Ham and Minister for Urban Infrastructure and Cities

Ham and Minister for Urban Infrastructure and Cities [2019] AATA 664 (8 April 2019)
Division:GENERAL DIVISION
File Number: 2017/5982
Re:Simon Ham
APPLICANT

AndMinister for Urban Infrastructure and Cities
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:8 April 2019
Place:Brisbane

The Tribunal:
(a)Sets aside the decision under review; and
(b)Substitutes a decision that the Applicant is permitted, pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989 (Cth), to import his nonstandard motor vehicle into Australia.

..............................[SGD].......................................
Senior Member P J Clauson
CATCHWORDS
TRANSPORT – motor vehicle importation – nonstandard vehicle – not owned for 12 months prior to return to Australia – should the regulation 11 discretion be exercised – decision under review set aside
LEGISLATION
Motor Vehicle Standards Act 1989 (Cth)
Motor Vehicle Standards Regulations 1989 (Cth)
CASES
Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43
REASONS FOR DECISION
Senior Member P J Clauson
8 April 2019
INTRODUCTION

On 6 November 2014, Mr Simon Ham (the Applicant) purchased a black Audi RS4 2006 (the vehicle) whilst residing and working in the United Kingdom (UK).[1]
[1] Exhibit 1, T Documents, T9, page 44, Hand written receipt for the purchase of a black Audi RS4 by the Applicant from Mr P Chalmers dated 6 November 2014.
On 16 August 2015, the Applicant returned to Australia and subsequently sought to import the vehicle to Australia.[2]
[2] Exhibit 1, T Documents, T20, page 95, Application APP12426 to import a vehicle under regulation 13 of the Regulations.
The application to import the vehicle which is before the Tribunal was made to the Department for Infrastructure and Regional Development (as it was then known)[3] by the Applicant on 4 August 2017.[4]
[3] Prior to machinery of government changes the previous decision maker was the delegate of the Minister for Department of Infrastructure and Regional Development.
[4] Exhibit 1, T Documents, T20, pages 90-122, Application APP12426 to import a vehicle under regulation 13 of the Regulations and attachments.
On 8 September 2017, a delegate of the Minister for Urban Infrastructure and Cities (the Respondent) refused to approve the application to import the Applicant’s vehicle on the basis that:
… I have found that the vehicles do not meet the requirements of Regulation 13 of the Motor Vehicle Standards Regulations 1989 – personal import. In particular you do not satisfy the requirements of Regulation 13(1)(ac) and (ad).
……
I have also considered whether, in the particular circumstances set out in your application, it is appropriate to grant approval using the general discretionary power conferred on me by section 19 of the Act and regulation 11 of the Regulations. I do not consider that you circumstances warrant the exercise of my discretion in this instance.[5]
[5] Exhibit 1, T Documents, T24, pages 166-167, Refusal letter dated 8 September 2017.
The Applicant sought review of this decision by the Tribunal by way of application dated 5 October 2017.[6]
[6] Exhibit 1, T Documents, T1, pages 1-8, Application for review of decision and attachments.
The issues to be determined by the Tribunal are whether the Applicant meets the requirements of regulation 13 of the Motor Vehicle Standards Regulations 1989 (Cth) (the Regulations) for the grant of an approval to import the vehicle, or if not, whether the discretion provided by regulation 11 should be exercised to grant approval to import the vehicle.
BACKGROUND
The Applicant is a permanent resident of Australia and a citizen of the UK.[7] On 1 August 2013, he was sent on a long-term overseas assignment to the UK by his employer, Arup & Partners International Limited UK (Arup). His deployment to the UK commenced on

