Hamer and Department of Transport and Regional Services

[2005] AATA 833

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 833

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/301

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT WILLIAM HAMER

Applicant

And DEPARTMENT OF TRANSPORT
AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Senior Member P McDermott

Date30 August 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]........................

P McDermott
  Senior Member

CATCHWORDS

TRANSPORT – import approval for vehicle less than 15 years old – applicant a New Zealand citizen – whether applicant a permanent resident for the purposes of the regulations – whether reg 13 imposes a requirement of continuous use of a vehicle - applicant previously imported vehicle - no exceptional circumstances

Motor Vehicle Standards Act 1989
Migration Act 1958 s32
Motor Vehicle Standards Regulations reg 1,11,13
Motor Vehicle Standards Regulations Amendment Regulations 2005
Migration Regulations 1994 s30, 32

Mughal and Minister for Transport and Regional Services [2004] AATA 1049
Trajkovski v Department of Transport and Regional Services [2000] AAT 1073
Van Duyker v Department of Transport and Regional Services [2004] AAT 592

Albanus v Department of Transport and Regional Services [2001] AATA 12

Anthony v Department of Transport and Regional Services [2001] AATA 543

Fraser v Department of Transport and Regional Services [2003] AATA 44

Lai v Department of Transport and Regional Services [2003] AATA 861

Cathcart v Department of Transport and Regional Services [2005] AATA 33.

Murase and Department of Transport and Regional Services [2005] AATA 705

REASONS FOR DECISION

30 August 2005	Senior Member P McDermott
The Decision

1.      The applicant applied to review a decision of the Administrator of Vehicle Standards on 21 April 2005 to refuse an application dated 14 March 2005 to import a 1992 Mitsubishi GTO vehicle (‘the vehicle’).

2.      Mr Hamer attended the hearing but was not represented. Ms C Petre, Solicitor, Clayton Utz Lawyers, Canberra, appeared on behalf of the respondent.

3. The Tribunal had before it the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T20) and documents tendered by the parties.

4.      The application was made under regulation 13 of the Motor Vehicle Standards Regulations. The applicant in the application indicated that the vehicle did not have an identification plate.

5.      The Administrator of Vehicle Standards declined the application on the basis that the applicant was unable to satisfy regulation 13(b)(i) and (ii) of the Motor Vehicle Standards Regulations.

6.      In his Statement of Reasons the Administrator of Vehicle Standards stated that these provisions could not be satisfied as the applicant was not an Australian citizen or an Australian permanent resident or a person who has applied to become an Australian citizen or an Australian permanent resident.

Tribunal to apply Current Regulations

7.      I would point out that the T-Documents contain the text of regulation 13 of the  Motor Vehicle Standards Regulations prior to the Motor Vehicle Standards Regulations Amendment Regulations 2005. I have taken the view that as I was performing an administrative function it was my duty to consider the regulations that are now in force.  

Background

8.      The applicant was born on 17 August 1951. He is a citizen of New Zealand and holds a New Zealand passport. In his evidence he stated that he purchased a 1992 GTO Mitsubishi vehicle in 2003. The sale agreement for the vehicle was signed on 23 December 2003 (T16).

9.      Since he purchased the vehicle he stated that he has only driven the vehicle 15 to 20 times. He drives it 4 or 5 times a year. In his evidence he stated that he might take the vehicle out if he went out in the evening to a restaurant.

10.     The applicant stated that he wanted the vehicle to have a low mileage.  He recognised that a low mileage vehicle would have a higher value than a vehicle with a higher mileage.

11.     The applicant stated that he had a Nissan vehicle that he regularly used in New Zealand and that his partner has another vehicle for her use in New Zealand.

12.     Whilst the applicant stated that he intended to import the vehicle for personal use, his desire to ensure that the vehicle kept its value by having a low mileage meant that he was conscious of the possibly of reselling the vehicle if it was imported into Australia.

