Lai and Department of Transport and Regional Services
[2003] AATA 861
•27 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 861
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/137
GENERAL ADMINISTRATIVE DIVISION ) Re BERNARD LAI Applicant
And
DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Mr S. Webb, Member Date27 August 2003
PlaceCanberra
Decision The decision under review is affirmed. ...............................................
Mr S. Webb, Member
CATCHWORDS
TRANSPORT - motor vehicle importation - vehicle without compliance plate - whether owner owned and used the vehicle for a period of twelve months - whether discretionary power to grant approval to import the vehicle should be exercised
LEGISLATION
Motor Vehicle Standards Act 1989 sections 3, 5, 18, 19, 20
Motor Vehicle Standards Regulations 1989
AUTHORITIES
Re Dang and Department of Transport and Regional Services [2000] AATA 1035
Re Trajkovski and Department of Transport and Regional Services (2001) AATA 1073
Re Albanus and Department of Transport and Regional Services [2001] AATA 12
Re Fraser and Department of Transport and Regional Services [2003] AATA 44
Re Anthony and Department of Transport and Regional Services [2001] AATA 543
Re Marra and Department of Transport and Regional Services [2003] AATA 323
REASONS FOR DECISION
August 2003 Mr S. Webb, Member 1. This is an application by Bernard Lai (“the Applicant”) for review of a decision made by the Administrator of Vehicle Standards, a delegate of the Minister of Transport and Regional Services, (“the Respondent”) on 20 March 2003 (T12). The decision stated, in effect:
“I refer to your application dated 18 February 2003 in respect of a 1991 BMW 325I Chassis No. 0EK32622.
…
From the information you have supplied you do not meet Regulation 13(a), to have owned and used the vehicle for a continuous period of at least 12 months.
Accordingly, I am unable to approve your application to import your 1991 BMW 325I … .”
2. In its statement of reasons for the decision, the Respondent stated (T2):
“10.In an application dated 18 February 2002 … , the applicant applied to import one 1991 BMW 325i… .
11. In support of the application, the Applicant provided a copy of:
· a Certificate of Registration of Motor Vehicle indicating that a vehicle with Chassis No. 0EK32622 … was registered in South Africa … and the Applicant became the owner of the Vehicle on 14 February 2003 (T4);
· a letter dated 20 February 2003 from Morgan-Meyersohn Attorneys, Notaries and Conveyancers … advising that the Vehicle was given to the Applicant and his wife as a wedding gift in December 2000 and that Mr Lai had been using and maintaining the Vehicle from January 2001 (T5);
…
13.On 12 March 2003 the Applicant provided to the department:
· a copy of the previous registration document indicating that … the owner of the vehicle was SF Lai. … (T10);
…
14. On 20 March 2003, I made a decision to refuse the application (T12).”
3. The Applicant in his application stated (T1):
“The DOTARS have not fully explained their reasons for non-compliance with Regulation 13.
Original and new information submitted is believed to support and provide evidence of compliance with Regulation 13.”
4. The matter was heard by the Tribunal in Canberra on 21 August 2003. At the hearing the self-represented Applicant gave oral evidence. The Respondent was represented by Mr G. McCarthy, Counsel. The following evidence was tendered and labelled:
exhibit
description
date
T1-T22
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Exhibit R1
E-mail from Mariaan Hatting to Andrew Dillon.
23 July 2003
Exhibit R2
Respondent’s Statement of Facts and Contentions.
14 August 2003
legislative framework
5. The relevant legislation in this matter is the Motor Vehicle Standards Act 1989 (“the Act”), especially sections 3, 5, 18, 19 and 20, and the Motor Vehicle Standards Regulations 1989 (“the Regulations”), especially regulations 11 and 13.
6. The Act relevantly provides:
“3 Objects of Act
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.
5 Interpretation
(1) In this Act, unless the contrary intention appears:
…
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).
…
use means:
(a) in relation to a road motor vehicle — drive;
…
18 Prohibition of importation of nonstandard vehicles etc.
(1) 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.
…
19 Importation of vehicles requiring modification
(1) A person may 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, which may be approval subject to written conditions determined by the Minister.
…
20 Approval to import certain nonstandard vehicles
(1) A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate:
(a) …
(b) in prescribed circumstances.”
