Duck and Minister for Infrastructure, Transport, Regional Development and Local Government
[2009] AATA 402
•3 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 402
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0272
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAM DUCK Applicant
And
MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date3 June 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
........................[sgd]..................
Senior Member
CATCHWORDS
TRANSPORT – motor vehicle importation – nonstandard vehicle – vehicle owned but not used for a continuous period of 12 months – general discretion to approve importation not exercised – consideration of relevant factors for exercise of that discretion – decision under review affirmed.
Motor Vehicle Standards Act 1989 (Cth), ss 3, 5
Motor Vehicle Standards Regulations 1989 (Cth), regs 11, 13
Trajkovski and Department of Transport and Regional Transport [2000] AATA 1073
Anthony and Department of Transport and Regional Services [2001] AATA 543
Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756
Davidson and Minister for Transport and Regional Services [2007] AATA 1268
Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417
Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
REASONS FOR DECISION
3 June 2009 M J Carstairs, Senior Member 1. Graham Duck is an Australian resident who purchased a 2000-model Mercedes Benz motor home in New Zealand in March 2004, which he used when he took holidays in New Zealand during 2004, 2007 and 2008.
2. The Motor Vehicle Standards Act 1989 (“the Act”) and the Motor Vehicle Standards Regulations 1989 (“the Regulations”) govern the import of vehicles into Australia. A person is allowed, by the Act and Regulations, to bring into Australia a vehicle which they have owned and used for a continuous period of 12 months. In the most usual case, this will have been while they live overseas and then either return to, or migrate to Australia to live. In those circumstances, the car will have been amongst their personal effects.
3. Mr Duck’s circumstances are different in that he purchased the vehicle in New Zealand, and used it there over a number of years when he was travelling to New Zealand for holidays. Mr Duck maintains that he satisfies the 12 month continuous ownership and usage requirement, because the vehicle was purchased in 2004, he had owned it for more than four years, and he was using it as regularly as was possible (that is, whenever he went to New Zealand).
ISSUES
4. There are two issues identifiable in this case. Firstly, Mr B Bell, who represented Mr Duck at the hearing, said Mr Duck met the 12 month requirement with respect to ownership and usage of the vehicle.
5. Alternatively, Mr Bell submitted that if those requirements were not satisfied, Mr Duck’s overall circumstances attracted a favourable exercise of the discretion available under reg 11 of the Regulations. Exercising this discretion would allow Mr Duck to bring the vehicle to Australia, even if I were not satisfied that Mr Duck met the requirement of 12 months’ continuous usage of the vehicle.
6. Before examining the issues in detail, it is helpful to understand some of the background to Mr Duck’s purchase and use of the vehicle. Mr Duck’s written statements are helpful in that regard.
THE PURCHASE OF THE MOTOR HOME
7. Mr Duck made a comprehensive statement, referring to the circumstances of his purchase and use of the motor home, in support of his application to the Tribunal[1]. In that statement, he said the motor home was purchased “for the purpose of living in it as I travelled New Zealand”. Mr Duck maintained that he had “continuous use” of the vehicle, but also acknowledged that he had only travelled in it for 158 days during the four years he owned it. Mr Duck stated that he had been told by Maui, the dealer, at the time of purchase that he would be able to import the vehicle into Australia after owning it for a year. Mr Duck stressed in his statement that if allowed to bring the vehicle to Australia, he would use the vehicle, and did not intend to sell it. He said that he would not have modified the vehicle, including replacing the motor in 2004, if he had known that importation was not possible. The cost of the engine replacement was some $11,000.
[1] T1.
8. Mr Duck’s second written statement[2] was more fulsome in its explanation and drew upon additional medical issues:
[2] Exhibit A2.
§The motor home, a used vehicle, was purchased for touring holidays in New Zealand with his wife, and they had travelled extensively throughout New Zealand during several visits;
§The most recent trip to New Zealand (in 2008) was for a family reunion. But Mr Duck now claims that he and his wife had intended to continue their travels for a year or two, visiting relatives. However, Mr Duck’s medical problems caused him to return to Australia for treatment after only two months. He described his medical condition as “life-threatening”.
§Mr Duck referred to the medical reports of Dr B Anderson, psychiatrist, who provided some support to Mr Duck’s application by stating the following[3]:
Because of the urgent need to address issues concerning your medical conditions, your priorities have changed and you will now not be able to enjoy extended holidays in New Zealand as previously.
On compassionate and medical grounds, as well as to achieve social and equitable goals of the legislation, I wish to support your application to the Department of Infrastructure, Transport, Regional Development, and Local Government to import your motor home into Australia…. Given the severe consequences on your life of untreated post-traumatic stress disorder and depression in the past, I strongly advise that you stay in Australia for treatment purposes.