12 August 2013 and was due to expire on 12 August 2015, however it was extended by two days and ultimately concluded on 14 August 2015.[8]
[7] Exhibit 1, T Documents, T20, pages 108-115, Notification of grant of a Return (Residence)(class BB)(subclass 155) visa dated 22 August 2016.
[8] Exhibit 1, T Documents, T11, page pages 48-49, Letter from Arup to the Applicant dated 18 August 2015; T17, pages 75-85, Long Term Assignment Contract dated 17 July 2013.
The Applicant purchased the vehicle – being a black Audi RS4 2006 model from Mr Paul Chalmers on 6 November 2014[9] to replace his existing vehicle which was of high mileage and increasing unreliability.
[9] Exhibit 1, T Documents, T9, page 44, Hand written receipt for the purchase of a black Audi RS4 by the Applicant from Mr P Chalmers dated 6 November 2014.
The Applicant returned to Australia on 16 August 2015 and commenced work with his employer, Arup on 17 August 2015.[10]
[10] Exhibit 1, T Documents, T20 pages 95 and 101, Application APP12426 to import a vehicle under regulation 13 of the Regulations.
The Applicant lodged an application to import the vehicle to Australia on 4 August 2017 pursuant to regulation 13 of the Regulations.[11]
[11] Exhibit 1, T Documents, T20, pages 90-122, Application APP12426 to import a vehicle under regulation 13 of the Regulations and attachments.
On 8 September 2017, a Delegate of the Respondent refused the Applicant’s application for approval to import the vehicle.[12] The vehicle was assessed as being a used road motor vehicle with no identification plate and is therefore prohibited from importation under section 18 of the Motor Vehicles Standards Act 1989 (Cth).[13]
[12] Exhibit 1, T Documents, T24, pages 166-167, Refusal letter dated 8 September 2017.
[13] Exhibit 1, T Documents, T2, page 9, paragraph 2, Section 37 statement of reasons dated 8 November 2017.
THE RELEVANT LEGISLATION
The relevant law in relation to seeking approval to import a nonstandard road vehicle or a road vehicle that does not have an identification place are set out in the Motor Vehicles Standards Act 1989 (Cth) (the Act) and the Motor Vehicle Standards Regulations 1989 (Cth) (the Regulations).
The objects of the legislative scheme are set out in section 3 of the Act as follows:-
(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.
The Act provides the following definition of “vehicle standard”:
means a standard for road vehicles or vehicle components that is designed to:
(a)    make road vehicles safe to use; or
(b)    control the emission of gas, particles or noise from road vehicles; or
(c)    secure road vehicles against theft; or
(d)    promote the saving of energy.[14]
[14]    Section 5 of the Act.
Nonstandard is defined:
…means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).[15]
[15] Section 5 of the Act.
Identification plate is defined:
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).[16]
[16] Section 5 of the Act.
Section 18 of the Act prohibits the importation of nonstandard road vehicles or road vehicles without an identification plate:
(1) Subject to section 19 and 20, a person must not import a road vehicle that:
(a)is nonstandard; or
(b)does not have an identification plate.
Section 20(1)(b) of the Act provides an exception to the general prohibition contained in section 18 of the Act “in prescribed circumstances”. Section 20(3) provides for the Respondent to make regulations to clarify the circumstances in which the general prohibition can be overcome.
Section 19(1) of the Act allows the Minister to give written approval for the importation of a nonstandard road vehicle or one without an identification plate.
Section 42 of the Act provides for the making of regulations to prescribe matters for the operation of the Act. For the Act, these are the Regulations.
For the purposes of this matter, Part 4 of the Regulations pertaining to the supply and importation of motor vehicles contains the relevant Regulations.
Regulations 11 and 13 provide as follows:-
11     Minister’s approval to import vehicles without identification plates
