Orr and Minister for Transport and Regional Services
[2007] AATA 1971
•20 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1971
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2629
GENERAL ADMINISTRATIVE DIVISION ) Re JOANNE ORR Applicant
And
MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Senior Member Robin Hunt Date20 November 2007
PlaceSydney
Decision The decision under review is affirmed.
.................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
TRANSPORT - motor vehicle importation - non-standard road vehicle with no identification plate - requirement for 12 months continuous ownership and use - meaning of 'owned’ – meaning of ‘used' ' – what is continuous - no exercise of discretion in applicant’s favour – consideration of special factors – decision affirmed
LEGISLATION
Motor Vehicles Standards Act 1989 (Cth)
Motor Vehicles Standards Regulations 1989 (Cth)
CASES
Anthony v Department of Transport and Regional Services (2001) 33 AAR 317
Bastian and Minister for Transport and Regional Services [2007] AATA 1646
Brassington and Minister for Transport and Regional Services [2006] AATA 724
Carmody and Minister for Transport and Regional Services [2007] AATA 1411
Cheng v Minister for Transport and Regional Services (15 June 2007) W200600376
Da Silva and Department of Transport and Regional Services [2004] AATA 1355
Da Silva v Department of Transport and Regional Services (2005) 85 ALD 756
Davidson and Minister for Transport and Regional Services [2007] AATA 1268
Hoopes and Department of Transport and Regional Services [2006] AATA 11
Lai v Department of Transport and Regional Services [2003] AATA 861
Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Mero and Department of Regional Services [2007] AATA 1137
Patel and Department of Transport and Regional Services (2001) 67 ALD 236
Scherl and Department of Transport and Regional Services [2007] AATA 1760
Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Winter and Department of Regional Services [2006] AATA 674
REASONS FOR DECISION
20 November 2007 Senior Member Robin Hunt summary
1. Ms Joanne Orr, the applicant, wishes to bring her motor home to Australia from Canada. The vehicle is non-standard and does not carry an identification plate. Ms Orr says the vehicle provided a way of life for her father in Canada despite his being an amputee. Now that her father can no longer drive the vehicle, Ms Orr has become the owner and would like to use the vehicle in Australia. While I understand why Ms Orr wishes to bring the motor home to Australia, she has not met the usual requirements. I have considered whether there are special circumstances that would permit the importation but have decided that I should not exercise the discretion under regulation 11 of the Motor Vehicle Standards Regulations 1989 (the regulations) as to do so in Ms Or’s favour would undermine the objectives of the Motor Vehicle Standards Act1989 (the Act). As Ms Orr has not satisfied requirements for importation of the vehicle, her application for review is unsuccessful.
The Reviewable Decision
2. On 22 May 2007, an administrator refused Ms Orr’s application, dated 27 April 2007, for permission to import a 1990 Ford Motor-home. The administrator made the decision on the basis that Ms Orr did not meet the requirements of sub-regulation 13(a)(iii) of the Motor Vehicle Standards Regulations 1989 (the regulations). This is the decision under review.
issues
3. The applicant claims that she satisfies regulation 13. The issue for me to decide, under that provision, is whether Ms Orr has owned and used the vehicle continuously for the 12 months before her application.
4. If I decide regulation 13 does not apply in this case, the remaining issue before me is whether I should exercise the discretion to approve the importation of a non-standard road vehicle pursuant to regulation 11.
consideration of claim
5. Ms Orr attached a letter dated 26 April 2007 to her original application to import the vehicle. Her letter requested the administrator give special consideration to the importation. In support of the application, Ms Orr provided documents including:
(a)A copy of a statutory declaration from Mr Edward S Wampler, Ms Orr’s father, dated 22 April 2007;
(b)A copy of the identification page of her Australian passport;
(c)A copy of pages of her passport showing her arrival details upon entry into the USA on 13 April 2007;
(d)A copy of the identification page of her Canadian passport;
(e)A copy of arrival details into the USA on the Canadian passport on 24 March 2006, 30 January 2007 and 14 April 2007;
(f)A copy of an insurance document dated 25 April 2007 which indicates the vehicle was insured for storage purposes in Canada by Insurance Corporation of British Columbia;
(g)A copy of an undated document from the insurer showing that the vehicle was registered in the name of the applicant.
