Dang and Department of Transport and Regional Services
[2000] AATA 1035
•27 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1035
ADMINISTRATIVE APPEALS TRIBUNAL ) N2000/1129-1131
)
GENERAL ADMINISTRATIVE DIVISION )
Re BINH THI DANG, NGOC PHUONG THAI DANG, JACKIE DANG
Applicants
And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal The Hon Mr R N J Purvis, QC, Deputy President
Date27 November 2000
PlaceSydney
Decision The decisions under review are affirmed.
[Sgd] R N J Purvis
Deputy President
CATCHWORDS
TRANSPORT – purchase of motor vehicle in Japan – brought into Australia – whether vehicles owned and used for a continuous period of three months overseas – intent – inconsistent evidence - whether owned vehicles in Japan – whether drove vehicles in Japan – whether bona fide personal possessions – whether Australian citizens returning from long periods overseas.
Motor Vehicles Standards Act 1989 ss3, 18, 20, 5
Motor Vehicles Standards Regulations
REASONS FOR DECISION
The Applications:
There are presently before the Tribunal three applications, each one of which relates to the bringing into Australia of a motor vehicle said to have been purchased by each of the Applicants in Japan. The Applicants are related. Miss Binh Thi Dang is the sister and Mrs Ngoc Phuong Thai Dang the wife of Mr Jackie Dang. They will be referred to by this relationship in these reasons.
The parties and the Respondent agreed to the applications being heard together, the evidence in the one being evidence in each of the others.
By a decision made in each matter the delegate of the respondent, the Administrator of Vehicle Standards (herein referred to as "the Administrator") on 7 June 2000 determined that:"…
From the information you have supplied in respect of your application you do not satisfy the requirement to have used the vehicle for at least three months. Accordingly I am not prepared to approve your application to import your…" (T8)
Other than for the identification of the relevant motor vehicle the determinations were identical. Having reconsidered the matter, at the request of the Applicants, the Administrator on the 28 June 2000 stated:
"…
I have reconsidered your application dated 19 May 2000 as you have requested. I note that someone other than you appears to have signed the declaration at part 11 of the application.
In considering your request, I have had regard to the importance of the personal import scheme which is to enable bona fide migrants to bring their motor vehicle with them, as a significant personal possession, when migrating to Australia. It is not intended that the scheme should be used to provide a mechanism for short term travellers to bypass the restrictive arrangements applying to the import of motor vehicles into Australia. These arrangements are deliberately prohibitive to ensure the integrity of the safety and emission standards mandated by the Australian Design Rules. The information provided in your letter of 13 June 2000 does not raise any material which would lead to a change in the previous decision.
…" (T10)
In his statement of reasons dated 16 August 2000 the Administrator further stated:
"…
In reviewing my decision dated 7 June 2000, I considered the Applicant's statement that the vehicle was first registered overseas in his name on 13 February 2000…The Certificate of Translation of Registration, however shows that the vehicle was registered to Mr Nguyen Zuan (sic) Yen on 10 May 2000…On this basis I formed the view that the vehicle had not been registered overseas in the Applicant's name and that the Applicant had not owned the vehicle for at least three continuous months.
…
I further considered the Applicant's explanation for not satisfying the requirement of sub-regulation 9D(a)…and formed the view that the Applicant's explanation did not change the fact that the Applicant did not satisfy the "ownership" and "use" requirements of sub regulation 9D(a).
I further considered the purpose of Regulation 9D which is to enable bona fide migrants and Australian citizens returning from long periods overseas to import their motor vehicle. The use of Regulation 9D to provide short term travellers with a means to bypass the restrictive arrangements which apply to the import of motor vehicles into Australia is inconsistent with the policy and regulatory framework which has been set in place to control motor vehicle imports.
On the basis of my considerations … I affirm my decision dated 7 June 2000." (T2)
The hearing:
At the hearing of these applications the Applicants appeared on their own behalf. The Administrator was represented by Ms Rhonda Henderson of counsel.
There was introduced into evidence the documents lodged by the Administrator in each application marked T1–T10. The parties tended written material which was received as exhibits namely:
Exhibit No. Description
A Original of T4 page 21 – J Dang
B Facsimile dated 13 September 2000.
C Original of T6 page 24, declaration of Nguyen Xuan Yen, dated 11 May 2000.
D Original of T5 page 23 - J Dang. Japanese Certificate of Cancellation of Registration.
