Paul Lewis and Minister for Infrastructure and Transport
[2013] AATA 283
[2013] AATA 283
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4464
Re
Paul Lewis
APPLICANT
And
Minister for Infrastructure and Transport
RESPONDENT
DECISION
Tribunal Mr S Penglis, Senior Member
Mr W Evans, MemberDate 8 May 2013 Place Perth
1. The reviewable decision dated 7 September 2012, being a decision to refuse an application by the Applicant dated 26 July 2012 to import into Australia a 2001 Triumph Sprint ST Vehicle Identification Number (VIN) SMTT600FS52JL53L2L (Vehicle) is hereby set aside.
2. In substitution thereof the Applicant’s application to import the Vehicle into Australia is allowed.
(Sgd) S. Penglis.....................................
Mr S Penglis, Senior Member
CATCHWORDS
TRANSPORT -importation of non-standard motor vehicle – nature and application of discretion to allow importation pursuant to Regulation 11 of the Motor Vehicle Standards Regulations 1989 (CTH) – discretion exercised in favour of importation – turns on its own facts
LEGISLATION
Motor Vehicle Standards Act 1989 (Cth), Sections 18, 19, 20 and 42
Motor Vehicle Standards Regulations 1989 (Cth), Regulations 11 and 13
CASES
Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43
REASONS FOR DECISION
Mr S Penglis, Senior Member
Mr W Evans, Member
8 May 2013
The Applicant is a motorcycle enthusiast. In particular, he is a Triumph motorcycle enthusiast.
The Applicant has purchased a 2001 Triumph Sprint ST, Vehicle Identification Number (VIN) SMTT600FS52JL53L2L (Vehicle) on the United States auction web site “eBay”.
It is agreed by the parties that none of the specified circumstances in the Motor Vehicle Standard Regulations, 1989 operate to assist the Applicant in this matter and that, accordingly, the sole issue for the Tribunal to decide is whether to exercise the discretion under regulation 11 of the Regulations to allow the Applicant to import the Vehicle.
The parties very helpfully agreed a Statement of Agreed Facts which, relevantly, included the following:
“On 17 June 2012, the Applicant purchased the Vehicle from a person offering it for sale on the United States auction website ‘eBay’ (T1, Folio 15).
At the time of purchase, the Vehicle was located in the United States of America (T1, Folio 5).
The Vehicle remains in the USA and has never entered Australia (T1, Folio 5; T4, Folio 80).
The Vehicle does not have an Australian Identification Plate fitted to it (T1, Folio 8).
On 26 July 2012, the Applicant completed a ‘IO2 – General Application for Approval to Import a Vehicle’ form (T1, Folio 7-10). In that application the Applicant indicated that he was not applying for importation of the Vehicle under any of the prescribed circumstances under the Regulations (see T1, Folio 8-9).
By letters dated 27 July 2012 and 10 August 2012, the Applicant requested general discretionary approval for him to be permitted to import the Vehicle into Australia (T1, Folio 11-14; T4, Folio 79-80). In those letters the Applicant stated that:
a.he purchased the Vehicle on ‘eBay’ because “it was going cheap, and as an avid Motorcyclist it was too good an offer to pass up” [sic] (T1, Folio 11; T4, Folio 79);
b.he was unable to import the Vehicle under the personal vehicles scheme as he has not owned it for more than 12 months (T1, Folio 11; T4, Folio 79);
c.he has been unable to obtain a certificate of compliance through Triumph Motorcycles Australia for the Vehicle, and the compliance agent had refused to provide such a certificate because they had informed the Applicant that the Vehicle’s headlights and speedometer do not meet Australian standards (although the Applicant contends that the vehicle is “stock standard OEM” and that specifications regarding the model of the Vehicle on the RVCS web site (reproduced at T1, Folio 19-21) “proves that this model Triumph in question does in fact comply with the ADR” [sic] (T1, Folio 11-12);
d.approving importation would be consistent with a new Western Australian policy encouraging more people to use motorcycles instead of cars to ease traffic congestion (T1, Folio 12; T4, Folio 80; see also T1, Folio 18).
In an email to the Department of Infrastructure and Transport dated 29 August 2012, the Applicant reiterated his view that his application for importation should be approved and stated that “there are already T600 series Triumphs on the road in this country” (T10, Folio 103).
The Applicant states that he had paid $4900.00 (US) for costs associated with the Vehicle to date, comprising $4200.00 (US) for the purchase of the Vehicle itself and $700.00 (US) to transport the Vehicle from Minnesota to Los Angeles, where it currently is held (T1, Folio 6).
