Leaver and Minister for Urban Infrastructure and Cities - [2019] AATA 5252

Leaver and Minister for Urban Infrastructure and Cities [2019] AATA 5252 (5 December 2019)
Division:GENERAL DIVISION
File Number: 2019/0619
Re:Richard Leaver
APPLICANT

AndMinister for Urban Infrastructure and Cities
RESPONDENT

DECISION
Tribunal:Deputy President Boyle

Date:5 December 2019
Place:Perth

The Tribunal affirms the decision made by the Associate Administrator of Vehicle Standards dated 29 January 2019 to not approve an application for the importation of a 2010 Jaguar XF.
......................[sgd]..................................................
Deputy President Boyle
CATCHWORDS
motor vehicle importation – vehicle from United Kingdom – vehicle without identification plate – whether requirements of Regulation 13 met – whether discretion under Regulation 11 should be exercised – Applicant’s residency status – period of ownership – period for which applicant overseas prior to application – decision affirmed
LEGISLATION
Motor Vehicle Standards Act 1989 (Cth) – ss 3, 3(b), 5, 7, 18, 20(1)(b)
Motor Vehicle Standards Regulations 1989 (Cth) – regs 10, 11, 13(ac), 13(1)(a), 13(1)(b), 13(1)(aa), 13(1)(ab), 13(1)(ac), 13(1)(ad), 11,
CASES
Colley and Secretary, Department of Infrastructure, Transport, Cities and Regional Development [2019] AATA 4204
SAS Trustee Corporation v Miles [2018] HCA 55
SZTAL v Minister for Immigration (2017) 91 ALJR 936
Selway and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 595
Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43
Whalley and Minister for Infrastructure, Transport and Regional Development [2019] AATA 661
Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
SECONDARY MATERIALS
Commonwealth, Parliamentary Debates, House of Representatives, 23 May 1989 (Robert Brown, Minister) – pp 2697, 2688
Explanatory Statement, Motor Vehicle Standards Act 1989 (Cth); Motor Vehicle Standards Amendment Regulations 2009 (No. 1)
REASONS FOR DECISION
Deputy President Boyle
5 December 2019
THE APPLICATION