E Statement on letterhead of Ya Ma Ka Wa Sho Kai, dated 20 October 2000.
F Letter of Luu Van Bong and Sugimar Toshio, dated 28 October 2000.
G Statement of Nguyen Ngoc, dated 6 September 2000. Bank statement of Ngoc Phuong Thai, dated 24 March 2000. Commonwealth bank statement of Mr N D Nguyen, dated 18 January 2000.
H Original of T4, page 20 – B T Dang.
Internet printout re registration in Japan.
J ANZ bank statement of Thi Binh Dang.
K Handwritten statement signed by all three Applicants, dated 8 September 2000.
L Photocopies of International Drivers Licences of the three Applicants.
M Handwritten statement of Ngoc Phuong Thai Dang, dated 8 September 2000.
Relevant statutory provisions
At the time of presenting the Motor Vehicle Standards Bill 1989 and in his second reading speech the then Minister for Land, Transport and Shipping Support inter alia stated that the:
"principal objective of this Bill then is to enable the Federal Government to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community".
The Minister continued by saying:
"…
As it happens this is a timely Bill. Honourable Members will be aware that there have been increased imports of sub-standard second-hand motor vehicles…I'm advised that some examples of ways these vehicles do not meet the design rules include a lack of protection against side impacts, inferior seat belts and lack of child restraint fittings. Other examples include inferior tyre and braking standards. This is because they are built for low-speed driving in densely populated cities such as those in Japan and Japanese cars just do not travel as far or as fast as cars used in Australia…The design rules thus reflect the views of the Australian community regarding the level of safety and environmental quality it wants…Provision will also be made in the regulations for the importation of vehicles which are bona fide personal possessions. This will apply to migrants or Australian citizens returning from long periods overseas…In summary this Bill will provide for the first time in Australia a single set of standards dor the design and construction of motor vehicles and trailers. As a direct result of this national uniformity every Australian will benefit. The vehicle industry will not be faced with additional costs which have to be passed on to the buyer. The safety and environmental standards which we have all come to expect will be enforced and those few unscrupulous operators who are looking to make a quick profit at the expense of our community safety will have to meet those same standards".
The Motor Vehicle Standards Act 1989 makes provision for the legislative intent. Section 3 stipulates that the object of the Act is:
"…to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia".
Section 18 prohibits importation of non-standard vehicles and provides in subsection (1):
"Subject to sections 19 and 20 a person must not knowingly or recklessly import a road vehicle that:
…
(b)does not have an identification plate.
…"
Approval to import certain non-standard vehicles may be obtained, section 20 providing here as relevant:
(1)A person may import a non-standard road vehicle or a vehicle that does not have an identification plate:
…
(b) in prescribed circumstances.
…
(3)Regulations for the purposes of 1(b)…may provide for the importation, whether generally or in specified circumstances, of a road vehicle, or a vehicle component, as the case may be:
(a) with the written approval of the Minister; or
(b)with such approval subject to written conditions determined by the Minister…"
The relevant regulations are the Motor Vehicle Standards Regulations made under the Act, paragraph nine of which provides:
"…
For the purposes of section 20(b) of the Act a person may import a non-standard road vehicle or a vehicle that does not have a compliance plate if the Minister has approved an application by the person to import the vehicle".
Regulation 9D provides for approval to be given to import a vehicle without a compliance plate if it has been owned and used by the Applicant overseas. More specifically it states:
"The Minister must approve an application to import a non-standard road vehicle or a road vehicle that does not have a compliance plate:
(a) the vehicle has been owned and used by the applicant for a continuous period of at least three months; and
…"
The issues for determination in the hearing of these applications is whether in the context of the legislation and the regulations the relevant vehicles were owned and used by the applicants for a continuous period of at least three months overseas.
The evidence and findings of fact:Mr Dang, his now wife and his sister, all Australian residents, each had the intention of buying a car in Japan and having the car brought back to Australia. Prior to their departure from Australia in January 2000 Mr Dang had contacted a motor vehicle dealer he knew in Japan, namely Mr Nguyen Xuan Yen of Ya Ma Ka Wa Sho Kai and discussed with the dealer the purchase of vehicles. Mr Dang was told that:
"I can sell you a car but I can't transfer it into your name. It has to be under my name."
Mr Dang said in evidence that he knew he could not register a car in his name in Japan.
