Markovich and Minister for Infrastructure, Transport, Regional Development and Local Government
[2009] AATA 358
•18 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 358
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0040
GENERAL ADMINISTRATIVE DIVISION ) Re MILINKO MARKOVICH Applicant
And
MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date18 May 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Member
CATCHWORDS
TRANSPORT – motor vehicle importation – nonstandard vehicle – vehicle owned but not used for a continuous period of 12 months – general discretion to approve importation not exercised – consideration of relevant factors for exercise of that discretion – decision under review affirmed.
Motor Vehicle Standards Act 1989 (Cth), ss 5, 7, 18, 20
Motor Vehicle Standards Regulations 1989 (Cth), regs 3, 11, 13Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630
Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457
Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756
Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
REASONS FOR DECISION
18 May 2009 Mr R G Kenny, Member BACKGROUND
1. On 1 February 2008, Mr Milinko Markovich completed an application form for approval to import a 1996 model Mercedes-Benz S320 (“the vehicle”) into Australia from New Zealand. The application was received by the respondent[1] on 22 February 2008. On 14 July 2008, an Administrator of Vehicle Standards acting in accordance with the terms of the Motor Vehicle Standards Act 1989 (“the Act”) refused the application. Mr Markovich has sought review of that decision by the Administrative Appeals Tribunal (“the Tribunal”). At the hearing, the respondent was represented by Mr Michael Palfrey. Mr Markovich was not represented but was assisted by an interpreter.
[1] The Minster for Infrastructure, Transport, Regional Development and Local Government (formerly of the Department of Transport and Regional Services).
CONTENTIONS
2. Mr Palfrey submitted that the vehicle did not comply with Australian standards and, as such, was a “nonstandard” vehicle as defined in s 5(1) of the Act which was not permitted, under s 18 of the Act, to be imported into Australia unless Mr Markovich’s circumstances were encompassed by a relevant exception in s 20 of the Act. He submitted that these exceptions were set out in regs 11 and 13 of the Motor Vehicle Standards Regulations 1989 (“the Regulations”) and that Mr Markovich’s situation did not satisfy either of those provisions. Mr Markovich conceded that he did not satisfy the requirements of reg 13 but contended that the discretion in reg 11 of the Regulations should be exercised in his favour to enable his vehicle to be imported.
ISSUES AND LEGISLATION
3. It is not disputed that, under s 5(1) of the Act, the vehicle is a “nonstandard road vehicle” the importation of which is prohibited under s 18 of the Act unless an exception in regs 11 or 13 of the Regulations is satisfied. Regulation 13 includes the requirement that Mr Markovich must have owned and used the vehicle for a continuous period of 12 months. Mr Markovich conceded that this requirement has not been met. Regulation 11 reads:
“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”.
4. The issue for determination is whether the discretion in that provision should be exercised in Mr Markovich’s case.
EVIDENCE
Mr Markovich
5. Mr Markovich gave the following evidence. He is a citizen of New Zealand and was living there when he purchased the vehicle on 8 March 2006. Delivery of the vehicle was delayed for a few weeks while it was fitted out for use as a taxi. Mr Markovich then used it in that capacity until shortly before he moved to Australia on 10 February 2007. Apart from a brief holiday in New Zealand in January 2008, he has lived in Australia since then. Mr Markovich unsuccessfully attempted to sell the vehicle by advertising it on the internet for several months prior to departing New Zealand and it is now stored there with one of his friends.
6. The vehicle is no longer registered for use. Mr Markovich believes that it is not worth much in New Zealand and that, at most, he might be able to sell it to the owner of a taxi organisation for about $2,000. He also believes that he would be able to sell it more readily in Australia and has seen similar vehicles for sale on the internet for up to $16,000. He said that the difference was due to the predominance of newer vehicles on New Zealand roads than was the case in Australia and the consequential reluctance of New Zealanders to purchase older vehicles. Before leaving New Zealand, Mr Markovich did not make enquiries about the importation procedure because, initially, he did not intend bringing the vehicle to Australia. However, his financial situation has deteriorated and that was the reason for making the application to import it. His intention is to sell it here. However, if he is not able to sell the vehicle, he would use it himself. He has no other vehicle and does not need one as he is able to borrow a friend’s car whenever he needs to. He estimated that the cost of transporting the vehicle would be approximately $2,800. He said that this was “a guess” on his part. He does not know what expenditure would be required to enable it to be registered for road use in Australia.
Other evidence
7. The respondent requested information from Mercedes-Benz Australia/Pacific Pty Ltd (“the MB Company”) about the history of the vehicle. In evidence was a series of email messages in relation to that enquiry. They advise that the vehicle was manufactured in Germany for sale and use in Singapore and was not built to comply with Australian Design Rules (“ADRs”). The senior manager of Engineering Certification and Testing with the MB Company advised that a letter of compliance could not be issued for the vehicle because it was not originally built for Australia to comply with ADRs. The final email message refers to significant ADR requirements, including child restraint fittings, that the vehicle would not meet.