§Mr Duck stated that the motor home is his only asset, and he has no assets of any other kind. He stated that he is unemployed and supported by his wife. Mr Duck said he could not sell the vehicle in New Zealand’s current economic climate, and certainly could not sell “for anywhere near its real worth”. Therefore he would be unable to replace this vehicle in Australia. (I note that the vehicle remains in New Zealand, in storage, attracting further costs pending approval).
[3] Attachment to Exhibit A2; letter dated 1 April 2009.
9. At the hearing, Mr Duck raised additional matters, of a compassionate kind, stating that his marriage is under stress due to his medical condition. He now believes he may need to live in the motor home in the future, if unable to continue living in the marital home.
ISSUE ONE: DID MR DUCK HAVE “CONTINUOUS USE” OF THE MOTOR HOME FOR 12 MONTHS?
10. Regulation 13 provides that the Minister must approve an application to import a vehicle if it was owned and used for a continuous period of 12 months. Mr Duck’s pattern of usage of the vehicle (T18) showed that, since purchase, there was one visit of about two weeks to New Zealand in 2004; one of about six weeks in 2007; and three trips in 2008 of, respectively five weeks, four weeks and six weeks. There was no suggestion that Mr Duck and his wife were living in New Zealand at the time of the application; rather, they were holidaying there.
11. Mr Duck has maintained throughout this claim, that the respondent incorrectly treated “continuous” as requiring his presence in New Zealand for a 12-month period while using the vehicle there. He submitted that his lengthy ownership was sufficient. Mr Bell took this submission further and addressed the meaning of usage of a vehicle by reference to a number of land law cases dealing with “continuity” of the usage of land or of premises on land. Mr Bell submitted, by analogy, that Mr Duck had continuous usage because he owned the vehicle and it was available to him whenever he wished to use it.
12. This argument, however, cannot succeed, as the Act provides a specific definition of the term “use”. The Act specifies: “use means, in relation to a vehicle, drive”[4]. In circumstances where the Act provides this definition, there is no need to have recourse to unrelated areas of case law.
[4] S 5 of the Act.
13. I accept as correct the interpretation applied by Senior Member Fayle in Re Anthony and Department of Transport and Regional Services [2001] AATA 543, (the test at the time requiring three months rather than 12) that the meaning to be placed on the term is as follows:
Insofar as the word ‘use’ is defined to mean ‘drive,’ commonsense dictates that (this) 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 the person’s usage.
I also agree with the view expressed by Member Fice in Re Davidson and Minister for Transport and Regional Services [2007] AATA 1268, that the word “continuous” in reg 13(a) qualifies the period of ownership and of use.
14. Mr Duck acknowledged that he was only in New Zealand for some 158 days since the vehicle was purchased. His passport showed this, as did the list he provided of the dates of their holidays to New Zealand[5]. Between these trips Mr Duck and his wife were living in Australia, and his wife operated her business in Queensland.
[5] T18.
15. Taking into account the meaning of the term “use” in relation to a vehicle, as set out in the Act, I am unable to accept that Mr Duck’s intermittent travel to New Zealand, and short, broken, periods of driving the vehicle for holidays, satisfies the requirement that he had continuous use of the vehicle. Mr Duck was, after all, hardly ever in New Zealand during the period of ownership of the vehicle. It is not relevant to calculation periods of time that he “might” have availed himself of cheap air flights to New Zealand at any time.
16. So the first issue must be decided against Mr Duck. I am satisfied that Mr Duck did not have the requisite 12 months continuous usage of the vehicle during a period of 12 months, required by regulation 13(a)(ii). If he had the necessary 12 months continuous usage – the other requirements in reg 13 having been met – the Minister would have been required to approve the importation of the vehicle. That not being the case, I must now consider the discretionary provision set out at reg 11 of the regulations.
ISSUE TWO: THE NATURE OF THE DISCRETION IN REGULATION 11
17. Mr A Dillon, who appeared for the respondent, referred me to several Tribunal decisions dealing with the discretion, including a number of more recent decisions which, it must be acknowledged, take a more flexible approach to the discretion than earlier Tribunal cases[6]. It should be said, that other cases are of limited assistance for examining the exercise of discretions, as no two sets of circumstances will be the same. But it is worth noting that the cited cases reveal a shift from a view that there must be exceptional circumstances to warrant an exercise of the discretion. The more recent cases have posed the question differently; asking whether the refusal to exercise the discretion would result in unfairness or injustice to the applicant. I regard that approach as correct, in circumstances where the regulation leaves the discretion unfettered.