This is an application for the review of a decision made by the Associate Administrator of Vehicle Standards dated 29 January 2019 to not approve an application for the importation of a 2010 Jaguar XF (the Vehicle).
BACKGROUND
On 3 January 2019 the Applicant applied to the Minister under Regulation 10 of the Motor Vehicle Standards Regulations 1989 (Cth) (Regulations) for approval to import the Vehicle under the personal import option (T4).
It is not disputed that the Vehicle does not have an identification plate and is nonstandard for the purposes of s 5 of the Motor Vehicle Standards Act 1989 (Cth) (the Act).
In making the decision on 29 January 2019 not to approve the importation of the Vehicle, the decision-maker found that the requirements of Regulations 13(1)(ac),13(1)(ad) and 13(1)(a) were not satisfied. The decision-maker was also not satisfied that there were sufficient grounds to warrant the exercise of the discretion under Regulation 11 (T2, T8).
In the application to import the Vehicle (T4), the Applicant advised that:
(a)he purchased the Vehicle, which was first registered in 2010, in July 2017;
(b)since purchasing the Vehicle, he had used it for travel in the United Kingdom (UK) and through various countries in Europe;
(c)he was returning to the UK for six months in April 2019 to visit his children (who live in the UK); and
(d)when he returns to Australia he wishes to bring the car with him.
On 10 January 2019 the Department sent an email to the Applicant indicating that it had made a preliminary unfavourable assessment of the Applicant's application for approval to import the Vehicle (T6).
On 24 January 2019 the Applicant provided a letter to the Department (T6/59) in response to the email dated 10 January 2019. In that letter he stated that:
(a)as a consequence of the email dated 10 January 2019 he was now requesting discretionary consideration of his application (under Regulation 11);
(b)he frequently travels to the UK to visit family: “We have been dividing our time between Australia and the UK since 2015 and up to and including last year (2018) we have lived in the UK for close on eighteen (18) months. This year (2019) we will again spend some time in the UK starting in April.”
(c)he had owned and used the Vehicle for a period of 12 months or longer;
(d)he will have cumulatively lived in the UK and Europe for a period of 2 years by the end of 2019; and
(e)he met the three vehicle ownership criteria and the citizenship requirements specified in the Regulations.
LEGISLATIVE FRAMEWORK
Section 3 of the Act provides:
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.
Section 7 of the Act empowers the Minister to determine vehicle standards and s 5 of the Act defines vehicle standard and defines nonstandard in relation to a vehicle as meaning:
…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).
Section 5 defines identification plate as:
… 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).
Importation of nonstandard vehicles, or vehicles without an identification plate, is prohibited by s 18 of the Act which relevantly provides:
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.
Penalty: 120 penalty units.
…
(Orginal emphasis.)
Section 20(1)(b) of the Act relevantly provides:
(1) A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate:
…
(b) in prescribed circumstances.
The prescribed circumstances are set out in Regulations 9 to 21A. Only Regulations 11 and 13 are relevant to this application.
Regulation 13 provides:
(1) The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister is satisfied that:
(aa) the applicant owns the vehicle at the time the application is made; and
(ab) the applicant acquired ownership of the vehicle overseas; and
(ac) the applicant owned the vehicle while overseas and owned it for a       continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(ad)during that period of ownership the vehicle was available to the applicant for use in transport; and
(a)the application is made not later than 6 months after the applicant arrived in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(b)at the time the application is received by the Minister, the applicant is:
(i) an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely; or
(ii) a person who has applied to become an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely if granted Australian citizenship or permanent residency; or
(iii) a person who is entitled to remain in Australia indefinitely and provides evidence that he or she intends to do so; or
(iv) the holder of a visa that entitles him or her to apply to become a permanent resident (whether or not after a specified period or in 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.
Regulation 11 relevantly provides:
(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.
ISSUES
The Applicant disputes that he fails to meet the requirements of Regulation 13(1)(ac),
13 (1)(ad) and 13(1)(a). The Applicant also contends that circumstances exist which justify a discretionary approval under Regulation 11. Accordingly, the issues for determination are:
(a)whether the Applicant meets the requirements of Regulation 13 for the grant of an approval to import the Vehicle from overseas; and
(b)if the requirements of Regulation 13 are not met, whether the Tribunal should nevertheless exercise the general discretion under Regulation 11 to approve the application to import the Vehicle.
THE HEARING
The application was heard by telephone on 8 October 2019. The Applicant was self-represented and the Respondent was represented by Mr M Palfrey.
The Applicant provided a Statement of Facts Issues and Contentions (SFIC) prior to the hearing which included various documents.
The Respondent also provided a SFIC and lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
PARTIES’ SUBMISSIONS
Respondent
The Respondent lodged his submissions on 6 June 2019. The facts are largely not in dispute. The difference between the parties relates to the interpretation of the Regulations and the circumstances for the exercise of the discretion under Regulation 11. The thrust of the Respondent’s submissions are:
Regulation 13
(a)Regulation 13 sets out the mandatory requirements for the Minister to grant an approval under that provision to import a vehicle that does not have an identification plate into Australia. Each of the paragraphs of Regulation 13 must be satisfied.
(b)Regulation 13(1)(ac) requires that 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).
(c)Regulation 13(1)(ac) builds on the requirements of regulation 13(1)(aa) and (ab), under which the Applicant must have acquired the Vehicle overseas, and must own it at the time of the application. In that setting, Regulation 13(1)(ac) requires that the Applicant owned the Vehicle while overseas and owned it for a continuous period of 12 months immediately before arriving in Australia.
(d)Given that the Applicant is required to have acquired the Vehicle overseas (Regulation 13(1)(ab)) and to own the Vehicle at the time of application (Regulation 13(1)(aa)), it follows from the scheme of the Regulation that the period for which the Applicant must own the Vehicle while overseas is the 12 months of continuous ownership referred to.
(e)If Regulation 13(1)(ac) were interpreted as containing two distinct requirements, the first of those requirements (that the person acquires ownership of the vehicle overseas) is already contained in Regulation 13(1)(ab). For that reason Regulation 13(1)(ac) does not contain two separate requirements, but rather contains one compound requirement: that the Applicant owned the Vehicle while overseas for a continuous period of 12 months immediately before arriving in Australia.
(f)This interpretation is confirmed by the extrinsic materials. The starting point to ascertain the meaning of a statutory provision is the text having regard to its context and purpose. Context should be regarded at this first stage and should be regarded in its widest sense (see for example SZTAL v Minister for Immigration (2017) 91 ALJR 936 at [14] (Kiefel CJ, Nettle and Gordon JJ); SAS Trustee Corporation v Miles [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ). It is therefore permissible to have regard to the legislative history and extrinsic materials, to clarify any ambiguity in Regulation 13(1)(ac) and to identify the mischief that it addresses. Regulation 13(1)(aa)-(ad) was added in 2009 by the Motor Vehicle Standards Amendment Regulations 2009 (No 1) (Cth).
(g)
The Explanatory Statement (pp 2 and 6) for that amending regulation

