daughter. He also said that if they are allowed to import the car into Australia then they intend to keep it for many years.
17. Mr Horsley also contended that there would now be many costs associated with selling the car. The car would need to be taxed and insured and to undergo a Ministry of Transport test to certify its roadworthiness. Ms Burns and Mr Horsley’s personal possessions would also have to be removed from the car. The car is currently being kept in Mr Horsley’s mother’s garage and he does not believe that either her or his stepfather’s health would allow them to undertake this task, and he did not think it fair to put them to the inconvenience of selling the car. Because of this Mr Horsley asserted that in order to sell the car he would have to travel back to England, and that this would entail further expense. When challenged on this point he accepted that it might be possible to hire someone to remove the items stored in the car, and to find an agent to sell the car, but he maintained that having to oversee the unpacking and the sale of the car would put his mother and his stepfather under unacceptable stress and pressure.
18. Mr Horsley also noted that the exchange rate has only worsened since they first began trying to sell the car, and as a result their loss will be even greater if they are forced to sell now than it would have been a year ago.
19. Mr Horsley maintained that his contacts in the UK tell him that there continues to be little demand for cars such as theirs and that people are hesitant to take out loans in order to purchase cars because of the insecurity of the labour market. He said that the effect of the global financial crisis on the economy in the UK has been very much more significant than in Australia.
Evidence adduced by respondent
20. In addition to tendering the printouts of internet searches to which I have referred above, the respondent called Erik Connell, an employee of the Department of Infrastructure, Transport, Regional Development and Local Government who currently works in policy support and deals with more complex import applications. He gave evidence as to the purpose of the Act and Regulations, and the relevance and significance of the Australian Design Rules (ADRs), which provide for standards that vehicles manufactured for the Australian market are required to meet, including safety standards. He said that these standards are not the same as those for other markets, although there is a move towards international standardisation through the United Nations.
21. Mr Connell suggested that it would be impossible to ensure the car meets Australian standards since the required testing includes destructive testing. He also said that while two of the destructive tests performed on cars for the Australian market are the same as those performed in the UK, there is also a third test, the full frontal test, which is not used in the UK. He suggested that therefore the only way to ensure the car meets Australian safety standards would be to perform this test. He said that even if the car was approved to be imported into Australia, it would not automatically be registrable to drive on Australian roads. He believed that the South Australian Department for Transport, Energy and Infrastructure would require at least some small modifications to the car prior to registration, although he could not say what these might be.
Legislative Scheme
22. The Regulations were made under the Motor Vehicle Standards Act 1989 (Cth) (the Act). Under s 3 of the Act, its main objects 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.”
23. Section 18 of the Act provides that a person must not import a road vehicle that is non-standard, or does not have an identification plate.
24. The prohibition in s 18 is subject to s 19, under which the Minister may approve importation subject to conditions to be determined, and s 20. Under s 20(1)(b), a person may import a non-standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. The relevant circumstances are provided for in the Regulations.
25. Under s 5 of the Act, the word “non-standard” is defined as follows, unless the contrary intention appears:
“non-standard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).”
26. Regulation 13 of the Regulations provides:
“13 Approval to import vehicle without an identification plate if owned and used by applicant overseas
The Minister must approve an application to import a non-standard 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.”
27. Under s 5 of the Act, unless the contrary intention appears, the word “use” means “in relation to a road motor vehicle—drive”.
28. Regulation 10 of the Regulations provides that a person may apply to the Minister for approval to import a non-standard road vehicle or a road vehicle that does not have an identification plate. Regulation 11 provides relevantly:
“(1)The Minister may approve an application to import a non-standard 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.
