Fudge and Minister for Transport and Regional Services - [2007] AATA 1867

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1867

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/2008

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANDREW FUDGE

Applicant

And

MINISTER FOR TRANSPORT AND REGIONAL SERVICES

Respondent

REASONS FOR DECISION

Tribunal

Mr A Sweidan, Senior Member

Date of Decision   25 September 2007
Date of Written Reasons       17 October 2007
Place  Perth

At the conclusion of the hearing of this application, the terms of the decision intended to be made and the reasons for that decision were stated orally.
The respondent has requested the Tribunal furnish it with a statement in writing of the Tribunal’s reasons for its decision and the Tribunal accordingly provides the written reasons attached.

...........(Sgd. A Sweidan)....................
Senior Member

CATCHWORDS

Motor Vehicles – importation to Australia of “non-standard” vehicles – requirement of 12 months ownership and use

LEGISLATION

Motor Vehicles Standards Act 1989 (C’th)

Motor Vehicles Standards Regulations 1989

CASES

Anthony v Department of Transport and Regional Services (2001) 33 AAR 317

Bastian and Minister for Transport and Regional Services [2007] AATA 1646

Brassington and Minister for Transport and Regional Services [2006] AATA 274

Carmody and Minister for Transport and Regional Services (2007) AATA 1411

Da Silva and Department of Transport and Regional Services [2004] AATA 1355

Da Silva v Department of Transport and Regional Services (2005) 85 ALD 756

Davidson and Minister for Transport and Regional Services [2007] AATA 1268

Hoopes and Department of Transport and Regional Services (2006) AATA 11

Marra and Minister for Transport and Regional Services (2003) 73 ALD 704

Mero and Department of Regional Services [2006] AATA 337

Patel and Department of Transport and Regional Services (2001) 67 ALD 236

Trajkovski and Department of Transport and Regional Services [2000] AATA 1073

Winter and Department of Regional Services [2006] AATA 674

REASONS FOR DECISION

17 October 2007	Mr A Sweidan, Senior Member
BACKGROUND

Decision under Review

The applicant seeks a review of a decision of 8 January 2007 by the Administrator of Vehicle Standards (the administrator), delegate of the respondent, refusing an application for the importation of a motorcycle described by the applicant in his application as a 1990 Suzuki RGV Vehicle (the Vehicle).
The decision was made pursuant to the Motor Vehicle Standards Act 1989 (the Act) and Motor Vehicle Standards Regulations 1989 (the Regulations).

Legislation and Objects and Policy

The relevant legislation is set out in detail in the Respondent's section 37 statement of reasons, dated June 2007.
It is clear that the main objects of the Act are to achieve uniform vehicle standards to apply to new Vehicles and to regulate the first supply to the Australian market of used imported vehicles (section 3).
The objects and policy of the Act and Regulations in relation to used vehicles are achieved by a general prohibition on the importation of such vehicles (section 18) with the Minister empowered to approve imports of second-hand vehicles in some circumstances (sections 19 and 20 and Regulations 11, 12, 13 and 17).
The general prohibition on imported used vehicles applies to 'road vehicles' that are 'non-standard' or do not have an 'identification plate'. Non-standard vehicles are vehicles which do not comply with the National Standards or the Australian Design Rules. An identification plate fixed to a motor vehicle establishes that the vehicle complies with the National Standards.
'Road vehicle' is defined in section 5 of the Act. It includes a 'road motor vehicle', which is defined as a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods, or a motor vehicle that is permitted to be used on public roads.
Regulation 13 permits importation if the owner of the vehicle has both owned and used that vehicle for a continuous period of 12 months before the proposed importation. Regulation 11 provides a general discretion to permit importation if the owner does not meet any of the specific exceptions. It is clear from the authorities referred to below that the discretion is usually exercised exceptionally so as not to frustrate the objects and policy of the Act.

Issues

For the reasons set out below regulation 13 does not apply in this case, so the only issue before the Tribunal is whether the Minister should exercise his discretion to approve the importation of a non-standard road vehicle pursuant to regulation 11.