(the Explanatory Statement) stated that the purpose of the “personal imports scheme” in Regulation 13 “is to enable migrants and expatriate Australians returning from long periods overseas to bring their vehicles with them”, noting that these vehicles by-pass the ordinary certification standards. The Explanatory Statement states that in order to qualify, “a vehicle must be owned and used overseas by the applicant for a continuous period of at least 12 months”, to ensure that the vehicle “is the personal vehicle of the applicant migrant or expatriate Australian”.
(h)
The Applicant concedes that he was not in the UK for a continuous period of 12 months immediately before he returned to Australia. Further, the Applicant travels regularly between Australia and the UK.

The Applicant has stated that he and his wife “have been dividing [their] time between Australia and the UK since 2015” and that “it would be totally inappropriate in [his] circumstances … to live away from Australia for 12 months or more in one period.” Although he may have cumulatively spent more than

12 months in the same country as the Vehicle over the period of ownership, he did not own the Vehicle while he was overseas for a continuous period of 12 months.
(i)In addition, the Applicant does meet the further requirement in Regulation 13(ac) that the requisite ownership criteria is satisfied immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b). By his own evidence, the Applicant has never departed Australia to reside elsewhere. He regularly visits the UK, during which he continues to reside in Australia. As the Applicant resided in Australia during the entire period of ownership of the Vehicle, he has not returned to Australia for the purpose of remaining indefinitely as mentioned in Regulation 13(1)(b).
(j)
Further the Applicant does not meet the requirement so Regulation 13(1)(ad).

