DR TING-YING TSENG and MINISTER FOR INFRASTRUCTURE AND TRANSPORT
[2012] AATA 159
•14 March 2012
[2012] AATA 159
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4624
Re
DR TING-YING TSENG
APPLICANT
And
MINISTER FOR INFRASTRUCTURE AND TRANSPORT
RESPONDENT
DECISION
Tribunal Mr C. Ermert
Date 14 March 2012 Place Melbourne The Tribunal sets aside the decision under review and exercises the discretion afforded in regulation 11 of the Motor Vehicles Standards Regulations 1989 to grant the application to import a non-standard motor vehicle.
........................................................................
Mr C. Ermert
CATCHWORDS
INFRASTRUCTURE AND TRANSPORT - motor vehicles - non-standard motor vehicle - application to import - vehicle not owned and used for twelve months - discretion under regulation 11 - decision set aside
LEGISLATION
Motor Vehicle Standards Act 1989 ss 3, 18, 20
Motor Vehicles Standards Regulations 1989 regs 11, 13
CASES
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43
Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540
Heath and Minister for Infrastructure Transport, Regional Development and Local Government [2009] AATA 9Burns and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 972
REASONS FOR DECISION
Mr C. Ermert
INTRODUCTION
In October 2009 Dr Ting-Ying Tseng, the applicant in this case, travelled to the United Kingdom (UK) with her daughter who was 14 years old at the time. Dr Tseng enrolled her daughter in school with the intention of educating her daughter in the UK to university level. When entering the UK the customs officials informed Dr Tseng that she was not eligible for a parent visa to stay with her daughter as her daughter was over the age of 13. Dr Tseng was given a visa for six months only.
In December 2009 Dr Tseng travelled to Taiwan before returning to the UK in May 2010. On 5 July 2010 Dr Tseng signed a 12 months lease on a house in the UK in which to live with her daughter. On 18 July 2010 Dr Tseng again travelled to Taiwan and returned to the UK on 17 August 2010.
On 3 September 2010 Dr Tseng purchased a 2010 Mercedes-Benz C180 (the vehicle) in order to drive her daughter to and from school and for other household needs. Dr Tseng registered the vehicle in her name on the same day.
On 5 January 2011, on returning to the UK from another trip to Taiwan, a UK customs official informed Dr Tseng that the terms of her visa did not allow her to continue this pattern of living in Taiwan and the UK. As she could not continue to live in the UK with her daughter, Dr Tseng made the decision to emigrate to Australia. They left the UK in March 2011, travelled via Taiwan, and arrived in Australia on 20 April 2011. Dr Tseng continues to own the vehicle, which is currently in storage in UK.
On 5 September 2011 Dr Tseng applied to import the vehicle into Australia. On 20 October 2011 an officer of the Department of Infrastructure, Transport, Regional Development and Local Government refused the application. This matter is an application for a review of that decision.
THE HEARING
Dr Tseng appeared in person at the hearing and gave evidence under oath. She was assisted by an interpreter in the Mandarin language. Dr Tseng was assisted by her daughter. The respondent was represented by Mr Andrew Dillon, Senior Executive Lawyer with the Australian Government Solicitor. I had before me the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and a Statement of Facts, Issues and Contentions of the Respondent dated 21 February 2012. Dr Tseng tendered a technical specification for the vehicle, which I accepted as Exhibit A1.
THE ISSUE
Section 18 of the Motor Vehicles Standards Act 1989 (the Act) prohibits the importation of a vehicle that is nonstandard or does not have an identification plate. Section 20 of the Act, however, provides that such vehicles may be imported in prescribed circumstances. The circumstances are prescribed in Motor Vehicles Standards Regulations 1989 (the Regulations). Regulation 13 provides that the Minister may approve an application to import a nonstandard vehicle or one that does not have an identification plate if the Minister is satisfied, inter alia, that the applicant owned the vehicle while overseas for a continuous period of at least 12 months and during that time the vehicle was available to the applicant for use in transport. Regulation 11 provides a discretion for the Minister to approve such an application without conditions such as imposed by regulation 13.
