Mughal and Minister for Transport and Regional Services

[2004] AATA 1049

Administrative

Appeals

Tribunal

 

 

DECISION AND REASONS FOR DECISION [2004] AATA 1049

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/479

GENERAL ADMINISTRATIVE  DIVISION

Re:         MOHAMMED ISHAQ MUGHAL

Applicant

And:MINISTER FOR TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             8 October 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G. D. Friedman
  Member

TRANSPORT - import approval - non-standard vehicle - whether vehicle used for continuous twelve-month period - exercise of discretion

Motor Vehicle Standards Act 1989 s 3, 5, 20
Motor Vehicle Standards Regulations 1989 s 9, 11, 13

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 457
Re Van Duyker and Department of Transport and Regional Services [2004] AATA 592

REASONS FOR DECISION

8 October 2004  G.D. Friedman, Member

1.      This is an application by Mohammed Ishaq Mughal (the applicant) for review of a decision of the Administrator of Vehicle Standards (the Administrator) as delegate of the Minister for Transport and Regional Services (the respondent) dated 22 October 2003.  The Administrator refused to approve the applicant’s importation from New Zealand of a Toyota Estima 7‑seat vehicle Chassis Number 7A8H61Y0702061213 (the vehicle), being a non-standard vehicle that does not have an identification plate.

2.      At the hearing of this matter on 29 September 2004, the applicant represented himself with the assistance of an interpreter in the Urdu language, and Dr J. Beard of counsel represented the respondent.

3.      The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T32), plus two exhibits (Exhibits A1 and A2) lodged by the applicant. 

BACKGROUND

4.      On 4 September 2003 the applicant lodged an application with the Department of Transport and Regional Services (the department) to import the vehicle.  In support of his application the applicant provided information including extracts from his New Zealand passport; documents relating to the purchase, registration and ownership of the vehicle; copies of tax invoices (including for gas and water services) sent to the applicant and his wife in Australia; documents relating to the applicant’s eligibility for Centrelink and Medicare benefits in Australia; and copies of notices from the Australian Taxation Office showing the tax file numbers of the applicant and his wife.

5.      In response to a request dated 25 September 2003, the applicant provided additional information including copies of all the pages of his passport; a document dated 21 December 2001 showing that the applicant was then a resident of New Zealand and was receiving income support; a document 5 August 2003 from Centrelink indicating that the applicant was receiving disability support pension and was then residing in North Melbourne, Victoria; a document dated 17 April 2003 indicating that the applicant purchased an airline ticket for a flight from Auckland to Melbourne, departing on 1 May 2003, and a completed Part 8 of the application form in which the applicant states that he first arrived in New Zealand on 10 November 2001 and first registered the vehicle in his name in New Zealand on 22 November 2002, and stopped (or intended to stop) using the vehicle on 23 August 2003.

6.      On 22 October 2003 the Administrator refused the application on the basis that the applicant had not used the vehicle for 12 continuous months, as the vehicle was registered on 22 November 2002 and the applicant ceased using the vehicle on 23 August 2003.  On 24 November 2003 the applicant provided additional information including an undated letter from Everest Corporation Ltd, Auckland (Exhibit A2) stating that the applicant had owned the vehicle since June 2001; a copy of a page from the applicant’s passport with a date stamp Immigration Australia dated 2 November 2003; a copy of the refusal of his application dated 22 October 2003; and a copy of the import payment receipt dated 4 September 2003.

7.      In a letter to the applicant dated 28 November 2003 the Administrator stated that the decision remained unchanged.  On 21 February 2004, the applicant requested the Administrator to re-consider the decision.  On 24 March 2004 the Administrator affirmed the decision.  On 21 April 2004 the applicant lodged an application with the Tribunal for review of the decision of 22 October 2003.

EVIDENCE

8.      Documents provided to the Department by the Department of Immigration Multicultural and Indigenous Affairs (DIMIA) on 13 March 2004 (T23) show that the applicant’s movements to and from New Zealand were:

Arrived in Australia	Departed Australia	Period in Australia
n/a	09/04/2003	n/a
01/05/2003	17/08/2003	3 months, 17 days
23/08/2003	02/11/2003	2 months, 10 days
15/11/2003	21/11/2003	6 days
14/02/2004	18/02/2004	4 days
21/02/2004	n/a	n/a

9.        In oral evidence the applicant stated that he had been born in Pakistan and moved to New Zealand, where he had resided for most of the last 16 years.  He said that he had worked as a cabinet maker in New Zealand but had been injured in a workplace accident and was no longer able to work.  He told the Tribunal that he became depressed and decided to move to Australia with his wife and five children.  The applicant stated that the vehicle had been imported on his behalf into New Zealand some 8 months before its registration as a gift from a friend who lived in Japan.  He told the Tribunal that the vehicle had been registered in his name for 16 months. 

10.      He said that he has made several trips to New Zealand to visit relatives and friends, who have assisted him financially, both with the cost of airline tickets and with household and other expenses.  He added that he still has a number of personal possessions in New Zealand which he brings to Australia progressively.  The applicant emphasised that he needs the vehicle because his current vehicle is a 1988 Camira sedan which is unreliable and is unsuited to a family of seven.  He said that he receives disability support pension and his wife receives family tax benefit, and these payments represent the family’s sole source of income apart from gifts and loans from relatives and friends.  They live in a Housing Commission rented house.