6. Ms Orr describes the vehicle as a 1990 Ford Motor home. Ms Orr has not disputed that the vehicle is ‘nonstandard’ within the meaning of the Act. Ms Orr also has not claimed that the vehicle has an identification plate for the purposes of the Act. Ms Orr’s application turns on her contention that she has special grounds that justify waiver of the usual requirements for compliance with Australian standards. Ms Orr was self represented but, at the Tribunal hearing, she presented eloquent and well reasoned arguments as to why she should be permitted to bring her motor home to Australia.
7. I considered her application under several of the available grounds for importation of a vehicle. I note one of the main objects of the Act is to regulate the first supply to the Australian market of used imported vehicles: see section 3 of the Act. There is a general prohibition on the importation of vehicles that are ‘nonstandard’ and that carry no identification plate: see section 18.
8. The Minister is empowered to approve imports of second-hand vehicles in some circumstances, in accordance with sections 19 and 20 of the Act and certain regulations made under the Act, including regulations 11, 12, 13 and 17. Ms Orr’s vehicle is a ‘road motor vehicle’ and therefore a ‘road vehicle’ for the purposes of the Act, being a motor vehicle designed solely or principally for the transport of people on public roads. These terms are defined in section 5. Non-standard vehicles are vehicles which do not comply with the National Standards or the Australian Design Rules. An identification plate fixed to a motor vehicle establishes that the vehicle complies with the National Standards. The general prohibition on imported used vehicles applies to 'road vehicles' and this includes Ms Orr’s vehicle.
9. Under subsection 19(1) of the Act, a person may import a non-standard road vehicle or a road vehicle that does not have an identification plate with the written approval of the Minister. Approval may be subject to written conditions determined by the Minister. As well, under section 20, a person may be permitted to import a non-standard vehicle for export and in some other prescribed circumstances. Subsection 20(3) provides that 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. Such regulations have been made and I have considered them in respect to Ms Orr’s case below.
has the vehicle been owned and used by the applicant for a continuous period of 12 months?
10. Ms Orr has endeavoured to meet the requirements of regulation 13(a)(iii), which are that an applicant demonstrate ownership and use of the vehicle for a continuous period of 12 months. In this connection, Ms Orr provided evidence of travel from Australia to Canada on three separate occasions during the 12 months before she made her application. She provided copies of her passports set out above and also provided insurance documents indicating registration and insurance for storage of the vehicle in her name from 25 April 2007.
Ownership
11. Ms Orr made her application on 27 April 2007. She claims she owned the vehicle from the time in March 2006 when her father gave it to her. She also said that she stored it in her brother’s storage yard at his place of business in Vancouver and produced documentation that showed it was insured for storage in her name from 25 April 2007. While Ms Orr claims she owned and used the vehicle for a continuous period of 12 months before her application, the insurance and registration documentation she produced show that her ownership commenced much more recently, on or about 25 April 2007. While one of the two copy documents from the insurer shows Ms Orr as the registered owner and quotes a registration number, this document is undated.
12. I acknowledge that Ms Orr’s father has sworn that he gifted the vehicle to her in March 2006 but the registration and insurance documents produced by Ms Orr show he did not succeed in effecting the gift until much later. The legislation applying in British Columbia, set out below, requires the owner to insure and register. Ms Orr achieved these requirements on or about 25 April 2007, two days before her application to bring the vehicle to Australia. Ms Orr’s father, Edward Wampler, has made a statutory declaration or affidavit sworn before a Commissioner for Taking Affidavits for British Colombia on 22 April 2007 explaining that he gave her the vehicle in March 2006 but that they did not make a formal transfer at the time. Mr Wampler further declared that the vehicle had been used only by Mrs Orr since March 2006 and had otherwise been stored in his son’s storage yard.
