Lewis and Department of Transport and Regional Services
[2006] AATA 337
•10 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 337
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/825
GENERAL ADMINISTRATIVE DIVISION )
Re DAVID LEWIS Applicant
And
DEPARTMENT OF TRANSPORT
AND REGIONAL SERVICESRespondent
DECISION
Tribunal Mr RG Kenny, Member Date10 April 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review
.....................[Sgd]...............
RG Kenny
Member
CATCHWORDS
TRANSPORT – motor vehicle importation – non-standard vehicle without identification plate – vehicle owned but not used for a continuous period of 12 months - general discretion to approve importation not exercised in the applicant’s favour – consideration of the relevant factors for the exercise of that discretion – decision under review affirmed.
Motor Vehicle Standards Act 1989 ss 5, 7, 10, 18, 20
Motor Vehicle Standards Regulation 1989 reg 11, 13Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317
Da Silva and Department of Transport and Regional Services (2005) 85 ALD 756
Re Marra and Minister for Transport and Regional Services (2003) 37 AAR 93
Hoopes and Department of Transport and Regional Services [2006] AATA 11REASONS FOR DECISION
10 April 2006 Mr RG Kenny, Member Background
1. On 7 September 2005, the Department of Transport and Regional Services (the respondent) received an application from David Lewis (the applicant) for approval to import a motor vehicle into Australia from the United States of America. On 10 November 2005, an administrator of vehicle standards acting in accordance with the terms of the Motor Vehicle Standards Act 1989 (the Act) refused the application. This was done because the vehicle did not meet the Australian Design Rules and because Mr Lewis’ circumstances did not fall within any of the relevant provisions in the Motor Vehicle Standards Regulations 1989 (the Regulations). Mr Lewis sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 16 December 2005.
Hearing
2. Mr Lewis attended the hearing but was not represented. The respondent was represented by Mr M Palfrey. Material before the Tribunal included documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Contentions
3. Mr Palfrey submitted that Mr Lewis’ vehicle did not comply with Australian standards and did not have an Australian identification plate as required by the Act. He submitted that, for it to be approved for importation into Australia, either regulation 11 or regulation 13 of the Regulations had to be satisfied and, accordingly, Mr Lewis must have owned and used the vehicle for a continuous period of at least 12 months in the United States or there must be circumstances which would justify exercising a general discretion to give approval in the absence of such usage. He submitted that neither of these requirements was met.
4. Mr Lewis conceded that he had not complied with the terms of regulation 13 in that, although he had owned the vehicle in the United States for the required period, it had not been continuously used for that length of time by himself or his family. He submitted that the general discretion under regulation 11 could be applied in his case to enable the importation to proceed.
Mr Lewis’ Evidence
5. Mr Lewis, his wife and two of their children travelled from Australia to the United States on 18 December 2003. The purpose of their visit was to enable the children to undergo a specialized surgical procedure which could not be conducted in Australia. The intention was that Mrs. Lewis would stay there with the children until the procedures were completed and it was expected that this would take at least 12 months. Mr Lewis owns and conducts a small engineering business in central Queensland. It was intended that he would return to Australia periodically for business reasons. They encountered difficulties from the beginning of their stay because they were not able to establish a line of credit which would enable them to obtain accommodation or even to rent a car. They lived in a hotel and commuted by taxi to places for treatment of the children. On 25 December 2003, Mr Lewis purchased a 1999 Dodge Caravan which he described as a passenger van with capacity to seat seven people. He paid $6,900 for it.
6. Mr Lewis said that, when he purchased the vehicle, he thought that he would be able to import it into Australia as long as he owned it for 12 months. He was not aware of the need for it to be continuously used for that period. After 6 or 7 weeks, the initial procedures had been conducted on the children and some months would pass before further procedures were required. As their difficulty in obtaining accommodation had continued, they decided to return to Australia and did so on 24 January 2004. The vehicle was placed in storage. Mrs Lewis returned to the United States on 16 September 2004 and Mr Lewis did so on 14 October 2004. They were then able to find accommodation and Mrs Lewis remained with the children until early 2005 during which period they underwent further surgery. During that time, Mr Lewis travelled to and from Australia because of his business commitments.
7. The vehicle is currently in storage in the United States. Mr Lewis said that it would be a highly advantageous to his family if he were able to import the vehicle into Australia because he believes that a vehicle of similar specifications would cost approximately $20,000 in Australia. He believed that, if the vehicle were sold in the United States, it would realize only some $2,000 to $3000. In his business, one of the functions that Mr Lewis carries out is the conversion of noncompliant vehicles to meet Australian standards. He is currently licensed to perform that work and he estimated that, for the vehicle in question to be made compliant, it would cost $2,270. This would be for the purchasing of relevant parts and by the use of his own labour.
8. Mr Lewis described his family as being in reasonable financial circumstances and in good health. He said that it would be a great benefit to his family if he was able to import the vehicle and thereby avoid the need to borrow money in order to purchase a replacement vehicle.
