Re Da Silva and Department of Transport and Regional Services
[2004] AATA 1355
•16 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1355
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/143
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY ANDREW DA SILVA Applicant
And
DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Mr M J Allen, Member Date16 December 2004
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant’s application to import a 1994 Porsche 928 GTS motor vehicle is approved pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989. .............(sgd M J Allen) ....................
Member
CATCHWORDS
TRANSPORT – importation of motor vehicle that does not have identification plate – applicant a migrant to Australia – application for approval to import one vehicle refused because applicant had not owned and used that vehicle for the required period – applicant obtained approval to import a second vehicle that was more than 15 years of age – respondent contended that refusal of approval for the first vehicle was justified for the additional reason that the applicant had imported the second vehicle within a period of one year prior to the landing of the first vehicle – finding that the applicant had owned and used the first vehicle for the required period – finding that the applicant had imported the second vehicle in the year prior to the landing of the first vehicle – consideration of whether the general discretion to approve the import of the first vehicle should be exercised in the applicant’s favour – consideration of the relevant factors for the exercise of that discretion – finding that the discretion should be exercised in the applicant’s favour – decision under review set aside.
Acts Interpretation Act 1901 s 46
Motor Vehicle Standards Act 1989 ss 3, 18, 19, 20
Motor Vehicle Standards Regulations rr 9, 11, 12, 13, 17
McGurk Construction and Rigging Company Ltd v Comptroller General of Customs (1987) 73 ALR 381.
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Minister for Transport and Regional Services v Marra [2003] FCAFC 294
Parrett v Secretary, Department of Family and Community Services [2002] FCA 716
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45
Re Albanus and Department of Transport and Regional Services [2001] AATA 12
Re Anthony and Department of Transport and Regional Services [2001] AATA 543
Re Marra and Minister for Transport and Regional Services [2003] AATA 323
Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Rv Bull (1974) 131 CLR 203
REASONS FOR DECISION
16 December 2004 Mr M J Allen, Member 1. By separate applications dated 3 March 2004 Mr Anthony Da Silva (“the applicant”) applied for approval to import into Australia a 1986 Ferrari motor vehicle (“the Ferrari”) (T3) and a 1994 Porsche motor vehicle (“the Porsche”) (T4). On 29 March 2004 a delegate of the respondent made two decisions, the first of which was to approve the importation of the Ferrari (T13) and the second of which was to refuse the application for importation of the Porsche. The applicant now seeks review of the latter decision pursuant to the right to do so conferred by s 39 of the Motor Vehicle Standards Act 1989 (“the Act”).
2. At the hearing of the matter the applicant was represented by his solicitor, Mr Coyle, and the respondent was represented by Mr Tsaknis of counsel. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) (T1 – T13) and Exhibit A1, which is an affidavit sworn by the applicant on 3 September 2004, with annexures. Oral evidence was given by the applicant.
3. The background to the matter is that the applicant was, until December 2003, a resident of the United Kingdom and in the middle of that year was granted approval to migrate to Australia. He departed the United Kingdom for Perth on 3 December 2003, having made arrangements for the shipment of the Porsche and the Ferrari a few days later.
4. The vehicles arrived in Australia by sea in January 2004 and in early March the applicant made the applications referred to above.
Statutory Framework
5. Section 18 of the Act relevantly provides that, subject to ss 19 and 20 of the Act, a person who imports a road vehicle that is non-standard or does not have an identification plate commits an offence.
6. Section 19 of the Act relevantly provides that a person may import a road vehicle that is non-standard or does not have an identification plate with the written approval of the Minister, which may be subject to written conditions determined by the Minister.
7. Section 20 of the Act relevantly provides that a person may import a road vehicle that is non-standard or does not have an identification plate in prescribed circumstances – and regulations may be made that provide for the importation, “whether generally or in specified circumstances” of such a vehicle with the written approval of the Minister or with approval subject to written conditions determined by the Minister.
8. Regulation 9 of the Motor Vehicle Standards Regulations 1989 (“the Regulations”) relevantly provides that a person may import a road vehicle that is non-standard or does not have an identification plate if the Minister has approved an application by the person to import the vehicle.
9. Regulation 11 of the Regulations confers upon the Minister a general discretion to approve the import of vehicles in the following terms:
“(1)The Minister may approve an application to import a non-standard 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 sub regulation (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”.