(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 subregulation (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.
13     Approval to import vehicle without an identification plate if owned and used by applicant overseas
(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 the 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 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.”
ISSUES FOR DETERMINATION
The issue for the Tribunal to decide is whether the Applicant meets the requirements for the grant of an approval to import the vehicle under regulation 13 of the Regulations.
In the event that the requirements of regulation 13 are not met, the Tribunal must decide whether to exercise its discretion under regulation 11 of the Regulations to approve the application to import the Vehicle.
CONSIDERATION
Has the Applicant met the requirements specified under Regulation 13?
Regulation 13 of the Regulations allows the importation of a nonstandard vehicle by a person who is permanently relocating to Australia from a foreign country if the requirements of the regulation are met. It is important to note that regulation 13 imposes a cumulative test, meaning that all its constituent elements must be met before the discretion to allow for a road vehicle to be imported can be exercised.
The Respondent contends that the Applicant does not meet the requirements of regulation 13 of the Regulations, specifically regulations 13(1)(ac), (ad) and (a) and as a result there is no proper basis for granting approval under regulation 13.[17]
[17] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 9 February 2018, paragraphs 21-30.
The Applicant contends that he owned the vehicle for 12 months and had previously mistakenly thought that he met the regulation 13 requirements.[18] On 4 August 2017, the Applicant submitted an application for approval to import a personal vehicle under regulation 13 of the Regulations.[19] Attached to the application was a letter from the Applicant requesting that the Delegate exercise the discretion available under regulation 11 of the Regulations.[20]
[18]    Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
[19]    Exhibit 1, T Documents, T20, pages 90-122, Application APP12426 to import a vehicle under regulation 13 of the Regulations and attachments.
[20]    Exhibit 1, T Documents, T 22, pages 141-164, Letter and attachments from the Applicant dated 4 August 2017, pages 141-164.
It is not in contention that the Applicant satisfied those requirements of regulation 13 of the Regulations other than regulations 13(1)(ac), (ad) and (a).
Regulation 13(1)(ac)
The Applicant applied under the Act to import the vehicle into Australia on three occasions, namely 14 November 2015,[21] February 2016[22] and 4 August 2017.[23] The applications of 14 November 2015 and 4 August 2017 were both refused by the Respondent’s Delegate on the basis that the Applicant did not satisfy the requirement of regulation 13(1)(ac) of the Regulations because he had not owned the vehicle while overseas for a minimum continuous period of 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely.[24] For completeness, the Applicant’s application of February 2016 was withdrawn because of an inability to meet the Respondent’s certification and compliance requirements.[25]
[21]    Exhibit 1, T Documents, T 12, pages 50-53, Application – IO1 – Importing your Personal Vehicle form.
[22]    Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
[23]    Exhibit 1, T Documents, T20, pages 90-122, Application APP12426 to import a vehicle under regulation 13 of the Regulations and attachments.
[24]    Exhibit 1, T Documents, T19, pages 87-89, Refusal letter dated 24 December 2015; T24, pages 166-167, Refusal letter dated 8 September 2017.
[25]    Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
The Respondent outlined the following undisputed facts:[26]
(a)The date of the purchase of the vehicle was 6 November 2014;[27]
(b)
The UK registration certificate states that the Applicant acquired the vehicle on