The Applicant contends that his residence in Australia during part of the 12 month period did not preclude the Vehicle from being “available to [him]”, because the Vehicle was available at any time when he was travelling to the UK or Europe.
(k)Regulation 13(1)(ad) operates by reference to “that period of ownership”, being the period referred to in regulation 13(1)(ac). As the Applicant fails to meet the qualifying period for the reasons set out above, he also fails to satisfy this criterion.
(l)Regulation 13(1)(a) requires that the application is made no later than 6 months after the Applicant arrived in Australia for the purpose of remaining in Australia indefinitely. By his own evidence, the Applicant has never departed Australia to reside elsewhere. As the Applicant resided in Australia during the entire period of ownership of the Vehicle, he has not returned to Australia for the purpose of remaining indefinitely – within the meaning of Regulation 13(1)(a).
Regulation 11
(m)Regulation 11 is a broad discretion allowing the Minister to approve an application to import a nonstandard vehicle. As neither the Act nor the Regulations sets out specific factors to be taken into account in applying the discretion in Regulation 11, the factors to be considered must be determined by the subject matter, scope and purpose of the Act (Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, per Mason J at 39-40).
(n)At the time of the introduction of the Act to Parliament in May 1989, the Minister for Land Transport and Shipping Support stated the policy objective underpinning the legislation as follows:
A vital component of the Federal Government's road safety
strategy is to make the motor vehicle as safe as possible. Our aim
is to prevent the crash in the first place and, in the event that a
crash occurs, to protect the occupants.
…
The principal objective of this Bill, then, is to enable the Federal
Government to establish and apply nationally uniform standards
for motor vehicle safety and environmental quality expected by the
community.
(Commonwealth, Parliamentary Debates, House of Representatives, 23 May 1989, 2687-2688 (Robert Brown, Minister))
(o)The Respondent refers to the following decisions of the Tribunal as indicative of the approach that should be taken:
(i)Campos and Minister for Infrastructure and Transport [2012] AATA 244 (Campos) (at [29]), wherein Senior Member Toohey said the legislation imposes “a blanket prohibition against personal importation of nonstandard vehicles except in very limited circumstances” which was “underpinned by the compelling policy of maintaining the safety of the public on the roads"”. The Senior Member stated (at [29]):
there needs to be good reason for the discretion in reg 11 to be
exercised.
(p)The structure of the legislative regime, which involves a broad prohibition on the importation of nonstandard vehicles and vehicles without identification plates, subject to particular defined exceptions set out in the Regulations, suggests that there should be a persuasive basis for the exercise of the discretion in Regulation 11 (see Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43 (Selway) at [37]-[38]).
(q)The Respondent also cites Senior Member McCabe (As he then was) in Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 at [11]:
[B]y its nature, the discretion must be exercised sparingly; there is
no point having a national scheme if the discretion is used to make
so many exceptions that the standards become meaningless.
…the discretion can be exercised if there is a good reason to do
so and the objectives of the legislative scheme are not compromised.
(r)In Selway and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 595 (Selway AAT), Senior Member Dunne identified a number of matters which might constitute good reasons and thus be potentially relevant to the exercise of the discretion under Regulation 11. These include:
(i)the policy objectives of the Scheme;
(ii)any unfairness or injustice to the Applicant;
(iii)financial hardship that would be occasioned by not being approved to import the Vehicle;
(iv)whether the vehicle is unique; and
(v)whether there were any unpredictable or unexpected events, beyond the Applicant's control, that intervened to thwart their plans to comply with the Act.
(s)The Respondent contends that all of these factors identified by Member Dunne, which were not disturbed on appeal, indicate that the discretion under Regulation 11 should not be exercised.
Applicant
The Applicant’s submissions, lodged on 24 June 2019, responded to the Respondent’s submissions and are to the following effect:
(a)The fact that the Vehicle does not have an identification plate does not mean that it is not safe or a pollution hazard. Australian standards are deficient and European standards are superior. The ANCAP safety rating for the Vehicle European model is as follows: 4 of 5 stars and an overall rating of 32.38 out of a possible score of 37. The Vehicle is therefore suitable to be imported.
(b)Insofar as Government policy is to apply uniform safety standards, the Vehicle meets all of the safety standards so the “objectives of the legislation, and more, thus the expectations of the Australian community are being met and so is the intention of the legislation”.
(c)Citing Senior Member Toohey’s statement that “there needs to be good reason for the discretion in reg 11 to be exercised” (see [18(o)(i)] above), the Applicant asks “…what more good reason can there be than the vehicle in question is as safe as secure [sic] and less polluting than Australian built vehicles and that the vehicle has a good ANCAP rating and that all the requirements of the legislation are being met and that the importation of the vehicle will in no way undermine or frustrate the policy and objectives of the Act?”
(d)In relation to the Respondent’s argument relating to the policy of the legislation being that it applies to former residents returning after extended absence overseas or to new residents coming to Australia to reside permanently (see [18(g)-(l)] above), the Applicant says that:
(i)His home in Perth has been leased for the last 4 years and when he returns to Perth he stays in a motor home or “house sit[s]” other people’s properties.
(ii)When he is in the UK he lives in apartments often for months on end.
(iii)Living a “transient lifestyle” in Perth does not constitute “residing in Australia”
(iv)His time overseas in the accommodation circumstances that he describes constitute the Applicant an expatriate as that term is used in the Explanatory Statement (see [18(g)]); and
(v)In relation to Regulations 13(1)(ac),(ad) and (a) the Applicant says that:
·I have owned the vehicle while overseas.
·I will have owned the vehicle for a continuous period of at least 12 months before arriving in Australia.
·The vehicle was always available to me for my personal use.
·I owned the vehicle at the time of application.
·I am returning to live permanently in Australia at the end of 2019 because I do not intend continue [sic] to make lengthy trips overseas in the future.
(e)The Department has not shown that the Vehicle fails to meet the Government strategy to make vehicles safe and environmentally friendly. The Applicant claims that the Vehicle fulfils that Government’s strategy.
(f)The Applicant living in a house and an apartment and a Motor Launch in the UK and Europe for lengthy periods and conducting all activities of daily living therefrom, constitute him residing in the UK as much as similar circumstances constitute him residing in Australia.
(g)The Regulations require that an expatriate returning from long periods overseas can be considered for bringing their vehicle with them and he qualifies in both aspects.
CONSIDERATION
Regulation 13