10. Regulation 13 of the Regulations relevantly provides that
“the Minister must approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate if:
(a)the vehicle has been owned and used by the applicant for a continuous period of at least … 12 months
…
(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.”
11. Regulation 13 prescribes a number of other factors that must be satisfied and it is not in dispute that the applicant satisfies all of them.
12. Regulation 17 provides that “the Minister must approve an application to import a non-standard road vehicle or a vehicle that does not have an identification plate if the vehicle is 15 or more years old.”
13. Approval to import the Ferrari was granted under r 17. The letter of refusal in relation to the Porsche referred to the terms of r 13 and stated that, from the information provided by the applicant, he did not satisfy r 13(a) in that he had not used the vehicle for a continuous period of at least 12 months. The Statement of Reasons for Decision provided pursuant to s 37 of the AAT Act (T2) at para 17 contained a statement to similar effect, but also contained the statement that the decision maker “considered the application of regulation 11 and concluded that the applicant’s circumstances did not constitute an exceptional circumstance that would warrant the application of this regulation”. I observe in passing that there is nothing in the material provided to the Tribunal by the respondent apart from that reference that indicates that r 11 was considered by the original decision maker. Given that the application form appears to seek information directed principally to the factors contained in r 13, that is not surprising.
The Evidence
14. The applicant’s oral evidence was that he had been involved in the motor vehicle industry in the United Kingdom since about 1973 and had operated his own business as a motor vehicle dealer since 1992. He had never been involved in the export of motor vehicles from the United Kingdom in that time. For about 10 years the applicant owned a motor vehicle sales showroom but in later years sold the showroom and operated as a motor vehicle broker – the main function of which was to find particular types of cars that clients wished to buy. For that purpose he travelled extensively within the United Kingdom to inspect and purchase vehicles.
15. In addition, the applicant said that he was an enthusiast of, and collected, classic cars and has owned a number of classic cars over the past 25 years, in addition to owning some hundreds of cars that he had purchased for onsale.
16. On 27 September 2002, when he was on a business trip, the applicant saw the Porsche for sale at the premises of a motor vehicle dealer and after test driving the vehicle he agreed to purchase it for a price of £15,295 including 12 months vehicle registration. A deposit of £1,000 was paid on that day and the balance was paid on 8 October 2002, on which day he collected the vehicle (Annexures AAD1 and AAD2 to Exhibit A1). According to the sale invoice for the car (Annexure AAD1) the Porsche’s odometer showed a mileage of 41,569 miles at the date of sale.
17. The applicant said that he did not take out an individual insurance policy covering the Porsche because it was covered by a motor trade insurance policy that he maintained, which covered all of the vehicles that he owned including those owned for his personal use and those owned for business.
18. The applicant explained the English system relating to the registration of ownership of motor vehicles and the distinction between the register of “keepers” of a vehicle (who is not necessarily the legal owner of the vehicle) and the system of payment of annual road tax (which is itself subject to the maintenance of a current “MOT” certificate relating to the roadworthiness of a vehicle.
19. The applicant said that in the case of vehicles that he purchased for onsale he would not have his name put on the register of keepers. He said it was quite common for purchasers of vehicles to not register their name as keepers because some owners do not want the number of prior owners to be recorded on the registration documents. The applicant said that for cars that he owned personally for some lengthy period he normally registered them in his name, but in the case of both the Porsche and the Ferrari he did not register them in his name because of the relatively short period that he owned them. The Ferrari had been purchased by him in early 2003 for resale but he liked the car and decided to keep it. In the case of the Porsche the car had 12 months tax paid on it when he purchased it.
20. From 6 December 2002 until 30 January 2003 the applicant holidayed in Western Australia and on his return to England applied for approval to migrate to Australia. That approval was obtained in June or July 2003 and he began to wind up his business affairs in advance of the change of residence. He decided to sell most of his cars (which at the time was 5 or 6 cars for personal use), having received advice from a shipping agency company, Imorex, that he could import a number of cars into Australia. However, he decided to retain only 2 cars, the Ferrari and the Porsche, and he engaged Imorex to prepare the applications for importation approval and to arrange the shipment of the vehicles to Australia. Annexure AAD5 is a letter dated 18 November 2003 from Imorex to the applicant confirming his instructions to arrange shipment and confirming collection arrangements.
21. In October 2003 the applicant arranged an MOT test for the Porsche and the certificate that was issued by the MOT examiner dated 16 October 2003 (Annexure AAD4 to Exhibit A1) records that at the time the recorded mileage of the Porsche was 46,730 miles.