6 November 2014;[28]
(c)A letter from Arup dated 18 August 2015 confirms the Applicant’s permanent return to the Arup Australian office, effective from 17 August 2015;[29] and
(d)The Applicant arrived in Australia on 16 August 2015 and provided evidence that his vehicle was still in the UK.[30]
[26]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 9 February 2018, paragraph 25.
[27]    Exhibit 1, T Documents, T9, page 44, Hand written receipt for the purchase of a black Audi RS4 by the Applicant from Mr P Chalmers dated 6 November 2014.
[28]    Exhibit 1, T Documents, T10, pages 45-47, UK Registration Certificate dated 23 January 2015.
[29]    Exhibit 1, T Documents, T11, pages 48-49, Letter from Arup to the Applicant dated 18 August 2015.
[30]    Exhibit 1, T Documents, T20, pages 90-122, Application APP12426 to import a vehicle under regulation 13 of the Regulations and attachments; T22, pages 141-164, Letter and attachments from the Applicant dated 4 August 2017, pages. 141-164.
Based on the undisputed facts, I am not satisfied that the requirements of regulation 13(1)(ac) of the Regulations are met as the Applicant did not own the vehicle for a period of at least 12 months prior to returning permanently to Australia.
Regulation 13(1)(ad)
It follows that because the Applicant has not satisfied regulation 13(1)(ac), he is unable to satisfy regulation 13(1)(ad) of the Regulations. Based on the material before the Tribunal, I am not satisfied that for the purposes of regulation 13(1)(ad) that the Applicant had a period of ownership that satisfies regulation 13(1)(ac) as the vehicle subsequently was not available to the Applicant for his use for a period of 12 months prior to returning permanently to Australia.
Regulation 13(1)(a)
Where an application is made to import a vehicle without an identification plate and provided that the vehicle was owned and used overseas; regulation 13(1)(a) of the Regulations requires that the application must be made not later than six (6) months after the applicant arrived in Australia with the intention to stay.
Given that the application before the Tribunal was made on 4 August 2017 and the Applicant returned to Australia on 16 August 2015, I am not satisfied that regulation 13(1)(a) of the Regulations is met.[31]
[31] Exhibit 1, T Documents, T20, pages 90-122, Application APP12426 to import a vehicle under regulation 13 of the Regulations and attachments.
I am not satisfied that the requirements of regulation 13 of the Regulations have been met.
SHOULD THE DISCRETION UNDER REGULATION 11 BE EXERCISED?
As the Applicant is unable to succeed under regulation 13 of the Regulations, the Tribunal must consider whether or not the Applicant can succeed under regulation 11 of the Regulations.
Regulation 11
The Respondent contended that the discretion available under regulation 11 of the Regulations should only be exercised where there is good reason to do so, and that in these particular circumstances, the evidence discloses no good reason.[32]
[32] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 9 February 2018, paragraph 55.
The Applicant contends that there is a good reason for the Tribunal to exercise the discretion under regulation 11 of the Regulations; specifically citing unusual circumstances, hardship, financial hardship, uniqueness of the vehicle and challenges associated with sale.[33]
[33] Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
Exercise of Discretion
In the matter of Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43 (“Selway”), Mansfield J stated at paragraphs [36]-[40]:
36.The general rule is that a discretion expressed without any qualification is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the legislative scheme: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50 (the ABT decision) per Stephen, Mason, Murphy, Aickin and Wilson JJ. The Minister accepted that Reg 13 does not provide a code for the circumstances in which a vehicle intended to be privately used may be imported by a citizen returning to Australia after a period of work overseas. Once that is acknowledged, it is difficult to see how Reg 11 should be confined in the manner the Tribunal approached it.
37.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 counterveiling factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11. This is not a case where the Tribunal has found that the importation of the car would undermine or frustrate the policy or objectives of the legislative scheme. In fact, it accepted the opposite.
38.However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered. It would be appropriate to have regard to the criteria specified in Reg 13(1) when considering whether to exercise the discretion, but because the discretion under Reg 13 is a separate one, the fact that not all those criteria are satisfied is not itself a reason not to exercise the discretion under Reg 11. The Minister accepted that. In fact, on the Tribunal’s findings, Mr Selway satisfied all those criteria except for that specified in Reg 13(1)(ac) because he had owned the car only for about nine months rather than 12 months immediately before arriving in Australia.
39.In my view, it was an error of law for the Tribunal to construe the apparently unlimited discretion in Reg 11 so that, even where the policy or objectives of the legislative scheme were not undermined, there had to be some exceptional or special or rare circumstances before the discretion could be exercised in favour of Mr Selway. I do not consider that Reg 11, in its context in the legislative scheme, implies that further fetter or gloss upon its operation. The observations of Deputy President Hotap in Marra do not suggest otherwise. He referred, appropriately to the observations of the majority judgment of the High Court in the ABT case at 49 to the following effect:
In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”, to use the words of Dixon J in Browning.
After referring to the particular circumstances of that case, their Honours went on at 50 to say:
Plainly enough, when the power to grant or refuse consent is unconfined by the express words of the statute the conclusion that the Tribunal has virtually no discretion at all is unacceptable.
40.It would not be accurate to attribute to the Tribunal the view that it had virtually no discretion under Reg 11. But in my view, it erroneously circumscribed or fettered its discretion by the formulation of the test to be applied before it could be exercised in Mr Selway’s favour. I consider that such fettering is not warranted by the words of Reg 11 either taken alone or in their place in the Regulations having regard to the legislative scheme. The subject matter of the Act and the Regulations, and the scope and purpose of the legislative scheme, does not support such an implication: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason CJ. See also Bennion on Statutory Interpretation, (5^thed Lexis Nexis, 2008) at 90.