In this case Dr Tseng does not dispute that the vehicle is nonstandard and that it does not have an identification plate. She also does not dispute that she did not own the vehicle while she was overseas for a continuous period of 12 months. Accordingly, it is accepted that the vehicle does not comply with section 18 of the Act, and does not meet all the provisions of regulation 13.
The only issue in this case is whether the discretion in regulation 11, to approve the importation of the vehicle, should be exercised in favour of Dr Tseng.
THE EVIDENCE
In her evidence Dr Tseng said that her intention was for her daughter to attend school in the UK and then to continue her studies there to university level. To that end, she leased a house and bought the vehicle. Dr Tseng said that the vehicle was to drive her daughter to and from school. She said that it was her intention to eventually give the vehicle to her daughter to use while she attended university.
Dr Tseng said that when they arrived in the UK she was told that she was not eligible for a parent visa to stay with her daughter as her daughter was over 13 years old. Dr Tseng was able to obtain visas for only six months at a time. Dr Tseng said she subsequently travelled to Taiwan on two more occasions, each time returning to the UK. On returning to the UK from Taiwan on 5 January 2011 she was told by a Customs official that the conditions of her visa did not allow her to continue her pattern of travelling between Taiwan and the UK. Dr Tseng then realised that her plans to live with and educate her daughter in the UK were no longer possible. Dr Tseng then decided to bring her daughter to Australia.
In answers to questions from Mr Dillon, Dr Tseng gave details of her periodic trips to Taiwan and back to the UK. Dr Tseng confirmed that on 5 July 2010 she entered into a 12 month lease agreement for a house. Dr Tseng confirmed also that on 3 September 2010 she purchased the vehicle. Dr Tseng said that she had not spoken to anyone in the Department of Transport before buying the vehicle but she had spoken with someone in a company. She said that she was told to wait for 12 months and then she would not need a letter of compliance for the vehicle.
SUBMISSIONS
Mr Dillon spoke to his written Statement of Facts, Issues and Contentions. He submitted that the relevant object of the Act was contained in section 3(b), namely to regulate the first supply to the market of used imported vehicles. He contended that the Act was not an open door policy for vehicles that did not meet the Australian Design Rules. Mr Dillon contended that the vehicle had been built for the UK market and that there was no evidence that it was a standard vehicle. Mr Dillon referred to section 18 of the Act which prohibited the importation of nonstandard vehicles with no identification plate.
Mr Dillon referred to section 20 of the Act which allows the importation of nonstandard vehicles in prescribed circumstances. He said that the circumstances were prescribed in the Regulations, relevantly regulation 13. Mr Dillon referred to the requirement that the vehicle must have been owned and been available for use for a period of not less than 12 months. He submitted that the 12 months was not an arbitrary period but that it was a specific issue of policy, having been increased from three months in the 1989 amendments to the Regulations. Mr Dillon stated that in this case Dr Tseng bought the vehicle in September 2010 and she left UK in March 2011 and therefore the 12 month criterion could not be satisfied.
Mr Dillon then referred to the discretion available in regulation 11 and submitted that it should not be exercised in this case. He referred to the judgement of the Federal Court in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43 in which Mansfield J confirmed that the discretion in regulation 11 was unfettered, that it was an error in law to apply a gloss to the discretion but that the fulfilment of the policy and the objectives of the legislation are clearly relevant to the exercise of the discretion under regulation 11. Mr Dillon contended that the exercise of the discretion in this case would frustrate the policy and objectives of the Act.
Mr Dillon referred me to the following Tribunal decisions: Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48, Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540, Heath and Minister for Infrastructure Transport, Regional Development and Local Government [2009] AATA 9, and Burns and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 972.
Mr Dillon contended that in each of these cases the applicant had expected to be overseas for longer than the 12 months but each had been subject to unpredictable and unexpected events that were beyond their control and which required them to return to Australia earlier than planned. He submitted that in this case there was no evidence of a plan for the applicant to be in the UK beyond September 2011, the 12 month limit. He submitted that with access only to six month visas Dr Tseng could never have been in the UK continuously for 12 months. Mr Dillon submitted that, had Dr Tseng undertaken a due diligence analysis, she would have known in advance of the six month visa limitations. He submitted that, as part of that due diligence exercise, Dr Tseng should also have contacted the Department of Transport for information prior to buying the vehicle.