22. At the end of October 2004 the applicant had the Porsche cleaned and prepared for shipping and in November 2003 had an alarm and immobiliser fitted to it. On about 25 November 2003 the Porsche and Ferrari were collected by Imorex and in January 2004 the applicant paid freight, insurance and haulage charges for the two vehicles of £3,275. The vehicles arrived in Australia during that month and it became apparent to the applicant at that time that the necessary applications for approval to import had not been made, contrary to his previous understanding with Imorex. Annexure AAD7 to Exhibit A1 is a letter dated 3 February 2004 from Imorex to the respondent in which Imorex advised that it had arranged the shipment of the vehicles and undertook to arrange all necessary documentation. The letter also states that the Imorex employee who made those arrangements with the applicant was not aware of the regulation concerning import approval and the necessary applications were not made.
23. In relation to the extent of his use of the Porsche whilst resident in the UK the applicant said that he drove the car regularly even though he had access to a number of other vehicles for business use. He used the Porsche for his personal travel requirements and drove it to a number of classic car shows and exhibitions. He said that he drove the Porsche on most days and each week-end and preferred to use the Porsche rather than his other personal vehicles because it had air conditioning and power steering. In the period between October 2002 and November 2003 the applicant said that he used the Porsche for in excess of 5,000 miles, which compared with his total travel for personal and business use in a typical year of 12,000 – 14,000 miles. The applicant said that classic cars should be used regularly but carefully, so as not to cause any premature wear and tear or damage in adverse driving conditions. In addition, insurance policies for classic cars stipulated that cars cannot be used for business purposes and must be stored in secure overnight garaging. Accordingly, the applicant used a smaller and more economical vehicle for work, especially when required to be away from home overnight (see paras 14 and 15 of Exhibit A1.
24. The applicant’s evidence was that he was in England continuously between September 2002 and 4 December 2003 (when he departed for Australia) apart from 7 weeks in December and January 2003 when he was in Australia.
25. In his application to import the Porsche the applicant stated that the vehicle was “never registered in my name due to long period off the road”. At the same section of the application form (Part 8) is the statement “only one vehicle per person may be imported in any one year period.”
26. In cross examination the applicant was asked to explain the reference to the vehicle never being registered in his name due to long periods off the road. He said that the statement made was not well phrased. He was trying to get the form completed in a hurry (because the two vehicles had already arrived in Australia), he had not taken legal advice about completing the application forms, and the form did not contain a lot of room to provide explanations. He said that the reference to long periods off the road was meant to be a reference to the period when he was in Australia because that was the only period that the Porsche was in fact not driven regularly. He had originally intended to register the Porsche in his name but did not do so prior to his departure in December 2002. On his return to England he had intended to register the vehicle but forgot to do so. He had then obtained his approval to migrate to Australia and, accordingly, thought that there was no point in registering the vehicle in his name at that late stage. He had, however, reported the export of the vehicle to the UK vehicle registration authority. He had never registered the Ferrari in his own name because he had originally purchased it for resale but, as noted above, had decided to keep the vehicle and then decided to bring it with him to Australia.
Consideration
27. The first issue to consider is whether the applicant satisfies the requirements of r 13(a) and r 13(e) in relation to the Porsche – because it was not in dispute that he satisfied the other requirements of that regulation. Sub-regulation 13(a) requires the applicant to have “owned and used” the Porsche ”for a continuous period of at least … 12 months”.
28. In relation to ownership, I find that the applicant became the owner of the Porsche on 27 September 2002 when he entered into the Sale Agreement and paid a deposit – and that he has remained the owner since that time. In those circumstances I find that the applicant has satisfied the ownership requirements of reg 13(a).
29. In relation to the requirement that the applicant used the Porsche for a continuous period of at least 12 months, I find that the applicant took possession of the Porsche on 8 October 2002 and had the vehicle in his possession thereafter. Although it is likely that the applicant had an obligation to notify the vehicle registration authorities that he had become the keeper of the Porsche, I accept his explanations as to why that did not occur and I do not believe his failure to do so affects my consideration of this issue.
