Mero and Department of Transport and Regional Services

[2007] AATA 1137

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1137

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/623

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Mr MERO

Applicant

And DEPARTMENT OF TRANSPORT
AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date16 March 2007

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 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(Cth) ss 5, 7, 10, 10A(2), 18, 19, 20
Motor Vehicle Standards Regulations 1989 (Cth) regs 11, 12, 13

Administrative Appeals Tribunal Act 1975 s37

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 (2004) 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 11
Brassington and Department of Transport and Regional Services [2006] AATA 724

REASONS FOR DECISION

16 March 2007 Mr RG Kenny, Member      

Background

1.      On 7 February 2005, the Department of Transport and Regional Services (the respondent) received an application from Mr Mero (the applicant) for approval to import into Australia a 2002 Hero Briggs & Stratton Auto Ltd Winner 49 motor scooter (the vehicle) which he purchased in the Czech Republic.  On 23 February 2005, an administrator of vehicle standards acting in accordance with the terms of the Motor Vehicle Standards Act 1989 (the Act) refused Mr Mero’s application.  This was done because the vehicle did not comply with Australian national standards, because it was not fitted with an identification plate and because Mr Mero’s circumstances did not fall within any of the relevant exempting provisions in the Motor Vehicle Standards Regulations 1989 (the Regulations).  Mr Mero sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 13 October 2005.

Mr Mero’s Evidence

2.      Mr Mero’s vehicle arrived in Australia in December 2003.  He understands that it has remained in storage in Melbourne since that time.  Before taking steps to send it to Australia, Mr Mero made no enquiries of anyone in authority concerning its importation.  He purchased it whilst on vacation and used it for a period of 8 months.  He made no modifications to it and found that it suited his needs ideally, that it was comfortable, inexpensive to operate and he believed that it would be of great value if he were able to continue to use it in Australia.  Mr Mero claimed he had health problems and that the effect of these would be moderated if he were able to use his motor scooter for commuting purposes.  He also claimed that his financial position was such that he was not able to purchase another vehicle.

Contentions

3.      Mr Palfrey submitted that Mr Mero’s vehicle did not comply with Australian standards and did not have an Australian identification plate as required by the Act.  He submitted that, for the vehicle to be approved for importation into Australia, regulation 11, 12 or 13 had to be satisfied and this was not so in Mr Mero’s case.  Mr Palfrey also submitted that the costs associated with storage and with making it compliant with Australian standards would be greater than the purchase price of a similar vehicle available on the Australian market.

4.      Mr Mero’s submissions, as I understand them, raise matters which he considers give rise to the exercise of the discretion under regulation 11.  He submitted that he was one of very few Australians who would seek to bring a vehicle into Australia and that no harm would arise if he were permitted to do so. 

Consideration

5. Under section 5 of the Act, “road vehicle” means a “road motor vehicle” and this is defined as 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 Mero’s vehicle meets that description and is a road vehicle for the purposes of the Act and Regulations.

6. 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 Mero’ 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.

7. Section 18 of the Act prohibits the importation of non-standard vehicles into Australia. That provision is to be read subject to the application of sections 19 and 20 of the Act. Section 19 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 is not met. Section 20 makes provision for importation in circumstances prescribed under the Regulations. Of potential relevance are regulations 11, 12 and 13.

8.      Regulation 13 includes the requirement that Mr Mero must have owned and used the vehicle prior to importation for a continuous period of 12 months.  He  used it for only 8 months and I am satisfied that regulation 13 is not applicable to him.  Regulation 12 applies where the vehicle complied with Australian standards when it was first manufactured and delivered for use in transport.  It is not disputed and I am satisfied that this requirement is not met.  Regulation 11 gives rise to a general discretion to allow the importation of a non-standard vehicle.  It reads:

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.

9.      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 legislative scheme operates 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.

10.     In Re Trajkovski and Department of Transport and Regional Services, the Tribunal described the circumstances in which it may be appropriate to exercise the 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.

11.     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: see also Re Marra and Minister for Transport and Regional Services (2003) 37 AAR 93 at 104. Later cases have adopted an approach which does not require an applicant’s circumstances to be exceptional: see Da Silva and Department of Transport and Regional Services (2005) 85 ALD 756 and Brassington and Department of Transport and Regional Services [2006] AATA 724 (par 27). In Da Silva, (at 59) the Tribunal referred to the need to consider the totality of the relevant circumstances and concluded:

…….the exercise of the discretion in r 11 should be 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 were not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant's favour.

12.     Cases where the discretion has been exercised include situations where incorrect information was provided to an importer concerning, for example, the period for which a person must own and use a vehicle before importing it into Australia in reliance upon the incorrect information: see Re Marra and Minister for Transport and Regional Services (2003) 37 AAR 93. In Mr Mero’s case, there was no misrepresentation of the requirements to be met for importation by the respondent and, indeed, no inquiry was made at all. Mr Mero appears to have had no understanding of the limitations which apply to the importation of non-standard vehicles. To exercise the discretion in circumstances such as these would be to undermine the clear purpose of the legislative scheme.

13.     Mr Mero has some health concerns.  In evidence was a letter dated 16 June 2005 from Mr Mero’s chiropractor who described him as having moderate osteoarthritis and problems with movement.  There, the opinion was expressed that he would be better able to take care of himself if he had access to a small motorized conveyance of some variety.  I accept that the use of a motor scooter would provide independence and greater mobility for Mr Mero.  However, that does not create a situation of exceptional circumstances as described in Re Anthony and I am also satisfied that it does not create a system of unfairness or injustice to him such that the intention of the legislation should be set aside.  While there was no evidence before me in respect of the prices of similar new vehicles in Australia, the costs associated with storage of Mr Mero’s vehicle or of rendering it compliant with Australian standards, I accept the tenor of Mr Palfrey’s submission that Mr Mero’s financial position may not be advantaged by the discretion being exercised in his favour. 

14.     I am satisfied that Mr Mero’s circumstances do not 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

15.     The Tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         E O’Gorman

Legal Research Officer

Date of Hearing  13 February 2007
Date of Decision  16 March 2007
The Applicant was unrepresented
For the Respondent                  Michael Palfrey, Departmental Advocate