13. In some circumstances, a person may be an owner of property where there is an entitlement under an agreement not yet fully implemented. I note that the Motor Vehicle Act, RSBC 1996, Chapter 13, a copy of which the respondent produced to me, provides that the owner of a motor vehicle, according to Part 1, section 3, register the vehicle with the Insurance Corporation of British Columbia, obtain a licence for its operation under this section and obtain an owner’s certificate under the Insurance (Vehicle) Act ‘before it is used or operated on a highway’. Under the definition section, ‘owner’ includes a person in possession. However, there is nothing before me to suggest that Ms Orr took the further step of insuring the vehicle and registering it in her name until 25 April 2007. Until she took this step, the registered owner presumably was Mr Wampler.
14. Ms Orr may have been the person in possession of the vehicle and entitled to assert a right to ownership of the vehicle in March 2006. However, I have reached the conclusion, on balance, that she actually owned the vehicle only when she became registered on 25 April 2007. That is, she was the legal owner for a period of less than 12 months. While it was her father’s intention in March 2006 to transfer the vehicle to her he had not formally done so. As her father did not make his declaration documenting the change of ownership until 22 April 2007, and Ms Orr did not achieve the formal change in ownership until 25 April 2007, I find her ownership commenced when she registered the transfer and took out the insurance, that is, on 25 April 2007.
15. If I am wrong about this date of ownership, there are additional reasons why Ms Orr cannot fulfil the requirements of regulation 13. She has not in my opinion used the vehicle for a continuous period of 12 months as required under regulation 13(a)(iii). I have explained how I came to this conclusion below.
No continuous use
16. Even if I were to accept that Ms Orr’s father gave her the vehicle in March 2006, Ms Orr did not use it for a continuous period of 12 months from that time. I note that “use” of a vehicle for the purposes of the Act means that the person must “drive” the vehicle. This is set out in section 5 of the Act. Ms Orr gave evidence that she used the vehicle on each visit. However, these visits were of short duration. The vehicle was stored at other times according to her oral evidence and the statement of her father. Therefore, in my view, any use of the vehicle by Ms Orr has not been continuous for the 12 months preceding her application.
17. The word “continuous” is defined in the Macquarie dictionary as “unbroken” and “uninterrupted in time; without cessation”. Ms Orr’s driving of the vehicle was not unbroken but was interrupted for long periods during the 12 months before her application to import the vehicle. She was not in a position to drive the vehicle continuously during a period of 12 months. Her passport records show she visited Canada on 24 March 2006, 30 January 2007 and 14 April 2007. Although Ms Orr furnished copies of her passports with stamps showing her passage through the USA on route to Canada, it is not clear when she departed. She gave oral evidence that the duration of the three visits came to a total of “at least three or four months” but her departure dates are not recorded on the documents produced apart from 14 April 2006, which would make her first visit during the period about 3 weeks. Another stamp shows Ms Orr had a USA visa for 90 days granted on 13 April 2007. This stamp and the entry stamp a day later do little more than confirm that Ms Orr was in the USA or Canada for 12 or 13 days before she registered the vehicle in her name on 25 April 2007. If her third visit to Canada occurred in January to February 2007 and was also for about three weeks, this would mean she was in Canada for less than a total of eight weeks during the relevant period. Ms Orr was uncertain about the times of her visits when giving oral evidence and mentioned a visit during September and October which may have been outside the relevant period as it is not indicated in her travel documents for the year 2006.
18. Based on Ms Orr’s evidence and her travel records, I consider that any use Ms Orr made of the vehicle by way of driving was interrupted by substantial lengths of time. Her use was broken into three possible periods over the 12 month time span. The maximum use of the vehicle in the 12 months before the application was three or four months if she did stay for that length of time as she said in oral evidence. In my view, Ms Orr’s use of the vehicle, assuming she did drive it on each occasion she visited, amounted to far less than continuous use over the 12 month period.