30. It was not in dispute that the Porsche is a “road vehicle” and a “road motor vehicle” as those terms are defined in s 5 of the Act. That section also defines the word “used” to mean, relevantly, “in relation to a road motor vehicle – drive”. By virtue of s 46 of the Acts Interpretation Act 1901 expressions used in the regulations are to have the same meaning as in the Act. I am satisfied, therefore, that the Porsche is a road vehicle and a road motor vehicle, and that the word “used” in r 13(a) means “drive” or “driven”.
31. The Macquarie Dictionary defines “continuous” relevantly as “uninterrupted in time, without cessation”, but notes that it can be used interchangeably with “continual” in relation to temporal continuity. The dictionary defines “continual” relevantly as (1) “without cessation or intermission; unceasingly…”; (2) “very often, at regular or frequent intervals; habitually…”
32. It was contended on behalf of the respondent that the Porsche was only available to the applicant between 8 October 2002 and approximately 19 November 2003 – and that the applicant’s absence from the UK in December 2002 and January 2003 constituted a break in the period of use such that there was not use over a continuous period of at least 12 months. It was contended further that even if the period was not broken in that way, then the applicant had not driven the Porsche sufficiently in the period to constitute the degree of use required by the regulation.
33. Document T12 contains a certificate of valuation for the Porsche conducted by the Royal Automobile Club of Western Australia in February 2004 and records that the vehicle had an odometer reading of 46,872 miles. I am satisfied that the Porsche was driven by the applicant between October 2002 and the time that he surrendered it for shipping for a distance of approximately 5,300 miles or approximately 8,500 kilometres during that period of time. I accept the applicant’s evidence that he drove the vehicle regularly – more or less daily and on each week-end. I am satisfied that the applicant drove the vehicle very often, at regular or frequent intervals and habitually. However, the question arises of whether the applicant’s absence from the UK for a period of approximately 7 weeks means that it cannot be said that the use by the applicant was for a continuous period.
34. The respondent concedes that r 13(a) does not require a person to drive a vehicle continuously – in the sense of driving it unceasingly without stop – for a period of 12 months. Such a requirement would be impossible to comply with. Rather, the respondent contends, and I agree, that whether or not a person has used a vehicle for a continuous period of 12 months is a matter of fact and degree having regard to the number and duration of interruptions that have occurred in that period of time. I note that the bulletin issued by the respondent to guide intending applicants for approval to import vehicles refers to the need to submit proof of physical presence in the country where the vehicle was purchased and primarily used prior to lodging the import application, including evidence of the frequency, regularity and duration of visits to places outside that country. The respondent obviously accepts from such a requirement that it is possible for a vehicle owner to be absent from his or her normal residence (and hence from the vehicle) and not be in a position to drive the vehicle without necessarily interrupting the continuous period.
35. Having regard to my finding that the applicant did use the Porsche frequently whilst he was in the United Kingdom, I do not consider that a single absence for a period of 7 weeks in a period of approximately 14 months is a sufficient interruption to the period of use. I am satisfied that the applicant owned and used the Porsche for a continuous period of at least 12 months up to the end of November 2003.
36. The next question that I must consider is whether the applicant satisfies the requirements of r 13(e). Although this requirement was not referred to by the original decision maker it has been raised by the respondent in these proceedings.
37. To satisfy this requirement of the regulation the applicant must not have imported a road vehicle that was owned by him “…within the year ending on the day on which [the Porsche was] landed in Australia”. It was not in dispute that the Porsche and the Ferrari arrived in the same container in Australia on or about 11 January 2004 and were landed (in the sense of being removed from the vessel) on about the same day. The period of a year referred to in r 13(e) would have ended at midnight on that day.
38. For the respondent it is contended that the applicant “imported” the Ferrari during that period of time and the applicant could not therefore satisfy the requirements of r 13(e).
39. Section 5(1) of the Act defines “import” in relation to a road vehicle (and it is not in dispute that the Ferrari was such a vehicle) to mean “…do an act which constitutes importation of the vehicle…for the purposes of the Customs Act 1901” The Full Federal Court observed in Minister for Transport and Regional Services v Marra [2003] FCAFC 294 at [17] that goods are imported into Australia when they are landed or brought within a port with the intention of landing them: see R v Bull (1974) 131 CLR 203 and McGurk Construction and Rigging Company Ltd v Comptroller General of Customs (1987) 73 ALR 381.
