Re Davidson and Minister for Transport and Regional Services

[2007] AATA 1268

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1268

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          NoV200600883

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		FRANCIS NEVILLE DAVIDSON

Applicant

And MINISTER FOR TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Mr Egon Fice,Member

Date30 April 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Egon Fice
  Member

TRANSPORT AND REGIONAL SERVICES – importation of non-standard motor vehicle – exceptions to prohibiton – ownership and use for a continuous period – exercise of discretion – exceptional circumstances – unfair or unjust

Motor Vehicle Standards Act 1989 ss 18, 19, 20

Motor Vehicle Standards Regulations 1989 reg 9,13 and 11

Re Armstrong and Minister for Transport and Regional Services [2006] AATA 444

Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756

Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317

Re Brassington and Minister for Transport and Regional Services (2006) 91 ALD 766

Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704

Re Trajkovski and Department of Transport and Regional Services (2001) 32 AAR 457

REASONS FOR DECISION

30 April 2007   Mr Egon Fice, Member

1.      Mr F. N. Davidson purchased a 1998 Rover Sterling motor vehicle in the United Kingdom on 4 June 2005 while on a visit to the UK.  Mr Davidson and his wife returned to Australia in October 2005 leaving the motor vehicle in the UK.  Mr Davidson and his wife returned to the UK in May 2006 and remained there until August 2006.  Mr and Mrs Davidson used the motor vehicle while they were in the UK.

2.      Immediately prior to returning to Australia in 2006, Mr Davidson made arrangements to have the motor vehicle shipped to Australia.  After he had made those arrangements, he sought approval from the Department of Transport and Regional Services (the Department) to import the vehicle.  In September 2006, a delegate of the Minister for Transport and Regional Services (the Minister) refused Mr Davidson’s application because he had not owned and used the motor vehicle in the UK for a continuous period of 12 months.  Mr Davidson seeks a review of that decision.

3. The issues before the Tribunal are whether Mr Davidson’s ownership and use of the vehicle fall within reg 13 of the Motor Vehicle Standards Regulations 1989 (the Regulations); and, if it does not, whether the Minister should exercise his discretion to approve the importation of a non-standard road vehicle pursuant to reg 11.

RELEVANT FACTS

4.      The facts in this matter are not in dispute.

5.      Mr Davidson, who is 74 years of age, was born in the UK.  In 1961 he came to Australia with his wife to live permanently.  Although Mr and Mrs Davidson returned to the UK in 1965 and remained there for four years, they have been permanently residing in Australia.

6.      Since 2000, Mr and Mrs Davidson travelled to the UK annually for the purposes of visiting family.  Mr Davidson also received medical treatment while there.

7.      When Mr and Mrs Davidson first came to Australia in 1961, they brought with them, as part of their personal possessions, a motor vehicle.  After returning to the UK in 1965, they purchased another motor vehicle.  In 1969, when they returned to live in Australia, they brought that motor vehicle back to Australia with them.  At that time, they did not have to seek the Minister’s permission to import the vehicles into Australia.

8.      In May 2005 Mr Davidson and his wife purchased and used a campervan when in the UK.  On 4 June 2005, Mr Davidson disposed of the campervan and purchased a 1998 Rover Sterling motor vehicle because his deteriorating health required him to use a smaller motor vehicle which was easier to drive.  Mr and Mrs Davidson used the motor vehicle while in the UK and they also took it to Europe.  Mr and Mrs Davidson returned to Australia on 21 October 2005 and left the Rover Sterling in the UK.

9.      Mr and Mrs Davidson returned to the UK on 28 May 2006.  They both drove the vehicle until 3 August 2006 when it was collected by the Jamar Group (Jamar), who were the shipping agents selected by Mr Davidson to transport the vehicle to Australia.

10.     The Rover motor vehicle left Southampton in the UK on 9 August 2006 and arrived in Melbourne on 10 September 2006.

