Patel and Department of Transport and Regional Services

[2001] AATA 957

DECISION AND REASONS FOR DECISION [2001] AATA 957

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº V2001/495

GENERAL ADMINISTRATIVE  DIVISION)

Re:            NITIN PATEL

Applicant

And:         DEPARTMENT OF TRANSPORT AND

REGIONAL SERVICES

Respondent

DECISION

Tribunal:       Mr B. H. Pascoe, Senior Member
Date:             21 November 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
  Senior Member
  TRANSPORT — import approval – nonstandard vehicle – not satisfying requirements of regulation – whether discretion to be exercised – whether incorrect advice – whether financial hardship
Motor Vehicles Standards Act 1989
Motor Vehicle Standards Regulations
Re Albanus and Department of Transport and Regional Services [2001] AATA 12
Re Trajkovski and Department of Transport and Regional Services [2001] AATA 11073

Re Aston and Secretary, Department of Primary Industry (1995) 4 AAR 65

REASONS FOR DECISION

21 November 2001  Mr B. H. Pascoe, Senior Member

1. This is an application to review the decision of the respondent to refuse the applicant permission to import a 1992 Toyota Lucinda from New Zealand. The vehicle was a nonstandard road vehicle and did not have a compliance plate. The application for permission was made under the Motor Vehicle Standards Regulations 1989 ("the regulations").

2. The application to import the vehicle was made on 19 January 2001 and related to the vehicle which had been purchased by the applicant on 12 August 2000.   There was no dispute that the applicant was a genuine migrant to Australia and intended to use the vehicle for his personal use.   The sole dispute in this case was whether any provision of the regulations allowed the importation of the vehicle.

3. At the hearing the applicant did not appear but was represented by his brother Mr B. Patel. The respondent was represented by Mr P. Ginnane of counsel. No evidence was presented other than the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T7).

4. The regulations have been made under the Motor Vehicle Standards Act 1989 ("the Act"). Section 3 states that the intention of the legislation is ". . . to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia". Section 20 of the Act, in so far as is relevant, states:

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

   (a)where the vehicle is to be exported from Australia (with or without further work being done on it) without having been used in transport in Australia; or

   (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.

Regulation 9 of the regulations provides:

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

Regulation 9D provides:

9D.         The Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have a compliance 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.  

Regulation 9D was amended on 25 July 2000 by Statutory Rule Nº 194.   Prior to the amendment, paragraph(a) of the regulation stated:

. . . the vehicle has been owned and used by the applicant for a continuous period of at least 3 months.

1. It was accepted by the applicant that the vehicle in question did not satisfy the current regulation 9D in that it was not owned on or before 8 May 2000, the application was not made on or before 8 November 2000 and the vehicle had not been owned and used for a continuous period of 12 months.   However, it was said that the applicant received advice from the office of the respondent by telephone in either November or December 2000 that the period of ownership required was three months.   The applicant had used a form of application provided by his removalist agent and that form referred to " . . not less than three continuous months overseas ownership and use of the vehicle".   It was said, further, that, in January 2001, the applicant checked the Australian Legal Information Institute website which showed the regulation 9D still contained the three months requirement.   It was believed that this website had been suggested by a person in the office of the respondent.   Mr Patel submitted that a discretion should be exercised to allow the importation of the vehicle as the applicant had been misled as to the requirements and the refusal would involve significant financial hardship with the storage costs, costs of re-exporting to New Zealand and the need to sell the vehicle in New Zealand where the applicant had no family or person to receive and sell the vehicle.

2. It was submitted for the respondent that there was no record or evidence of any telephone advice given by the respondent to the applicant. It was argued that, even if incorrect advice had been given, such advice cannot create a right that does not exist under the relevant legislation. Mr Ginnane submitted that no evidence of hardship had been tendered and the applicant had taken the risk of importing the vehicle without approval where such approval could have been sought in advance of the importation. It was said that the words of regulation 9D are clear and show a clear intention without any express or implied power to extend or abridge the time periods stated. Mr Ginnane submitted that, while there is a general discretion in section 20 of the Act and regulation 9, it is inappropriate to exercise such discretion where regulation 9D is specific to cover the circumstances of this application.

3. In a decision of this Tribunal dated 11 January 2001 in the matter of Albanus and Department of Transport and Regional Services [2001] AATA 12, Senior Member Webster stated (at paragraphs 11 and 12):

   . . .

   11.There is no qualification to the requirement of regulation 9D which gives the Minister power to abridge or extend the time requirements.