On 7 September 2012, the Administrator of Vehicle Standards refused to approve the Applicant’s request to import the Vehicle (T1, Folio 22-23).
By application dated 4 October 2012, the Applicant applied for the Tribunal to review the decision of 7 September 2012 (T1, Folio 1-27).”
The Tribunal makes findings in accordance with the Statement of Agreed Facts.
By a Statement of Reasons dated 6 November 2012, reasons were given on behalf of the Respondent for the decision to refuse the Applicant’s application to import the Vehicle. The Statement of Reasons included the following:
“A general description of Australia’s Road Vehicle Certification System
The Australian Government maintains a federal system to apply national standards for road vehicles before they can be supplied to the Australian market. The system is outlined within the Act and the Regulations. The national standards are known as the Australian Design Rules (ADRs) and deliver levels of vehicle safety, emission control and theft protection that are generally expected by the Australian community. The ADRs are determined by the Minister, following a transparent and collaborative process involving State and Territory Governments and industry stakeholders. The ADRs are recognised as contributing towards safer roads and cleaner air.
The underlying rationale of the system is for new vehicles manufactured in Australia to be assessed and certified as complying with the ADRs. The majority of road vehicles are certified under section 10A of the Act. Under this provision, the Minister must give approval for identification plates to be placed on vehicles if the Minister is satisfied that the vehicle type complies with the ADRs. Once the vehicle type has been approved, all vehicles of that type are then authorised for manufacture or import and supply to the market in “full volume” (ie, in unlimited numbers, over the entire production run of the vehicle type or until new or amended ADRs become applicable and the vehicle type is not shown to comply)
The system also provides arrangements for the concessional importation of defined classes of non-standard vehicles. These classes include (for example) personal vehicles owned and used overseas. To ensure the volume of personal vehicles imported remains limited, other stringent criteria have been specified in regulation 13.
The Act
The long title of the Act states that it is:
An Act to provide for national motor vehicle standards, and for related purposes.
Under section 3 of the Act, the main objects of the 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.
Under section 5 of the Act, these vehicle standards are designed to:
a.make road vehicles safe to use; and
b.control the emission of gas, particles or noise from road vehicles; and
c.secure road vehicles against theft; and
d.promote the saving of energy.
The legislative framework
Under subsection 18(1) of the Act, a person must not import a road vehicle that:
a.is nonstandard; or
b.does not have an identification plate.
Subsection 18(1) of the Act is an offence provision, with a maximum penalty of 120 penalty units.
Under section 5 of the Act, import, in relation to a road vehicle or vehicle component, means do an act which constitutes importation of the vehicle or component for the purposes of the Customs Act 1901.
Under section 5 of the Act, a road vehicle means:
a.a road motor vehicle; or
b.a road trailer; or
c.a partly completed road motor vehicle;
but does not include vehicles which the Minister has determined, under section 5B, are not road vehicles.
Under section 5 of the Act, a non-standard road vehicle means a road vehicle not complying with the ADRs and not taken to comply with the ADRs by virtue of an approval given under subsection 10A(2) of the Act.
Under section 5 of the Act, an identification plate means a plate declaring the status of a road vehicle in relation to the ADRs and approved to be placed on the vehicle under procedures and arrangements provided for under subsection 10(1) of the Act.
The prescribed circumstances
Subsection 18(1) is subject to section 20 of the Act. Under paragraph 20(1)(b), a person may import a non-standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. Under subsection 20(3), regulations for the purposes of paragraph 20(1)(b) may provide for the importation, whether generally or in specified circumstances of a road vehicle:
a.with the written approval of the Minister; or
b.with such approval subject to written conditions determined by the Minister.
Regulation 9-21A of the Regulations prescribe circumstances under which the Minister may approve the importation of a non-standard road vehicle or a road vehicle that does not have an identification plate. In effect, these regulations outline a series of tailored schemes for the concessional importation of non-standard vehicles outside of normal certification arrangements (the Concessional Schemes).
In particular, regulation 9 of the Regulations provides that, for the purposes of paragraph 20(1)(b) of the Act, a person may import a non-standard 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.
Concessional Schemes
There are a number of concessional schemes established by the Regulations. For the purposes of this application the most relevant concessional schemes are contained in regulations 12, 13 and 16.
Regulation 12 provides for the importation of vehicles where the vehicle manufacturer has provided a letter of compliance.