7. The Regulations relevantly provide:
“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
The Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if:
(a) the vehicle has been owned and used by the applicant for a continuous period of at least:
(i) for a vehicle owned by the applicant on or before 8 May 2000 — 3 months; or
(ii) for a vehicle to which subparagraph (i) does not apply but for which the application is made on or before 8 November 2000 — 3 months; or
(iii) in any other case — 12 months; and
(b) at the time the vehicle is imported, the applicant is:
(i) an Australian citizen or an Australian permanent resident; or
(ii) a person who has applied to become an Australian citizen or an Australian permanent resident; 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 imported a road vehicle owned by him within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.”
factual background
8. The Applicant is a citizen of the Republic of South Africa (“RSA”).
9. On 18 February 2003 the Applicant applied for approval to import a BMW 325i (“the vehicle”) as specified in the Application to Import a Vehicle form that was completed for the purpose (T3). In the application it was stated that the vehicle is not more than 15 years old, it does not have an Australian compliance plate, has not previously been registered in Australia and the Applicant does not possess a letter of compliance in respect of the vehicle. The Applicant stated in the application that he has evidence of not less than 12 months continuous ownership and use of the vehicle, recording that the vehicle was first registered overseas in his name on 14 February 2003 and that he intends to cease using the vehicle overseas on 8 December 2003.
10. The registration of the vehicle in the Applicant’s name is confirmed by a Certificate of Registration of a Motor Vehicle dated 14 February 2003 (T4). The previous registration certificate for the vehicle, dated 10 April 2002, indicates that the vehicle was previously registered in the name of SF Lai (T10).
11. The Last Will and Testament of Lun Chun Lai, dated 27 November 1985, appoints Sui Fong Lai to be the sole Executrix of the will and the Administratrix of the estate, and devolves to her one quarter of the entire estate, the remaining three quarters of the entire estate being devolved upon Jane, Nancy and Linda Lai in equal shares and proportions (T15).
evidence of the applicant
12. The Tribunal had before it an e-mail correspondence from the Applicant to a departmental officer of the Respondent dated 9 April 2003 (T13).
13. The Applicant told the Tribunal the BMW 325i in question was owned by his father-in-law, Lun Chun Lai, from 1991 until his death in October 1999, whereupon it devolved as part of his estate to his wife, Mrs Sui Fong Lai, and his three children, namely Jane, Nancy and Linda in equal shares. The Applicant’s evidence was that Mrs Sui Fong Lai gave the vehicle to he and his wife Linda Lai as a wedding present on the occasion of their wedding in December 2000. He said the gift was stated in a formal tea ceremony at the wedding, but was not formalised in any other way at that time. His evidence was that the vehicle was used, maintained and garaged exclusively by he and his wife thereafter. The Applicant gave evidence that the car was encumbered at the time of Lun Chun Lai’s death and that the debt was repaid, in part, by Lun Chun Lai’s estate, in part by his sister-in-law, Nancy, and the rest by he and his wife.
14. The Applicant’s evidence was that after Lun Chun Lai’s death, registration of the vehicle transferred to Sui Fong Lai. He told the Tribunal that the vehicle was not registered in his name until 14 February 2003. His evidence was that the registration was left in Sui Fong Lai’s name because she received a beneficial insurance premium and there were delays in winding up Lun Chun Lai’s estate.
15. The Applicant told the Tribunal he has been granted a permanent residency visa for Australia and intends to migrate to Australia with his wife, who he is sponsoring for immigration purposes, but must do so before December 2003. His evidence was that the car has sentimental value and will not be sold if approval is given to import the vehicle into Australia.
submissions, consideration of the issues and findings
16. The Tribunal carefully considered all the evidence and the submissions of the parties, as well as the relevant caselaw and legislation.
17. The Applicant’s reliability as a witness was not challenged and the Tribunal finds him to be a witness of truth.
18. It is not in dispute that the vehicle does not have an identification plate as defined at section 5 of the Act and sections 18 and 20 of the Act apply. The parties agree that the matter falls for consideration under the terms of Regulations 11 or 13.
19. Turning, in the first instance, to consider Regulation 13. On the evidence regulations 13(a)(i) and (ii) do not apply and regulations 13(b), (c), (d) and (e) are not in issue. Whether the Applicant satisfies regulation 13(a)(iii) is before the Tribunal for determination. The Applicant submitted that he had exclusive use of the vehicle since January 2001, noting that the word “use” is defined to mean “drive” at section 5 of the Act. The Respondent did not challenge this submission and the Tribunal has no reason to find otherwise.
