Grapsas and Minister for Infrastructure and Regional Development
[2017] AATA 886
•9 June 2017
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.
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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 these submissions. (emphasis added)
[3] This statement should be contrasted with the Applicant’s statement in his Application for Review submitted to the Tribunal, where he stated, “I did not meet the criteria in 13(ac) (sic) relating to the continuous ownership of the vehicle for a 12 month period…” (emphasis added)
RELEVANT LEGISLATIVE PROVISIONS
Section 3 of the Motor Vehicle Standards Act 1989 (Cth) (the Act) provides that:
The main objects of this Act are:
(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b)to regulate the first supply to the market of used imported vehicles. (emphasis added)
Section 7 of the Act states:
The Minister may, by legislative instrument, determine vehicle standards for road vehicles or vehicle components. (emphasis added)
The terms “road vehicles” and “identification plate” are defined in s 5 of the Act which provides that:
road vehicle means:
a road motor vehicle;
a road trailer; or
a partly completed road motor vehicle;
but does not include vehicles which the Minister has determined, under section 5B, are not road vehicles.
identification plate means a plate declaring the status of a road vehicle in relation to the national standards and approved to be placed on vehicles of that type or description under procedures and arrangements provided for in subsection 10(1).
Under s 18 of the Act:
Subject to sections 19 and 20, a person must not import a road vehicle that:
(a) is nonstandard; or
(b)does not have an identification plate.
Section 19(1) of the Act permits a person to import a nonstandard road vehicle, a road vehicle that does not have an identification plate, or a nonstandard prescribed vehicle component with the written approval of the Minister.
Section 20(1)(b) of the Act permits a person to import a nonstandard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances.
Regulations 11 and 13 are relevant to the present application.
Regulation 11 provides that:
(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.
(2)An approval may be given subject to conditions specified in the instrument of approval.
(3)Without limiting the generality of sub-regulation (2), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.
(4)An approval must be given by signed instrument. (emphasis added)
Regulation 13 states that:
(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister is satisfied that:
(aa)the applicant owns the vehicle at the time the application is made; and
(ab)the applicant acquired ownership of the vehicle overseas; and
(ac)the applicant owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(ad)during that period of ownership the vehicle was available to the applicant for use in transport; and
(a)the application is made not later than 6 months after the applicant arrived in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(b)at the time the application is received by the Minister, the applicant is:
(i)an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely; or
(ii)a person who has applied to become an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely if granted Australian citizenship or permanent residency; or
(iii)a person who is entitled to remain in Australia indefinitely and provides evidence that he or she intends to do so; or
(iv)the holder of a visa that entitles him or her to apply to become a permanent resident (whether or not after a specified period or in the specified circumstances) and provides evidence that he or she intends to remain in Australia indefinitely; and
(c)the applicant is of an age that entitles him or her to hold a licence or a permit to drive a road vehicle of that type; and
(d)the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister; and
(e)the applicant has not been granted an approval under this regulation within the period of 5 years ending on the day on which the vehicle in respect of which the application is made is landed in Australia.
(2)An approval under subregulation (1) is subject to any written conditions determined by the Minister. (emphasis added)
MATTERS FOR CONSIDERATION
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 Standards
4)Due to the economic climate in Greece, I had buckleys chance of selling it locally.
5)It’s a “damn good Car”… (emphasis added)
Accompanying his application were, among other things:
(a)a purchase document in the name of the Applicant, dated 18 October 2014;
(b)the registration document for the Motor Vehicle from the United Kingdom, dated 18 June 2014;
(c)a car insurance document showing a policy start date of 17 June 2015;[7] and
(d)a ferry ticket for travel from Brindisi to Igoumenista on 26 April 2015, purportedly in the name of the Applicant.[8]
[7] This document appeared to relate to a different vehicle and misspelt Mr Grapsas’ name.
[8] This ticket also included the UK address for Mr Grapsas, which he conceded he was not living at.
The Applicant also lodged a statutory declaration dated 19 November 2015, in which he stated, among other things:
2.My reasons for travelling to Greece were two fold:
(a) To see and be with my mother who is 91 and had a stroke that landed her in Lefkas Hospital…
(b) And to relocate and try to live in the lsland of my birth, Lefkas, Greece. While there I intended to start a business, Bakerie Patisserie as I had done in Melbourne, Victoria, Australia from 1984 to 2010…
8.It is important to note that I took my German Shepherd dog to Greece that I had since a pup in Australia – in total it cost me $3,500 by Jet Pets to fly my dog to Greece. And it cost me twice that by Jet Pets $6,700 to bring him back to Australia and another $2,000 for a 10 day stay at Spotswood Quarantine Station.
