Neil Tormey and Minister for Infrastructure and Regional Development

[2015] AATA 104

[2015] AATA 104

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3399
Re	Neil Tormey
APPLICANT
And	Minister for Infrastructure and Regional Development
RESPONDENT

DECISION

Tribunal	Deputy President I R Molloy
Date	26 February 2015
Place	Brisbane

The Tribunal affirms the decision under review

...............................[SGD].........................................

Deputy President I R Molloy

CATCHWORDS

TRANSPORT – Motor Vehicles – Application to import a non-standard road vehicle which does not have an identification plate – Requirements under Regulation 13(1) Motor Vehicles Standards Regulations 1989 (Cth) not met – Exercise of discretion under Regulation 11 not warranted - Decision under review affirmed.

LEGISLATION

Motor Vehicles Standards Regulations 1989 (Cth)

Motor Vehicles Standards Act 1989 (Cth)

REASONS FOR DECISION

Deputy President I R Molloy

26 February 2015

INTRODUCTION

1. Mr Tormey applied on 14 May 2014 to the Minister for Infrastructure and Regional Development for approval under the Motor Vehicles Standards Regulations 1989 (Cth) (“Regulations”) to import two second-hand 2002 Scania P94 CB 8x4 300 motor vehicles.

2. His application was subsequently amended to restrict it to only one of the vehicles, identified as VIN No. 4480349. His wife has made a separate application for approval in respect of the other vehicle. These proceedings only concern Mr Tormey’s application in respect of the one vehicle.  

3. On 25 June 2014 the Administrator of Vehicle Standards (“Administrator”) decided not to approve Mr Tormey’s application on the basis that Mr Tormey had not fulfilled certain requirements of Regulation 13 of the Regulations.

4. There is a discretion, under Regulation 11 of the Regulations, to approve an application notwithstanding the requirements of the Regulations are not met. However, the Administrator considered that Mr Tormey’s circumstances did not warrant the exercise of that discretion in his favour.

5. For the reasons set out below I have come to the same conclusions and therefore consider the decision under review should be affirmed.

   Facts

6. Mr Tormey is from Ireland. He arrived in Australia on 11 May 2009 and is now an Australian citizen. In March 2013 he and his now wife travelled to Ireland to be married.

7. Mr Tormey says the vehicles were a wedding gift from his father in Ireland. The vehicles were registered there in his father’s name.

8. Mr Tormey and his wife returned to Australia after two or three weeks away. He says the vehicles remained registered in his father’s name so that he could use them in his business until Mr Tormey was in a position ship them to Australia. 

   Regulation 13

9. Under s 18 of the Motor Vehicles Standards Act 1989 (Cth) (“Act”), subject to ss 19 and 20, the importation of a non-standard road vehicle or a vehicle without an identification plate is prohibited.

10. Relevant to this application, s 20 of the Act permits a person to import a non-standard road vehicle, or a road vehicle that does not have an identification plate, in prescribed circumstances.

11. The evidence is that the proposed importation concerns a non-standard road vehicle which does not have an identification plate. This was not disputed by Mr Tormey

12. Regulation 13(1) of the Regulations prescribes the circumstances in which the Minister may approve an application to import such a vehicle, which are:

    (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.

13. The respondent contends that Mr Tormey has not met the requirements of Regulation 13(1).

14. First, the respondent contends there is insufficient evidence that Mr Tormey acquired ownership of the vehicle overseas satisfying Regulation 13(1)(ab), or that he owned the vehicle while overseas which is a requirement under Regulation 13(1)(ac). 

15. Mr Tormey gave sworn evidence that the vehicle was given to him as a wedding present by his father whilst he was in Ireland. Mr Tormey also relies on a letter from his father, accompanying his application, stating that he gave the vehicle to his son as a wedding gift on 28 March 2013.

16. The respondent submits there is insufficient evidence to support Mr Tormey’s claim of ownership. In particular, it points out that the registration documentation and Mr Tormey’s own evidence establish that the vehicle remains registered in his father’s name.

17. I accept that registration is prima facie evidence of ownership. However, there is nothing to say that it provides conclusive evidence. Mr Tormey gave a reasonable explanation for the vehicle remaining in his father’s name notwithstanding it had been gifted to him. Furthermore, he was not directly challenged on the question of ownership.

18. I do not accept that Mr Tormey has failed to satisfy the requirements that he acquired ownership of the vehicle overseas, or that he owned the vehicle overseas, as referred to in Regulation 13(1)(ab) and (ac).

19. Secondly, it is contended by the respondent that even if Mr Tormey owned the vehicle overseas, he fails to satisfy the requirement of Regulation 13(1)(ac) that he own the vehicle for a continuous period of at least twelve months immediately before arriving in Australia for the purpose of remaining in Australia as mentioned in paragraph 13(1)(b).  

20. I accept this contention on behalf of the respondent. The purpose mentioned in regulation 13(1)(b) is of remaining in Australia indefinitely. I accept that the relevant date was 11 May 2009 when Mr Tormey arrived in Australia intending to make Australia his permanent home. He obviously did not own the vehicle before then.

21. More particularly, I accept the respondent’s submission that the relevant date for the purpose of Regulation 13(1)(ac) is not a date when a person previously residing in Australia returns from a short trip overseas.  In any event, even if the date of Mr Tormey’s return after a few weeks away was the relevant date, he had not owned the motor vehicle for the immediately preceding twelve months.  

22. Thirdly, it follows from what I have said that Mr Tormey has also failed to satisfy the requirement of Regulation 13(1)(ad) that “during that period of ownership”, that is, the relevant twelve month period, the vehicle was available to him for use in transport. 

23. Fourthly, it also follows, on my view of the facts, that Regulation 13(1)(a) is not satisfied in that the application was not made within 6 months after Mr Tormey arrived in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph 13(1)(b).

24. For the several reasons referred to above Mr Tormey’s application does not meet the prescribed circumstances which permit a person to import a non-standard road vehicle, or a road vehicle that does not have an identification plate.

    Regulation 11 discretion

25. This regulation provides:

    (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.

26. The regulation creates a broad discretion. However, there has to be good reason for its exercise.

27. The only matters advanced by Mr Tormey are that he could use the vehicle in his business and that its monetary worth is a lot more in Australia than in Ireland.

28. Taking these matters into account and in all the circumstances I am not satisfied that there is good reason to exercise the discretion under Regulation 11.

    CONCLUSION

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

.............................[SGD]...........................................

Associate

Dated 26 February 2015

Date of hearing	4 February 2015
Applicant	In person
Solicitors for the Respondent	Sparke Helmore