11.     When Mr Davidson first made arrangements to have the Rover motor vehicle shipped to Australia, he was not aware that he required a permit for the importation of that vehicle.  The person at Jamar with whom he had made arrangements to have the motor vehicle shipped to Australia did not advise Mr Davidson that he required permission to import the vehicle.  When Mr Davidson and his wife returned to Australia on 20 August 2006, he contacted the vessel’s agent and was given the name of Bluefreight International Customs Brokers to assist in obtaining release of the vehicle on its arrival in Melbourne.  It was only then that it was explained to him that an import permit was required.  By then, the vehicle had already left Southampton.

12.     Mr Davidson lodged an application to import the motor vehicle by facsimile on 21 August 2006.  He did not get an immediate response and, after making enquiries, discovered that there were problems with the facsimile transmission.  He sent the application form again on 4 September 2006.

13.     By letter dated 14 September 2006, a delegate of the Minister informed Mr Davidson that his application had been refused.

LEGISLATIVE SCHEME

14. The importation of non-standard vehicles to Australia is prohibited under s 18 of the Motor Vehicle Standards Act 1989 (the Act). It provides that subject to s 19 and s 20, a person must not import a road vehicle that is non-standard or does not have an identification plate.

15. Section 19 of the Act provides that a person may import a non-standard road vehicle or a road vehicle that does not have an identification plate with the written approval of the Minister. Section 20 of the Act permits a person to import a non‑standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. The exemptions to the prohibition, or the prescribed circumstances, are set out in the Regulations. Mr Davidson relies on reg 13 and reg 11.

16.     The principal object of the Act, for new vehicles, is to achieve uniform vehicle standards which apply to road vehicles when they begin to be used in transport in Australia; and for used vehicles, to regulate the first supply to the market (see s 3 of the Act).  Non-standard vehicles are vehicles which do not comply with the National Standards or the Australian Design Rules.  An identification plate fixed to a motor vehicle establishes that the vehicle complies with the National Standards.

Regulation 13: Exception

17.     Regulation 13 provides:

13 Approval to import vehicle without an identification plate if owned and used by applicant overseas 

The Minister must approve an application to import a nonstandard 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:

(i)     for a vehicle owned by the applicant before 9 May 2000 — 3 months; or

(ii)    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.

18. The parties agreed that Mr Davidson satisfies all the requirements of reg 13 except for reg 13(a)(ii). There is no dispute that he has owned the motor vehicle for a continuous period of 12 months, between 4 June 2005 and 3 August 2006. That is in fact a period of 14 months. However, the Minister contends that Mr Davidson has not used the vehicle for a continuous period of 12 months because he was in Australia when the vehicle was in the UK between 21 October 2005 and 28 May 2006. Mr Davidson first used the motor vehicle for four and a half months. When he returned to the UK in May 2006, he used the car for a further period of two months.

19.     The Minister correctly submitted that use is defined in s 5 of the Act to mean drive.  The Minister contends that, because Mr Davidson was not in the UK between October 2005 and May 2006, he could not satisfy the requirement regarding use for a continuous period of at least 12 months.  The Minister also submitted, correctly in my opinion, that continuous is defined as uninterrupted in time, without cessation.

20.     As I pointed out in Re Armstrong and Minister for Transport and Regional Services [2006] AATA 444, the adjective continuous qualifies the period of time and not the frequency of use of the vehicle by the person concerned.  The Minister, correctly in this case, does not submit that the vehicle must be driven continuously by an applicant.  The Minister accepts what was said by the Tribunal in Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756. In Re Da Silva, Member Allen agreed with the respondent’s contention 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.

Senior Member Fayle, in Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317 said (at para 17):

Insofar as the word ‘use’ is defined to mean ‘drive’ commonsense dictates that reg 9D cannot mean that the vehicle must be driven unabatedly for three continuous or consecutive months.  A commonsense approach is that the vehicle should be available to the applicant to be driven in the ordinary course of that person’s usage.