20. The question in issue is that of ownership of the vehicle. The Applicant conceded that he did not receive title to the vehicle from his mother-in-law until 14 February 2003. In his submission, however, ownership of the vehicle changed in December 2000 when Sui Fong Lai gave it to he and his wife Linda Lai. In support of this claim, the Applicant relied upon an affidavit of Sui Fong Lai, dated 8 April 2003, in which she states (T17):
“As executrix of the estate of the late Lun Chun Lai, I confirm giving my daughter Linda Lai and son-in-law Bernard Lai the BMW 325i car with registration number: JWC723GP as a wedding gift in December 2000. This was done without any objection by the other heirs to the estate. In addition, the car was registered in my name to benefit from a lower insurance premium rate. The insurer only allowed me as the spouse to continue with the lower insurance rate. For insurance purposes, I therefore confirm that I have nominated Linda Lai and Bernard Lai as the designated drivers of the aforementioned car.”
The Applicant pointed to various invoices and receipts in evidence (T7, T8, T17, T18, T19, T20, T21 and T22), contending that he had maintained, garaged and otherwise been responsible for the car since January 2001. The Tribunal’s attention was drawn to letters in evidence from the firm Morgan-Meyersohn, dated 20 February 2003 and 8 April 2003 (T5 and T14 respectively). In the latter it was stated:
“5.In her capacity of executrix, Mrs Lai decided that the aforementioned motor vehicle would be given to her daughter and son-in-law, Linda and Bernard Lai, as a wedding gift in December 2000. She also agreed to them using and maintaining the said motor vehicle as from January 2001, which they have done. …
6. We understand that said motor vehicle was registered in Mrs Lai’s name purely to enable the family to take advantage of lower insurance premiums offered by Santam Insurance Company, albeit that legally (that is, in terms of the will and the decision of the executrix) Linda Lai and her husband, Bernard Lai, can claim legal ownership of said motor vehicle at any stage should a dispute arise over legal ownership of their wedding gift.”
21. The Respondent sought authority in the case of Re Dang and Department of Transport and Regional Services [2000] AATA 1035 and submitted that ownership was not transferred to the Applicant in December 2000, only being finally transferred on 14 February 2003. As referred to in the Respondent’s submission, the National Road Traffic Act 1996 (RSA) (“the RSA Act”) clearly requires the title holder of the vehicle to register the vehicle and relevantly defines “owner” and “title holder” at section 1:
“CHAPTER 1
Interpretation of Act
Section
1. Definitions
…
(xlv) “owner”, in relation to a vehicle, means-
(a) the person who has the right to the use and enjoyment of a vehicle in terms of the common law or a contractual agreement with the title holder of such vehicle
(b) …
(c) …
and who is registered as such in accordance with the regulations under section 4, and “owned” or any like word has a corresponding meaning;
…
(lxxiii) “title holder”, in relation to a vehicle, means-
(a) the person who has to give permission for the alienation of that vehicle in terms of a contractual agreement with the owner of such vehicle; or
(b)the person who has the right to alienate that vehicle in terms of the common law,
and who is registered as such in accordance with the regulations under section 4 … ;” (emphasis added)
22. It is clear, under the RSA Act, that Sui Fong Lai was the title holder of the vehicle until title was transferred to the Applicant on 14 February 2003 and that the Applicant was not the “owner” of the vehicle during that time for the simple reason that he was not registered as such under the relevant regulations. The Tribunal notes that Chapter 3, Part 1, regulation 3 of the National Road Traffic Regulations 1999 (RSA) requires that “every motor vehicle in the Republic shall … be registered by the title holder thereof … ”.
23. The Applicant’s contention that he owned the vehicle in consequence of being given it as a wedding present does not assist his case. The fact is that Sui Fong Lai set out the actual circumstances in her affidavit (T17). That is, she announced her gift of the vehicle to her daughter and the Applicant in December 2000 on the event of their wedding and approved of their use of the vehicle thereafter, but did not transfer the title she held to the vehicle so that the family could benefit from lower insurance premiums. The Applicant conceded that title to the vehicle did not transfer until 14 February 2003.