   12.The Tribunal considers that if Parliament had intended to give the Minister a discretion to shorten the period of ownership and use of a vehicle it would clearly have stated its intention in the legislation.

It is clear that the Minister cannot approve this application to import the subject vehicle under regulation 9D.

1. Regulation 9B gives the Minister a general discretion to allow the importation of a nonstandard vehicle in the following terms:

   9B.(1)     The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have a compliance 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 an identification 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.  

The regulation was considered by the Tribunal in Re Albanus (supra) and in the matter of Re Trajkovski and Department of Transport and Regional Services [2001] AATA 1073. In Re Trajkovski, Deputy President, the Honourable R.N.J. Purves, qc, said (at paragraph 35):

. . .
There is no question that the decision to be made now by the Tribunal is not to be arbitrary but is to be one consistent with the policy sought to be achieved by the legislation, taking into consideration the matters relied upon by the Applicant.  Thus the matter is to be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made.  (Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 337).  This application is to then be considered having in mind the facts and circumstances before the Tribunal but in the context of a regime having been established for the importation of vehicles and the same not being allowed onto roads in Australia without safety being ensured.  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.  The Tribunal in making its decision is to give primary weight to the scheme and the intent of Parliament in enacting the legislation.  

Earlier (at paragraph 34) the Tribunal said:

. . . The primary position or policy as expressed by the legislature is that non-standard road vehicles should not be imported into Australia.  Cogent reasons as to why the adoption of that policy would be unjust to the Applicant needs to be established.   . . .

In neither Re Albanus or Re Trajkovski did the Tribunal consider it appropriate to exercise a discretion.

1. In Re Aston and Secretary, Department of Primary Industry (1985) 4 AAR 65 (at p.74) it was stated:

   . . . Whenever there is a discretion, a policy may be developed for its exercise either because the aim sought to be achieved by the policy is an end which is desired by the decision maker and is encompassed within the range of considerations which may be taken into account in the exercise of the discretion or because numerous decisions will be taken under the discretion and it is fair to persons affected by the exercise of the discretion that decisions be consistent.   

In this case regulation 9D sets out a clear policy in relation to the importation of nonstandard road vehicles which have been owned and used overseas by an Australian permanent resident or a person who has applied to become an Australian permanent resident.   Paragraphs (a)(i) and (ii) provided a reasonable period for the phasing in of the amendment from 3 months to 12 months made on 25 July 2000.   Consequently, I am of the view that a discretion under regulation 9B should be used
only in exceptional circumstances where the clear expression of policy in regulation 9D unduly restricts the overall policy of the Act in relation to a particular vehicle.

1. In this case the applicant argues that he was misled into believing that the three months ownership was sufficient to allow importation.   Unfortunately, the applicant himself did not give evidence and the allegations could not be tested.   Nevertheless, the regulation was amended six months prior to his application and  before he purchased the vehicle.   It is unlikely that any official advice would have ignored the amendment.   In any event, the legislation is clear and, even if wrong advice was given, it cannot create any right not provided by the legislation.   Similarly, the use of an outdated form cannot give rise to any right outside the legislation.   It would appear that the form was provided by the applicant's shipping agent not the respondent.   The website said to have been checked was not the respondent's website, and is not necessarily up-to-date.   As at the date of writing this decision the website still shows regulation 9D prior to the July 2000 amendment.

2. The other argument of the applicant is that of hardship being the cost of importation, the cost of storage and the cost and difficulty of either re-exporting or scrapping the vehicle.   No evidence of such hardship was provided although it is readily recognised that substantial costs are being and will be incurred if permission to import is not given.   Nevertheless, the costs have not been quantified and have been and will be incurred as a result of the applicant bringing the vehicle to Australia without prior application and approval.   He was aware that it was a nonstandard vehicle and could not be modified to enable it to comply with Australian standards at the time of importation.

3. I accept that the applicant sees the decision as unfair and that he has been penalised by a change of legislation of which he was unaware.   Nevertheless, the legislation is clear and had been in its present form for six months prior to the
   importation of the vehicle.   His circumstances are not so exceptional as to ignore the specific requirements of regulation 9D and exercise the discretion under regulation 9B.   Consequently, the decision to refuse the application to import the vehicle should be affirmed.

   I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mr B.H. Pascoe, Senior Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  15 October 2001
   Date of Decision:  21 November 2001
   Solicitor for the Applicant:           Nil — Mr B. Patel
   Counsel for the Respondent:       Mr P. Ginnane

   Solicitor for the Respondent:       Australian Government Solicitor