Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government
[2008] AATA 540
•27 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 540
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0184
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN HAUGHEY Applicant
And
MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date27 June 2008
PlaceBrisbane
Decision
The Tribunal sets aside the decision under review and substitutes the decision that the application to import a 2006-model BMW X-5 motor vehicle be approved. The Tribunal remits to the Minister the consideration of what conditions, if any, should be specified in issuing an instrument of approval to import the vehicle.
...................[sgd]...........................
SENIOR MEMBER
CATCHWORDS
TRANSPORT – importation of motor vehicle into Australia – non-compliance with regulations – whether discretion available under the regulations should be exercised – Tribunal exercised discretion and set aside decision under review.
Motor Vehicle Standards Act 1989 (Cth)
Motor Vehicle Standards Regulations 1989 (Cth) regs 11, 13Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756
Anthony and Department of Transport and Regional Services (2001) 33 AAR 317
Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417REASONS FOR DECISION
27 June 2008 M J Carstairs, Senior Member
Ms M J Carstairs, Member 1. Stephen Haughey and his wife and three stepdaughters came to live in Australia from South Africa in 2007, having originally planned their arrival for early 2008. At the start of 2007 Mr Haughey had purchased a 2006-model BMW X-5 with the intention that the family would use the vehicle for 12 months before bringing the car and their other possessions into Australia.
2. There are rules, found in the Motor Vehicle Standards Act 1989 and the Motor Vehicle Standards Regulations 1989, which govern the import of vehicles into Australia. One rule, subject to certain other qualifications, is that a person may bring into Australia a vehicle which they have owned and used for a continuous period of 12 months[1]. Mr Haughey cannot satisfy this regulation: he simply did not have a continuous period of 12 months usage of the vehicle[2]. He was absent from South Africa for more time than he was present in the year after purchasing the vehicle and he left the country well before the 12 months would expire.
3. Notwithstanding, Mr Haughey seeks the favourable exercise of a discretion that is available under reg 11 which would allow him to import the car. Mr A Dillon who appeared for the respondent maintained this was not a case in which it would be appropriate to exercise the discretion.
THE PURCHASE OF THE BMW AND SUBSEQUENT EVENTS
4. Mr Haughey bought the BMW on 16 February 2007. Mr Haughey stated[3] that he and his wife had planned to migrate to Australia in 2008. If that had eventuated the purchase of the vehicle 12 months before would have complied with the statutory timeframe.
5. During 2007, Mr Haughey’s 3 stepdaughters were already attending school or university in Australia. The plan was that family would spend Christmas 2007 in South Africa before taking their final departure. Mr Haughey provided the girls’ forward flight bookings showing flights from Australia to South Africa at the end of the 2007 school year, as well as the quarantine arrangements for their cats and dogs, timed to coincide with their planned arrival in Australia in March 2008.
6. Mr Haughey and his wife however made an unscheduled trip to Australia early in 2007, after one of the girls suffered a puzzling illness after the commencement of the school year in 2007. They wanted to be with her while various tests were carried out. What seems to have happened next was the daughters prevailed upon Mr Haughey and his wife to stay for the school holidays (March/April 2007) and this then extended into May to confirm that the daughter was well. Mr Haughey and his wife had a brief holiday in New Zealand, and returned to Australia, staying on for the next school holidays and investigating business opportunities in Australia.
7. In July 2007, Mr Haughey returned to Johannesburg and was present at their home when three men burgled the house and threatened him. Mr Haughey was injured trying to escape them by jumping from a window and he sustained fractures to both feet. Mr Haughey was traumatised by these events, which took place in spite of the heavy security in the compound where their home was located. He feared for his life and did not want the family to return to South Africa. So he took steps to wind up their affairs earlier than anticipated, terminating the lease on their home and bringing forward the move. Once he was back in Australia he applied for a permit to import the vehicle to Australia. His wife applied with respect to another vehicle which was approved for entry.
8. As to the circumstances with respect to the car now, it remains in South Africa stored in a container along with other possessions. Mr Haughey said the period of extended storage of the vehicle has proven costly. Not only has the vehicle lost value through age without them having the benefit of using it, the exchange rate between the South African rand and the Australian dollar is now less favourable than it was previously. Overall, Mr Haughey estimates that the vehicle has lost 35% of its value since purchase. In addition Mr Haughey pays insurance on the vehicle and the other household effects while these remain in storage in South Africa.
9. Furthermore the South African authorities having issued an export permit for the vehicle in 2007, it is now unregistered, the registration having expired in February this year. Mr Haughey said that there is no family there now to attend to re-registering the vehicle if he is not permitted to bring it into Australia. Furthermore Mr Haughey maintains that South African exchange control regulations make it difficult to transfer money from South Africa to Australia, even if he could now sell the vehicle[4]. Mr Haughey said he would be fearful of returning to South Africa himself after what happened to him and says it is an unsafe place. He said that he learned that shortly after the incident at his home, in the same vicinity, 3 people were killed in similar circumstances.
10. Mr Haughey submits that his circumstances, properly understood, were exceptional, taking into account that he had carefully planned his arrangements in a way that would comply with the timeframes but events beyond his control supervened.
THE NATURE OF THE DISCRETION IN REGULATION 11
11. Mr Dillon referred me to a number of authorities dealing with the exercise of the discretion in reg 11, including the Tribunal decision Trajkovski and Department of Transport and Regional Services[5] and Marra and Minister for Transport and Regional Services[6].