Approval under Regulation 13 can only be given by the Minister in circumstances where all of the requirements of the subparagraphs are met. The Respondent’s characterisation of these requirements as mandatory is correct.
The first difference between the parties in their respective interpretations of Regulation 13(1)(ac) is that the Respondent says that Regulation 13(1)(ac) does not contain two separate requirements, but rather contains one compound requirement being that the Applicant owned the Vehicle while overseas for a continuous period of 12 months immediately before arriving in Australia.
The Applicant, on the other hand, in effect, argues that the 12 month requirement relates only to the period of ownership, not to the period for which the Applicant has to have been overseas. The Applicant argues that he does meet the conditions of Regulation 13(1)(ac) because he has owned the Vehicle for a continuous period of more than 12 months and that he owned the Vehicle while he was overseas, albeit he was not overseas for
12 consecutive months.
The Respondent’s interpretation is to be preferred. While the provision could have been expressed a little more clearly, the Respondent’s interpretation is consistent with the intent of the Regulation as expressed in the Explanatory Statement, Motor Vehicle Standards Act 1989 (Cth); Motor Vehicle Standards Amendment Regulations 2009 (No. 1) which requires the vehicle to have been “…owned and used overseas by the applicant for a continuous period of at least 12 months”. This necessarily suggests that the vehicle owner must too have been overseas for a continuous period of 12 months prior to the vehicle being brought into Australia. The Applicant’s interpretation would allow an Australian resident to go overseas, buy a non-compliant vehicle, come back to Australia straight away, wait 12 months and then import the vehicle. That is not the intent of the Regulation as disclosed by the Explanatory Statement. Such an interpretation would also render the second part of Regulation 13(1)(ac), that is that the requirement that the person is arriving in Australia for the purpose of remaining in Australia indefinitely, incongruous.
I note the comment of Senior Member Toohey in Campos at [12] that:
The Regulations prescribe various circumstances in which the Minister may – and in the case of a vehicle manufactured before 1989, must – approve an application to import. An example is where a migrant or an Australian citizen returning permanently from a long period overseas wishes to import a vehicle acquired overseas for their personal use: reg 13.
For the foregoing reasons I find that the Applicant does not satisfy the requirements of Regulation 13(1)(ac). I also accept the Respondent’s argument that the Applicant also does not meet the requirements of Regulation 13(1)(ac) because it could not be said that he was arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b) because the Applicant has never departed Australia to reside elsewhere. Even if that interpretation is not correct and those words appearing in the second half of Regulation 13(1)(ac) do not constitute a separate condition, they at the least give context to the nature of an applicant’s required residential status in the preceding 12 months (see [23] above) giving further strength to the interpretation which requires the applicant to have been resident overseas for the 12 preceding months.
The Respondent’s submission is that Regulation 13(1)(ad) operates by reference to