40. It follows from the above that the Porsche and the Ferrari were both imported into Australia at the same time – when they entered the port of Fremantle with the intention of being landed. The period of a year referred to in the regulation ended at midnight on the day on which the Porsche was landed and the Ferrari had been imported by the applicant during that year. Accordingly, on the face of it, the applicant could not satisfy the requirements of r 13(e). However, it was contended for the applicant that r 13(e) should be construed so as to apply only to other vehicles imported under r 13, and that vehicles imported pursuant to r 17 should be ignored for the purposes of r 13(e).
41. For the respondent it was contended that such an interpretation is not appropriate because there is nothing in the regulations to suggest that the ordinary meaning of “imported” in r 13(e) should be read down to apply to a particular category of imported vehicles, in particular that vehicles imported pursuant to r 17 should be excluded from its application. Neither party referred me to any authorities regarding the relationship between r 13 and r 17.
42. It is necessary to adopt a purposive approach to the interpretation of the Act and regulations. A useful summary of the principles concerning whether or not words should be read into a provision of a statute is contained in the judgement of Madgwick J in Parrett v Secretary, Department of Family and Community Services [2002] FCA 716 at [24]-[29], in which his Honour said:
“Section 15AA: the purposive approach
24 Section 15AA of the [Acts Interpretation] Act provides:
"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."
25 It is now clear, if it were ever not, that blinkered literalism has no place in the interpretation of federal statutes. Indeed, regard to context precedes any finding of ambiguity. The "purpose or object underlying the Act" will usually be ascertained by a consideration of the statute's context, in the widest legitimate sense of that term, "in the first instance, not merely at some later stage when ambiguity might be thought to arise": CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow J. See also Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-4 per McHugh, Gummow, Kirby and Hayne JJ. Put another way, this requires, as Dawson J had earlier put it in Mills v Meeking (1990) 169 CLR 214 at 235, that the statutory purpose must be taken into account: "not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open."
26 However, as Dawson J also put it at 235,
"if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman [or woman]. [A section such as s 15AA] requires a court to construe an Act, not to rewrite it, in the light of its purposes."
27 In relation to such consistency, the question of "reading words into" an Act needs to be understood. As DC Pearce and RS Geddes state in their valuable Statutory Interpretation in Australia, 5th ed, 2001) at p 40:
"courts can never literally read words into legislation as part of a process of interpretation. The phrase `reading words into legislation' should be understood for what it is; nothing more than a metaphor for implying words in legislation, to give effect to its underlying purpose or object."
28 In Bermingham v Corrective Services Commission (1988) 15 NSWLR 292 at 302 McHugh JA (adopting the approach of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-6) suggested certain necessary conditions for "[construing] a statute with the effect that certain words appear in the statute" (per Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 687) although Parliament did not put them there, and thereby justifying even a "strained" construction. That suggestion has become authoritative in Australia: see Pearce and Geddes op cit pp 41-2. McHugh JA said that those conditions were:
"First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect."
29 Even so, although a strained construction can be justified,
"the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based." (Young per Spigelman CJ, loc. cit.)”
43. In Parrett, Madgwick J concluded at [50] that it could be said with “certainty” that parliament would have intended that certain words should have been added to the definition of “farmer” with which his Honour was concerned in that case.
44. Section 3 of the Act has, since the Act was substantially amended in 2001, provided that the “main objects” of the Act are twofold. In relation to new vehicles the object is “to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia”. In relation to used vehicles, the object is “to regulate the first supply to the market of used imported vehicles.”
45. Prior to 2001 the regime for the importation of both new and second hand vehicles was regulated by the Act via a regime that was used by major manufacturers and which allowed the supply of unlimited numbers of “standard vehicles”. However, a second scheme, known as the “low volume scheme” (“LVS”) enabled the importation of certain types of vehicles subject to some major concessions – which a review conducted prior to 2000 found to have resulted in a 16-fold increase in the number of used vehicles imported under the LVS scheme between 1993 and 2000: see generally the Explanatory Memorandum circulated by the responsible Minister for the Motor Vehicle Standards Amendment Bill 2001 at pages 3 to 7.
46. The amendments introduced in 2001 altered the arrangements for the importation of vehicles by introducing (amongst other things) what was known as the “Registered Automotive Workshop” concept for used imported vehicles, which was to involve a vehicle-by-vehicle approval process rather than a bulk approval process as had previously been the case.
47. Both before and after the 2001 amendments the Act and the regulations provided for what was known as the “personally imported vehicles scheme”, under which “a small number of used vehicles are imported outside the full volume and low volume schemes”. The scheme “enables migrants and Australian residents returning from living overseas to treat their vehicle as part of their personal effects” (Explanatory Memorandum at p.5).