…”
Consideration
29. Ms Burns is not entitled to import the vehicle by virtue of Regulation 13 of the Motor Vehicle Standards Regulations, because whilst she has owned the vehicle for more than twelve months, it was not “used” by her for a continuous period of at least twelve months within the meaning of that Regulation. Under s 5 of the Act, “use” is defined to mean in relation to a road motor vehicle, “drive”. I agree with respect with the views expressed by Senior Member Fayle in Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317 at 324, where he said:
“In so far as the word “use” is defined to mean “drive”, common sense dictates that reg 9D [the precursor to regulation 13(a)] 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. It is, as Ms Henderson submitted, a matter of fact and degree …
That presupposes that not only should the vehicle be continuously available to be driven, that is, in this instance, registered and garaged proximate to the applicant’s home, but also, that the driver be in a situation where he or she could, if needed, continuously drive the vehicle. If either condition is not satisfied then, in the Tribunal’s opinion, those prerequisites of reg 9D are not met.”
30. Ms Burns pointed out that the vehicle is still being used, in the sense that a number of boxes of personal effects have been stored in the vehicle ever since she left the UK. However, I agree with the submissions of Mr Dillon, counsel for the respondent, that storing personal effects in a vehicle does not constitute the “use” of the vehicle for the purposes of the Act. This submission is supported by Re Russell and Department of Infrastructure, Transport, Regional Development and Local Government [2009] AATA 515, where Senior Member Allen said:
“So although a vehicle may well be in the ownership of a person, and contain some of their goods and chattels, if it is simply sitting on the docks waiting to be imported it is not in use and, hence, would not comply with regulation 13.”
31. The other regulation requiring consideration is Regulation 11. This confers an unfettered discretion on the Minister (and on this tribunal, when it stands in the shoes of the Minister) to approve importation of a non-standard road vehicle or a road vehicle that does not have an identification plate.
32. Mr Dillon referred to a number of cases as examples of the application of Regulation 11. As Senior Member Handley observed in Re Bastian and Minister for Transport and Regional Services (2007) 98 ALD 485, a number of tribunal decisions have treated the discretion under Regulation 11 as appropriate where circumstances were found to be exceptional. In a more recent case, namely Re Duck and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 402, Senior Member Carstairs observed that more recent cases have posed the question differently, that is by considering whether a refusal to exercise the discretion would result in unfairness or injustice to the applicant. It is, however, clear from the earlier tribunal cases that the discretion must be exercised in a way that is consistent with the objects of the legislation. Further, as pointed out by SM McCabe in Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48, at [11]:
“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.”
A further reason for caution in using the discretion is of course to enable the Minister to determine vehicle standards for road vehicles or vehicle components, by incorporating relevant standards which themselves have the objective of ensuring public safety.
33. Consistently with the approach referred to in the above authorities, I now examine the circumstances of the present matter, to see whether they are sufficiently exceptional to warrant approving the application to import the vehicle or whether the approval of the application would lead to an unfairness or injustice to the applicant, evaluating those issues in the context of the objectives of the legislation.
34. I have referred above to the loss in the value of the vehicle over the relatively short period since it was acquired in England, and to the evidence before me as to the further loss that will be incurred if the application to import the vehicle is not granted and it can be sold in the United Kingdom. I accept Mr Dillon’s submission that financial hardship is not a sufficient ground for granting approval under Regulation 11. However, I must consider that matter in conjunction with other facts which have led to the application to import the vehicle. These are as follows:
(a)the further loss if the vehicle is sold in the United Kingdom will now be exacerbated by movements in the exchange rate of the Australian dollar that occurred because of the unavoidable delay in processing the application to import and the application in this tribunal;
(b)the unexpected reduction in Mr Horsley’s earnings from Merrill Lynch, which significantly impacted his financial position and made it necessary for him and his young wife and daughter to go to live with his mother and step father, resulting in their returning to Australia earlier than they had planned, to save their marriage;
(c)the likely significant difficulties in effecting a sale of the vehicle in the UK, having regard to the car’s turbo engine and economic conditions there;
(d)the dealer’s unwillingness to accept the car for sale, and the practical difficulties and potential further expense in appointing someone else to sell the car in the UK;
(e)the fact that the car had been used in the UK for all but about eleven weeks of the minimum period of twelve months, after which there would have been an entitlement to have imported the vehicle into Australia;
(f)the fact that if the importation of the vehicle is allowed, Ms Burns and Mr Horsley intend to use it for their personal use, and not to re-sell it at a profit; and
(g)(unlike the position in some other cases) there is no suggestion that Ms Burns or Mr Horsley have not complied fully with the Regulations.
