Re Albanus and Department of Transport and Regional Services

[2001] AATA 12

DECISION AND REASONS FOR DECISION [2001] AATA 12

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2000/324

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      CRAIG ALBANUS
  Applicant
           And    DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES    
  Respondent

DECISION

Tribunal       Mr C P Webster (Senior Member)           

Date11 January 2001

PlaceCanberra

Decision      The decision under review is affirmed.             
  ..............................................
  Senior Member
CATCHWORDS
Transport – import approval – non-standard vehicle – whether discretion to be exercised.
Motor Vehicles Standard Act 1989
Motor Vehicle Standard Regulations 1989 

REASONS FOR DECISION

11 January 2001     Mr C P Webster (Senior Member)   

The Issues

1. The applicant, Mr Craig Albanus, seeks a review of a decision of the Administrator of Vehicles Standard, the delegate of the Minister administering the Motor Vehicles Standards Act 1989, made on of 28 August 2000 to refuse him permission to import a motor vehicle which was non-standard and which did not have compliance plates ("non-standard" vehicle).

2. The issue to be determined is whether or not the Administrator should have approved the applicant's application to import the applicant's non-standard vehicle.
   The Evidence of Facts

3. The applicant gave evidence by telephone.   His evidence was unchallenged and the Tribunal accepts his evidence as truthful.

4. The facts, which were not in dispute, may be summarised as follows:-

(a)The applicant commenced employment on Christmas Island in early 1999 as a petroleum depot manager pursuant to a contract of employment.   That contract of employment expires in February 2001 and it is the applicant's intention to return to mainland Australia at that time.

(b)In mid-July 2000 the applicant made inquiries with the Transport Regional Services Department about purchasing a vehicle and sending that vehicle to mainland Australia for the use of his wife who was living in Queensland.

(c)At the time of his inquiries he was advised that there were to be changes to the Regulations under the Motor Vehicle Standards Act 1989 ("the Act").  The effect of those changes were that the period for prior ownership of a non-standard vehicle would be extended for 3 to 12 months.    After 8 November 2000 the Minister must grant approval to import a non-standard vehicle into Australia where a person has owned and used that vehicle for at least 12 months.   However, if an application to import the vehicle was made prior to 8 November 2000,  the Minister must grant permission to import the vehicle if it was owned and used by its owner for at least 3 months prior to 8 November 2000.

(d)The effect of this amendment upon the applicant was that it appeared to him that it was necessary for him to take possession of any vehicle he purchased before 8 August 2000 to comply with the amendment to the Regulations under the Act.

(e)The applicant purchased a 1995 BMW 5201 Executive motor vehicle from Singapore on 27 July 2000.   The vehicle was "non-standard" and did not have an Australian compliance plate. 

(f)The applicant made arrangements for the vehicle to be shipped to Christmas Island and the vehicle was expected to arrive at Christmas Island on 4 August 2000.

(g)By 4 August 2000 it was apparent to the applicant that the vehicle would not arrive on Christmas Island on or before 8 August 2000 so on 4 August 2000 the applicant completed and lodged an "application for Vehicle Import Approval".

(h)Due to shipping delays beyond the applicant's control he did not take possession of the vehicle on Christmas Island until 16 August 2000, the vehicle being registered the next day.

1. On 28 August 2000 the Administrator refused to give import approval in relation to the vehicle.

(j)On 30 August 2000 the applicant applied to the Tribunal for a review of that decision.

The Law

1. The relevant legislation is contained in the Motor Vehicles Standards Act 1989  and the Motor Vehicle Standards Regulations 1989.    Regulation 9B states:

   "9B(1) The Minister may approve an application to import a non-standard road vehicle  that does not have a compliance plate".

1. Regulation 9D(a) as amended on 24 July 2000 by the Motor Vehicles Standards Amendment Regulation 2000 states:

   "9D  The Minister must approve an application to import a non standard road 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 3 months; and

   …

   (i)for a vehicle owned by the applicant on or before 8 May 2000 – 3 months;

   (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 …".

1. Section 5 of the Act provides that "Australia does not include: (a) the Territory of Christmas Island …".

2. Counsel for the respondent, Mr. McCarthy, argued that the decision under review should be affirmed on 3 grounds, namely:

(a)The applicant was not in fact importing a vehicle into Australia, he was intending to export a vehicle from Christmas Island (which is not "Australia"), where he was a resident, to Australia.

(b)Regulation 9D does not assist the applicant, as the applicant had not owned the vehicle and used the vehicle for 3 months prior to 8 November 2000, and neither the Administrator nor the Tribunal has a general discretion to alter that time period.

(c)Regulation 9B which gives the Minister (and the Tribunal) virtually unfettered discretion to allow the import of a vehicle should not be exercised in the applicant's favour in this instance.

1. It is unnecessary in this matter to consider the first argument raised by the respondent's counsel and the Tribunal will assume for the purposes of its decision that the "non-standard vehicle" was being imported into Australia.