12. The authorities confirm that the purpose of the legislative scheme is to ensure that vehicles imported into Australia meet uniform safety and environmental standards. A favourable exercise of the discretion in reg 11 ought to be consistent with that legislative purpose.
13. In Trajkovski[7] Deputy President Purvis expressed the principle this way:
This application is to then be considered having in mind the facts and circumstances before the Tribunal but in the context of a regime having been established for the importation of vehicles and the same not being allowed onto roads in Australia without safety being ensured. The exceptions as provided for in the regulations where variation from the scheme may be enabled apart from the circumstances therein specified must of necessity be exceptional. The Tribunal in making its decision is to give the primary weight to the scheme and the intent of Parliament in enacting the legislation.
14. Deputy President Hotop referred approvingly to Trajkovski[8] in Marra[9] and said:
The object of the Act, as stated in s 3 thereof, is "to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia".. The policy of the legislation, as stated by the Minister in his Second Reading Speech when introducing the Motor Vehicle Standards Bill 1989 into Parliament … is "to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community". Sections 19 and 20 of the Act, and regs 9B, 9C, 9D, 9E, 9F, 9G and 9H of the Regulations, however, provide for certain circumstances in which a person may, notwithstanding the abovementioned legislative policy and object, import a road vehicle, even though it is a "nonstandard" vehicle or it does not have an "identification plate", and in which the minister may approve the importation of such a road vehicle. The ultimate matter for the tribunal's determination in the present case is whether, having regard to the above-mentioned policy and object of the Act and the regulations it is appropriate, having regard to the circumstances of the applicant's case, to exercise the discretionary power conferred by reg 9B(1) of the Regulations [now Regulation 11] to approve the applicant's application to import the vehicle.
SHOULD THE DISCRETION BE EXERCISED?
15. Mr Dillon submitted that to approve the vehicle’s importation would be to frustrate the object or purpose of the Act, and that the case law in this Tribunal confirms that the discretion should be exercised only in exceptional circumstances.
16. Regulation 11 gives a wide discretion, and, as the Tribunal recently put it in Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government[10], is “obviously intended to allow a decision-maker flexibility and to apply some justice and fairness to the many and varied circumstances which might arise”.
17. As has been observed in a number of cases the discretion in reg 11 is not subject to any words limiting its scope or circumstances, but ought to be applied in a manner consistent with the objects of the Act and to ensure that unfairness is avoided.
18. With that in mind, I have concluded that Mr Haughey’s is an appropriate case in which to exercise the discretion. I accept the evidence which he gave in relation to the change of their circumstances which led to them coming to Australia ahead of when they planned. I regard his circumstances as sufficiently out of the ordinary to warrant an exercise of the discretion, for the following reasons:
§ Mr Haughey had carefully planned the move of his family and the planning was interrupted by an event not of his own making when he was the victim of a robbery in his home in South Africa;
§ Mr Haughey has sought to abide by the rules by not bringing the car to Australia, and waiting for authorisation. In doing so has incurred storage costs and related expenses for insurance;
§ I accept Mr Haughey’s evidence that a number of difficult circumstances would attend upon his disposing of the car, including that it has become de-registered in South Africa; that he has no family there to assist him; and that due to exchange control regulations it is not readily possible to sell the vehicle and transfer the proceeds of sale from South Africa to Australia. I accept as reasonable that, for his own part, Mr Haughey does not wish to return to South Africa, given the attack that took place when he was last there; and
§ I accept that the BMW is intended for their personal use, and there is no suggestion that Mr Haughey was seeking to profit by bringing the car into Australia to sell it. In addition this car is a recent model, right hand drive vehicle, which, I was told, meets the United States standards. I did not understand the respondent as suggesting that there would be serious compliance issues for this relatively new model vehicle.
19. There is consensus in Tribunal decisions with respect to the exercise of the discretion in reg 11 that what is required is some element of unfairness or injustice to the applicant if approval were not granted. I was satisfied that those grounds were made out here, and further concluded that an exercise of the discretionary power in Mr Haughey’s case does not undermine or frustrate the objects of the Act and Regulations. Accordingly, I have concluded that the circumstances are such that the discretion ought to be exercised to avoid substantial injustice to Mr Haughey.
20. Regulation 11 refers to the discretion being exercisable by the Minister, but an approval may be given subject to such conditions as might be specified in the instrument of approval. It is appropriate, therefore, to remit that part of the decision for consideration of what, if any, conditions might be placed upon an approval to import the BMW.
DECISION
21. The Tribunal sets aside the decision under review and substitutes the decision that the application to import a 2006-model BMW X-5 motor vehicle be approved. The Tribunal remits to the Minister the consideration of what conditions, if any, should be specified in issuing an instrument of approval to import the vehicle.
I certify that the preceding 21 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.
Signed: ………………[sgd]…………………………………..
Joan Torbey, AssociateDate/s of Hearing 3 April and 17 April 2008
Date of Decision 27 June 2008
The Applicant was self-represented
Solicitors for the Respondent Australian Government Solicitor
[1] Motor Vehicle Standards Regulations 1989 (Cth), reg 13.
[2] Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756; Anthony and Department of Transport and Regional Services (2001) 33 AAR 317.
[3] Exhibit A1.
[4] Exhibit A1.
[5] Trajkovski and Department of Transport and Regional Services [2000] AATA 1073.
[6] Marra and Minister for Transport and Regional Services (2003) 73 ALD 704.
[7] [2000] AATA 1073 at [35].
[8] Trajkovski and Department of Transport and Regional Services [2000] AATA 1073.
[9] (2003) 73 ALD 704 at [21].
[10] Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417 at [16].
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