Relevant Facts

The relevant facts which are not in dispute are as follows:
The second-hand motorbike Mr Fudge seeks to import into Australia is a non-standard road vehicle and does not have an identification plate.
Mr Fudge and his wife arrived in Australia by air from the United Kingdom on 2 September 2006. Mr Fudge has a visa for indefinite stay in Australia.
The Fudges sent goods to Australia, which included the vehicle. It is not known when the goods left the UK. However, given that Mr Fudge arrived in Australia on 2 September 2006, it is beyond doubt that he could not have used the vehicle in the UK at any time after August 2006.
On arrival of the Vehicle in Australia, Customs, acting in accordance with the Act, refused importation as Mr Fudge did not have the necessary import approval.
Mr Fudge was informed that he needed to apply to the Department of Transport and Regional Services (the Department) for import approval and that this generally required that the owner of the used vehicle must have owned and used the vehicle for a continuous period of 12 months.
In an application dated 26 October 2006 and received by the Department on

30 October 2006, Mr Fudge applied to the Department for approval to import six used vehicles, some of which were described as go-karts.
In answer to the question, 'Do you have evidence of not less than twelve continuous months overseas ownership and use of the vehicle', Mr Fudge ticked the ‘yes’ box.
The application did not attach the registration documents for the Vehicle, but did attach a handwritten note which states:
“Sold as seen to Mr Andrew Fudge … not working 20/7/05 by Stuart Marshall for £250 Paid in full. Reg No G432 NHE'.”

It was common cause that this referred to the Vehicle.

The applicant stated that he did not have access to the registration documents for the vehicles at that time as they were in the container awaiting Customs clearance.
When the United Kingdom registration document was provided it showed:

(a)Mr Stuart Marshall acquired the vehicle on 12 June 2005; and
(b)Mr Andrew Fudge acquired the vehicle from Mr Marshall on 19 January 2006.

The UK registration form includes a statement that if any of the details are incorrect, they should be corrected in section 6 and returned to the UK authority. One of those details relates to the 'date of acquisition or transfer'. As stated, the form states the date of acquisition by the applicant as 19 January 2006. There is no evidence that the applicant amended the official record.
The applicant stated in his application and in his evidence to the Tribunal that he had not ridden the Vehicle in the 12 months prior to putting it into the container because he was 'doing it up' to make it roadworthy.
Mr Fudge acknowledged in his evidence before the Tribunal that he had not made any enquiries from the relevant Australian authorities as to the requirements for importation of the Vehicle prior to it being shipped to Australia but relied on information from the shipping agent.
Mr Fudge was invited by the Tribunal to point to any exceptional circumstances giving rise to unfairness or injustice if importation of the Vehicle is not allowed, other than to say that he was not aware of the requirements he could not point to anything else.

Policy

It is clear that one of the main objects of the Act and Regulations is to regulate the first supply to the Australian market of used vehicles manufactured overseas.
Personal imports of used vehicles are permitted but only in limited circumstances.

Regulation 13 ― ownership and use of the vehicle

Regulation 13 relevantly provides that 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 12 months;
(b)at the time the vehicle is imported, the applicant is an Australian citizen or an Australian permanent resident; and
(c)the applicant has not imported a road vehicle owned by him or her within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.