8. Also in evidence was a Vehicle Information Report (“VIR”), dated 6 February 2009, confirming Mr Markovich’s ownership of the vehicle, the date of his purchase of it, its registration status and odometer history. The VIR noted that the odometer readings on 27 June 2003 and 7 July 2003, respectively, were 225,802 km and 118,250 km, thereby revealing a reduction of 107,552 km. The most recent reading was 155,078 km on 15 September 2006.
9. Mr Markovich tendered a copy of a document he obtained from the internet site The Red Book which provides estimates of vehicle valuations. For a vehicle of the type in issue here, the estimated price for a private buyer is in the range $13,300 to $16,000. For a trade-in, the estimate is in the range $9,800 to $12,500. In each case, it was based on an odometer reading from 130,000 km to 240,000 km.
CONSIDERATION
10. It is not disputed that the vehicle does not comply with ADRs. Accordingly, it is nonstandard[2] and its importation is prohibited under s 18 of the Act. That provision is to be read subject to the application of s 20 of the Act which provides for importation in circumstances prescribed under the Regulations. Of potential relevance are regs 11 and 13 of the Regulations.
[2] In so far as relevant, the term nonstandard means not complying with the national standards. These are set out in the ADRs: see ss 5 and 7 of the Act and reg 3 of the Regulations.
11. As noted above, reg 13 of the Regulations includes the requirement that Mr Markovich must have owned and used the vehicle for a continuous period of 12 months. While Mr Markovich has owned the vehicle for more than 12 months, his use of it was, at most, from 8 March 2006 until 10 February 2007. That is less than 12 months and I am satisfied that reg 13 of the Regulations is not of assistance to him.
12. Regulation 11 of the Regulations gives rise to a general discretion to allow the importation of a nonstandard vehicle. The legislative scheme under the Act and Regulations operates to ensure that vehicles imported into Australia meet uniform safety and environmental standards and the application of reg 11 must be consistent with that purpose[3]. In some cases, the Tribunal has required exceptional circumstances to be demonstrated for reg 11 to apply[4]. In more recent cases, the exercise of the discretion was approached on the basis that:
“if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour”[5].
[3] See Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630.
[4] See Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457 and Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704.
[5] Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756 at 767. See also Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630 and Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079.
13. I agree with the latter approach. I also consider that the following observation by the Tribunal is relevant:
“By 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. But the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised. The Act does not attempt to define what facts or circumstances might justify the exercise of the discretion. I must instead consider each application on its merits, while keeping a careful eye on the objects of the Act”[6].
[6] Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 at [11].
14. The motivation for Mr Markovich’s application to import the vehicle is financial. He wishes to sell it and believes that he would be able to do so in Australia for a price greater than what would be the case in New Zealand. The material before me does not enable any valuation to be ascribed to the vehicle but it is not entirely clear that the importation would enable Mr Markovich to achieve that result. He has not obtained reliable estimates of transportation costs or of costs associated with having the vehicle registered. It would seem that his reference to the prospect of realising $16,000 from its sale may well be unrealistic given the odometer history and valuations contained in the publicly available VIR and The Red Book extracts. That is reinforced by the vehicle’s current fitting out as a taxi. That, of course, would be a matter for Mr Markovich if the importation were permitted.
15. What is known about the vehicle in the context of national standards is that it does not comply with ADRs. The final email message from the MB Company refers to “significant ADR requirements” that the vehicle would not meet. There is no evidence of what these are although one reference is to child safety fittings. The focus of the legislative scheme includes safety considerations and, given Mr Markovich’s stated intention to sell the vehicle, the safety of persons other than himself may be in issue. It is significant that Mr Markovich had no intention to bring the vehicle with him to Australia when he moved here in February 2007. His evidence was that he does not need a vehicle as he has the use of that of a friend when he needs it. His present desire to import the vehicle is based solely on financial considerations. Such considerations are not consistent with the safety-oriented purpose of the legislative scheme under the Act. Rejection of Mr Markovich’s application does not leave him without a remedy. The vehicle can still be sold, albeit for less, perhaps, than what he would realise from the sale in Australia. I am satisfied that, in the context of the purpose of the legislative scheme under the Act and Regulations, rejection of Mr Markovich’s application does not reflect unfairness or injustice to him and that the discretion in reg 11 of the Regulations should not be exercised.
DECISION
16.The Tribunal affirms the decision under review.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member.
Signed:.....................[Sgd].........................................................
Mátyás Kochárdy, Research AssociateDate of Hearing 6 May 2009
Date of Decision 18 May 2009
The Applicant was self-represented
Solicitor for the Respondent: Clayton Utz Lawyers
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