19. There are several Tribunal cases where the requirement to drive a vehicle continuously has been considered. I have listed some of these above but I am not bound by the reasoning set out in any of these cases. Each case is different and must be decided on its own facts. Even so, I have not discovered any reasoning in the cases to which Ms Orr referred me which would support a claim that driving a vehicle for three periods totalling three or four months in 12 months amounts to continuous use. The passport, visa and entry stamps produced indicate the time spent in Canada was actually less than three or four months. Therefore, on the material before me, I find Ms Orr had not met the ownership and continuous use requirements at the time of her application.
did the vehicle comply when manufactured or is non-compliance minor?
20. There was no evidence before me that the vehicle complied with the National Standards when it was first manufactured as required under regulation 12. Therefore I have not made a finding in Ms Orr’s favour under regulation 12.
21. I also note that section 10A(2), the Minister may sometimes give written approval for components of a vehicle if the Minister is satisfied that non-compliance is only in minor and inconsequential respects. I have not a made a finding to this effect as I have no evidence before me about the non-compliance features and whether they are minor. Further, no written approval has been given by the Minister under subsection 10A(2) in relation to the vehicle as contemplated under that section and regulation 14.
vehicle was not manufactured before 1 January 1989
22. Vehicles manufactured before 1 January 1989 may be imported to Australia pursuant to regulation 17 without the difficulties Ms Orr faces. Unfortunately for Ms Orr, the vehicle she wishes to import was manufactured one year later, in 1990. This means it cannot be imported under regulation 17 as it was not manufactured before 1 January 1989.
registered automotive workshops
23. Under regulations 15 and 16, vehicles may be imported by “registered automotive workshops” (RAWs) subject to conditions. Ms Orr gave evidence that she had looked at this option but decided against it because of the expense. The Act provides for applications for approval of an entity as a RAW and for the Minister to approve applications. See sections 21A and 21B of the Act. Ms Orr did not suggest that she or her husband had applied for approval or been approved. It follows that the vehicle cannot be imported under these provisions.
specialist enthusiast scheme
24. Ms Orr also argued that her plan to import the vehicle was similar to that for the “specialist enthusiast vehicle scheme” (SEVs) and that she and her husband possessed the skills to restore the vehicle themselves. She produced photographs of a 1968 HK Holden vehicle her husband had already restored. She told the Tribunal that the car was displayed on an occasion and had been included in a classic car magazine due to the excellence of the restoration. She and her husband planned to restore the motor home.
25. I note that section 21 of the Act provides for a register of specialist and enthusiast vehicles. Subsection (1) provides that the regulations may make provision for and in relation to the Minister keeping a register of specialist and enthusiast vehicles. Under subsection (2), the regulations may provide for the form of the register, procedures and criteria that should be satisfied before entry on the register, among other things. There is no provision for importation under section 21. It follows that the SEV scheme does not assist Ms Orr.
other options
26. The administrator suggested further options to Ms Orr for importing the vehicle in the refusal letter of 22 May 2007. One of these options involved the possibility of her father applying to become an Australian citizen or permanent resident. This option is not one I have considered especially as I note that Ms Orr is now the owner of the vehicle. Another option suggested was that Ms Orr import the vehicle through a registered automotive workshop which may be able to ensure that the vehicle complies with the relevant Australian Design Rules. Ms Orr gave evidence that she had investigated this avenue and rejected it.
27. As I have decided that regulation 13 and other regulations discussed above do not apply in this case, the next issue is whether the discretion to approve the importation of a non-standard road vehicle might be exercised in the applicant’s favour pursuant to regulation 11.
Special Consideration Request – reg 11
28. Regulation 11 provides that the Minister may approve an application to import a non-standard vehicle subject to conditions. Exercise of discretion should be used only in such a way as not to frustrate the objects and policy of the Act. See further below.