Whether Regulation 13 Imposes a Requirement of Continuous Use

13.     The respondent submitted that because the applicant has not continuously used the vehicle he does not satisfy the requirements of paragraph (a) of regulation 13 (ii) of the Motor Vehicle Standards Regulations. This is because the vehicle has not “been owned and used by the applicant for a continuous period of at least” 12 months.

14.     I do not accept this submission of the respondent. This is because the paragraph does not impose a requirement that the vehicle has to be continually used. It is, however, not necessary to make a final ruling on that point in view of my ruling that the applicant does not satisfy paragraph (b) of regulation 13 of the Motor Vehicle Standards Regulations. The conjunctive “and” at the end of paragraph (a) makes it clear that the applicant should satisfy both paragraphs (a) and (b) of regulation 13. If the applicant is unable to satisfy paragraph (b) it is unnecessary to examine whether he also satisfies paragraph (a).

Whether a New Zealand Citizen is an Australian Permanent Resident

15.     It is necessary for me to decide whether a New Zealand citizen is able to satisfy regulation 13(b)(i) and (ii) of the Motor Vehicle Standards Regulations.

16.     The applicant is certainly not an Australian citizen.  In evidence the applicant confirmed that he had not applied to become an Australian citizen.

17.     It is necessary for me to determine whether the applicant as a New Zealand citizen is an Australian permanent resident for the purposes of the Motor Vehicle Standards Regulations.

18.     There does not appear any decision on whether a New Zealand citizen could be regarded as an Australian permanent resident for the purposes of the Motor Vehicle Standards Regulations. I observe that in Mughal and Minister for Transport and Regional Services [2004] AATA 1049 the respondent made a submission that a New Zealand citizen does not satisfy regulation 13(b): see [14]. However, it was not necessary in that case for that issue to be decided.

19.     Neither the Motor Vehicle Standards Act1989 nor the Motor Vehicle Standards Regulations contains a definition of the expression “Australian permanent resident”.

20.     I have taken the view that this expression has the same meaning as the definition of “Australian permanent resident” in reg. 1.03 of the Migration Regulations 1994.  That definition requires a non-citizen to be the holder of a permanent visa.

21. The applicant as a New Zealand citizen is the holder of a special category visa under s 32 of the Migration Act 1958. A special category visa that is issued to a New Zealand citizen is different from a permanent visa under s 30 of the MigrationAct 1958.

22.     I accordingly rule that the applicant is unable to satisfy regulation 13(b)(i) and (ii) of the Motor Vehicle Standards Regulations. This is because the applicant does not have, and has not applied for, a permanent visa.

23.     It would seem that it would be appropriate to insert a definition of “Australian permanent resident” in the Motor Vehicle Standards Regulations.

24.     Although I have ruled that a New Zealand citizen does not come within the provisions of the regulation 13 of the Motor Vehicle Standards Regulations if that person does not have a permanent visa or has not applied for a permanent visa, I have thought it appropriate to make some observations concerning whether the applicant can be said to reside on a permanent basis in Australia..

25.      On the evidence before me the applicant is not on a factual basis a permanent resident of Australia. Whilst the applicant has a property at Caloundra this property is rented out by the applicant. The electricity account of the property is not in the name of the applicant but is the name of the manager of the property. The applicant spends most time in New Zealand rather than in Australia.  In a letter dated 15 April 2005 the applicant stated: “Our plans are to spend summers in NZ and winters in Brisbane because of the better climate”. This is not consistent with the applicant adopting Australia as a permanent residence.

Whether Exceptional Circumstances Present

26.     The appellant also sought the exercise of discretion under regulation 11 of the Motor Vehicle Standards Regulations. In his Statement of Reasons the Administrator of Vehicle Standards stated that the appellant’s circumstances were not an exceptional circumstance that would warrant the application of this regulation.

27.     The Tribunal in a number of cases has considered the discretion that is vested in the Minister under regulation 11 of the Motor Vehicle Standards Regulations. The Tribunal has previously ruled that the discretion under the predecessor provision to this regulation has to be exercised having regard to the policy sought to be achieved by the legislation.