21.     In my view, the fact that the word use is not qualified in reg 13 supports the approach taken by the Tribunal in Re Da Silva and Re Anthony.  If further support were needed, I would refer to a Minute drafted by the Assistant Secretary, Vehicle Safety Standards Branch, for approval by the then Minister, to amend the guidelines for applicants wishing to import a motor vehicle under the Personal Vehicle Import Scheme (the Scheme).  The Minute was drafted following an announcement on 8 May 2000 by Mr J. Anderson and Senator N. Minchin, regarding changes to the rules for importing personal motor vehicles.  The effect of the change was to increase the qualifying period of ownership and use of the vehicle from a continuous period of three months to twelve months.  The Minute stated that the primary reason for extending the qualifying period was to limit abuse of the Scheme, the purpose of which was to allow migrants and Australian citizens returning from long periods overseas to treat their vehicles as bone fide personal possessions.  The Minute noted that the requirement of use for a continuous period of three months was previously strictly enforced to the point where any break in that period, such as a trip outside the country where the vehicle was held, was considered to have broken the continuous period of use. 

22.     With the extension of the qualifying period to a continuous period of 12 months, the Assistant Secretary noted that a similarly strict approach would create unreasonable restrictions on the movements of individuals who live and work overseas for long periods; who purchase and use the vehicle during their stay, and who then wish to import the vehicle to Australia on their return.  The Minute proposed that short breaks away from the country of main residence, including up to six weeks annual leave, business trips that are part of normal work, and for other unforeseen contingencies, would not normally be considered to breach the continuous period of use requirement.  The Assistant Secretary also suggested that additional documentation may be required to support a claim that an applicant resided in the country of registration of the vehicle.  He said that the additional documentation may include proof of a person’s physical presence, continuously or intermittently, during a 12 month period in the country where the vehicle was purchased and primarily used.

23.     Mr E. de Zilwa submitted on behalf of Mr Davidson that it did not make sense to apply the word continuous to both ownership and use as, he suggested, was required by reg 13(a). Mr de Zilwa contended that it would be an error of construction to apply the word continuous to both ownership and use in the same way. Mr de Zilwa therefore suggested that reg 13(a) contained a drafting error and that the word and should be replaced by the word or.  In other words, the words ownership and use should be read disjunctively.  Mr de Zilwa said that the purposes of the Act and the context of the Regulations supported that view.  I do not agree.

24.     As I have stated above and in Re Armstrong, the word continuous in reg 13(a) of the Regulations qualifies the period of ownership and the period of use. Therefore, properly read, reg 13 requires ownership for a continuous period. It also requires use of the motor vehicle for a continuous period. Regulation 13(a) does not describe what constitutes use for a continuous period. In my view, there is a very good reason for that. Each applicant’s circumstances must be considered to determine whether there has been use for a continuous period. Not every applicant will use a motor vehicle purchased overseas in the same way. Some applicants may use the motor vehicle on a daily basis to commute to their place of work, while others may find public transport more convenient. Such applicants may use that vehicle far less frequently but nevertheless over a continuous period. The vehicle may only be driven on weekends or may be taken out only on fair weather days. Where the motor vehicle is available for use to an applicant over a continuous period and the applicant uses the vehicle on a regular basis over that period, it is likely that this would satisfy the requirements of reg 13(a). Similarly, short breaks for annual leave, business trips and breaks for other unforeseen contingencies would not normally be considered to breach the requirement for use over a continuous period.