35. I must weigh up the factors referred to in paragraph 34 above against the policy of the legislation, which as Mr Dillon submitted, is to ensure that vehicles imported into Australia meet ADRs so as to ensure safety on Australian roads. I also acknowledge the force of Mr Dillon’s submission to the effect that having regard to the existence and purpose of the national scheme, the discretion under Regulation 13 should be exercised sparingly, and only if there is good reason to do so and the objectives of the legislation are not compromised.
36. Mr Dillon also referred to evidence that the child safety harness fittings differed in the UK from the requirements of ADRs. However, Mr Horsley said that he was willing to attach child restraints in the vehicle to the chassis, and to ensure that they were fitted in a safe manner, and it appears that this issue is one that can be readily overcome. In response to a further concern raised by Mr Dillon, Mr Horsley said that the instruments in the vehicle had both imperial and metric calibrations.
37. I also note that late in the hearing, it emerged that Mr Horsley had previously attempted to ascertain whether the vehicle complied with ADRs, by making inquiries of the manufacturer, but was unable to resolve this issue. It is, however, common ground (as Mr Horsley’s inquiries confirmed) that the vehicle was built to European Community standards. I think that I can use my own knowledge, and take judicial notice, of traffic conditions in Europe and the common existence of high speed motorways there. I also think I can assume that European standards are likely to place emphasis on matters of safety and would, for example, exceed standards that might exist in some third world countries. Further, the car was manufactured relatively recently, in 2005, and there is no evidence that there have been any significant changes in vehicle safety requirements since then. It is a vehicle of a type that is commonly available in Australia, and Subaru vehicles have been sold in Australia for many years. In addition, as Mr Horsley submitted, there would have been an entitlement to bring the car into Australia if it had been used in the UK for a further relatively short period of some eleven weeks.
38. From the evidence before me, I consider that whilst none of the individual factors referred to in paragraphs 34, 36 and 37 above might be sufficient in itself to warrant the exercise of discretion under Regulation 11, the combination of those factors is so sufficient. I accordingly consider that this is a matter where it would be appropriate for me to exercise my discretion pursuant to Regulation 11, and to approve the importation of the car.
39. I note that under Regulation 11(2), conditions may be attached to an approval to import the car. I am not sure whether the imposition of conditions would be appropriate in this matter, bearing in mind that there would have been an absolute entitlement to import the car if it had been used in the UK for about eleven more weeks. However, I will give the respondent the opportunity to make further submissions in writing on or before 11 January 2010 as to whether any, and if so, what conditions should be imposed.
40. If the respondent does not wish to avail itself of the above opportunity, then it should promptly notify Ms Burns and my associate accordingly. In that event, or if no further submissions are filed and served by 11 January 2010, the approval to import the car will be unconditional. If, however, further submissions are received, and are not acceptable to the applicant, I will arrange for the matter to be listed promptly for further argument.
Decision
41. The tribunal sets aside the decision under review, and in place of that decision, decides that the applicant’s application to import the Subaru Forester vehicle referred to in the application dated 27 February 2009 be approved. The tribunal reserves liberty to the respondent to make submissions on or before 11 January 2010 as to any conditions to which the approval should be subject, and if no submissions are received by that date, the approval to import the vehicle will be unconditional.
I certify that the 41 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
B. Bills Admin AssistantDate/s of Hearing 7 December
Date of Decision 18 December 2009
Applicant In person
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
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