9.Had I intended to fly to Greece to buy a car and import it for a profit, I would never have thought of taking my dog to Greece and bring him back again. I could have left him at an Australian dog lodge for $2,000 to $2,500, far less than the $12,000 it cost me.
10.I therefore eagerly await to claim my car Mercedes Benz 500 once it arrives so that I can travel up North to New South Wales or Queensland and start up a Bakery Café and live my life…
REGULATION 13
In my view, it is unnecessary to determine whether all of the requirements of regulation 13 have been met as, on the facts that are before me, the requirements of r 13(1)(ac) have clearly not been met for the following reasons.
Regulation 13(1)(ac) requires that the Applicant has owned the Motor Vehicle while overseas, and owned it for a continuous period of at least 12 months immediately before arriving in Australia, for the purpose of remaining in Australia indefinitely.
In written submissions lodged with the Tribunal, the Applicant stated that:
35.The Decision Maker has found that I obtained Ownership of the Vehicle on 18 October 2014 in paragraph 31 of the Statement. I clearly owned the vehicle while overseas. Using the date of 18 October 2014, I owned the vehicle for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely which was on 24 October 2015. Under this timeline, I believe that I have met the criteria of Regulations.
36.I owned the vehicle while overseas AND I owned the vehicle for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely... (emphasis added)
I do not accept such a construction of r 13(1)(ac) as propounded by the Applicant. As the Respondent submitted, the Applicant appears to be submitting that the two limbs of r 13(1)(ac) should be read separately, as opposed to being read together. In my view, the proper construction of r 13(1)(ac) is that the Applicant must have owned the Motor Vehicle while overseas and that he must have also owned the Motor Vehicle while he was overseas for a continuous period of 12 months.
My view in this regard is fortified for at least five reasons:
(a)First, the usage of the word “and” in r 13(1)(ac) is conjunctive. Giving effect to the ordinary meaning of the text means, in my view, that it must be construed as requiring the motor vehicle to be owned while overseas for a continuous period of at least 12 months immediately before arriving in Australia.
(b)Secondly, in the case of Kowald and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 1018, Dunne SM held at [14]:
More specifically, reg 13 “sets out a clear policy in relation to the importation of nonstandard road vehicles which have been owned and used overseas” (see Re Patel and Department of Transport and Regional Services [2001] AATA 957). Regulation 13, after its amendment on 17 November 2009, emphasizes that in order to satisfy the ‘ownership’ and ‘use’ requirements, an applicant is to be overseas with the vehicle during the 12 months immediately preceding their move to Australia. These requirements are clearly not met…(emphasis added)
(c)Thirdly, in the case of Miller and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 609, Kenny SM held at [9]:
The relevant time-frame for the operation of reg 13(1)(ac) is the 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely. In Ms Miller’s case, this is the period from 6 January 2009 until 6 January 2010. In most cases, a vehicle sought to be imported into Australia will be overseas and, therefore, the reference to “while overseas” in the provision is not to a vehicle but to an applicant, in this case Ms Miller. That interpretation is supported by the terms of the Explanatory Memorandum. Ms Miller owned the vehicle for the relevant 12 month period but, for most of that time, she was in Australia. She was overseas in the USA from 6 to 9 January 2009 and from 21 December 2009 until 6 January 2010. She was in New Zealand from 12 to 21 February 2009. Those are the only periods when she may be described as owning the vehicle while overseas for the purposes of reg 13(1)(ac). Accordingly, Ms Miller did not own the vehicle while she was overseas for a continuous period of at least 12 months immediately before arriving in Australia. (emphasis added)
(d)Fourthly, this view is support by the Explanatory Statement to the Regulations[9] which provides:
New paragraph 13(ac) clarifies that the applicant must have owned the vehicle (while overseas) for a continuous period of at least 12 months immediately before arriving in Australia.
(e)Fifthly, such a construction is consistent with the broader regulatory scheme envisaged by the Act and the Regulations.
[9] See s 15AB of the Acts Interpretation Act 1901 (Cth) and s 13 of the Legislation Act 2003 (Cth).
The Applicant concedes that he was not in Greece for a continuous period of 12 months in the period immediately before he returned to Australia. In fact, he returned to Australia after a period of approximately 8 months overseas.
Accordingly, the Applicant did not satisfy the requirements of r 13(1)(ac). Therefore, he cannot not satisfy the requirements of r 13 of the Regulations.
REGULATION 11
Regulation 11 contains a broad discretion to allow the importation of a nonstandard vehicle or a vehicle without an identification plate. The Act and the Regulations do not set out the specific factors to be taken into account for the exercise of this discretion. Accordingly, they must be determined by the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 - 40.
