Murase and Department of Transport and Regional Services

[2005] AATA 705

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 705

ADMINISTRATIVE APPEALS TRIBUNAL      )          

)          No.   N2004/1567

GENERAL ADMINISTRATIVE DIVISION )

Re yuko murase

Applicant

And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date14 July 2005

PlaceNewcastle

ADMINISTRATIVE APPEALS TRIBUNAL      )          No.   N2004/1567

)              

GENERAL ADMINISTRATIVE  DIVISION		)
Re		YUKO MURASE

Applicant

And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date14 July 2005

PlaceNewcastle

Decision FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is set aside and remitted to the Respondent with the direction that the importation of the vehicle by the Applicant is to be allowed subject to any conditions specified in the instrument of approval.

(Sgd)  M D Allen
  ..............................................

Senior Member

CATCHWORDS

Transport – Motor Vehicle Standards – Import of non-standard vehicle – Discretion of Minister to approve importation – whether Applicant has “special circumstances” – decision under review set aside and remitted to Respondent with the direction that the importation of the vehicle is to be allowed subject to any conditions specified in the instrument of approval.

Motor Vehicles Standards Act 1989  ss 3, 18 and 20

Motor Vehicle Standards Regulations Regs.13, 11

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

Baker v The Queen (2004) 78 ALJR 1483
The Crown v Kelly (Edward) (2000) QB 198
Dranichnikov and Centrelink (2003) FCAFC 133
Da Silva and Department of Transport and Regional Services (2004) AATA 1355

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Signed:         (E.Pope)
          ..................................................................................……………………………….

Associate

Date of Hearing  14 July 2005

Date of Decision  14 July 2005

Representative for Applicant      Mr Ian Brander

Solicitor for Respondent              Mr David Fintan, Phillips Fox Lawyers

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2004/1567
By MR ALLEN, Senior Member
MURASE v DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
NEWCASTLE, THURSDAY, 14 JULY 2005

MR ALLEN:   By application made the sixth day of December 2004 the applicant sought review of a decision by the respondent to refuse permission to the applicant to import from Japan a 1998 Toyota Estima motor vehicle.

The relevant legislation is sections 3, 18 and 20 of the Motor Vehicle Standards Act 1989 as amended. Particular sections read inter alia section 3:

The main objects of the Motor Vehicle Standards Act are:

(a)  to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia;

and

(b) to regulate the first supply to the market of used imported vehicles.

Section 18 reads, inter alia:

It is an offence to import into Australia a vehicle that is non-standard or does not have an identification plate.

"Non-standard" is defined in subsection (1) of section 5 as to mean:

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

"Identification plate" is defined in the same subsection as:

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 in subsection 10(1).

Section 20(1)(b) provides:

A person may import a non-standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances.

Subsection (3) of section 20 then goes on to provide that:

Regulations for the purposes of paragraph 1(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.

Regulation 13 provided, inter alia, that:

The Minister must approve an application to import a non-standard 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 12 months as it applied at the time of importation.

I would interpose that before 8 May 2000, the period for owning and using the vehicle was three months.  At the outset it can be said that in this matter there is no dispute that the vehicle is non-standard, does not have the required identification plate and was not owned by the applicant for a period of 12 months.

Regulation 11 of the Motor Vehicle Standards Regulations then goes on to provide:

(1) the Minister may approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate.

(2) and approval may be given subject to conditions specified in Instrument of Approval.

(3) without limiting the generality of subregulation (2) the Minister may require that a plate in such form containing such information as the Minister determines be placed on the vehicle.

(4) an approval must be given by signed instrument.

It can be seen however, that the discretion vested in the Minister to permit the importation is unfettered.

The facts giving rise to the requested import are quite straightforward.  The applicant at the time she purchased the vehicle was engaged to be married to Mr Ian Brander and was residing in Japan.  Mr Brander himself had lived in Japan for 15 years and during that time had imported two vehicles into Australia, one a Corolla station wagon, the other a four-wheel drive.  Those two imports proceeded under the basis that he had owned and used them for a period of three months.

When the applicant had made the decision to marry Mr Brander and move to Australia, a vehicle was purchased.  Part of the reason for purchasing that vehicle was that it would be filled with her own personal goods and chattels and all would be moved to Australia at the same time.  It was a vehicle by which stage of course, no doubt she would have been familiar and she would use it in Australia.  But at the same time it was far cheaper to ship the vehicle full of goods and chattels than actually import the goods and chattels by separate shipping.

It has transpired that the applicant, now Mrs Brander, has moved to Australia, has married Mr Brander and, of course, has permanent residency.  It was also stated in evidence and not sought to be contradicted that because of emission regulations imposed in Japan as a result of the Kyoto Agreement the vehicle being a diesel vehicle would be restricted to certain rural areas and thus have an extremely low re-sale value.

Mr Fintan, for the respondent, pointed out that at the time of purchase the restrictions as to the use of diesel vehicles were known.  See, for example, T10.  Although the translation at page 18, has not been certified in any way, nor do we know who made that translation, the intent is clear.  That may well be so, but at the time of purchase the intention was to import the vehicle into Australia.

It is quite clear, as I said, that regulation 13 does not apply to this matter.  The applicant did not possess and use the vehicle for 12 months prior to the requested import.  I have already referred to the applicant's mistaken belief as to a period of three months applying based on her husband's prior experience.