24. The Applicant urged the Tribunal to accept a concept he called “defacto ownership”, whereby a person may be found to “own” a thing on the basis of practical arrangements for its maintenance, security and operation. The Tribunal is not persuaded by this submission. In order to own a thing a person must have or hold it for their own, possessing entitlements, equity and rights that may be enforced. In the instant case, the Applicant had no right to sell or dispose of the vehicle, or to make a claim in relation to the vehicle under insurance, nor was he responsible for complying with the obligations of the holder of title to the vehicle properly registered under the RSA Act. At no time prior to 14 Febnruary 2003 was the vehicle registered in the Applicant’s name. It follows, therefore, under the RSA, the Applicant was not the “owner” of the vehicle prior to 14 February 2003.
25. This being the case, the Applicant’s claim that he “owned” the vehicle for a period of at least 12 months is not made out. The Tribunal so finds.
26. The Act does not confer a discretion on the Minister to vary or waive the time period specified in regulation 13. If the legislature had intended to give the Minister a discretion to reduce the prescribed period of ownership and use of a non-standard vehicle for importation, it would have expressed that intention in legislation. It did not. It follows that the Applicant does not satisfy the requirements of Regulation 13.
27. It remains to consider the Applicant’s claims concerning the existence of exceptional circumstances pursuant to section 19 of the Act and regulation 11. In the Applicant’s submission there is nothing in the regulation that states the discretion is only to be exercised in circumstances that are exceptional, rare or special, whereby, on its face, the regulation requires a decision maker to consider the intention of the legislature underlying the legislation enacted.
28. The Tribunal is mindful of the relevant authorities. Deputy President Purvis said in Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 at paragraph 35:
“It is true to say that the relevant factors to be taken into consideration by a decision maker in exercising the discretion permitted by section 19 of the Act are not expressly stated in the legislation, in the regulations or in the guidelines. …
There is no question that the decision to be made now by the Tribunal is not to be arbitrary but is to be one consistent with the policy sought to be achieved by the legislation, taking into consideration the matters relied upon by the Applicant. Thus the matter is to be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. (Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 337). 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 primary weight to the scheme and the intent of Parliament in enacting the legislation.”
29. Considering the evidence in the instant case, the Tribunal is satisfied that the Applicant’s inability to satisfy the requirements of regulation 13, as he sought to do, was a failure of his own making. The simple fact is that title to the vehicle was left in Sui Fong Lai’s possession until 14 February 2003 so that the Applicant and his wife could benefit from the payment of reduced insurance premiums. This was a matter of choice that led the Applicant, in seeking to maximise benefits and reduce costs, to his present difficulty importing the vehicle into Australia. Being the master of his own actions, he is also the architect of his own difficulties. In such circumstances the difficulties faced do not constitute exceptional circumstances to warrant exercise of the discretion: Re Albanus and Department of Transport and Regional Services [2001] AATA 12 at paragraph 28, Re Fraser and Department of Transport and Regional Services 2003] AATA 44 at paragraph 39, Re Anthony and Department of Transport and Regional Services [2001] AATA 543 at paragraph 20 and Re Dang and Department of Transport and Regional Services (supra) at paragraph 30.
30. The circumstances relied upon by the Applicant related to the gifting of the vehicle as a wedding present, the exclusive use of the vehicle by he and his wife from January 2001, the sentimental value of the vehicle and his claim that the vehicle would not be sold following importation.
31. The Applicant’s evidence and submissions concerning these circumstances did not persuade the Tribunal that the circumstances were in any way exceptional. Many are the cases in which a parent may permit an adult son or daughter the use of a vehicle for an extended period before, finally, transferring title of the vehicle to the child. The importation of the vehicle for sentimental rather than personal reasons is not exceptional. The Tribunal so finds.
32. The Applicant sought to rely on the cases of Re Fraser and Department of Transport and Regional Services (supra) and Re Marra and Department of Transport and Regional Services [2003] AATA 323. Both cases turned on the provision of incorrect advice by the respondent department and are clearly distinguished on the facts.
33. The Applicant’s evidence reveals that his permanent residency visa permits him to enter Australia on or before 8 December 2003 and that he has two sisters-in-law residing in Australia. There is nothing in the evidence before the Tribunal that constitutes exceptional circumstances and the Tribunal is not persuaded by the Applicant’s submissions to that end.
34. Considering all the evidence and the totality of the Applicant’s circumstances, the Tribunal is satisfied that the discretion vested in it should not be exercised in favour of the Applicant.
35. This being the case, the decision under review must be affirmed.
decision
36. The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: C. Gregson
AssociateDate/s of Hearing 21 August 2003
Date of Decision August 2003
Solicitor for the Applicant Self-Represented
Counsel for the Respondent Mr G McCarthy
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