48. The Explanatory Memorandum for the Motor Vehicle Standards Bill 1989, when referring to the equivalent of s20 of the current Act and the provision for the importation of non-standard vehicles in circumstances to be prescribed by the regulations, stated that the “circumstances in which importation would be permitted would be the importation of evaluation vehicles, or bona fide personal import by individuals”. In the Second Reading Speech for the Bill the responsible Minister said (Hansard, House of Representatives, 23 May 1989, p2687) that “the Bill provides control over the imported vehicles, both new and secondhand…. Provision will also be made in the regulations for the importation of vehicles which are bona fide personal possessions. This will apply to migrants or Australian citizens returning from long periods overseas. …”. Initially, an applicant for approval under what is now r 13, had to own and use the vehicle for at least 3 months but this was increased to at least 12 months by amendments to the regulations in 2001 (Statutory Rules No 194 of 2000).
49. By providing (in r 17) that the Minister must approve applications for the importation of non-standard vehicles that are 15 or more years old, the regulations explicitly recognise that an unlimited number of such vehicles may be imported into this country subject to compliance with conditions that may be imposed upon the approval by the Minister.
50. On the other hand, I note that r 12, which deals with the importation of new vehicles that comply with the national standards but do not have an identification plate, provides that the Minister must approve applications to import such vehicles in certain circumstances, one of which is a requirement the same as that in r 13(e), namely that the applicant must not have imported a vehicle within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.
51. It seems to me that the Act and the regulations provide a regime for the regulation of importing used cars into this country that reflects the concerns about such vehicles identified by the pre-2001 review. Although it might be presumed that the number of vehicles imported pursuant to the personal ownership provisions of r 13 may be quite small, and the numbers that may be imported under the over 15 years provisions of r 17 may be much larger, I do not believe that it is possible to say with any certainty that Parliament did not intend that the operation of r 13 would be other than in accordance with its literal terms. In other words, I do not believe that it can be said with certainty that Parliament did not anticipate that the situation that now confronts the applicant would arise or that Parliament would have intended that a person in the position of the applicant would be able to import an unlimited number of vehicles under r 17 and then have a “right” under r 13 (because the Minister “must” approve an application that satisfies that regulation) to import a younger vehicle within the same year. That view is, I believe, supported by the existence of the residual discretion contained in r 11.
52. Accordingly, I am not prepared to accept the contention made on behalf of the applicant that r 13(e) should be interpreted in a way that involves ignoring vehicles imported by the applicant pursuant to approvals under r 17 in the year prior to landing the Porsche. It follows that, in my opinion, the applicant cannot satisfy the requirements of r 13(e) and hence the Minister is not obliged to grant the approval sought under that regulation.
53. I must then turn to consider whether the general discretion available to the Minister under r 11 should be exercised in the applicant’s favour. Although that regulation confers a broad discretion to approve an application and neither the Act nor the regulations set out specific factors that are to be considered relevant to the exercise of the discretion, it is not an unfettered discretionary power. The discretion must be exercised in accordance with the policy and objectives of the Act and regulations, having regard to all relevant considerations and disregarding any irrelevant considerations, as determined from a consideration of the subject matter, scope and purpose of the legislation: see R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49, Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40, Re Marra and Minister for Transport and Regional Services [2003] AATA 323 at [20].
54. I have referred to the objectives of the Act and the regime for approval of imports of used vehicles in certain circumstances above. This Tribunal has described the circumstances in which it may be appropriate to exercise the general discretionary power in r 11 in favour of an applicant (in circumstances where none of the other specific approval powers were satisfied) as being “exceptional” (see Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 at [32]) and “very exceptional, extraordinary or special circumstances peculiar to an applicant” (Re Anthony and Department of Transport and Regional Services [2001] AATA 543 at [19]).
55. For my own part, I do not believe that it is particularly helpful to resort to adjectives of the kind referred to in the previous paragraph. Rather, I believe that it is sufficient to pose the question in terms of whether, having regard to the policy and objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretionary power in favour of the applicant.
56. The applicant has identified a number of factors that he contends should result in the exercise of the discretion in his favour, namely:
(a)The application relates to a single motor vehicle, not a large number of vehicles that might have some material impact upon the Government’s ability to regulate the supply of used vehicles to the Australian market.