His Honour, concluded that the discretion under regulation 11 was in its terms, unfettered.
Outline of Applicant’s Circumstances
The Applicant provided a letter in support of his application to the Respondent dated

4 August 2017 and outlined:
The vehicle subject of this application was purchased as a second vehicle following regular monthly discussion with my Australian Manager the reason for the purchase was a follows:
a)    My primary vehicle whilst on temporary assignment to the UK (Audi A3) was of high mileage and becoming unreliable necessitating replacement ad [sic] purchase or the vehicle subject of this application on the basis of discussions with my Australasian manager indicating extension of assignment to UK was likely to be essential for employment continuity;
b)    Discussions with my Australian manager had confirmed that an extension of my temporary assignment to the UK would likely be necessary due to weak business in Australia and the consequential inability that he would be able to provide continued employment if I returned to Australia. These discussions were teleconferences that [sic] ran monthly throughout my assignment to the UK. The extended assignment options that I was being advised were as follows:
a.    Extension to early August 2015
b.    Extension to mid September 2015
c.    Extension to Late June/Early July 2016
d.    Longer Extension
Discussions about assignment extension first started in August 2014 and continued right through to 22^nd July 2015 before a last minute decision was made for my return to Australia to be mid-August 2015. Until the very final decision the inference through all teleconferences with my Australian manager was that the assignment to the UK would need to be extended to the longest possible extent for employment continuity reasons which inferred the need to maintain an ongoing reliable means of transport for use in the UK.[34]
[34]    Exhibit 1, T Documents, T22, page 141, Letter and attachments from the Applicant dated 4 August 2017.
Mr Andrew Nicol, who was the Applicant’s immediate Manager, gave evidence at the Hearing. Mr Nicol confirmed he was under pressure at this time [referring to the time leading up to when the Applicant purchased the vehicle] to cut costs and that if the Applicant had returned earlier, he would have to look at redundancies in his section and the Applicant would be one of those who would be at risk.
There were several significant issues with which the Applicant had to contend in relation to extending his time in the UK. They are outlined in emails to Mr Nicol.[35] The issues included:
·      The Applicant’s stepdaughter had to be inducted into the Queensland Education system in the most seamless way possible;
·      The Applicant and his partner had to terminate the leasing arrangements on their UK dwelling;
·      If necessary, then arrange alternative accommodation should they stay; and
·      Make arrangements for their goods and household chattels to be packed, stored and, if necessary, transported to their new temporary dwelling in the United Kingdom should it be required.[36]
[35]    Exhibit 1, T Documents, T14, pages 57-71, Email dated 3 December from the Applicant with further attachments in support of his application.
[36]    Exhibit 1, T Documents, T14, pages 57-71, Email dated 3 December from the Applicant with further attachments in support of his application.
Another complicating factor in the Applicant’s circumstances was that his Australian Visa was due to expire on 19 July 2016. If this did occur before he left the UK, he would not be able to obtain Visas for either his partner or his stepdaughter under the Partner and Dependant Visa arrangements and he would also run a risk of his permanent residency status in Australia being lost if he remained in the UK for more than three years.[37]
[37] Exhibit 1, T Documents, T14, pages 57-71, Email dated 3 December from the Applicant with further attachments in support of his application.
The Applicant was advised by a letter dated 24 July 2015 that his long-term overseas assignment would be extended for a period of only two days from 12 August 2015 to

14 August 2015.[38] This was done for internal administrative purposes. The Applicant indicated that had been advised by his employers verbally on 22 July 2015 that he would depart the UK on 14 August 2015 and would commence work with the company in Australia on 17 August 2015. The Applicant confirmed this information in an email to

Ms Lianne Ionescu, Arup Human Resources Officer.[39] This effectively gave the Applicant 23 days in which to make preparations to leave the UK and return to Australia.
[38] Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
[39] Exhibit 1, T Documents, T14, pages 57-71, Email dated 3 December from the Applicant with further attachments in support of his application.
Up to 22 July 2015, the Applicant had been under the impression that all discussions were predicated on the fact that business conditions in Australia were “weak” and that his return to Australia could not be supported in the short-term.[40] It is clear to the Tribunal that the Applicant’s employers in Australia were genuine in their desire to retain the Applicant’s services as an employee and did not wish to see him off the payroll. Consequently, his employers in Australia facilitated arrangements in the UK for the Applicant to remain on the payroll of Arup in the UK so that when business conditions in Australia improved, they would then be able to repatriate him to Australia. It was clearly surprising to the Applicant when, given the discussions that had occurred in relation to his staying in the UK until business conditions in Australia improved, that arrangements for his repatriation to Australia were expedited and were to take place at or about the same time that his long-term overseas assignment to the UK would have ended.
[40] Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
The Applicant returned to Australia and commenced work with Arup Australia on