Leaving Australia together, Mr Dang and the two ladies travelled to Canada and the USA, visiting Las Vegas and other cities. There they travelled together. They had a substantial amount of Australian currency with them. Mrs Dang said that she had $8500 in cash, Ms Dang $9000 also in cash. Whilst in Canada and the USA they seemingly used their credit cards and/or ATM machines to obtain necessary funds.
On their arrival at Narita Airport Tokyo, Japan, on 12 February 2000 the Australian currency was converted into respectively 375,000 and 512,000 Japanese Yen. Mr Dang said that he borrowed 300,000 Yen (about $5000 Australian) from a cousin, this seemingly on the day of his arrival.
According to the wife on 12 February 2000, they "stopped at two car dealers" and "then at the dealership of Mr Nguyen" where she selected an RX7 Mazda and "test drove it". Mr Dang made no mention of going to the dealership of Mr Nguyen on 12 February but did say that they had stopped at other dealerships on that day for a period of about five or ten minutes at each. According to Mr Dang it was on 13 February 2000 that he and the ladies went to the dealership of Mr Nguyen and there each made a decision as to the purchase of a motor vehicle. Mr Dang selected a Mazda XR7 as did his wife. Ms Dang, the sister, selected a BMW 3201 vehicle. According to the Applicants the moneys that they had in their possession, 375,000 Yen in the case of Mrs Dang, 512,000 Yen in the case of Ms Dang, and 300,000 Yen in the case of Mr Dang were handed to Mr Nguyen. Mr Nguyen gave to each of them a document headed "Invoice", a form of receipt and according to Mr Dang a document entitled "Certificate of Cancellation of Registration". Except for the name, description of vehicle and amount, the "invoices" were in identical format and in the case of Mr Dang read:
"Ya Ma Ka Wa Sho Kai
…
Invoice
…
13 February 2000
Sold to: Jackie Dang
17 O'Hara Street
Marrickville NSW 2204 Australia
Ussed (sic) passenger car
Mazda RX-7
Year: 1993
Chassis No: FD3S-117400
Prices: Yen 387,000
…" (T4)
The document entitled "Certificate of Cancellation of Registration" was in each case issued by the branch head of Saitama District Land Transport Bureau Kanto Bureau of Transport in Japan. It recited the date 10 May 2000, a description of the vehicle, the name of the owner as "Nguyen Xuan Yen" and his address in Japan. The certificate was, according to Mr Dang, kept in the car or cars. It is noted by the Tribunal that this evidence as to the coming into existence of the certificate and it being handed to the Applicants and retained by them, appears to be inconsistent with the evidence appearing on the face of the document. The document itself is dated 10 May 2000, the date of registration/issue also being 10 May 2000. It is possible that the certificates were post dated but there is no evidence to this effect.
The Applicants said they drove the vehicles that they had obtained during their stay in Japan. According to Mrs Dang "I never thought of insuring the car" and although she had an international driver's licence she "knew nothing about road rules in Japan". She stayed with friends, Mr Dang staying at different places. Mrs Dang said she drove the RX-7 to the place where Mr Dang's sister lived and that she "went there a lot". As well she said they went on trips with friends and relatives who, even though they had their own cars, travelled with Mr Dang, his wife or sister in their own individual vehicles. According to her "we wanted to go out with our cars". Mr Dang said that he drove the car that he had obtained helping his cousin with shopping, taking children to school and "went around". He drove, he said, once to Kyoto. He did not insure the vehicle that he was driving. He said that he was not accompanied by his wife, then his girlfriend, or his sister. They, he said, drove their own cars. Mrs Dang, however, "was sick and did not want to go, she stayed at home". Mr Dang did travel with his now wife on two or three occasions in Tokyo. He stayed with friends generally at different locations to the wife and sister. Sometimes his sister stayed with him, sometimes not. He made one trip with his sister. Most times he said, "we went in different cars" and when the wife and sister went "they took their own cars".
On 11 May 2000 they each returned with the vehicles to the dealership of Mr Nguyen. They were each given a document headed "Declaration" which except for the description of the vehicle, name and other personal details was identical the one to the other. That in the name of Mr Dang read:
"Ya Ma Ka Wa Sho Kai
…
Declaration
11 May 2000
Refer: Sold Mazda RX-7 Year 1993
I, Mr Nguyen Xuan Yen, Managing Director of Yamakawa Shokai.