In Compos and Minister for Infrastructure and Transport [2012] AATA 227, Toohey SM held at [29]:
[T]here needs to be good reason for the discretion in reg 11 to be exercised.
In Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43, Mansfield J held at [37] – [38]:
It may well be that it will not be a common circumstance that a person seeking to import a non-standard vehicle will have the discretion available under Reg 11 exercised in that person’s favour. 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 countervailing factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11….However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered… (emphasis added)
Factors such as the policy objectives of the Act; unfairness or injustice to the Applicant; financial hardship to the Applicant; the unique nature of the vehicle in question; whether there were any unpredictable or unexpected events, are relevant to consider in exercising the discretion.
The question that this Tribunal must answer is whether, based on the evidence and material before it, the discretion contained in r 11 should be exercised. In short, my view is that the discretion should not be exercised in favour of the Applicant to allow the importation of the Motor Vehicle. I am of this view for the reasons set out below.
Policy objectives of the Act – the exercise of the discretion would undermine the intended policy objective of the Act, which as set out in the policy document “Importing Vehicles into Australia”, includes the facilitation of importing foreign vehicles belonging to new migrants and Australian expatriates who have lived overseas for an extended period of time and are returning to their home country.
Unfairness to the Applicant – The Applicant says that he needs the Motor Vehicle to assist him to get work. During the course of his oral evidence, the Applicant conceded that he owned another motor vehicle (albeit, there had been issues with respect to its registration). At one stage, he also said in his evidence that, “he needed to have it available for my dog”. It seems to me that neither of these two propositions advanced by Mr Grapsas create any great unfairness to him. Furthermore, the Applicant contended that originally he intended to remain in Greece indefinitely and that his decision to return to Australia was unplanned. In a letter from Mr Tiernan (on the Applicant’s behalf) to the Respondent it stated:
Mr Grapsas was confident of settling indefinitely [in] Greece with his family and Mother.[10]
[10] Mr Tiernan in his oral evidence stated that, “[Mr Grapsas] wanted to export his personal effects because he was going overseas for ever.”
However, such a statement needs to be balanced against the fact that the Applicant has previously stated (as extracted in paragraph 18 above) that he travelled to Greece to visit his mother and take her to the hospital and that once his duties and responsibilities were discharged he thought it to “reasonable and logical” to return to Australia with the Motor Vehicle.
Furthermore, there was no evidence that the Applicant was given incorrect advice by the Department (see Brassington and Minister for Transport and Regional Services [2006] AATA 724 at [29]).
Financial hardship to the Applicant – the fact that the Applicant’s financial position is poor and that he is reliant upon Government benefits does not, of itself, warrant the exercise of the discretion. See, for example, Burns and Secretary, Department of Infrastructure, Transport, Regional Development and Local Government [2009] AATA 972 at [34]. Furthermore, the Motor Vehicle could be sold to alleviate, at least in part, the financial hardship that he is currently suffering. Any holding costs he may be incurring by reason of it being held in Australia is as a result of his own actions to import the Motor Vehicle prior to obtaining approval.
Whether the Motor Vehicle was unique – the Motor Vehicle does not appear to be unique and the Applicant made no such submission to the Tribunal. When pressed on this issue during the course of the hearing, he simply said in his oral evidence that it was, “a beautiful vehicle”.
Whether there were any unforeseen circumstances – the Applicant submitted that unforeseen economic events in Greece meant that he could not gain employment and, as a consequence, stay in Greece on a permanent basis. The Respondent submitted, which I accept, that the economic troubles faced by Greece were well established by the time the Applicant purchased the Motor Vehicle and arrived in Greece.
Last vestige of his inheritance from his parents – the Applicant submitted that the Motor Vehicle represented the last vestige of his inheritance from his parents. The authorities are clear that surprise or disappointment at the outcome, or sentimental attachment to a motor vehicle are insufficient to bring about an exercise of the discretion under r 11 of the Regulations. See, for example, Kowald and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 1018 at [23] and RNYB and Minister for Infrastructure and Transport [2015] AATA 576 at [43] in this regard.
CONCLUSION
In light of the above, the Applicant does not meet the requirements of r 13 nor is it appropriate, in the circumstances, to favourably exercise the discretion under r 11 of the Regulations.
The Tribunal must affirm the decision under review.
I certify that the preceding 42 (forty‑two) paragraphs are a true copy of the reasons for the decision herein of Mr Andrew Cameron, Member
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Associate
Dated: 9 June 2017
Date of hearing: 10 October 2016 Date final submissions received: 24 October 2016 Applicant: In person Advocate for the Respondent: Mr Michael Palfrey Solicitors for the Respondent: HWL Ebsworth Lawyers
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