“’that period of ownership’, being the period referred to in regulation 13(1)(ac”’ and that “as the Applicant fails to meet the qualifying period for the reasons set out at [23] to [31] above, he also fails to satisfy this criterion.”’ I do not think that it is as simple as the Respondent argues. Regulation 13(1)(ad) refers to “that period of ownership”, that is 12 months. While it does not, expressly at least, raise the issue of the owner/applicant being overseas, the requirement that during that period the vehicle “was available to the applicant for use” implies that the vehicle and the owner are co-located. It is, with respect, a bit of a nonsense to argue, as the Applicant does, that the Vehicle was “always available to [him] for [his] personal use” for the 12 months leading up to the making of the application when it was on the other side of the world to him for a significant portion of the relevant period. In any true sense the Vehicle was not available to the Applicant for use in transport because it was in the UK and he was in Australia.
For the above reasons I also find that the Applicant does not meet the requirements of Regulation 13(1)(ad).
I also agree with the Respondent’s submission in relation to Regulation 13(1)(a). Given my findings on the purpose and structure of the Regulations, in particular the intent as expressed by the Explanatory Statement, namely “…to enable migrants and expatriate Australians returning from long periods overseas to bring their vehicles with them” it could not be said that the Applicant “arrived in Australia for the purpose of remaining in Australia”. The Applicant’s residential status did not change. At all times he remained a resident of Australia notwithstanding his extended periods overseas.
The Applicant’s argument on this point (see [19(f) and (g)] above) also seems somewhat counter-productive. The Applicant appears to argue that his accommodation arrangements are such that he is more a resident of the UK, or elsewhere in Europe,

than he is of Australia. That argument is inconsistent with him returning to Australia

“for the purpose of remaining in Australia” as a permanent resident as required by Regulation 13(1)(a).
Discretion under Regulation 11
As I have found that the Applicant does not meet the mandatory requirements of Regulation 13, I must consider whether the discretion under Regulation 11 should be exercised.
As noted above (see [18(p)]) the Federal Court considered the exercise of the discretion under Regulation 11 in Selway. Mansfield J in that case found at [36-[38]:
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: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (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.
37It 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.
The Respondent referred to considerations that the Tribunal looked at in Selway AAT