The concessional importation scheme for personal vehicles is established under regulation 13 of the Regulations.
Regulation 16 provides for the importation of certain vehicles by registered automotive workshops (RAWs)
The discretionary exemption
In addition to the Concessional Schemes, regulation 11 of the Regulations provides the Minister with discretion to allow the importation of non-standard vehicles. Under regulation 11, the Minister may approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate. An approval may be given subject to conditions specified in the instrument of approval. Without limiting the generality of regulation 11, the Minister may require that a plate (in such form and containing such information as the Minister determines be placed on the vehicle. An approval must be given by signed instrument.
The evidence on which the findings were based
The evidence relied on in making the decision comprised:
a.the Department’s website;
b.the Applicant’s vehicle import application (T4) attaching:
· a covering email from the Applicant
· the Applicant’s letter to the Administrator dated 27 July 2012;
· photographs of the vehicle, including of the speedometer;
· specifications for the vehicle;
· an extract from the RVCS website on the make and model of the Applicant’s vehicle.
c.Provisional assessment sent to the Applicant on 9 August 2012 (T5);
d.Email response from the Applicant dated 10 August 2012 (T6);
e.Email from the Department requesting further information dated 15 August 2012 (T7);
f.Email response from the Applicant on 15 August 2012 (T8);
g.Brief to the Administrator dated 24 August 2012 (T9).
The findings based on material facts
The application
The Applicant applied to import the Vehicle on 26 July 2012.
The Applicant ticked “no” to all parts of the application form, indicating that he was not applying for importation of the Vehicle under any of the Concessional Schemes and would like the application to be considered under the general discretion. The Applicant’s letters of 27 July 2012 and 10 August 2012 also refer to his desire to bring the Vehicle to Australia as a personal import.
The application was accompanied by a letter dated 27 July 2012 from the Applicant giving additional reasons for the discretionary request, noting that the Applicant had purchased the vehicle on eBay and had not used or been in contact with the Vehicle at any stage. This letter also stated that the Applicant had been unable to obtain a Letter of Compliance through Triumph Australia.
In his email of 15 August 2012, the Applicant stated that applying to import the Vehicle under the RAW Scheme was financially prohibitive for him.
The Applicant
The applicant is currently residing in Western Australia.
The Applicant is of an age that entitled him to hold a licence or a permit to drive a road vehicle in Australia.
The Vehicle
The Vehicle is a 2001 Triumph Sprint ST VIN SMTT600FS52JL53L2L.
The Vehicle remains in the US.
The Vehicle is not fitted with an identification plate.
The reasons for the decision
The evidence supplied by the Applicant was sufficient to determine that the Applicant:
a.had not owned and used the Vehicle;
b.was of an age that entitled him to hold a driver’s licence appropriate for the Vehicle.
c.had not been granted an approval under regulation 13 within a period of 5 years prior to the Vehicle landing in Australia; and
d.did not possess a Letter of Compliance for the Vehicle.
Consideration of concessional schemes
Regulation 12–Letter of compliance Scheme
In his response dated 15 August 2012, the Applicant stated that he had been unable to obtain a Letter of Compliance for his vehicle. As such, the Decision-maker did not consider the application under the Letter of Compliance Scheme.
Regulation 13-Personal Import Scheme
Under subregulation 13(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 if the Minister is satisfied, among other things, that:
a.the applicant owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia… (paragraph 13(1)(ac)); and
b.during that period of ownership the vehicle was available to the applicant for use in transport (paragraph 13(1)(ad)).
The Decision-maker was satisfied that the Applicant had not 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. In addition, the Decision-maker was satisfied that the Vehicle was not available to the Applicant for use in transport during this period of ownership.
Therefore, the Decision-maker was satisfied that the Applicant had not met the requirements under paragraph 13(1)(ac) or (ad) of the Regulations.
Regulation 16 – RAW Scheme
Finally, the Decision-maker had regard to the fact that, while a vehicle of this type would likely be eligible for importation by a RAW, the Applicant had stated that the RAW Scheme was not an option that was financially viable for him to import his Vehicle.
Consideration of discretion
Under regulation 11 of the Regulations, the Minister may approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate. However, this discretion must be exercised with regard to the policy and objectives of the Act.
Taking the above reasons into account, the Decision-maker considered that permitting the importation of the Vehicle would undermine or frustrate the policy and objectives of the legislative scheme, one purpose of which is to regulate the first supply to the market of used imported vehicles by prohibiting the importation into Australia of non-standard vehicles (see e.g. section 18 of the Act).