[6] See, for example, Trajkovski and Department of Transport and Regional Transport [2000] AATA 1073; Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704.
18. As a general proposition, it remains true, however, that an exercise of the discretion in reg 11 must be consistent with the objectives referred to in s 3 of the Act, relevantly, the objective at s 3(b) of the Act:
(b) to regulate the first supply to the market of used imported vehicles.
19. The legislative scheme is designed to ensure that vehicles imported into Australia meet uniform safety and environmental standards. But the discretion must be applied in a manner consistent with the objects, and having regard to whether, by exercising the discretion in a particular case, the decision-maker will be achieving or frustrating the objects, as well as considerations of unfairness in a particular case. With reference to the importance of exercising the discretion in this way, Senior Member McCabe observed in Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48:
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[7].
[7] At paragraph 11.
20. Mr Dillon, while acknowledging that there are no limiting words to the discretion, submitted that, in this case, to approve this vehicle’s importation would be to frustrate the object of the Act. He observed that Mr Duck’s usage of the vehicle, in intermittent broken periods, essentially for holidays, was not the sort of circumstances for which the discretion was intended.
21. However, it remains true that reg 11 gives a wide discretion, and this is intended to allow a decision-maker flexibility and to apply some justice and fairness to the many and varied circumstances which might arise.
22. Mr Duck, and Mr Bell on his behalf, raised a number of matters as being relevant here. Some of these were only recently raised. I make that observation, not to cast doubt upon the veracity of Mr Duck’s account of them, but to indicate that I formed the impression that he has re-examined his circumstances since the failure of his initial application, and has attempted to align them with examples from cases where the discretion has been favourably exercised.
23. I had concerns about two recently raised matters in particular. The first is Mr Duck’s very recent assertion that he and his wife intended the trip to New Zealand, undertaken in October 2008, to extend beyond a year. That is, he suggests that this trip was not one of their more usual short holiday breaks. I do not accept Mr Duck’s evidence about there being a loose arrangement with his wife’s son regarding renting their Australian home while they were away, nor about how his wife’s business arrangements could continue, despite such a long absence. There was no support in Dr Anderson’s clinical notes, or his letters supporting Mr Duck’s claim, of any immediate health crisis precipitating an early return to Australia. I am not prepared to accept this evidence in the absence of any independent corroborating evidence. I would also observe that nothing in Dr Anderson’s clinical notes suggests that Mr Duck’s condition is life threatening.
24. Before leaving this aspect of medical evidence, I would say something about the supporting letters from Dr Anderson and his clinical notes. As Mr Duck’s treating psychiatrist, Dr Anderson understandably has Mr Duck’s interests at heart, and this concern, in my view, has led the doctor to write the letter of support, as set out at paragraph eight above. Dr Anderson has relied on Mr Duck for its contents, and probably also relied upon Mr Duck for the words used, bearing in mind that Mr Duck has been his patient only from the start of the year, some time after the application to bring the vehicle to Australia. I regard as unlikely that Dr Anderson, unassisted, would say that he wished to support Mr Duck on “compassionate and medical grounds, as well as to achieve social and equitable goals of the legislation”. I regard Dr Anderson’s well-intentioned efforts to support Mr Duck’s application to bring the vehicle into Australia as of limited assistance for considering the exercise of the discretion.
25. Secondly, I doubt Mr Duck’s recent claims that his marriage is at an end, and that he might need this vehicle as a residence in Australia.
26. In addition, Mr Duck pressed financial considerations, asserting that the vehicle would be hard to sell in New Zealand in current financial circumstances. I have no information to assist me directly on that point, but I can accept, given the recent expenditure on the vehicle, if Mr Duck had to sell, he may well sell at a loss. However I do not regard that, or the matter of expenditure incurred for storage, as supporting an exercise of the discretion. Mr Duck was inevitably going to incur charges of this kind pending an approval, and vehicles will always depreciate in value over the years.
27. I am satisfied that, taking into account the objects of the Act, and the overall legislative scheme, that rejecting Mr Duck’s application will not result in unfairness or injustice to him. Mr Duck simply misunderstood the requirements for bringing the vehicle to Australia and was not assisted in that regard by what he was told by the dealer at the time of purchase. It was a simple mistake, one that has featured in a number of cases in the Tribunal, but not the kind of circumstance, taken alone, or with other circumstances in this case, which attracts the operation of the discretion, in my view.
DECISION
28. The Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed:...........................[sgd]................................................
Emily Clarke, AssociateDate of Hearing 21 May 2009
Date of Decision 3 June 2009
Representative for the Applicant Mr B Bell
Counsel for the Respondent Mr A Dillon
Solicitors for the Respondent Australian Government Solicitor
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