17 August 2015 following the conclusion of the “mini extension” of his assignment in the UK.[41]
[41] Exhibit 1, T Documents, T11, pages 48-49, Letter from Arup to the Applicant dated 18 August 2015.
Contrary to the Applicant’s submissions, the Respondent contended that the Applicant’s return to Australia for work was not “unpredicted and unexpected”. The Respondent further contended that of the dates discussed for a possible return to Australia two of the dates were in advance of the qualifying 12 month period.[42]
[42] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 9 February 2018, paragraph 50.
When the Applicant returned to Australia he was still the owner of the vehicle that is the subject of this application. His original car had not been made roadworthy before he left the UK and it was sold to his mechanic at a low price.[43]
[43] Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
The Applicant had owned the vehicle since its purchase on 6 November 2014 up until his departure from the UK on 15 August 2015, a period of nine months and eight days.
After the refusal of the Applicant’s first application, the Applicant explored the option of importing the vehicle pursuant to regulation 12 of the Regulations by way of obtaining a letter of compliance which had been issued by the compliance plate approved holder.[44] He advised the Tribunal however that these endeavors were not fruitful and that although he lodged an application for approval to import the vehicle in February 2017 he withdrew that application.
[44] Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
The Applicant contended given the circumstances surrounding his UK employment and in relation to importing the motor vehicle in question, the Ministerial discretion should be exercised in his favour.
Policy Objectives
In considering whether or not to exercise the discretion under regulation 11 of the Regulations, it is necessary for the Tribunal to consider whether the importation of the vehicle would undermine or frustrate the policy or objectives of the Act.
The Respondent contended the Tribunal should not exercise the discretion under regulation 11 as importing the vehicle would undermine or frustrate the policy and objectives of the Act.[45]
[45] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 9 February 2018, paragraph 44.
The Respondent contended the principal objectives of the Act are to achieve uniform standards to apply to new vehicles when they begin to be used in transport in Australia and to regulate the first supply to the market of used imported vehicles. The Respondent further provided that one of the major policy objectives of the legislative scheme created by the Act is to ensure the safety of vehicles and road users in Australia and referenced the following extract of the Explanatory Memorandum that accompanied the Motor Vehicle Standards Bill 1989 (at p1): “[the Bill] will also mean that al Australian citizens have the benefit of a high level of vehicle safety by ensuring manufacturers and importers comply with the same requirements”.[46]
[46] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 9 February 2018, paragraphs 41-44.
The Applicant contended he is seeking the discretion under regulation 11 with the policy objectives of the Act and Regulations in mind.[47]
[47] Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
There have been no arguments made that the vehicle is unsafe or not compatible with Australian standards. In the contrary the Applicant contended:
… it is understood that some minor modifications to this particular model would be made as part of the compliancing process on entry to Australia, I understand these consist of installation of seat belt fixings in the rear of the vehicle to meet ADR’s and changing the speedometer to read in kilometres [sic] per hour in place of the UK speedometer which reads in both miles per hours and kilometres [sic] per hour. All of these items are normal practice for car’s imported from the UK as I understand. There would of course be the usual clearance, inspection, quarantine, import duty and GST to be paid on the vehicle. These are expected ad understood regardless of which path vehicle import is achieved when importing a vehicle.[48]
[48] Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
I do not consider that exercising the discretion under regulation 11 of the Regulations would, in this matter, undermine the policy objectives.
Other Factors
The Respondent contended the discretion provided by regulation 11 of the Regulations should not be exercised as:
·      There is no evidence of unfairness or injustice to the Applicant;
·      The decision not to approve the application is the result of the proper and regular operation of the Act;
·      The ongoing costs associated with registration renewals and mechanical upkeep of the vehicle overseas the Applicant incurs while attempting to sell the Vehicle for the desired price, does not amount to financial hardship;
·      The Applicant has received offers for the purchase of the vehicle but had declined those offers on the basis that he considered the offers to be substantially below market value, which contradicts his contention that he is suffering financial hardship;
·      A production vehicle should not be considered a unique vehicle;
·      The Applicant’s return to Australia for work was not unpredicted;
·      Some of the potential extended term assignments were inside the 12 month qualifying period signaling that a return ahead of the qualification period was a real possibility;
·      The Applicant only having 23 days after receiving notice that he was required to return to Australia does not provide a proper basis for the exercise of the discretion; and
·      The Applicant being unable to sell both of his vehicles prior to returning to Australia does not provide a proper basis for the exercise of the discretion.[49]
[49]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 9 February 2018, paragraphs 46-52.