(see [18(r)] above). These same considerations have been adopted by other Tribunal members (see for example Deputy President Sosso in Whalley and Minister for Infrastructure, Transport and Regional Development [2019] AATA 661 and Colley and Secretary, Department of Infrastructure, Transport, Cities and Regional Development [2019] AATA 4204). I agree that these considerations should inform the exercise of the discretion.
Policy objectives of the Scheme
The Respondent submits that:
50. The structure, policy and objectives of the scheme dictate that the personal importation of used vehicles is restricted to specific circumstances. There must be good reason for the Minister to exercise the discretion so that the scheme is not undermined – by making redundant the general prohibition on the importation of nonstandard road vehicles.
51. The Respondent contends that in circumstances where the Applicant:
(a) did not formally ‘move’ overseas, but continued to reside in Australia;
(b) was, in any event, overseas for relatively short periods of time;
(c) did not otherwise meet the criteria for approval; and
(d) has failed to provide sufficiently strong reasons to justify allowing the importation of the Vehicle;
there is no good reason for the Minister to exercise the discretion.
52. The exercise of the discretion in these circumstances would undermine the intended policy objectives of the scheme.
The Applicant argues that the Vehicle meets all of the relevant Australian safety and emission standards so allowing the Vehicle into Australia would not undermine the objectives of the scheme. The Applicant also takes issue with the Respondent’s submissions that he did not move overseas. The Applicant sets out what his accommodation arrangements are while he is overseas but, apart from engaging in unhelpful and misguided abuse of the Respondent’s counsel and accusing the Department of being ‘so fixated in opposing [his] application and being shown to be “all powerful”’, he does not put forward any argument or evidence which would establish that he had changed his residency to be considered to be returning to Australia as envisaged by the Explanatory Statement (see [18(g)] above).
Even if I accept that the Vehicle does meet all of the relevant standards (of which there was no evidence), the scheme is broader than just ensuring that a particular car meets a safety or an emission standard. The scheme is the regulation of the entry of motor vehicles into Australia by reference to standard conditions. It would, in my view, undermine the broader purpose of an administrative scheme aimed at the orderly and regulated admission of vehicles into the country if every time someone wanted to bring a vehicle into the country, absent some other good reason, all that was required was for the applicant to establish that the car is compliant with Australian standards. On that basis allowing the Applicant to bring the Vehicle into Australia may not undermine the policy objective of making Australia roads safer, however, it has the potential to undermine the objective identified in s 3(b) of the Act, namely “to regulate the first supply to the market of used imported vehicles” (see [8] above).
Unfairness or injustice to the Applicant
As the Respondent notes, the Applicant has not contended that he faces any form of unfairness or injustice, other than asserting that he is being discriminated against because he is 72 years old (a claim for which there is no evidence and which I reject) and the Respondent therefore contends that this is not a relevant factor in determining whether to exercise the discretion in the Applicant's favour. I cannot see how the application of Regulation 13 and the non-exercise of the discretion under Regulation 11 would be unfair or unjust in the present case.
Financial Hardship
The Applicant put forward no evidence and has not contended that he is in any form of financial hardship or that he would suffer any financial hardship if he were not allowed to import the Vehicle. The Applicant says that his current car, a 1996 Falcon utility, is ‘a little “down market” and it would be encouraging (in my old age) to finally drive something decent back home’ (T6/60). The Applicant does assert that he will suffer a financial loss if he chooses to sell the Vehicle (I note that there is no evidence to support that claim), however, that does not constitute a financial hardship. I find that in the case there would be no financial hardship if the Applicant were not allowed to import the Vehicle.
Uniqueness of the Vehicle
The Applicant does not, rightly in my view, assert that the Vehicle is unique or even rare. The Respondent, accordingly, submits (Respondent’s SFIC paragraph 56) that ‘this is not a relevant factor in determining whether to exercise the discretion in the Applicant’s favour’. I think that rather than considering this as being a factor that is not relevant in the present case, the better view is that it is a factor that weighs against the exercise of the discretion in favour of allowing the Vehicle to be imported.
An unpredicted or unexpected event
Again, the Applicant has not asserted that some unexpected or unpredicted event has caused the Applicant to be unable to comply with the Act or the Regulations. This is a factor that at best is neutral or weighs against the exercise of the discretion under Regulation 11.
I agree with the approach taken by Senior Member Toohey in Campos, applying Selway, when she found that there needs to be good reason for the discretion in Regulation 11 to be exercised (see [18(o)] above). In my view none has been shown by the Applicant in the present case.
CONCLUSION
In relation to the issues for determination as identified in [16], for the reasons set out above, I find that:
(a)the Applicant does not meet the requirements of Regulation 13 for the grant of an approval to import the Vehicle from overseas; and
(b)there are not sufficient reasons for the Tribunal to exercise the general discretion under Regulation 11 to approve the application to import the Vehicle.
DECISION
The decision made by the Associate Administrator of Vehicle Standards dated 29 January 2019 to not approve an application for the importation of a 2010 Jaguar XF is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.............................[sgd]...........................................
Associate
Dated: 5 December 2019

Date of hearing: 8 October 2019

Applicant: Self-represented

Counsel for the Respondent: Mr M Palfrey

Solicitors for the Respondent: HWL Ebsworth Lawyers

Date of hearing:	8 October 2019
Applicant:	Self-represented
Counsel for the Respondent:	Mr M Palfrey
Solicitors for the Respondent:	HWL Ebsworth Lawyers