In closing, Mr Dillon submitted that this case was merely one where the applicant failed to meet the requirements of the Act and that the exercise of the discretion would frustrate the objects of the Act.
Dr Tseng’s submissions were read out by her daughter. She contended that she had expected to be able to stay in the UK while her daughter was in school and university and that being told that it was not possible was an unexpected event for her. She submitted that her reasons for having to come to Australia before the 12 months were just as significant for her as the reasons accepted in each of the cases cited by Mr Dillon. Dr Tseng contended that the need for her daughter’s education was as important to her as the job in the Williamson matter. Dr Tseng contended further that the education of her daughter was as sufficient a reason to return to Australia as the health of the applicant’s wife in the matter of Heath.
CONSIDERATION
Dr Tseng does not dispute that the vehicle is nonstandard and does not have an identification plate as required by section 18 of the Act. Dr Tseng also does not dispute that she did not own the vehicle while overseas for a continuous period of at least 12 months immediately before arriving in Australia and that the vehicle was not available for her use during that period. Accordingly, I am satisfied that Dr Tseng does not satisfy the provisions of regulation 13 which would permit an approval to import her vehicle.
Dr Tseng seeks the exercise of the discretion available under the provisions of regulation 11.
The respondent opposes the exercise of the discretion on the ground that its exercise would undermine the purposes of the legislation. Mr Dillon referred to the decision of the Federal Court in the matter of Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43 in which Mansfield J said in section 36 “a discretion expressed without any qualification is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the legislative scheme”.
The main objects of the Act are stated in section 3:
(a) To achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport to Australia; and
(b)To regulate the first supply to the market of used imported vehicles.
In this case subsection 3(a) is not relevant, being restricted to new vehicles.
The relevant object of the Act is to regulate the supply to the market of used imported vehicles. The object is not to prevent, disallow or any other such action related to the importation of used vehicles. The process of regulation is enacted through the requirement to submit an application to import a used vehicle and the consideration of that application on its merits. In this case Dr Tseng has submitted an application for consideration as a part of that process of regulating the importation of used vehicles. As a consequence, I consider the relevant object of the Act has been satisfied. Accordingly, I am not satisfied that the exercise of the regulation 11 discretion in this case undermines the context, scope and purpose of the legislation, and I find accordingly.
Mr Dillon submitted that the discretion should not be exercised unless weighty countervailing circumstances existed. He contended that such circumstances did not exist in this case. He submitted that it was merely a case where the applicant failed to meet the requirements of the Regulations. In support of this contention, Mr Dillon referred to section 37 of the decision in Selway: “In some circumstances, such an importation might undermine or frustrate the policy and objectives of the Act. Clearly in such a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty counterveiling factors”.
I note however that Mansfield J found in Selway that this requirement did not arise as the Tribunal had already found the exercise of the discretion would not undermine the objectives of the legislation. In this case I have found likewise. Accordingly, I do not accept Mr Dillon’s contention that without weighty countervailing circumstances the discretion should not be exercised in this case.
Mr Dillon referred also to the following cases:
·Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540, in which the applicant was the victim of a violent robbery in South Africa and needed to bring forward his plans to emigrate to Australia;
·Heath and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 9, in which the applicant’s wife developed a disease that deteriorated and prompted an immediate move from Canada back to Australia;
·Burns and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 972, in which an unexpected reduction in earnings resulted in the applicant returning to Australia earlier than expected to save the marriage; and
·Selway, in which the applicant was unexpectedly offered a highly attractive job in Australia as CEO of a mining company.
Mr Dillon contended that the applicants in the cited cases were all subjected to unexpected events. In this case he contended that, had Dr Tseng undertaken any due diligence enquiries, her circumstances would not have been unexpected.