I,ve (sic) sold one unit used RX-7 year 1993
Chassis number FD3S-117400
Purchaser Mr Jackie Dang
D.O.B: 14 Aug 1970
Passport Number: K2759049
International Driving Permit Number: L60187
Mr Jackie used this car during his three months stay in Japan on vacation. My responsibility is to help him send this car to Australia. I write a letter truely (sic) with the best of my knowledge. Certified and confirmed by Nguyen Xuan Yen."
(T6)
The Applicants were at that time also handed the abovementioned Certificates of Cancellation of Registration. According to Mr Dang, Mr Nguyen gave each of them a "temporary number plate" with which they each used the cars on 10, 11 and 12 May before returning them to Mr Nguyen. There was no mention of the later use of the vehicles in the original applications to the Administrator of Mr Dang, the wife or the sister. In his evidence before the Tribunal Mr Dang said the vehicles were returned on 10 May 2000 "for safety, it was festival season and hard for travelling". He said that they might otherwise be late for their flight on 12 May. This evidence is again inconsistent with the information on the cancellation document. In a letter of 13 June 2000 to the Administrator Mr Dang stated:
"…
Furthermore, my visa entry to Japan for holidays specified that I could only be stayed (sic) in Japan up to ninety days and that there would be a severe penalty for those who breached this law. Therefore, I for safety had to return the "numberplate" to the RTA of Japan on the 10th of May 2000. That is just two days before my visa expired to get my papers back and to make sure that I could leave on the correct day as specified by the visa."
(T9)
The statement there made is also inconsistent with the evidence Mr Dang gave orally to the Tribunal. The oral evidence so given by him is not accepted.
In a document tendered by the Applicants at the hearing, Exhibit E, purporting to be signed by Mr Nguyen and dated 20 October 2000 it is stated inter alia:
"This is certify and confirm (sic) that 3 customers below have bought 3 used cars at my dealer and have used their original number plates for a period of three months from 12-2-00 to 10-5-00 for travelling in Japan.
They also have used a temporary number plates (sic) provided by me for driving from period from 10-5-00 to 12-5-00 respectively as follows…also to confirm that these cars were registered unde (sic) my name on their behalf only because they do not have residential address, stamp and parking spot. Further information please do not hesitate to contact me on the address above."
Likewise in a document purporting to emanate from two people in Japan (Exhibit F) it is stated:
"To whom it may concern.
This is to certify that Mr Jackie Dang at…Ms P.T. Dang at…and Ms Thai Binh Dang at…have respectively owned and used…for travelling in Japan from 12-2-00 to 12-5-00…we have known these people during their stay in Japan from 12 February 2000 to 12 May 2000.
…
Further information please contact us."
No one of the Applicants before the Tribunal contended or contend that they bought their vehicles on 12 February and used them from that day onwards. The Tribunal is not satisfied that it should give weight to the material contained in Exhibits E and F.
On their return to Australia the Applicants handed the documents above referred to, as being given them by Mr Nguyen, to a freight forwarding agent, "Control Customs". Under date 19 May 2000 three application forms seeking approval for importation of the vehicles were completed and received by the Administrator on 22 May 2000. The form in the name of Mr Dang inter alia stated:
"Date of your arrival in overseas country where vehicle was first registered 12/2/00
Date of first overseas registration of vehicle in your name 13/2/00
Date you stopped using the vehicle overseas 10/5/00". (T3)
That in the name of the wife:
"Date of your arrival in overseas country where vehicle was first registered 12/2/00
Date of first overseas registration of vehicle in your name 13/2/00Date you stopped using the vehicle overseas 10/5/00". (T3)
And that in the name of the sister:
"Date of your arrival in overseas country where vehicle was first registered 12/2/00
Date of first overseas registration of vehicle in your name 13/2/00Date you stopped using the vehicle overseas 10/5/00". (T3)
The date of the "first overseas registration of vehicle in your name" namely 13 February 2000 was incorrect in each instance.
The sister, a single mother of a young child, said that she bought the BMW, a four-door vehicle, as a "convenient" car for herself and the child. She had previously been in Japan in 1995. She knew that she could not buy the car in Japan, she not being a resident. Nevertheless she said she paid the money. No thought was given to insurance. She did not own a car in Australia and knew that buying a car in Japan was "much cheaper" than in Australia.
