Grapsas and Minister for Infrastructure and Regional Development - [2017] AATA 886

Grapsas and Minister for Infrastructure and Regional Development [2017] AATA 886 (9 June 2017)
Division:GENERAL DIVISION
File Number: 2015/6678
Re:Konstantino Grapsas
APPLICANT

AndMinister for Infrastructure and Regional Development
RESPONDENT

DECISION
Tribunal:Mr Andrew Cameron, Member
Date:9 June 2017
Place:Melbourne

The Tribunal affirms the decision under review.
....................................[sgd]....................................
Mr Andrew Cameron, Member
TRANSPORT – motor vehicles – application to import vehicle – no identification plate - Regulations 11 and 13 – where applicant does not satisfy criteria under Regulation 13 - where exercise of discretion under Regulation 11 inappropriate - decision affirmed
Legislation
Motor Vehicle Standards Act 1989 (Cth)
Motor Vehicle Standards Regulations1989 (Cth)
Cases
Brassington and Minister for Transport and Regional Services [2006] AATA 724
Burns and Secretary, Department of Infrastructure, Transport, Regional Development and Local Government [2009] AATA 972

Compos and Minister for Infrastructure and Transport [2012] AATA 227
Kowald and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 1018

Miller and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 609
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
RNYB and Minister for Infrastructure and Transport [2015] AATA 576
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43

REASONS FOR DECISION
Mr Andrew Cameron, Member
9 June 2017
INTRODUCTION

Mr Konstantino Grapsas (the Applicant) made an application dated 17 December 2015 for review by this Tribunal of a decision not to approve the Applicant’s application to import a convertible 2004 Mercedes Benz CLK 500 Avantgarde (the Motor Vehicle).[1]
[1] The Motor Vehicle, according to Mr Tony Tiernan in evidence, is stored in quarantined approved premises in Melbourne, Australia.
The Motor Vehicle’s identification number is “WDB2094752T029309”. The Motor Vehicle is a used car and was not fitted with an identification plate.[2]
[2] The Applicant conceded this matter at paragraph 7 of his Statement of Issues, Facts and Contentions, dated 5 August 2016.
By way of procedural background:
(a)the Applicant made an application to the Minister for Infrastructure and Regional Development (the Respondent) on 1 September 2015 to import the Motor Vehicle under regulation 10 of the Motor Vehicle Standards Regulations 1989 (Cth) (the Regulations); and
(b)the decision-maker refused on 26 November 2015 the application by the Applicant by reason of the requirements of rr 13(1)(ab), 13(1)(ac) and 13(1)(ad) of the Regulations not being satisfied; coupled with there being insufficient grounds to warrant the exercise of the discretion under r 11 of the Regulations.
The Applicant contended in paragraph 4 of his Further Submissions, dated 25 May 2016, that:[3]
…I will argue that my application can be interpreted to meet all the requirements of Regulations 13(1) to 13(1)(b) …However, if it is deemed that it does not, I seek for the Minister for Infrastructure & Regional Development to exercise discretion under Regulation 11 to approve a vehicle that does not have an identification plate on the basis of the information set out in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 886
Decision Date: 9 June 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Grapsas to the Administrative Appeals Tribunal (AAT) for review of a decision made by the Minister for Infrastructure and Regional Development. The dispute centred on the importation of a Mercedes CLK 500 motor vehicle into Australia. Mr Grapsas, an Australian citizen residing in Victoria, had arranged for his brother in Greece to purchase the vehicle in late 2014. He subsequently travelled to Greece in February 2015 and returned to Australia in October 2015. Upon his return, he sought to import the vehicle, stating it was a right-hand drive, met Australian standards, and was difficult to sell in Greece.

The primary legal issue before the Tribunal was whether the motor vehicle imported by Mr Grapsas was eligible for concessional entry into Australia under the relevant legislation. Specifically, the Tribunal had to determine if the vehicle met the criteria for importation as a personal vehicle, considering the circumstances of its acquisition and Mr Grapsas's residency status at the time of purchase and importation. The Tribunal also considered the applicant's stated reasons for importing the vehicle, including his need for transport upon returning to Australia and the economic conditions in Greece.