If the applicant is to succeed she must show that the discretion in regulation 11 should be exercised in her favour.  In exercising a discretion such as in regulation 11, the purpose of the Act must be kept in mind.  In ReTrajkovski and Department of Transport and Regional Services (2000) 32 AAR 457, Deputy President Purvis at paragraph 7, page 460, referred to the Minister's second reading speech at the time of the introduction of the Motor Vehicle Standards Bill pointing out the Minister had stated, inter alia:

As it happens this is a timely bill.  Honourable Members will be aware that there have been increased imports of substandard motor vehicles.

The Minister continued:

It is intended that the Australian design rules be the sole criteria for the supply of vehicles to the Australian market.

I just pause there and would emphasise that he is referring to the supply of vehicles to the Australian market.  The learned Deputy President later referred to the purport of the Act and this reference was taken up by Senior Member Handley in Re Van Duyker and Department of Transport and Regional Services [2004] AATA 592. At paragraphs 19 and 20 Senior Member Handley said:

In Re Trajkovski Deputy President Purvis adopted a submission of the respondent that Reg.9B contemplated-

“rare and exceptional cases where it is appropriate to allow the importation of a road vehicle to be used for transport of people on Australian public roads despite its non-compliance with applicable vehicle standards and if not falling within any of the specified grounds for such exemption contemplated by the Parliament”.

Deputy President Purvis decided “on a proper construction of the Regulations such a situation would be exceptional."

Senior Member Handley continued at paragraph 20:

Additionally it was decided (paragraph 35) that if the factors to be taken into account when exercising a discretion are not expressly stated by the legislation or by the Regulations, the matters to be determined by necessary implication are the subject matter scope and purpose of the Act.

It therefore followed and by reference to other decisions that exceptions to vary a statutory scheme must “of necessity be exceptional”. (authorities omitted)

The reference to exceptional can but does not preclude a consideration of the applicant's circumstances as was pointed out by Callinan J in Baker v The Queen (2004) 78 ALJR 1483 at 1517. Speaking of the exceptional circumstances Lord Bingham of Cornhill CJ, said in Regina v Kelly(Edward) (2000) QB 198 at 208:

We must construe “exceptional” as an ordinary, familiar English adjective. and not as a term of art.  It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon.  To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

Callinan J went on to say at paragraph 174:

Special reasons in my opinion share those characteristics. 

The term exceptional circumstances, special reasons, etcetera, are analogous to the term special circumstances and the Full Court of the Federal Court said in Dranichnikov and Centrelink (2003) FCAFC 133, paragraph 65, referring to the well known case of Beadle and Director General of Social Security (1985) 60 ALR 225 their Honours point out that the question of whether there were special circumstances was one for the decision-maker bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words unusual, uncommon or exceptional come was not actually affirmed by the Full Court.

In the Second Reading Speech to the Motor Standards Bill 1989 the Minister Mr Robert Brown said:

Provision will also be made in the regulations for the importation of vehicles which are bona fide personal possessions.  This will apply to migrants or Australian citizens returning from long periods overseas.

In Da Silva and Department of Transport and Regional Services (2004) AATA 1355 Member Mr M.J. Allen said at paragraph 44:

Section 3 of the Act has, since the Act was substantially amended in 2001, provided that the “main objects” of the Act are twofold.  In relation to new vehicles the object is “to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia”.  In relation to used vehicles the object is “to regulate the first supply to the market of used imported vehicles”.

And continued at paragraph 55 after referring to the Second Reading Speech and Re Trajkovski (supra):

For my own part, I do not believe that it is particularly helpful to resort to adjectives of the kind referred to in the previous paragraph.  Rather, I believe that it is sufficient to pose the question in terms of whether, having regard to the policy and objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretionary power in favour of the applicant.

With respect to my namesake I agree.  The learned member continued at paragraph 59:

In my opinion, 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 would not undermine or frustrate the policy and objects of the legislative scheme, then the disrection should be exercised in the applicant's favour.  The totality of the relevant circumstances must be considered - including the reasons why an applicant “almost but not quite” satisfied one of the set of circumstances that would have required approval to be granted.

To my knowledge the Minister has not sought to appeal the decision in Re Da Silva
(supra), so I consider that no exception has been taken to the reasoning of my learned member.  At least no submissions were made to me that Da Silva should be distinguished.  In this matter I note: 

(1)  The applicant had a well founded belief that three months would suffice.

(2)  The proposed importation is for personal use not commercial gain. 

(3)The said vehicle will have a much reduced resale value in Japan due to legislation stemming from the Kyoto Protocols.  In saying that I realise that it has been submitted financial circumstances do not constitute exceptional circumstances and with that bald submission I agree but they do form part of the matrix which lead to exceptional circumstances. 

(4)An importation would comply with the intent of the Act, that is, a personal importation by a migrant into Australia. 

(5)I cannot see how a one-off importation of this vehicle would in any way undermine or frustrate the policy and objects of the legislative scheme.  There are in this case to my mind, exceptional circumstances and the discretion should be exercised in the applicant's favour.  I note of course that there are other matters for which direction can be given by the Minister.

So the decision of the Tribunal will be that the decision under review is set aside and this matter is remitted to the respondent with the direction that the importation of the Toyota motor vehicle sought by the applicant is to be allowed subject to such other further conditions that the Minister considers appropriate.