25.     A problem arises where there is a significant period of physical separation between the owner and the motor vehicle.  Should that occur, such an event would clearly break the nexus between an applicant’s ordinary use of the vehicle and the continuous period of 12 months.  The reason that is objectionable is that it creates an opportunity for persons wishing to frustrate the objects and policy of the Act to do so.  As Mr R.J. Brown, the then Minister for Land Transport and Shipping Support, said in his Second Reading Speech at the time of introduction of the Motor Vehicle Standards Bill 1989, the purpose of the Bill was to underpin National uniformity.  The Bill was said to apply the same standards to all vehicles at the time of their first sale in Australia, regardless of source; and to ensure the maintenance of the levels of safety and environmental quality that the community rightfully expects.  Mr Brown also noted that there was substantial concern about the increase of imports of sub‑standard second‑hand motor vehicles.  While making provision for Australian citizens returning from long periods overseas to import vehicles which are bona fide personal possessions, the Act was designed to prevent large numbers of sub‑standard second‑hand imported vehicles being brought to Australia.  It is for that reason that ownership and use for a continuous period must be demonstrated before the motor vehicle sought to be imported to Australia can be regarded as a bona fide personal possession.  Use for a continuous period would not be possible if the owner was in a different country for an extended period of time.

26. Although Mr Davidson used the vehicle for a continuous period between 4 January 2005 and 21 October 2005, that is only a period of some four and a half months. After 21 October 2005 and up until 28 May 2006, Mr Davidson was in Australia and the motor vehicle was in the UK. Had Mr Davidson remained in the UK, it is likely that his ordinary pattern of use would have continued. The only reason that Mr Davidson ceased using the motor vehicle after 21 October 2005 is that he had returned to Australia. He remained in Australia for a period of some seven months before returning to the UK on 28 May 2006. That period of seven months away from the UK breaks the requirement to use the vehicle for a continuous period of 12 months. Although Mr Davidson again used the vehicle in the UK from the end of May 2006 until it was placed in the hands of the shipping agent on 3 August 2006, which is only a period of two months and does not satisfy the requirements of reg 13(a). Therefore, Mr Davidson does not meet the requirement set out in reg 13(a) for the use of his Rover Sterling motor vehicle over a continuous period of 12 months in the UK.

Regulation 11: Discretion

27.     Regulation 11 provides:

11 Minister’s approval to import vehicles without identification plates 

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

…

28.     There is no guidance in the Act or the Regulations regarding the exercise of the Minister’s discretion to approve the importation of a non-standard vehicle.  However, a number of cases before the Tribunal have dealt with this regulation.  In Re Trajkovski and Department of Transport and Regional Services (2001) 32 AAR 457, the Tribunal said at 470:

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.

29.     Deputy President Hotop in Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 705 said, in respect of reg 9B which was the predecessor to reg 11 of the Regulations and in precisely the same terms (para (26)):

The tribunal accepts that the discretionary power conferred by reg 9B(1) of the regulations, although broad and unstructured in its terms, should in practice be exercised only in exceptional circumstances and then only in such a way as would not serve to undermine or frustrate the policy and objects of the Act and the regulations:  see, for example, Re Trajkovski above, at (32).  One such kind of circumstance, envisaged in Re Trajkovski, at (34), where it might be appropriate to exercise that discretionary power is in the event that, if that were not done, injustice would necessarily be suffered by the relevant importer.

30.     I accept the submission made by Ms McKenzie on behalf of the Minister that the exercise of discretion under reg 11 requires some element of unfairness or injustice to the applicant if approval were not granted.  The discretion could be exercised if approval would not undermine or frustrate the policy and objects of the legislative scheme.

31.     Mr Davidson relied on the following circumstances in seeking the exercise of the Minister’s discretion:

(a)his age (74 years);

(b)his poor state of health;

(c)the considerable expenditure he has incurred and continues to incur because of the decision of the Minister; and

(d)that he relied totally on the advice received from Jamar, the shipping agent, which proved to be incomplete.