Therefore to satisfy regulation 13 (a), the applicant must have owned and used the Vehicle for a continuous period of at least 12 months. Previously, this period of ownership and use was three months only, but the regulation was amended to extend this to 12 months apparently so as to more properly reflect the objects and policies of the Act to further restrict the importation to Australia of second-hand vehicles.
The UK registration documents show that Mr Fudge informed the UK authorities that he acquired the Vehicle on 19 January 2006. He applied to import the Vehicle on 30 October 2006, nine months later. Prima facie Mr Fudge did not meet the 12-month ownership requirement specified in regulation 13.
However, even if Mr Fudge acquired the Vehicle 12 months before moving to Australia, (as he asserted in the Tribunal) regulation 13 (a) still does not assist him. Mere ownership is not sufficient: regulation 13 (a) also requires that the owner of the vehicle has 'used' the vehicle for a continuous period of 12 months.
'Use' is defined to mean 'drive' (section 5 of the Act). Mr Fudge has confirmed in his evidence that he did not drive the Vehicle for a continuous period of 12 months or in fact at all as he was “doing it up” from the time he acquired it until it was packed for shipment to Australia; and that he only had it registered in his name on 25 January 2006.
It is clear that Mr Fudge by his own admission did not use the Vehicle for a continuous period of 12 months and therefore regulation 13 cannot apply in this case.
In Re Anthony v Department of Transport and Regional Services (2001) 33 AAR 317 the Tribunal referred the predecessor to Regulation 13 and stated (at 324):
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… (N)ot 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 (the predecessor provision to regulation 13) are not met.
The Tribunal is of the view that the principle that the vehicle 'should be available to be driven in the ordinary course of usage' (emphasis added) is the essential prerequisite to a vehicle being able to be considered to have been 'used' in the period in question.
In the case of Da Silva v Department of Transport and Regional Services (2005) 85 ALD 756, Member Allen said (at 762) that:
Whether or not a person has used a vehicle for a continuous period of 12 months is a matter of fact and degree having regard to the number and duration of interruptions that have occurred in that period of time.
Notwithstanding that interruptions to an owner's usage over the relevant

12-month period do not necessarily mean the vehicle cannot be considered as having been used continuously during that period, the Tribunal is of the view that, in line with the principle established in Re Anthony v Department of Transport and Regional Services (discussed at 34), the vehicle must remain available to be driven during the entire period in question in order for the requirement that the vehicle to be 'used' to be satisfied.
The factors that may restrict the availability of a vehicle to be driven were considered by Member Kelly in Hoopes and Department of Transport and Regional Services (2006) AATA 11. In that case, the Tribunal held that Mr Hoopes did not satisfy the requirement of use, even though his motorcycle, which remained unregistered, was 'used' on a weekly basis within the confines of his own property at his farm to travel a distance of approximately one mile to pick up his mail from the post box. Member Kelly stated (at 13) that:
…for most of the time that he owned it, Mr Hoopes' motor-cycle was not available to be driven on public roads in California because it was not registered for that purpose.
The Tribunal went on to state that the usage by Mr Hoopes to collect his mail was not sufficient to satisfy the requirements of regulation 13.
In Carmody and Minister for Transport and Regional Services (2007) AATA 1411, Member Webb took the view that registration in the jurisdiction from which the vehicle was imported was not the determinative of whether a vehicle was available to be driven and therefore used, saying (at 26):
Regulation 13 does not specify any requirement for legal registration of a road motor vehicle as a condition for approval to import the vehicle into Australia. If such a test was intended by the Legislature it would have been a matter of simplicity to include it when making or amending the Regulations or the Act. No such intention is apparent in the Explanatory Memoranda for the Motor Vehicle Standards Amendment Regulations 2000 (No. 1)(23) and Motor Vehicle Standards Bill 1989 Second Reading Speech(24), to which my attention was directed. Furthermore, I do not accept the proposition that registration of a vehicle in a foreign jurisdiction implies any degree of consistency with Australian motor vehicle standards, or even standards of roadworthiness that are applied for vehicle registration purposes in the States and Territories. There is no evidence that the regulatory standards for registration of a motorcycle in China are consistent with any Australian motor vehicle standard.
Member Webb distinguished the Hoopes case on its facts, stating (at 25):
In Hoopes’ case the applicant purchased a motorcycle for his wife to use in Australia. He did not register the motorcycle and kept it garaged on a rural property where he lived. Mr Hoopes had other vehicles for use on public roads and as his usual transport. He wanted to keep the motorcycle in pristine condition and, thus, only drove it occasionally on weekends to the mail box, a journey of 2 miles. The Tribunal concluded that this does not constitute continuous use for the purposes of Reg 13, as there was no equivalence between the nature of use during the 12 month continuous period and the intended use in Australia. In Ms Carmody’s case, she used the motorcycle on public roads for a period of months in China (albeit unlawfully) in a manner that has some equivalence to her intended use of the motorcycle in Australia.
In all of the above cases, the vehicles were able to be used. In Mr Fudge's case, the vehicle was not in working order and therefore could not be driven for the requisite period.
The handwritten receipt for purchase provided by Mr Fudge states that the vehicle was purchased as 'not working'. Mr Fudge changed the name of the registered owner of the Vehicle on 25 January 2006, stating that he had acquired the vehicle on 19 January 2006. He has not provided any evidence to show that the Vehicle was used between the date of purchase and the date of first registration and on the contrary has acknowledged that it was not fit for use.
The Tribunal in any event finds that Mr Fudge's Vehicle was not available to be driven prior to 25 January 2006 because it was not registered until this date and therefore cannot be considered to have been used before this date.
The Tribunal also finds that Mr Fudge's Vehicle cannot be considered to have been used prior to 25 January 2006 as it was not available to him to drive because it was not working.

