MILLER and MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
[2010] AATA 608
•17 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 608
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1902
GENERAL ADMINISTRATIVE DIVISION ) Re JULIA MILLER Applicant
And
MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date17 August 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................[Sgd]..............................
Senior Member
CATCHWORDS
TRANSPORT – Motor vehicle importation – Nonstandard vehicle – Applicant arrived in Australia with intention of remaining in Australia indefinitely - Vehicle not owned by applicant while applicant was overseas for a continuous period of 12 months before arrival in Australia – Vehicle not available for applicant to use during the relevant period – Discretion to approve importation on the basis of ownership and use overseas not exercised – General discretion to approve importation not exercised – Decision under review affirmed.
Motor Vehicle Standards Act 1989 (Cth), ss 5, 7, 18, 20
Motor Vehicle Standards Regulations 1989 (Cth), regs 3, 11, 13Motor Vehicle Standards Amendment Regulations 2009 (No. 1) (Cth)
Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079
Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630
Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756
Re Davidson and Minister for Transport and Regional Services [2007] AATA 1268Re Markovich and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 358
Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
REASONS FOR DECISION
17 August 2010 Mr R G Kenny, Senior Member BACKGROUND
1. On 26 February 2010, Julie Miller applied for approval to import a 2006 Yamaha motor cycle (“the vehicle”) into Australia from the United States of America (“USA”). On 16 April 2010, an Administrator of Vehicle Standards acting in accordance with the terms of the Motor Vehicle Standards Act 1989 (Cth) (“the Act”) refused the application.
ISSUES AND LEGISLATION
2. It is not disputed that the vehicle does not comply with Australian Design Rules and, accordingly, is nonstandard[1]. Accordingly, 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 which read:
[1] In so far as relevant, the term nonstandard means not complying with the national standards. These are set out in the Australian Design Rules (ADRs): see ss 5 and 7 of the Act and reg. 3 of the Regulations.
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.
13Approval to import vehicle without an identification plate if owned and used by applicant overseas
(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.
3. The issue for determination is whether the discretion in either of those provisions should be exercised in Ms Miller’s case.
CONTENTIONS
4. Mr Palfrey submitted that Ms Miller’s situation does not satisfy either of the provisions. He conceded that all of the requirements of reg 13(1) were met except for paragraphs (ac) and (ad). As to the former, he submitted that the requirement was that the vehicle had to be owned for a continuous period of at least 12 months while Ms Miller lived in the USA. As to the latter provision, he submitted that the vehicle was not available to Ms Miller during the periods that she was in Australia and the vehicle was in the USA. Mr Palfrey also submitted that there were no circumstances which would justify exercising the discretion in reg 11.
5. Ms Miller submitted that she satisfied all of the requirements of reg 13, including paragraphs (ac) and (ad), because she had owned the vehicle while in the USA, because she had owned it for a continuous period of more than 12 months, because her time in Australia was necessary for her to complete her course of study and because the vehicle was available for her to use whenever she was in USA. She also submitted that the vehicle was the only one that she had owned, that she had purchased it when she was 18 years of age, that she obtained her licence to ride on it and had learned basic maintenance in relation to it. She submitted that these factors should be taken into account in considering the discretion in reg 11.
EVIDENCE
6. Ms Miller is a citizen of the USA where she lived when she purchased the vehicle on 20 June 2006. On 5 February 2007, she travelled to Australia where she commenced a 3 year course of study at James Cook University in Townsville. She returned to the USA at the end of the academic years 2007, 2008 and 2009, being there from 26 November 2007 until 12 January 2008, from 3 December 2008 until 9 January 2009 and from 21 December 2009 to 6 January 2010 when she returned to Australia with the intention of becoming a permanent Australian resident and remaining indefinitely. She is married to an Australian citizen. On each occasion that she returned to the USA, Ms Miller made daily use of the vehicle which, during her absences in Australia, has been looked after by her father who drives it around the neighbourhood occasionally. Ms Miller also spent the period from 12 February 2009 until 21 February 2009 in New Zealand on a university field trip.
7. Ms Miller described a sentimental attachment to the vehicle because it was her first, because she purchased it when she was 18 years of age, because she obtained her licence to ride on it and because she had learned basic maintenance in relation to it.
CONSIDERATION
Application of Regulation 13
8. For reg 13 to be satisfied, all of the criteria listed therein must be met. It is common ground and I am satisfied that Ms Miller meets the requirements of paragraphs 13(1)(aa), (ab) and (a) to (e) of that provision. That leaves for consideration, paragraphs 13(1)(ca) and 1(cb) which are concerned with ownership and use. In its present form, reg 13 commenced operation in 2009[2]. The ownership and use requirements in the amended regulation are stated in terms different from those of its predecessor. The Explanatory Statement[3] issued under the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government referred to the purpose of paragraphs 13(1)(ca) and (cb) in the following terms:
New paragraph 13(ac) clarifies that the applicant must have owned the vehicle (while overseas) for a continuous period of at least 12 months immediately before arriving in Australia. Arrival in Australia must be for the purpose of remaining in Australia indefinitely. This closes a loophole that has allowed people to temporarily import a vehicle and use the vehicle in Australia to become eligible for a personal import approval.