11.      The applicant agreed that he had not driven the vehicle continuously for a period of 12 months before his application to import the vehicle to Australia.  He said that he could not afford to purchase a similar vehicle in Australia.  Under cross‑examination the applicant stated that he could not sell the vehicle in New Zealand because it had been a gift.  He also stated that he intends to remain in Australia, even though most of his family and friends live in New Zealand.

CONSIDERATION OF THE ISSUES

12.     Section 3 of the Motor Vehicle Standards Act 1989 (the Act) states the intention of the legislation, which is …to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia.  Section 20 of the Act, in so far as is relevant, states:

20. Approval to import certain non-standard vehicles

(1)A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate:

…

(b)in prescribed circumstances.

. . .

(3)Regulations for the purposes of paragraph (1)(b) or (2)(b) may provide for the importation, whether generally or in specified circumstances, of a road vehicle, or a vehicle component, as the case may be:

(a)with the written approval of the Minister; or

(b)with such approval subject to written conditions determined by the Minister.

. . .

Section 5 of the Act provides that non-standard means:

…not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under section 10A(2).

Regulation 9 of the Motor Vehicle Standards Regulations 1989 (the regulations) provides:

9.Approval to import vehicles without identification plates

For the purposes of section 20(1)(b) of the Act, a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister has approved an application by the person to import the vehicle.  

Regulation 11 provides:

11. Minster’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 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.  

Regulation 13 provides:

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.

13.      Dr Beard drew the Tribunal’s attention to the material lodged by the applicant, in which the applicant stated that the vehicle was registered in his name on 22 November 2002 and he stopped using the vehicle on 23 August 2003, when the registration expired.  Dr Beard noted that the information from DIMIA showed that from the date of lodgement of the application until 21 February 2004 the applicant could not have been in New Zealand for a continuous period of more than 2 months and 24 days.  Dr Beard submitted that the applicant does not satisfy regulation 13(a)(iii) because he has not owned and used (i.e. driven) the vehicle for a continuous period of at least 12 months.

14.      Dr Beard submitted further that the applicant is a New Zealand citizen and does not satisfy regulation 13(b), although she stated that for policy reasons the respondent would not refuse an application from a New Zealand citizen who satisfied the other statutory requirements.  She said that the vehicle is a narrow Japanese van which is non-standard because it does not conform to Australian standards.  Dr Beard submitted that there are no exceptional circumstances that would justify the exercise of the discretion, contained in regulation 11, in the applicant’s favour.   

15.      The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.

16.      The Tribunal accepts the evidence from the applicant that the vehicle was registered in his name on 22 November 2002 and he ceased driving it on 23 August 2003 when the registration expired.  Taking into the account the information provided by DIMIA, the Tribunal accepts the submission by Dr Beard that at the time of application the vehicle had not been owned and used by the applicant for a continuous period of at least 12 months.  Therefore, the Tribunal finds that the applicant does not satisfy the requirements of regulation 13(a)(iii), and cannot satisfy regulation 13.

17.      In relation to the discretion conferred by regulation 11, in Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704 the Tribunal stated (at page 715):

The tribunal accepts that the discretionary power conferred by reg 9B(1) [similar in terms to regulation 11] of the regulations, although broad and unstructured in its terms, should in practice be exercised only in exceptional circumstances and then only in such a way as would not serve to undermine or frustrate the policy and objects of the Act and the regulations…

18.      In Re Trajkovski and Department ofTransport and Regional Services (2000) 32 AAR 457 the Tribunal noted that it must give primary weight to the scheme for the importation of vehicles and to the intent of Parliament in enacting the legislation, and said (at para 35):

…

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…

19.      In Re Van Duyker and Department of Transport and Regional Services [2004] AATA 592 the Tribunal held (at para 24):

I note that Mr Van Duyker would be in a position to ameliorate his present loss by disposing of the motor vehicle which remains in the possession of a friend in New Zealand.  Even if moneys raised upon sale of that vehicle were less than the current amounts outstanding to the NAB, his financial circumstances could only be improved because his financial liability would be reduced.

20.      The Tribunal accepts the applicant’s evidence that the vehicle is intended for family use; and that with his limited financial resources he would have difficulty in purchasing another vehicle on Australia.  However, on the available evidence there is no impediment to the applicant selling the vehicle in New Zealand and the Camira sedan, and using the proceeds to purchase a suitable second hand vehicle in Australia.  The Tribunal notes that the applicant does not wish to sell a gift. However, there is little likelihood that the person who gave the vehicle to the applicant, and who lives in Japan, would object to the sale of the vehicle, particularly when he has shown a willingness to help the applicant and the vehicle is not being used in New Zealand.

21.      The Tribunal accepts that the applicant faces financial difficulty in providing for his wife and five children while relying on social security benefits for most of the family’s income.  However, he has chosen to travel regularly to New Zealand, and the Tribunal sees no reason why he could not negotiate with relatives and friends in New Zealand to provide financial assistance directly to him and his family in Australia without the necessity of utilising scarce funds to purchase airline tickets.

22.      In all the circumstances the Tribunal concludes that the matters raised by the applicant do not constitute exceptional circumstances that would warrant the exercise of the discretion under regulation 11.     

DECISION

23.      The Tribunal affirms the decision under review.

I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Lake

Clerk

Date of hearing:  29 September 2004
Date of decision:  8 October 2004

Advocate for applicant:                Self-represented
Counsel for respondent:              Dr J. Beard
Solicitor for respondent:               Phillips Fox