Regulation 11

As regulation 13 does not apply in this case, the issue before the Tribunal is whether the Tribunal should exercise the ministerial discretion to approve the importation of the Vehicle pursuant to regulation 11.
The Tribunal has previously stated in other cases that the regulation 11 discretion should be exercised exceptionally and so as not to frustrate the objects and policy of the Act and Regulations.
Regulation 13 'sets out a clear policy in relation to the importation of non-standard road vehicles which have been owned and used overseas' (Re Patel andDepartment of Transport and Regional Services (2001) 67 ALD 236 at 239).
In Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704, the Tribunal (Deputy President Associate Professor S D Hotop), referring to the decision in Re Trajkovski and Department of Transport and Regional Services, said (at 715):
“The tribunal accepts that the discretionary power … although broad and unstructured in its terms, should in practice be exercised only in exceptional circumstances and then only in such a way as would not serve to undermine or frustrate the policy and objects of the Act and the regulations …”
In Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355, Member Allen stated:
“In my opinion, the exercise of the discretion in r 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant's favour. The totality of the relevant circumstances must be considered - including the reasons why an applicant "almost but not quite" satisfied one set of the circumstances that would have required approval to be granted.”
In Re Brassington and Minister for Transport and Regional Services [2006] AATA 274, Member Fice endorsed the approach to regulation 11 taken in Da Silva, and looked to the existence of some 'unfairness or injustice' to the applicant if approval were not granted.
He determined there was no such unfairness or injustice on the facts before him, noting that the applicant had failed to make any inquiries of the relevant authorities prior to importing his vehicle, he stated:
“I am also of the view that a grant of approval in these circumstances would undermine or frustrate the policy and objects of the legislative scheme. In effect, if the discretion were exercised in Mr Brassington's favour, the Tribunal would convey the message that where an applicant is unable to satisfy the exceptions set out in the Regulations for the import of a used vehicle, and despite the fact that the applicant made no enquiries whatsoever as to the statutory requirements regarding the import of motor vehicles to Australia, compliance with the statute could nevertheless be avoided by the exercise of the discretion under reg 11.”
In Re Mero and Department of Regional Services [2006] AATA 337 Member Kenny stated (at 12):
“Cases where the discretion has been exercised include situations where incorrect information was provided to an importer concerning, for example, the period for which a person must own and use a vehicle before importing it into Australia in reliance upon the incorrect information: see Re Marra and Minister forTransport and Regional Services (2003) 37 AAR 93. In Mr Mero’s case, there was no misrepresentation of the requirements to be met for importation by the respondent and, indeed, no inquiry was made at all. Mr Mero appears to have had no understanding of the limitations which apply to the importation of non-standard vehicles. To exercise the discretion in circumstances such as these would be to undermine the clear purpose of the legislative scheme.”

