Cathcart and Secretary, Department of Transport and Regional Services
[2005] AATA 33
•14 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 33
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/629
GENERAL ADMINISTRATIVE DIVISION ) Re MARK CHRISTOPHER CATHCART Applicant
And
SECRETARY, DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Deputy President Don Muller
Senior Member P. M. McDermottDate14 January 2005
PlaceBrisbane
Decision The Tribunal affirms the decision to refuse an application by Mark Christopher Cathcart to import a 1998 Subaru Legacy motor vehicle.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
TRANSPORT – import approval for road vehicle less than 15 years old – two other vehicles imported within previous year – Regulation 13 not satisfied – no exceptional circumstances - discretion not exercised in favour of applicant – decision affirmed
Motor Vehicle Standards Act 1989
Motor Vehicle Standards Regulations 1989: 11, 12, 13, and 17
Trajkovski v Department of Transport and Regional Services [2000] AAT 1073
Albanus v Department of Transport and Regional Services [2001] AAT 12
Anthony v Department of Transport and Regional Services [2001] AAT 543
Fraser v Department of Transport and Regional Services [2003] AAT 44
Lai v Department of Transport and Regional Services [2003] AAT 861
Van Duyker v Department of Transport and Regional Services [2004] AAT 1073 at [23]
REASONS FOR DECISION
Deputy President Don Muller
Senior Member P. M. McDermott1. Mark Christopher Cathcart, the Applicant, is an Australian schoolteacher who has been living and working in Japan since July 1998.
2. Mr. Cathcart has been involved from time to time in the importation into Australia of motor cars from Japan.
3. On 7 February 2003, Mr. Cathcart purchased a 1998 Subaru Legacy in Japan. On 5 June 2004, he applied to the Australian Department of Transport and Regional Services to import the Subaru from Japan into Australia. The Subaru was not built to comply with Australian National Standards when it was first manufactured. It did not have an Australian Compliance Plate.
4. On 12 July 2004, the Administrator of Vehicle Standards refused the application in relation to the Subaru on the ground that the Motor Vehicle Standards Regulations 1989 did not allow for the import of a road vehicle less than 15 years old if at the anticipated date of landing the vehicle in Australia, the importer had already imported at least one other road vehicle within the previous year. Mr. Cathcart had previously imported a 1971 Ford Mustang on 3 June 2004 and he had also received approval on 8 July 2004 to import a 1988 BMW, (which was landed in Australia on 2 August 2004).
5. Mr. Cathcart seeks a review of the decision to refuse his application.
6. The Motor Vehicle Standards Act 1989 makes it an offence to import vehicles into Australia unless they meet the National Standards, except in circumstances where an exemption has been granted by the Administrator of Vehicle Standards.
7. A vehicle which is “non-standard” or does not have an Australian Compliance Plate can be imported if it is allowed under the circumstances set out in the Motor Vehicle Standards Regulations 1989. Regulations 11, 12, 13 and 17 set out the circumstances in which approval is to be granted.
8. Regulation 11 allows for discretion to be exercised by the Minister. However, the decided cases have consistently held that the discretion is to be exercised only in “exceptional circumstances”.
9. Regulation 12 allows for approval to import if the vehicle complies with the National Standards but does not have an Australian Compliance Plate. This regulation does not apply to the subject Subaru.
10. Regulation 13 is relevant to this application and 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 on or before 8 May 2000 – 3 months; or
(ii)for a vehicle to which subparagraph (i) does not apply but for which the application is made on or before 8 November 2000 – 3 months; or
(iii)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.”
11. It is common ground that Mr. Cathcart and his Subaru comply with all of the parts of regulation 13 except 13(e). The matters for determination by the Tribunal are:
(a)Whether Mr. Cathcart satisfies sub-regulation 13(e); and
(b)If he does not, whether the discretion allowed for under regulation 11 should be exercised in his favour.
12. If approval for import of the Subaru had been granted in July 2004, the car would probably have been landed in Australia in August 2004 or September 2004. His import of the Ford Mustang on 3 June 2004 and the approval for import of the 1988 BMW on 8 July 2004, to be landed in Australia in August 2004, were both well within the year ending on the day on which it was anticipated the Subaru would be landed in Australia.
13. Approval for the 1971 Ford Mustang and the 1988 BMW were given pursuant to regulation 17, which provides:
“17 Approval to import vehicles of a certain age without identification plates
The Minister must approve an application to import a non-standard road vehicle or a vehicle that does not have an identification plate if the vehicle is 15 or more years old.”
14. The following table lists the cars imported by Mr. Cathcart.
Year
Of ManufactureMake
Approval Date
Date Landed in Australia
1994
Honda Prelude
27 July 1999
3 October 1999
1993
Toyota Supra
14 Sept 2000
13 October 2000
1995
Subaru Legacy
5 March 2002
12 April 2002
1987
Mercedes Benz
300SE3 October 2002
2 November 2002
1996
Subaru Legacy
6 May 2003
23 May 2003
1971
Ford Mustang
22 March 2004
3 June 2004
1988
BMW 525i
8 July 2004
2 August 2004
1989
Nissan 300ZX
23 July 2004
28 August 2004
15. It is noted in the list above that in the case of the 1996 Subaru Legacy, for which import approval was granted on 6 May 2003, the approval was granted by mistake. Mr. Cathcart had earlier imported the 1987 Mercedes Benz 300SE and landed it in Australia on 2 November 2002, which was well within the year of the anticipated landing of the 1996 Subaru in May 2003.