2. In the Tribunal's opinion the Minister cannot approve an application to import a non-standard road vehicle under regulation 9D unless the applicant owned and used the vehicle for at least 3 months prior to the 8 November 2000.

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

4. 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.

5. In Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324 at p.412, Heerey J, stated:

   "The appellant's argument involves either reading into the Act a discretionary power to extend the time fixed pursuant to s.412(1)(b), presumably to any time in the future which might be reasonable in the circumstances of a given case, or including after the words "within the period prescribed" an expression like "or thereabouts". Both possible solutions to the perceived injustice of a strict construction involve significant rewriting of the language of the statute. Nor are they consistent with each other. There is no logical reason why an intention to adopt one solution rather than the other should be imputed to Parliament.
   In Australia statues making provision for administrative or judicial review and statutes regulating civil litigation usually prescribe time limits within which an initiating document is to be lodged with the appropriate authority or court. Sometimes such statutes confer a discretion for the extension of time, for example, the Administrative Decisions (Judicial Review) Act 1977 (Cth), s.11(1)(c). The Administrative Appeals Tribunal Act 1975 (Cth), s.29(7). The State and Territory Limitation Acts which confer a discretion on courts to allow damages claims for personal injuries and death to be brought outside the statutory period and State and Territory Testator's Family Maintenance Acts. However, other statues provide no such discretionary power, for example, the Superannuation (Resolution of Complaints) Act 1993 (Cth) s.14(3), the Trade Practices Act 1974 (Cth), s.82 and State and Territory limitation statutes for claims in contract and tort, other than personal injury and death claims.
   So when no provision is made in the Act in relation to RRT reviews for any extension of time the likely conclusion is that this was a deliberate choice by Parliament rather than inadvertence or unawareness that provisions of this kind could be made."

1. In this case the applicant did not own and use the vehicle for 3 months prior to 8 November 2000 and the vehicle cannot be imported under regulation 9D.

2. Regulation 9B gives the Minister a general discretion to allow the importation of a non standard vehicle.

3. Regulation 9B was recently considered (on 6 December 2000 after this matter was heard) by the Hon. R N J Purvis, QC, Deputy President of the Administrative Appeals Tribunal, in the matter of Trajkovski and Department of Transport and Regional Services,   No. N2000/8.

4. The Deputy President considered that in a proper construction of regulations it would be an exceptional situation where it would be appropriate for the Minister to allow a "non standard" vehicle to be imported.    He said at p.19:-

   "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."

1. After considering the relevant authorities the Deputy President stated at p.20:-

   "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".

1. In this application the applicant asks the Tribunal to exercise the discretion in his favour on the basis of financial hardship that would be caused to him and that the situation arising, that is the delay in bringing the vehicle to Christmas Island, was not of his making.

2. The Tribunal is not satisfied on the basis of the information before it that the applicant personally has suffered financial hardship by reason of his inability to import the vehicle to Australia.   On the applicant's own evidence he now intends to keep the vehicle on Christmas Island until February 2001, when he will then seek to bring it to Australia.   The applicant can of course apply to import the vehicle into Australia at that time and may be successful in that application.  

3. Originally the applicant stated that it was his intention upon satisfying the 3 months ownership requirement to send the vehicle to his wife in Queensland for her use.   There was no evidence as to the financial effect upon him of having to  keep the vehicle on Christmas Island until February 2001 or for longer.

4. There is no evidence that the applicant would suffer any financial hardship or prejudice if the discretion under regulation 9B was not exercised in his favour.    It was suggested to him by the Tribunal that his loss was his inability to sell the vehicle for a profit when it arrived in Australia, but the applicant expressly denied that this was his intention.

5. The applicant argued that it was not his fault that the transportation of his vehicle was delayed and that he should not be penalised for the shipping delay.  The Tribunal does not consider that this factor is sufficient to justify the exercise of the discretion in the applicant's favour.   First, the applicant has not shown any loss. Secondly, the applicant created the situation in which he finds himself.   In an attempt to avail himself of an opportunity to import a non standard vehicle into Australia he took a risk in an attempt to beat the statutory time limits.   He knew that he had to be the owner of the vehicle before  8 August 2000 and yet ordered the vehicle from Singapore on 27 July 2000.    He therefore took the risk that there would be no  shipping or similar delays, however, unfortunately for him, he did not succeed in taking possession of the vehicle by 8 August 2000.

6. The discretion under regulation 9B should not be exercised in the applicant's favour.
   Decision

7. The decision under review is affirmed.

   I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

   Signed:         .....................................................................................
     Personal Assistant

   Date of Hearing  1 December 2000
   Date of Decision  11January 2001
   Solicitor for the Applicant         Self-represented 
   Counsel for the Respondent    Mr G McCarthy
   Solicitor for the Respondent    Australian Government Solicitors