In Re Winter and Department of Regional Services [2006] AATA 674 Member Carstairs stated (at 16 to 17):
“I do not see Ms Winter’s facts as ones that warrant the discretionary power conferred by regulation 11 being exercised in her favour. In contrast to the applicant in Re Marra, Ms Winter had only obtained advice and information from the shipping agent and not the relevant government department. Also I do not see the refusal to allow Ms Winter to import the vehicle as causing a serious injustice. Her acceptance of information from the shipping agent was misguided, but goes no way to contributing to special circumstances except that she will incur costs in now dealing with the motorbike.
I do not see the costs as providing so great a burden upon her as to come within the stated exceptional circumstances where the discretion would be exercised and I decline to do so.”
In Re Davidson and Minister for Transport and Regional Services [2007] AATA 1268. Member Fice stated (at 33):
“The fact that Mr Davidson was unaware of the Regulations and made no enquiries about such regulations before the vehicle was shipped does not create an element of unfairness or injustice. Furthermore, the exercise of discretion in circumstances where no enquiries had been made before the vehicle was shipped would undermine or frustrate the policy and objects of the legislative scheme. This was the conclusion that I arrived at in Re Brassington and Minister forTransport and Regional Services (2006) 91 ALD 766. It follows that I am not of the view that the discretion provided for in reg 11 should be exercised in Mr Davidson’s favour.”
The Tribunal has also held that costs associated with the importation and storage of vehicles do not give rise to the unfairness or injustice required to allow use of the regulation 11 discretion.
In Re Davidson Member Fice stated (at 32):
“Mr Davidson also indicated that his storage fees for the vehicle since its arrival in Australia amount to some $9000, and he had incurred a shipping fee of $3300. He also mentioned that he has incurred legal costs in bringing this application. However, none of these factors makes it either unfair or unjust if approval were not granted. The situation was different in Re Marra because Mr Marra relied upon advice given by the Department that approval would be granted. Mr Marra acted on that advice and had no reason to suspect that the position would be otherwise. In those circumstances, Mr Marra would clearly have suffered a serious injustice if his application was subsequently disapproved. No such consideration arises in this case… Mr Davidson has expended some $12,000 in having this vehicle shipped to Australia, and he would incur further expenses in disposing of the vehicle or having it returned to the UK. However that factor does not create unfairness or injustice. There was no evidence before me that Mr Davidson would suffer financial hardship that would justify exercising the discretion to allow the importation of the vehicle.”
Sentimental attachment to the vehicle has also been found by the Tribunal to be an insufficient reason to exercise the discretion under regulation 11. In Re Bastian and Minister for Transport and Regional Services [2007] AATA 1646 the applicant requested that the Tribunal exercise regulation 11 discretion as she had a sentimental attachment to a vehicle that her sister had bequeathed her. The Tribunal did not accept this argument, with Senior Member Handley stating (at 30 to 31):
“I regret the position that the applicant now finds herself. I acknowledge – as she did at the hearing – that she wanted to administer her sister’s estate as quickly as was possible and return to Australia. I am satisfied also she was largely influenced or overwhelmed by her desire to retain the car because of its sentimental connection to her sister and with the intention of using it in Australia. I also acknowledge that she has been exposed to considerable cost to date and will be exposed to additional costs in the event that the vehicle is returned to the United Kingdom (although she retains the opportunity to approach an RAW in the circumstances recorded earlier).
Having regard to the standards imposed by the Commonwealth Parliament by the Act and the Regulations with respect to road safety and the standards of vehicles used on Australian roads, I cannot find in the circumstances of this application that there are cogent reasons to permit departure from policy (refer Re Drake).”
The primary position or policy as expressed by the legislature is that non-standard road vehicles should not be imported into Australia. There are no cogent reasons advanced as to why the adoption of that policy would be unfair or unjust to Mr Fudge.
In particular, Mr Fudge by his own admission transported the vehicle to Australia without making inquiries with the proper authorities as to the requirements for importation. In this respect, the facts are similar to those in Winter.
Mr Fudge's circumstances are also analogous to the situation in Re Brassington and Minister for Transport and Regional Services in that it was his failure to make enquiries to the proper authorities prior to importing his Vehicle that resulted in his attempt to import the Vehicle and the consequent refusal of his application, rather than his being in a situation such as occurred in Re Marra and Minister for Transport and Regional Services where incorrect advice given by the appropriate authorities resulted in an unfair and unjust result.
The Tribunal is unable to find any exceptional circumstances in this matter.

DECISION

The Tribunal finds that the decision under review is the correct or preferable decision and should be affirmed.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of MR A Sweidan, Senior Member

Signed: ..................(Sgd. R Riberi).............................
Associate

Date of Hearing  25 September 2007
Date of Decision  25 September 2007
Date of Written Reasons  17 October 2007
Representative for the Applicant         Self Represented
Counsel for the Respondent                Mr A Klein
Solicitor for the Respondent                DLA Phillips Fox