Consideration
9. Under section 5 of the Act, “road vehicle” means a “road motor vehicle” and this, in turn, means a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods or a motor vehicle that is permitted to be used on public roads. I am satisfied that Mr Lewis’s vehicle meets that description and is a road vehicle for the purposes of the Act and Regulations. Under section 18 of the Act, a person must not import a road vehicle that is non-standard or does not have an identification plate. Under section 5 of the Act, it will be “non-standard” if it does not comply with “the national standards by virtue of an approval given under subsection 10A(2) of the Act”. The term “identification plate” is also defined in section 5 to mean 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)”. I am satisfied that Mr Lewis’ vehicle does not comply with Australian standards and that it does not have an identification plate as provided for in sections 10A and 10, respectively, of the Act.
10. Section 18 of the Act is to be read subject to the application of sections 19 and 20 thereof. The former provision enables a non-standard road vehicle or a road vehicle that does not have an identification plate to be imported with the written approval of the Minister. I am satisfied that this requirement of section 19 is not met. Section 18 also makes provision for such importation in circumstances prescribed under the regulations which, in so far as relevant, read:
Reg 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.
Reg 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.
application of regulation 13
11. For regulation 13 to be satisfied, all of the criteria listed therein must be met. It is not in dispute and I am satisfied that Mr Lewis meets the requirements of paragraphs (b) to (e) of that provision. Further, I am also satisfied that Mr Lewis’ owns the vehicle and has done so since 25 December 2003. Accordingly, subparagraph 13(a)(iii) is applicable and approval to import must be given if, when he applied to import it into Australia, Mr Lewis had used it for a continuous period of 12 months. Mr Lewis conceded that the longest period of usage of the vehicle by his wife in the United States was seven months. I am satisfied that this concession has been properly made and that the terms of regulation 13 are not met in this case.
application of regulation 11
12. The purpose of the Act and the regulations, in their initial form and through subsequent amendments, has been detailed by the Tribunal on several occasions: see Re Trajkovski and Department of Transport and Regional Services[2000] AATA 1073, Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317, Da Silva and Department of Transport and Regional Services (2005) 85 ALD 756; Re Marra and Minister for Transport and Regional Services (2003) 37 AAR 93; and Hoopes and Department of Transport and Regional Services [2006] AATA 11. The purpose of the legislative scheme is to ensure that vehicles imported into Australia meet uniform safety and environmental standards. The exercise of the discretion in regulation 11 must be consistent with that purpose.
13. In Re Trajkovski and Department of Transport and Regional Services[2000] AATA 1073 at [35], the Tribunal described the circumstances in which it may be appropriate to exercise the general discretionary power in regulation 11 as being "exceptional". It said:
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.
14. Similarly, in Re Anthony and Department of Transport and Regional Services[2001] AATA 543, the Tribunal considered that there needed to be "very exceptional, extraordinary or special circumstances peculiar to an applicant" for regulation 11 to have application.
15. In Re Marra and Minister for Transport and Regional Services (2003) 37 AAR 93, the Tribunal exercised the discretion available under regulation 11 to allow the importation of a Honda vehicle. There, the importer incorrectly believed that the required period of continuous use was 3 months as, indeed, it had been prior to the amendment of the regulation to the present 12 months. The Tribunal found that he had continuously used the vehicle for some 7 months, that he had been given incorrect information by the Department and that he would suffer hardship in relation to shipping and storage costs and the loss of the use and enjoyment of the vehicle since it arrived in Australia. The Tribunal found that, having regard to all the circumstances, refusal to approve the importation had caused him serious injustice which would have been compounded if the Tribunal were to affirm that decision. There, the Tribunal also found that the vehicle was in excellent condition, that it was a current European model, that it was roadworthy, that it met all Australian safety requirements and that it was a genuine bona fide purchase for personal use.
16. The circumstances of Mr Lewis are readily distinguishable from those of Mr Marra. Mr Lewis does not face the prospect of having to meet the costs of returning the vehicle to the United States. There is the prospect of resale there, albeit for less than he outlaid on the vehicle. Also, there was no misrepresentation of the requirements by the respondent in Mr Lewis’ case. Rather, he incorrectly believed that it was sufficient for him to own the vehicle for the requisite period and he was unaware of the need for continuous use during that time. The main reason advanced by Mr Lewis for the discretion under regulation to be exercised in his favour was that it would benefit his family to be able to use such a vehicle and for him to be able to do so at relatively low cost. In his evidence, he conceded that, if he was forced to purchase another vehicle in Australia, he would be able to do so by borrowing money for that purpose. I am satisfied that Mr Lewis’ circumstances are not exceptional, extraordinary or special in a manner which would justify the exercise of the general discretion under regulation 11 to avoid the purpose of the legislative scheme which serves to ensure that all vehicles imported into Australia meet uniform safety and environmental standards.
Decision
17. The Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 6 April 2006
Date of Decision 10 April 2006
The Applicant was unrepresented
For the Respondent Michael Palfrey, Departmental Advocate
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