Further, the Decision-maker could not identify any weighty countervailing factors present in the facts of this matter so as to justify exercising the discretion in the Applicant’s favour.”
EVIDENCE
The Applicant gave evidence at the hearing of the application. His evidence-in-chief comprised his affirmation of a witness statement in which he stated, amongst other things :
· “…I know everything there is to know about this motorcycle, I am a Triumph Motorcycle enthusiast...”
· “I have researched the motorcycle in question that and I am wanting to import (and I have previously owned one in New Zealand, which incidentally happened to be a US import) is (sic) exactly the same as the ones that are already here on the road in Australia.”
· “The specifications are no different at all.”
· “I was told when I applied for the letter of compliance, that the headlights would not comply as they are R/H DIP, not L/H DIP and thus making them non compliant. I have since researched and found out that the headlights are in fact symmetrical dip, and L/H dip can be achieved by a simple matter of headlight adjustment.”
· “The only other redeeming feature is that, since this motorcycle is made for the US, it has both KPH and MPH on the speedometer face.”
In cross examination, the applicant gave evidence of matters in respect of which the respondent was previously aware. That evidence will be dealt with later in these Reasons for Decision.
THE LAW
There was no dispute before the Tribunal that, in determining this matter, the Tribunal ought have regard to and apply the decision of Mansfield J of the Federal Court of Australia in Selway and the Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43. At [39] of the Reasons for Decision, His Honour stated as follows:
“In my view it was an error of law for the Tribunal to construe the apparently unlimited discretion in Reg 11 so that, even where the policy or objectives of the legislative scheme were not undermined, there had to be some exceptional or special or rare circumstances before the discretion could be exercised in favour of Mr Selway. I do not consider that Reg 11, in its context in the legislative scheme, implies that further fetter or gloss upon its operation”.
Earlier, at [37], His Honour held as follows:
“It may well be that it will not be a common circumstance that a person seeking to import a non-standard vehicle will have the discretion available under Reg 11 exercised in that person’s favour. In some circumstances, such an importation might undermine or frustrate the policy and objectives of the Act. Clearly, in such a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty countervailing factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11.”
Analysis
The Tribunal has no doubt that, based on the facts before the Respondent’s delegate at the time, the Respondent’s delegate correctly identified the relevant test to be applied, correctly applied the known facts to that test and, as a result, reached a conclusion which, on those known facts, was patently the preferable and correct decision. To have allowed the application to import a Vehicle on the facts then known by the Respondent’s delegate would have resulted in the exercise of the discretion ‘so as to undermine or frustrate the policy objectives of the Act’ in the absence of any reason, let alone any sufficient reason, to do so.
That, however, does not dispose of the matter before the Tribunal because the Tribunal is to make its decision based on the evidence adduced at the hearing of the application.
As noted above, as a result of the Applicant being cross-examined by Counsel for the
Respondent, this resulted in new information surfacing.
In short, Counsel for the Respondent asked the Applicant whether he had made any enquiries of the Department of Infrastructure and Transport before purchasing the Vehicle. The Applicant said he had not.
The Applicant explained, however, that he had no such enquiries because, at the time, he lived in New Zealand and that his intention was to import the Vehicle into New Zealand. He said he had made enquiries of the relevant authority in New Zealand and that, based on those enquiries, he concluded that there would be no difficulty in him importing the Vehicle into New Zealand. He then purchased the Vehicle.
Thereafter, things changed for the Applicant in that the relationship he had been in for some 10 years came to a sudden end and he decided he wanted to start a new life in Australia. He then moved to Australia and applied to the Department of Infrastructure and Transport to import the Vehicle to Australia, being his new home.
The Applicant gave his evidence in a forthright manner. There is nothing in the manner in which the Applicant gave his evidence, or the evidence itself, which causes the Tribunal to have any reservations about accepting the truth of the Applicant’s evidence. Indeed, no submission was made on behalf of the Respondent to the contrary (properly so in the Tribunal’s view). Accordingly, the Tribunal accepts the Respondent’s evidence in this regard and makes findings of fact in its terms.
In this regard the Tribunal notes that had the applicant continued to live in New Zealand, imported the Vehicle into New Zealand and then owned and used the Vehicle continuously for a period of at least twelve months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely, the Applicant would most likely have been entitled to approval of the Vehicle’s importation as of right pursuant to Regulation 13 of the Motor Vehicle Standards Regulations 1989, which Regulation provides as follows:
“Approval to import vehicle without an identification plate if owned and used by applicant overseas
(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 if the Minister is satisfied that:
(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.