The Tribunal, presided over by Mr Andrew Cameron, considered various documents and oral evidence, including submissions from both parties and witness testimony. The critical factual finding was that Mr Grapsas had provided an address in the United Kingdom on the contract of sale for the vehicle, but he admitted under cross-examination that he had never resided at that address. Furthermore, the Tribunal noted that Mr Grapsas had stated in his application for importing a vehicle that he was living in Melbourne, Australia, in September 2014 when he received information about his mother's illness in Greece. This contradicted the assertion that he was arranging the purchase of a car while living in Australia for use upon his return. The Tribunal found that the applicant had not established that he was ordinarily resident outside Australia when the vehicle was purchased, nor that he had acquired it for his personal use while ordinarily resident outside Australia.

Consequently, the Tribunal concluded that the vehicle did not meet the requirements for concessional entry under the relevant provisions. The Tribunal affirmed the decision of the Minister for Infrastructure and Regional Development.

Orders

Orders of the court

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Background

Background to the litigation

In considering this matter, I have had regard to:(a)the Respondent’s Further Submissions, dated 24 October 2016;(b)a letter addressed to the Tribunal from the Applicant, dated 19 October 2016;(c)the oral submissions and oral evidence of Mr Grapsas during the hearing;(d)the oral evidence of Mr Tony Tiernan, director of Pro-Active Customs and Freight Pty Ltd (who was called by the Applicant to give evidence); (e)the Respondent’s submissions during the hearing;(f)documents handed-up during the hearing, namely:·a “Certificate of Permanent Export” no 772980;·application for a “Certificate of Permanent Export”;·notice of revocation of a departure order, dated 4 February 2015;·letter from Peninsula Community Legal Centre, dated 29 January 2015; ·child support letter, dated 25 January 2015; ·letter from Polites & Carroll, dated 27 January 2005; and ·handwritten letter, dated 1 February 2016 and a chain of emails printed by Tony Tiernan from February 2015;(g)the Respondent’s Statement of Facts, Issues and Contentions, dated 7 September 2016;(h)witness statement of the Applicant, dated 5 August 2016; (i)the Applicant’s Statement of Issues, Facts and Contentions, dated 5 August 2016; (j)further submissions of the Applicant, dated 25 May 2016; and(k)the documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). CRITICAL FACTS The Applicant is 62 years old and, at the time of the hearing, was residing in Thornton in country Victoria. He is an Australian citizen and is a baker by trade. He has worked in and owned a number of bakeries across Melbourne. He was born on the island of Lefkas in Greece and has several family members in Greece. According to the Applicant, in mid-2014 he arranged for his brother, Nick Grapsas, to purchase a motor vehicle. The Motor Vehicle had been registered in the name of “Charleem Rallis” in the United Kingdom but was in fact purchased from Mr Argyris Rallis (the father of Mr Charleem Rallis). It appears that the parties entered into a contract of sale, dated 18 October 2014, for the purchase of the Motor Vehicle.[4][4] The contract referred to Mr Grapsas having an address at “64 Elgare rd Reading RG2 OBL” in the United Kingdom. Mr Grapsas stated under cross-examination that he in fact never lived at that address. On 25 February 2015 the Applicant left for Greece.[5] He returned to Australia on 25 October 2015.[6] [5] Mr Grapsas confirmed this to be the case in his oral evidence. [6] Ibid. In the form headed “Application for importing a vehicle”, dated 1 September 2015, the Applicant stated in Exhibit “C”, among other things: Early in September of 2014 while living in Melbourne Vic Australia, I received information from my brother Nick who lives in Lefkas Greece with our mother, in that our mother (an Australian Citizen living in Greece) was ill and wished to see me. My brother Nick owed me money and it was agreed that he give me a motor car so that I would be able to use it upon my arrival in Greece from Australia to visit our mother and take her to the doctors and on one occasion to hospital.Due to child support debts back in Australia I was not able to leave until paid and cleared to fly, February 25th 2015. Once I took care of all of my duties and responsibilities in Lefkas Greece I thought it reasonable and logical at the time to import the, my (sic) car, Mercedes CLK 500, 2004, to Australia (Melb Vic) for the following reasons: 1)Uppon (sic) my arrival in to Australia I would need a car in order to find a place to live and a job. 2)The car is “Right hand drive”3)It meets Australian Standards4)Due to the economic climate in Greece, I had buckleys chance of selling it locally. 5)It’s a “damn good Car”… (emphasis added)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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