28.     In Trajkovski v Department of Transport and Regional Services [2000] AAT 1073 Deputy President Purvis stated (at [34]):

“The primary position or policy as expressed by the legislature is that non-standard road vehicles should not be imported into Australia. Cogent reasons as to why the adoption of that policy would be unjust to the Applicant needs to be established”.

29.     Further in Trajkovski v Department of Transport and Regional Services [2000] AAT 1073 Deputy President Purvis observed (at [32]) that the policy framework as seen in the legislation and referred to in the Second Reading Speech of the Minister who introduced the Bill should be considered in the context of the exception provisions.

30.     The relevance of the Second Reading Speech has recently been reiterated: see Van Duyker v Department of Transport and Regional Services [2004] AAT 592 at [17]. In the Second Reading Speech the Minister stated that the principle objective of the Bill is to enable the establishment and application of national uniform standards for motor vehicle safety and environmental quality.

31.     In a number of decisions the Tribunal has consistently held  that the discretion under regulation 11 and the predecessor provision should only be exercised in exceptional circumstances: see, Trajkovski v Department of Transport and Regional Services [2000] AATA 1073; Albanus v Department of Transport and Regional Services [2001] AATA 12; Anthony v Department of Transport and Regional Services [2001] AATA 543; Fraser v Department of Transport and Regional Services [2003] AATA 44; Lai v Department of Transport and Regional Services [2003] AATA 861; Van Duyker v Department of Transport and Regional Services [2004] AATA 592 at [23]; Cathcart v Department of Transport and Regional Services [2005] AATA 33.

32.     In considering the exercise of the discretion under regulation 11 of the Motor Vehicle Standards Regulations it should be mentioned that the appellant was not, in his evidence, able to provide particulars of any exceptional circumstances even though he was invited to do so.  The applicant stated that the refusal of an application to import the vehicle would not cause him any financial hardship. In his evidence he also stated that he had not made enquiries as to whether he could purchase a similar vehicle in Australia. The applicant has a vehicle in Australia that he can use.

33.     In these circumstances the Tribunal finds that there are no exceptional circumstances that would justify the exercise of the discretion under regulation 11 of the Motor Vehicle Standards Regulations. In making this finding the Tribunal observes that the appellant had already previously received approval to import a vehicle in November 2003.

34.     I also make the observation that the Minister in introducing the Bill for the Motor Vehicle Standards Act 1989 stated in his Second Reading Speech that the regulations will apply to “migrants or Australian citizens returning form long periods overseas”: see Murase and Department of Transport and Regional Services [2005] AATA 705. It is these classes of persons that were intended to benefit from the regulations.

Previous Import of Vehicle

35.     On 27 August 2003 the Administrator of Vehicle Standards had approved the application of the appellant to import a Subaru Legacy vehicle. In his application the applicant made disclosure of the fact that he had previously received this approval.

36.     In evidence the applicant stated that he traded that vehicle in when he bought another car which he still has. That vehicle is kept in Australia and stored when he is not in Australia. The applicant accordingly has a vehicle that he and his partner use in Australia.

37.     During the hearing the respondent obtained the documentation relating to the approval in 2003 by the Administrator of Vehicle Standards to the importation of the Subaru Legacy vehicle. This was done to clarify the basis on which the approval was granted. The documentation revealed that the approval was granted under regulation 11 of the Motor Vehicle Standards Regulations.

38.     The respondent stated that the approval of the application to import a Subaru Legacy vehicle may have been granted because of an error in administration, as the respondent may have assumed that the applicant was a permanent resident. Certainly the applicant in his application dated 10 July 2003 had completed Part 8 of the form headed: “Personal Imports (Australian citizens/permanent residents only)”. This error in administration itself could not justify another departure from the policy of the legislation.

Decision

39.The Tribunal affirms the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member PM McDermott

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  22 August 2005
Date of Decision  30 August 2005
The Applicant appeared in person
Solicitors for the Respondent    Ms C Petre, Solicitor – Clayton Utz Lawyers