(2) An approval under subregulation (1) is subject to any written conditions determined by the Minister.”
In this regard the Tribunal notes that, although it was unnecessary for His Honour to do so given his other findings, in Selway, Mansfield J held as follows (at [43]):
“I observe in relation to asserted error (3) that there does appear to be some logical error or some misunderstanding of Mr Selway’s case in the way the Tribunal approached the “unexpected events” topic in its reasons. If a person acquires a non-compliant motor vehicle overseas intending to seek to import it into Australia within the succeeding 12 month period, that would obviously be a factor against exercising the discretion under Reg 11. That is not this case. When he purchased the car, Mr Selway expected, and had good reason to expect, that he would own it for more than 12 months before he sought to import it into Australia. He expected to satisfy the criteria under Reg 13. The “unexpected” event was the job offer. The Tribunal said at [34] that the job offer and its acceptance was “not an unexpected event” because it was “an event over which he had complete control”. It appears, therefore, to have discounted those circumstances in deciding whether to exercise the Reg 11 discretion in his favour. In my view, the circumstances giving rise to the earlier than anticipated return to Australia may well be relevant to its exercise. Here, there was an unexpected event, namely the obviously significant job offer. Mr Selway was entitled to ask the Tribunal to have regard to that circumstance. As the Tribunal recognised at [34] of its reasons, the circumstances prompting an earlier return to Australia than anticipated may well be relevant to the exercise of the discretion. The examples it gave from earlier decisions (earlier immigration following a violent robbery, the deterioration of a wife’s disease, and the reduction in salary producing marital pressure) are not really different in kind, but only of degree, from Mr Selway’s circumstances. In each instance, the early arrival in or return to Australia was prompted by personal circumstances. The Tribunal in those cases correctly, in my view, had regard to the reasons for that earlier arrival in or return to Australia. In this matter, too, there is a clear and unexpected event which prompted Mr Selway’s earlier return to Australia than he intended. It may not have been of the same personal significance as the events considered in those other decisions, but it was nevertheless an important personal circumstance. I think the Tribunal’s approach of discounting that circumstance because his decision to accept the job was within his “complete control” and because his recruitment did not, on its own cause a problem for Mr Selway in “his relationship with his motor vehicle” was erroneous. Whether that involved an error on a question of law I do not need to finally determine “
The question therefore comes down to this: does the fact that when the Applicant purchased the Vehicle he lived in and intended to continue to live in New Zealand and intended to import the Vehicle into that country, the subsequent breakdown of his 10 year relationship with his partner, his decision as a result thereof to start a fresh life in Australia (thus resulting in his application to import the Vehicle into Australia) and the extent of the differences between the Vehicle and motorcycles of the same model available for purchase and licensing in Australia, together constitute circumstances sufficient to, on the facts of this case, justify the exercise of the discretion in his favour? The Tribunal concludes that the answer is “yes”.
In so finding, the Tribunal emphasises that it has had regard to the fact that, on the evidence, the differences between the Vehicle and the same make of motorcycle is as approved for licensing in Australia is limited to the dip of the headlights and the fact that the speedometer is in MPH and KPH, rather than just KPH. The Tribunal so finds. Whilst the very limited differences between the Vehicle and motorcycles of the same type which are available for purchase in Australia are thus slight, the Tribunal wishes to make it clear that that of itself would not justify the exercise of discretion in favour of the Applicant. Nor for that matter is the fact of the Applicant’s change of circumstance, without more, determinative of this matter. However, when the two are combined, namely the unexpected changed circumstances and the relatively minor differences between the Vehicle and similar vehicles available for purchase in Australia, the Tribunal is satisfied that, on the facts of this case, the discretion should be exercised in favour of the Applicant.
In the end it is a balancing exercise that needs to be undertaken. On the facts of this case, for reasons given, the Tribunal is of the view that, on balance, the discretion ought be exercised in favour of the Applicant.
It therefore follows the reviewable decision ought be set aside and that, in substitution thereof, a decision be made that the application to import the Vehicle be allowed.
I certify that the preceding twenty-one (23) paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member and Mr W Evans, Member
(Sgd) T Freeman.................................
Administrative Assistant
Dated 8 May 2013
Date of hearing 19 April 2013 Applicant In person Counsel for the Respondent Mr D McLaren Solicitor for the Respondent Ms P Beaton
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