(b)The applicant relied on third parties for advice regarding his entitlement to import vehicles into Australia and for the making of the necessary applications. He was given incorrect advice and the necessary applications were not made by his agent at a sufficiently early stage for him to be aware of any problems. This is not a case where the applicant simply took his chances in a problematic situation: see Re Albanus and Department of Transport and Regional Services [2001] AATA 12 at [23].
(c)Had he been advised correctly otherwise, it would have been entirely feasible for the applicant to arrange his affairs in a way that would have allowed him to import 2 vehicles. For example, he could have imported the Porsche first (seeking approval under r 13) and subsequently imported the Ferrari (seeking approval under r 17). Alternatively, he could have sold the Ferrari to a friend or relative who could have applied for, and presumably obtained, approval to import the Ferrari under r 17.
(d)This is not a case in which the applicant seeks to profit from the import of a vehicle. He owned both vehicles for a substantial period of time in England, he is a genuine migrant to this country and he has no intention of selling the cars. In this respect I note that the Porsche was valued on its arrival in Australia at $41,325 (T12). Using an exchange rate of $1 equals ₤0.40, the amount paid by the applicant for the Porsche in England of ₤15,295 (T11) is equivalent to approximately $38,237, in addition to which the applicant has paid a considerable amount to ship the vehicle to Australia and to store it on arrival.
(e)If the applicant cannot gain approval to import the Porsche then he will have no option but to return it to the United Kingdom for sale. That will involve additional transport charges and the applicant says that he has no particular contacts in the UK who could assist him in arranging the sale in that country.
57. For the respondent it was contended that it would not be appropriate to grant approval to import a vehicle in circumstances that arose out of a failure to not satisfy one of the specific regulations that require approval to be granted. For example, it would not be appropriate to exercise the general discretion in r 11 in favour of a person who failed to satisfy the requirements of r 13 because he or she owned the vehicle in question for just less than 12 months. There must be some element of hardship or unfairness that does not arise out of the factors relevant to the other regulations. The desire by the applicant to keep the vehicles in question and the costs that he might incur in returning them to the UK for sale are not exceptional circumstances that would justify the exercise of the discretion in the applicant’s favour because they are factors that could apply in every case such as the present.
58. It can be seen from the discussion above regarding the scheme of the legislation that the Act contemplates that the Minister may grant approval for the importation of vehicles and that it is the task of the regulations to give content to the circumstances in which that may occur. Regulation 11 provides the general discretionary power to grant approval and regulations such as rr 12, 13 and 17, in effect, specify how that discretion is to be exercised in certain situations. If the circumstances set out in those regulations are satisfied then the Minister must grant the approval sought.
59. In my opinion, the exercise of the discretion in r 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour. The totality of the relevant circumstances must be considered – including the reasons why an applicant “almost but not quite” satisfied one of the set of circumstances that would have required approval to be granted.
60. In the present case I consider it to be relevant that the applicant owned and used the Porsche for more than the period required by r 13, he was a bona fide migrant; and the Porsche formed part of his personal belongings when he migrated to this country. In addition, the applicant relied on professional advice that proved not to be correct and he incurred substantial costs in bringing the vehicle to Australia. In addition, it is in my opinion relevant that there is only one vehicle in question and that the reason the applicant could not satisfy r 13 was his contemporaneous import of a vehicle that was more than 15 years old – a category of vehicle in which the Government has adopted the position that there will be no limit to the number that may be approved for import. The importation of one vehicle in these circumstances would not, in my opinion, undermine or frustrate the policy and objectives of the legislative scheme. Although I consider that the applicant would be able to return the vehicle to the United Kingdom and sell it there, that would involve additional expense and inconvenience. Accordingly, I consider that there would be an element of unfairness or injustice to the applicant in circumstances where the policy and objectives of the Act and regulations would not be undermined. I consider that it would be appropriate to exercise the discretion available under r 13 to approve the importation of the Porsche.
61. For the reasons set out above my decision is that the decision under review made on 29 March 2004 to refuse an application for approval to import the Porsche is set aside. In substitution therefor I decide that the importation of the Porsche is approved.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member
Signed: ........................(sgd V Wong)............................
AssociateDate/s of Hearing 22 October 2004
Date of Decision 16 December 2004
Counsel for the Applicant Mr T Coyle
Solicitor for the Applicant Phillips Fox
Counsel for the Respondent Mr L Tsaknis
Solicitor for the Respondent Clayton Utz
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