New paragraph 13(ad) clarifies that, during the period of ownership, the vehicle must be available to the applicant for use in transport. This replaces the requirement that the vehicle must be “used by the applicant for a continuous period of at least ... 12 months”. For example, the new paragraph confirms that the vehicle does not have to be used (i.e. driven) seven days a week, 24 hours a day ...
[2] See Motor Vehicle Standards Amendment Regulations 2009 (No. 1) (Cth)
[3] See Select Legislative Instrument 2009 No. 308
9. The relevant time-frame for the operation of reg 13(1)(ac) is the 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely. In Ms Miller’s case, this is the period from 6 January 2009 until 6 January 2010. In most cases, a vehicle sought to be imported into Australia will be overseas and, therefore, the reference to “while overseas” in the provision is not to a vehicle but to an applicant, in this case Ms Miller. That interpretation is supported by the terms of the Explanatory Memorandum. Ms Miller owned the vehicle for the relevant 12 month period but, for most of that time, she was in Australia. She was overseas in the USA from 6 to 9 January 2009 and from 21 December 2009 until 6 January 2010. She was in New Zealand from 12 to 21 February 2009. Those are the only periods when she may be described as owning the vehicle while overseas for the purposes of reg 13(1)(ac). Accordingly, Ms Miller did not own the vehicle while she was overseas for a continuous period of at least 12 months immediately before arriving in Australia.
10. Reg 13(1)(ad) requires that the vehicle be available to Ms Miller for use in transport during that period of ownership. As I read that provision, this is a reference back to the period of ownership which satisfied reg 13(1)(ac). Ms Miller does not meet that requirement. Even if she did, I am satisfied that the vehicle was not available to her for use in transport while she was in Australia. The vehicle was hers. It was not driven by others, apart from her father on an occasional basis. It was looked after by her father for her to use when she was in the USA from time to time. In assessing whether a person used a vehicle for a continuous period under the repealed reg 13[4], the Tribunal has consistently held that use for a continuous period did not include a period when the owner was in a different country for an extended period of time[5]. I am satisfied that the same approach is applicable under reg 13(1)(ad) even though Ms Miller was a student in Australia during that period. It is consistent with the meaning of the term “available” in the Australian Concise Oxford Dictionary[6] which reads:
1. capable of being used; at one’s disposal. 2 obtainable; within one’s reach.
[4] Previously reg. 13(1)(a).
[5] See, for example, Re Davidson and Minister for Transport and Regional Services [2007] AATA 1268 at [21] to [26].
[6] 4th Edition, 2004.
11. I am satisfied, for the purposes of reg 13(1)(ad), that Ms Miller did not have a period of ownership that satisfies reg 13(1)(ac) and that the vehicle was not available to her for use in transport while she was in Australia or, indeed, in New Zealand. I am satisfied that the discretion in reg 13 should not be exercised in favour of Ms Miller.
Application of Regulation 11
12. Reg 11 gives rise to a 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[7]. In some cases, the Tribunal has required exceptional circumstances to be demonstrated for reg 11 to apply[8]. 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[9].
[7] See Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630.
[8] 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.
[9] Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756. See also Re Bradshaw and Minister for Infrastructure, Transport, Regional Development and Local Government (2008) 106 ALD 630; Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079; and Re Markovich and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 358.
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[10].
[10] Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 at [11].
14. Ms Miller described a sentimental attachment to the vehicle. I note that, after first coming to Australia for study purposes, she was able to make use of it for only a little more than 3 months over the next 3 years. Further, there is no evidence that it is rare or unusual and, therefore, one that cannot be replaced by purchasing a similar motor cycle in Australia. Clearly, it has had minimal use which would suggest that there are good prospects for its sale in the USA at a reasonable price to assist Ms Miller in purchasing a replacement should she wish to do so. This is not a case where incorrect advice was provided about the importation process and, indeed, Ms Miller made no inquiry of the respondent about the prospects of importing the vehicle into Australia until she arrived here. In the context of the purpose of the legislative scheme under the Act and Regulations, rejection of Mr Miller’s application does not reflect unfairness or injustice to her and I am satisfied that the discretion in reg 11 of the Regulations should not be exercised in favour of Ms Miller.
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 R G Kenny, Senior Member.
Signed: .....................[Sgd]........................................................
Kate Slack, Research AssociateDate of Hearing 4 August 2010
Date of Decision 17 August 2010
The Applicant was self-represented
Solicitor for the Respondent: Clayton Utz Lawyers
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