According to Mr Dang, he and his now wife decided to get married after they returned from Japan. They married so he said in his evidence in August 2000. Mrs Dang, his wife, said that they married on the 23 October 2000.
Contentions, submission and decision:On behalf of the Administrator it was submitted that the Applicants did not complete a three months ownership of the vehicles as a minimum period and did not use the vehicles in the sense of driving the vehicles (section 5 of the Act) whilst in Japan. Even if it was submitted that they did use the vehicles, the relevant period was from 13 February to 10 May 2000. The Tribunal, it was contended, should reject the evidence latterly obtained as to the existence of provisional plates and find that the Applicants did return the vehicles on the dates specified on the cancellation documents namely 10 May 2000.
The Tribunal is not satisfied that the Applicants used the vehicles, assuming for this purpose that they did so other than from 13 February to 10 May 2000. On the basis of the evidence before the Tribunal it is not satisfied that Mrs Dang or Ms Dang used their vehicles in the sense of driving their vehicles within the meaning of the Act whilst in Japan.
The applications were refused in June 2000; the material tendered in Exhibits E and F was obtained in October. They are in the respects earlier mentioned inconsistent with the sworn evidence of the Applicants.
The Tribunal accepts the Certificates of Cancellation in that they evidence the ownership by Mr Nguyen of the vehicles up to 10 May 2000 on which date registration was purported to be cancelled. Even be it that a document the like of the cancellation certificate was given to the Applicants to retain while they drove the vehicles, the same does not evidence ownership by them of the respective motor cars. The vehicles at all relevant times were registered in the name of Mr Nguyen.
The Applicants did not ensure that any one of the vehicles was insured. They may have been insured by Mr Nguyen of his own accord but no one of the Applicants inquired or had knowledge of this fact. Likewise they displayed no awareness of the road rules for driving in Japan. This evidence can only raise doubt as to the Applicants, and more particularly the wife and the sister, driving the cars at all during their stay in Japan. The evidence given by them was to the effect that whilst in Canada and the USA they travelled as a group. They said that whilst in Japan they each drove their own cars even be it that they were going to the same location. Again it seems to the Tribunal that practice of the latter kind would be highly unlikely.
Generally the evidence given by the Applicants as to their activities in Japan and the use to which they might have put the vehicles is not persuasive.
It was submitted on behalf of the Administrator that at no time did the Applicants become the owners of the vehicles and that the Tribunal should be in doubt as to whether the Applicants used them, that is drove them, in the context of the legislation whilst they were in Japan. The Tribunal has already made findings as to the driving. Whilst the Applicants may have paid money to Mr Nguyen on 13 February 2000 the Tribunal is satisfied that no one of them became an owner of a vehicle whilst in Japan at least up until 10 May 2000 and that from 13 February 2000 to at least 10 May 2000 the vehicles were registered in the name of Nguyen. The other documentation tendered in evidence does not establish ownership in the Applicants.
The Applicants admitted that they had stayed in Japan for the period of their visas in the belief that this would be sufficient to enable them to return to Australia and have the motor vehicles entered into the country. They were each aware of the inability for them to be registered as owners of the vehicles but believed that by means of the stratagem adopted they would satisfy the statutory requirements. The Tribunal is not satisfied that this was or is so. The Tribunal is satisfied that the Applicants sought to buy vehicles in Japan at a substantially lesser price than they would pay for them in Australia. As to their intent in the event of the vehicles entering Australia there is insufficient evidence other than to say that Mr Dang is and has been for the last twelve months the owner of a Camry motor vehicle and indicated that in the event of the Mazda being imported he would sell the Camry. Ms Dang did say that she would use the BMW for herself and her young child. Mrs Dang gave no evidence as to the use to which she would put her Mazda.
The consequences of this decision may in a financial sense be unfortunate for the Applicants. They did however each create the situation in which they now find themselves. They each sought to avail themselves of a statutory provision with which they hoped to comply. They have not done so. The Tribunal is not satisfied that the relevant vehicles were "bona fide personal possessions" of the Applicants and is not satisfied that the Applicants were "Australian citizens returning from long periods overseas". Their intent in remaining in Japan for the period of their visa was to satisfy so they thought the statutory time limit. They did not do so.
For these reasons the decisions under review are affirmed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 7 November 2000
Date of Decision 27 November 2000Self-represented Applicants
Counsel for the Respondent Ms Rhonda Henderson
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