Fullerton and Minister for Infrastructure and Regional Development

[2015] AATA 989

Fullerton and Minister for Infrastructure and Regional Development [2015] AATA 989 (18 December 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2064
Re	Scott Fullerton
APPLICANT
And	Minister for Infrastructure and Regional Development
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	18 December 2015
Place	Perth

The decision under review is affirmed.

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Mr S. Webb, Member

CATCHWORDS

TRANSPORT - motor vehicle importation - road vehicle with no identification plate – gift – sentimental attachment – Registered Automotive Workshop scheme - discretion – no sufficient reason to exercise discretion – decision affirmed

LEGISLATION

Motor Vehicle Standards Act 1989 s 13D, s 18, Part 3

Motor Vehicle Standards Regulations 1989 r 11, 12, 13, 14, 15, 16, 17, 18

CASES

Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43

REASONS FOR DECISION

Mr S. Webb, Member

18 December 2015

1. Scott Fullerton was given a motorcycle by his father-in-law in the United States of America. He decided to import the motorcycle to Australia and sought approval to do so. This was not forthcoming – he was refused import approval. Unhappy with this decision, Mr Fullerton has applied for review.

2. The matter came on for hearing. But on the day set down in the listing notice he was sent, Mr Fullerton did not appear. He informed the Tribunal that he was not aware that he needed to attend on the day and that he was unable to attend in person, or by telephone. In the circumstances, and with his agreement, I decided to proceed with the hearing and to deal with his application in his absence.

   Facts

3. On 2 February 2015 Mr Fullerton applied for approval to import a motor vehicle, namely a Honda Shadow motorcycle, that was manufactured in 2000 - vehicle identification number JH2RC4463YM200676 (the vehicle).[1]

   [1] T4.

4. The vehicle does not have an ‘identification plate’ or a ‘used import plate’ for the purposes of Part 3 of the Motor Vehicle Standards Act 1989 (the Act). Importation of a vehicle of this kind without approval is prohibited.

5. The vehicle is located in Phoenix, Arizona, USA.

6. Mr Fullerton visited family members in the USA over Christmas in 2014. During this visit he was given the vehicle by Kenneth Muller, his father-in-law.

7. Mr Muller purchased the vehicle in 2000 – it was his first motorcycle. Mr Fullerton states that, due to his age, Mr Muller was no longer able to ride the vehicle but “he would like to keep the vehicle in the family” “as it holds sentimental value to him and now my wife and I” – “It is not a bike we would ever purchase (we don’t own a motorcycle nor do we ever plan on purchasing one!) – However we would like to see the bike kept in our family”.[2]

   [2] T4 folio 105.

8. On 7 January 2015, the vehicle was registered in his name.[3] Mr Fullerton departed the USA on 8 January 2015 and returned to Australia on 10 January 2015.[4]

   [3] T4 folio 83.

   [4] T4 folio 90.

9. On Mr Fullerton’s evidence, the vehicle has a value of approximately $3,000 and “to have the motorcycle approved would far out way [sic] the cost of the bike…..none of the importers were prepared to absorb the costs as the bike was not something they could see a market for in Australia”.[5]

   [5] Ibid.

10. On 24 March 2015, approval to import the vehicle was refused.[6]

    [6] T1 folios 6-7.

11. On 30 April 2015, Mr Fullerton applied for review.

    Issues

12. The issue to be decided is whether there are sufficient grounds to grant approval for importation of the vehicle. The grant of approval is subject to relevant provisions of the Act and the Motor Vehicle Standards Regulations 1989 (the Regulations).

13. There is a question whether any of regulations 12 to 18 might apply.

14. In the particular circumstances, I am satisfied that Mr Fullerton’s application does not come within the terms of regulations 12, 13, 14, 15 or 17.

15. It appears that, as of 6 October 2015, the vehicle is entered in a list of Unrestricted Used Motorcycles[7] for the purposes of the Registered Automotive Workshop scheme under s 13D of the Act and regulation 16. This means that the vehicle may be capable of gaining import approval if the importation is undertaken by Registered Automotive Workshop.

    [7] Entry No.: 944/00

16. Doing the best with Mr Fullerton’s evidence in his absence, it appears that he has decided that the cost of gaining import approval under the Registered Automotive Workshop scheme would exceed the value of the vehicle. The Registered Automotive Workshop scheme does not permit importation of a vehicle by an unauthorised person, such as Mr Fullerton.

17. The present evidence does not establish, for the purposes of regulation 18, that Mr Fullerton intends to import the vehicle primarily for exhibition.

18. That being so, it is necessary to determine whether the general discretion conferred by regulation 11 should be exercised in the particular circumstances.

    Discretion

19. The discretion conferred by regulation 11 is broad and unfettered. But it must be construed in the legislative context of the Act and the Regulations, and applied in a manner that promotes rather than frustrates or undermines the objects of the Act. [8]

    [8] Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43 at [37]

20. I think that it is well established now that the discretion should only be exercised if there is a good reason to do so.

21. I am not persuaded that the sentimental attachment Mr Fullerton has alluded to in his evidence is a sufficient reason to allow the importation of a vehicle that otherwise would be prohibited under s 18 of the Act. More is required.

22. Furthermore, it appears to me that it is not appropriate in the present circumstances to exercise discretion to grant import approval when the only barrier to Mr Fullerton arranging for importation of the vehicle under the provisions of the Registered Automotive Workshop scheme. Were he to do so, the provisions of this scheme would ensure that the vehicle meets the minimum or concessional safety standards for importation of the vehicle into Australia. This is consistent with the objects of the Act and the purposes of the motor vehicle standards scheme to protect the safety of road users in Australia.

23. I understand that Mr Fullerton has elected not to pursue this option for cost reasons. That is a matter for him. I have seen no direct evidence as to the costs Mr Fullerton would incur under the Registered Automotive Workshop scheme.

24. But it does not follow that he should be permitted to step around the minimum safety standards for vehicle importation under the Registered Automotive Workshop scheme in the manner for which he contends. In all likelihood, Mr Fullerton could arrange for importation of the vehicle under the Registered Automotive Workshop scheme, whereby import approval could be obtained and compliance with the minimum safety standards could be ensured.

25. To my mind, the discretion conferred is not for the purpose of providing a cheap option for gaining import approval for a vehicle without ensuring that minimum safety standards are met.

26. On balance, the circumstances of Mr Fullerton’s case are not such that it is appropriate to exercise the regulation 11 discretion to grant him approval to import the vehicle. The sentimental attachment reasons he has raised are not sufficiently weighty factors to countervail the prohibition that otherwise applies under s 18 of the Act.

    Decision

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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Administrative Assistant

Dated 18 December 2015

Date(s) of hearing	17 December 2015
Applicant	No appearance
Representative for the Respondent	Ms E Pusenjak