In response, Dr Tseng submitted that being informed she was not eligible to stay with her daughter in the UK was unexpected. She said that not being able to stay with her daughter made it impossible for her daughter to continue her schooling in the UK, necessitating their move to Australia. Dr Tseng said that the effect on her life was just as severe as the effects experienced by the applicants in Haughey, Heath, Burns and Selway.
In regard to Mr Dillon’s contention about Dr Tseng’s lack of due diligence, I consider such an argument may be applicable to some people but not to all. Some people are not accustomed to think or plan ahead in this way. In any case, Dr Tseng’s evidence, which was unchallenged and which I accept, was that she had expected to be able to stay in the UK with her daughter and that being informed of her situation came as a surprise. I also accept her contention that the impact on her life of not being able to stay in the UK was comparable with the circumstances of the applicants in the cited cases.
Mr Dillon referred also to Selway where, in section 43, Mansfield J stated If a person acquires a non-compliant motor vehicle overseas intending to seek to import it into Australia within the succeeding 12 month period, that would obviously be a factor against exercising the discretion under Reg 11. Mr Dillon contended that, as a consequence of the six month limitations on her visas, it was never possible for Dr Tseng to comply with the continuous 12 month requirements of the Regulations.
I note that regulation 13 requires ownership for a continuous period of at least 12 months immediately before arriving in Australia. Subsection (1)(ad) then requires during that period of ownership the vehicle was available to the applicant for use”. The regulation requires the vehicle to be available for use, not that the vehicle be used continuously. In this case therefore, I accept that Dr Tseng expected to own the vehicle for a continuous period of at least 12 months immediately before arriving in Australia. I accept also, that during the period the vehicle was available to Dr Tseng for her use. The fact that her use of the vehicle would be punctuated by her periodic absences from the UK for visa purposes does not detract, in my view, from the fact that the vehicle was available for her use. Accordingly, I do not accept Mr Dillon’s contention.
Finally I turn again to Selway where, in section 43 Mansfield J said:
Here, there was an unexpected event, namely the obviously significant job offer. Mr Selway was entitled to ask the Tribunal to have regard to that circumstance. As the Tribunal recognised at [34] of its reasons, the circumstances prompting an earlier return to Australia than anticipated may well be relevant to the exercise of the discretion. The examples it gave from earlier decisions (earlier immigration following a violent robbery, the deterioration of a wife’s disease, and the reduction in salary producing marital pressure) are not really different in kind, but only of degree, from Mr Selway’s circumstances. In each instance, the early arrival in or return to Australia was prompted by personal circumstances. The Tribunal in those cases correctly, in my view, had regard to the reasons for that earlier arrival in or return to Australia. In this matter, too, there is a clear and unexpected event which prompted Mr Selway’s earlier return to Australia than he intended. It may not have been of the same personal significance as the events considered in those other decisions, but it was nevertheless an important personal circumstance. I think the Tribunal’s approach of discounting that circumstance because his decision to accept the job was within his “complete control” and because his recruitment did not, on its own cause a problem for Mr Selway in “his relationship with his motor vehicle” was erroneous
In this case, as in Selway, Dr Tseng was confronted by an unexpected event, namely being told she would not be able to continue with a succession of six month visas. This prompted her to come to Australia earlier than anticipated. The differences between Dr Tseng’s circumstances and those of the other cited cases are not differences in kind, only of degree. For Dr Tseng it was an important personal circumstance. Following the reasoning of Mansfield J, I find that it is erroneous to discount Dr Tseng’s circumstances because it was in her control to have undertaken more detailed due diligence inquiries.
Following these considerations and as a consequence of my findings, I am satisfied that the discretion afforded in regulation 11 should be exercised in favour of Dr Tseng to permit the importation of the vehicle.
DECISION
The Tribunal sets aside the decision under review and exercises the discretion afforded in regulation 11 of the Motor Vehicles Standards Regulations 1989 to grant the application to import a non-standard motor vehicle.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for the decision herein of Mr C. Ermert.
........................................................................
Associate
Date of hearing
24 February 2012
Date of decision 14 March 2012
Representative for the Applicant Self-represented
Representative for the Respondent Mr Andrew Dillon, Australian Government Solicitor
0
5
0