16. Mr. Cathcart gave oral evidence on affirmation by telephone from Japan. He made the following points:
(a)Due to the fact that he had been granted approval to import the 1996 Subaru Legacy in May 2003, not withstanding that he had imported the 1987 Mercedes Benz in November 2002, he was led to believe that vehicles of 15 years or older which were permitted to be imported under regulation 17, were not counted as “road vehicles” for the purposes of sub regulation 13(e).
(b)When the application the subject of this review was refused, he thought that there must have been a change in the legislation.
(c)If approval is not granted for the import of this Subaru until after mid 2005, he will lose the opportunity to make a profit of about $10,000.
(d)The loss of the opportunity to make a profit of $10,000 coupled with the fact that he had been led into error by the mistake made when he was granted approval in 2003, constitute exceptional circumstances such that the Tribunal should exercise its discretion under regulation 11, in his favour.
(e)He was also confused by the answers he received after an email enquiry on 16 May 2002.
17. The Tribunal considers that the term “road vehicle” has the same meaning in sub-regulation 13(e) as it has in the “Interpretation” part of section 5 of the Act, namely,
“road vehicle means:
(a) a road motor vehicle;
road motor vehicle means:
(a)a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods; or
(b)a motor vehicle that is permitted to be used on public roads.”
18. The 1971 Ford Mustang and the 1988 BMW were both “road vehicles” within the meaning of that term in sub-regulation 13(e).
19. The Administrator was correct when he determined that Mr. Cathcart and his 1998 Subaru did not comply with sub-regulation 13(e).
20. The question remains as whether the allowed for discretion should be exercised in Mr. Cathcart’s favour.
21. The Tribunal in a number of cases has considered the discretion that is vested in the Minister under regulation 11 of the Motor Vehicle Standards Regulations. The Tribunal has previously ruled that the discretion under the predecessor provision to this regulation has to be exercised having regard to the policy sought to be achieved by the legislation. In Trajkovski v Department of Transport and Regional Services [2000] AAT 1073 Deputy President Purvis stated at [34]): “The primary position or policy as expressed by the legislature is that non-standard road vehicles should not be imported into Australia. Cogent reasons as to why the adoption of that policy would be unjust to the Applicant needs to be established.”
22. In Trajkovski v Department of Transport and Regional Services [2000] AAT 1073 Deputy President Purvis observed (at [32] ) that the policy framework as seen in the legislation and referred to in the Second Reading Speech of the Minister who introduced the Bill should be considered in the context of the exception provisions. The relevance of the Second Reading Speech has recently been reiterated: see Van Duyker v Department of Transport and Regional services [2004] AAT 1073 at [17]. In the Second Reading Speech the Minister stated that the principle objective of the Bill is to enable the establishment and application of national uniform standards for motor vehicle safety and environmental quality.
23. We adopt the positions taken by the Tribunal in the cases of Trajkovski and Van Duyker. The primary position as expressed by the legislature is that non-standard road vehicles should not be imported into Australia. However, the Regulations allow for some relaxation of the primary position in circumstances such as those contained in regulations 12, 13 and 17, mentioned above. Any further relaxation of the primary position should require, as Deputy President Purvis said, “cogent reasons”.
24. In a number of decisions the Tribunal has consistently held that the discretion under regulation 11 and the predecessor provision should only be exercised in exceptional circumstances: see, Trajkovski v Department of Transport and Regional Services [2000] AAT 1073; Albanus v Department of Transport and Regional Services [2001] AAT 12; Anthony v Department of Transport and Regional Services [2001] AAT 543; Fraser v Department of Transport and Regional Services [2003] AAT 44; Lai v Department of Transport and Regional Services [2003] AAT 861; Van Duyker v Department of Transport and Regional Services [2004] AAT 1073 at [23].
25. In considering whether there are exceptional circumstances present in this case it should be mentioned that Mr. Cathcart did not tender any evidence of his financial position. It appears that the anticipated hardship he may suffer is because he would have to retain the vehicle for a period of more than two years. However, the purchase of a motor vehicle for personal use is not uncommon and does not in itself constitute exceptional hardship.
26. Additionally, the Tribunal does not consider that the failure to realise a potential profit constitutes exceptional circumstances.
27. As to the error in administration which mistakenly granted approval for the 1996 Subaru in May 2003, the Tribunal considers that the error in 2003 could not justify another departure from the policy of the legislation in 2004.
28. As to the email enquiry and answer exchange between Mr. Cathcart and the Department on 16 May 2002, there may have been some confusion generated, but much of the confusion was due to the imprecise nature of Mr. Cathcart’s question. He did not fully disclose the facts of his case. He made no mention in his enquiry of the fact that he had previously received an approval to import a vehicle under regulation 17.
29. The Tribunal notes that Mr. Cathcart has imported eight vehicles since 27 July 1999, including being the “beneficiary” of an administrative error in the case of one of the imports.
30. There are no exceptional circumstances that would justify the exercise of discretion in Mr. Cathcart’s favour under regulation 11.
31. The Tribunal affirms the decision to refuse the application to import the 1998 Subaru Legacy.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller, Senior Member P. M. McDermott.
Signed: .....................................................................................
B. Hitchcock, Personal AsstDate/s of Hearing 1 December 2004
Date of Decision 14 January 2005
Applicant Mr. Cathcart, himself
Solicitor for the Respondent Mr. A. Field, Clayton Utz
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