29. As to Ms Orr’s request I have examined her circumstances and the emotional hardship she says she will suffer due to the rejection of her application. I have considered her claims and possible hardship resulting from an adverse decision. I have taken into account her husband’s achievement in restoring another classic car and her wish to take on renovation of the motor home in a similar way. I also have considered the nearness of the date of manufacture to the exempted period before 1 January 1989. As to the latter ground, I reject this as a special circumstance as the Parliament has specified the relevant date and left no doubt or room for consideration of any later date.
30. I considered her application under several of the available grounds for importation of a vehicle. I note one of the main objects of the Act as set out in section 3 is to regulate the first supply to the Australian market of used imported vehicles. By virtue of section 18 there is a general prohibition on the importation of vehicles that are ‘nonstandard’. The Act and Regulations specify various exceptions to the general rule and regulate how these provisions are implemented. While regulation 11 provides that an approval may be given for a non-standard vehicle, the regulation is secondary to the objects expressed in the Act. Regulations are made for the purpose of implementing the requirements of the Act and not in order to defeat its objectives.
31. The object of the Act in relation to used vehicles is to regulate the first supply to the market. In some cases, an applicant has argued that particular circumstances are exceptional and justify waiver for this reason. However, as was observed by Senior Member Dunne in Scherl and Department of Transport and Regional Services [2007] AATA 1760, where an applicant is unable to rely on any of the exceptions set out in regulations 11 – 18, would, of necessity, result in the circumstances being exceptional.
32. I accept that Ms Orr’s case differs from some in which the favourable exercise of discretion has been refused because an applicant has tried to circumvent the law by some devious or questionable means. Ms Orr has been open about her situation. Ms Orr has explained that her father drove the vehicle until his physical limitations prevented this. He then gave her the vehicle in 2006 when she was visiting him in Canada. Ms Orr gave evidence that, at the age of 80, Mr Wampler learnt how to drive the motor home again through the use of hand controls. She said her father “is now too frail to manage the motor home, and wanted to pass his dream on to us, as our Australian family has suffered much tragedy in the past few years.” Mr Wampler sounds like a remarkable and hardy person. Ms Orr added that she has been a dual citizen of Australia and Canada for the past 28 years and visits Canada at least once every year. During these visits, she always takes the motor home on a trip, usually to Alaska. Ms Orr says further that the vehicle represents “family love, triumph over tragedy, and the cycle of life to us – it is not simply an imported vehicle.” These reasons given by Ms Orr are emotional attachment or sentimental reasons. I do not mean any criticism of Ms Orr or belittling of her father’s achievements when I make this finding.
33. As I have mentioned above, one the objectives of the Act and the regulations made under the Act, is to prevent importation of vehicles that are ‘nonstandard’. Incorporated in the Act and regulations, to ameliorate any harshness, are various provisions that allow importation in particular circumstances. In the future, Ms Orr may be able to satisfy the continuous ownership and use test now that she is the registered owner in Canada and is aware of the restrictions that apply to importation of used vehicles in Australia. Also, she may be able to bring the vehicle to Australia such as by utilising a registered automotive workshop. I realise this involves expense but this is a matter contemplated under the Act and therefore does not involve unusual or unforeseen expense.
34. Bearing in mind the factors I have discussed above, and although I have some sympathy for Ms Orr’s dilemma, I find there are no circumstances in this case which warrant the exercise of discretion to approve Ms Orr’s application under regulation 11. I have concluded there are no circumstances to justify the application of the discretion provided in the regulation. I have not found grounds in Ms Orr’s case that justify waiver of the usual requirements for compliance with Australian standards.
decision
35. The decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: [Talaishia Collis]
AssociateDate of Hearing 11 October 2007
Date of Decision 20 November 2007
Solicitor for the Applicant Self-represented Applicant
Counsel for the Respondent Mr A DillonSolicitor for the Respondent Mr D Jones –
Department of Transport and Regional Services
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12
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