32.     Mr Davidson also said that because of his age and health, it would be unlikely that he would ever return to the UK again.  He said that he had a particular affection for the vehicle because it was his only remaining connection with England.  Mr Davidson also indicated that his storage fees for the vehicle since its arrival in Australia amount to some $9000, and he had incurred a shipping fee of $3300.  He also mentioned that he has incurred legal costs in bringing this application.  However, none of these factors makes it either unfair or unjust if approval were not granted.  The situation was different in Re Marra because Mr Marra relied upon advice given by the Department that approval would be granted.  Mr Marra acted on that advice and had no reason to suspect that the position would be otherwise.  In those circumstances, Mr Marra would clearly have suffered a serious injustice if his application was subsequently disapproved.  No such consideration arises in this case.  Although Mr Davidson is of advanced years, in poor health, and he does not expect to return to the UK, those factors do not constitute a valid reason for the exercise of discretion.  There would be no unfairness or injustice to Mr Davidson in the sense described in Re Marra.  Mr Davidson has expended some $12,000 in having this vehicle shipped to Australia, and he would incur further expenses in disposing of the vehicle or having it returned to the UK.  However that factor does not create unfairness or injustice.  There was no evidence before me that Mr Davidson would suffer financial hardship that would justify exercising the discretion to allow the importation of the vehicle.

33.     Mr Davidson said that he relied on the advice received from Jamar when he first enquired about importing the vehicle to Australia.  However there was no evidence before me that Mr Davidson made enquiries about the Regulations regarding the importation of motor vehicles to Australia.  I suspect the reason for that was that Mr Davidson had, in the 1960’s, imported two vehicles from the UK when the importation of motor vehicles was not regulated.  There is no evidence that he sought to make any enquiries when he engaged the services of Jamar about the existence of regulations.  It was only when Mr Davidson contacted a Customs Broker to deal with the motor vehicle on its arrival in Australia that he became aware of the need to obtain approval for the importation of the motor vehicle.  By that time, the motor vehicle had already left the UK.  The fact that Mr Davidson was unaware of the Regulations and made no enquiries about such regulations before the vehicle was shipped does not create an element of unfairness or injustice.  Furthermore, the exercise of discretion in circumstances where no enquiries had been made before the vehicle was shipped would undermine or frustrate the policy and objects of the legislative scheme.  This was the conclusion that I arrived at in Re Brassington and Minister for Transport and Regional Services (2006) 91 ALD 766. It follows that I am not of the view that the discretion provided for in reg 11 should be exercised in Mr Davidson’s favour.

CONCLUSION

34. In order for Mr Davidson to be permitted to import to Australia a non‑standard motor vehicle from the UK, he must satisfy one of the exceptions set out in the Regulations. Mr Davidson relied on reg 13 which, amongst other things, requires an applicant to have owned and used the vehicle for a continuous period of not less than 12 months. Mr Davidson does not satisfy the requirements set out in reg 13. Therefore that exception cannot apply in his case.

35.     Alternatively, Mr Davidson relied on the general discretion set out in reg 11 which enables the Minister to approve an application to import a non‑standard road vehicle to Australia.  However, that discretion should only be exercised in exceptional circumstances and only in such a way as to not undermine or frustrate the policy and objects of the Act and the Regulations.  The reasons given by Mr Davidson for the exercise of that discretion are not exceptional.  Furthermore, if the discretion were exercised in this case, it would undermine or frustrate the policy and objects of the Act and the Regulations.  The problem Mr Davidson now faces was caused because of his failure to make timely enquires about the importation of motor vehicles to Australia.  Although the outcome is unfortunate given that Mr Davidson’s health and advanced years, he is not in a position where he would suffer unfairness or injustice if the discretion were not exercised in his favour.

36.     Therefore, the decision of the Minister to refuse approval for the importation of Mr Davidson’s Rover Sterling motor vehicle should be affirmed.

I certify that the thirty‑six [36] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

Signed:  Olympia Sarrinikolaou

Clerk

Date of Hearing  30 March 2007
Date of Decision  30 April 2007
Counsel for the Applicant:           Mr E. de Zilwa
Solicitor for the Applicant:            Wright Smiths Lawyers
Counsel for the Respondent        Ms F. McKenzie
Solicitor for the Respondent:        DLA Phillips Fox