The Applicant has been clear in his evidence to the Tribunal insofar as he purchased the vehicle to provide himself with reliable transport both for the purpose of personal use and for work. He stated that his existing vehicle had high mileage and was becoming more unreliable. His position required him to travel by motor vehicle from his place of residence to quite distant parts of the UK and that this required a reliable vehicle.
In support of his application the Applicant provided a letter dated 18 January 2018 and contended that the discretion under regulation 11 of the Regulations should be exercised as his circumstances were unusual, he suffered hardship due to the circumstances of his relocation back to Australia, the vehicle is unique, there are challenges attributed to selling the vehicle and he is experiencing financial hardship as a result of not being able to import the vehicle.[50]
[50] Exhibit 3, Applicant further information and clarification document dated 18 January 2018
On 22 July 2015, the Applicant was unexpectedly advised that his long-term assignment would be extended by only two days and that he would be returning to Australia on
14 August 2015 and commencing work with the company in Australia on 17 August 2015. The delays associated with the business climate in Australia created an unexpected set of circumstances leading to uncertainty for the Applicant.
The Applicant stated that ideally he would have chosen to sell the vehicle before he left, but his circumstances were such that he had to relocate from the UK within 23 days; arrange his affairs; pack, store and dispatch furniture; and to attend to family matters and close off his work obligations within the timeframe given. He required a reliable vehicle throughout this period and so had to retain the vehicle for his use rather than sell it immediately.
The Applicant has had to store the vehicle and keep up the costs of maintaining its registration and insurance in the UK. The Applicant has provided the Tribunal at the time of the Hearing with a figure of AUD$9,350.00 for the total expenditure to keep the vehicle in the UK since his return to Australia.
The Applicant contended the vehicle is a unique vehicle given its low production run and its engineering attributes. The vehicle has a large petrol motor, restrictive compulsory insurance conditions which exclude people under 30 years of age from driving it and is therefore realistically restricted for sale to a cult market of enthusiasts who may now be attracted to newer models of the same mark. The Applicant stated he has received no feasible offer to buy the vehicle at what he considers to be an acceptable price.[51]
[51] Exhibit 3, Applicant further information and clarification document dated 18 January 2018.
The Applicant also told the Tribunal that his current vehicle in Australia is now 22 years old, is a high mileage vehicle and is also becoming unreliable. He requires a vehicle for work purposes and cannot rely upon public transport in his occupation. He also told the Tribunal that he decided to seek approval to import the vehicle as he is trying to keep two vehicles in two different countries, the costs to do so are mounting and he does not have unlimited means to purchase another reliable vehicle in Australia.
Conclusion
I have considered the arguments proffered by the Respondent and do not consider that an exercise of the Ministerial discretion to allow an approval for the importation of the subject motor vehicle in this matter would undermine the policy objectives of the Act, nor would it have the effect of frustrating the purpose of the Act. No argument has been agitated that the vehicle is, in any way, unsafe to be allowed onto Australian roads.
Having heard the Applicant’s evidence, I accept that the Applicant’s circumstances are as he described them to be to the Tribunal. I also accept the circumstances under which he states he has decided to seek the exercise of the Minister’s Delegate’s discretion to import the vehicle to Australia.
I am satisfied that he was subjected to an unforeseen situation regarding his employment. He was compromised by circumstances beyond his control namely: weak economic conditions prevailing in Australia; the prospect of redundancy if he returned at the scheduled completion of his long-term overseas assignment; the desire for his employers in Australia to retain his services; and the resultant uncertainties leading to protracted negotiations to find a solution to ensure his retention by the company when he returned. All of these issues conspired to create an air of uncertainty and impacted his ordered departure from the UK.
I am satisfied that the Applicant did genuinely wish and intended to sell the vehicle when he left the UK, but this plan was thwarted by the developing disruptive circumstances around his departure. I am also satisfied that his financial circumstances have been impacted and, for a person of average means, the storage and upkeep of a vehicle in the UK while using and maintaining an aging vehicle in Australia is not an insignificant impost. The Applicant is also unable to purchase another vehicle in Australia while his funds are held in the overseas vehicle.
Although it has been suggested that he could sell the vehicle for the price offered to him, that decision is of a commercial nature for him to resolve given his own financial circumstances.
Therefore, on balance, I consider this is an appropriate and sufficiently unusual case where the discretion in regulation 11 of the Regulations should be exercised to permit the important of the vehicle to occur.
DECISION
The decision under Review is set aside. The Tribunal decides that in substitution, the application for permission to import the vehicle is approved pursuant to regulation 11 of the Regulations.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

..........................[SGD].........................................
Associate
Dated: 8 April 2019

Date of hearing:
Applicant:

9 April 2018

Simon Ham – In person

Advocate for the Respondent: Michael Palfrey

Solicitors for the Respondent: HWL Ebsworth Lawyers

[2019] AATA 664

8 April 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies