Re Marra and Minister for Transport and Regional Services
[2003] AATA 323
•7 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 323
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/26
GENERAL ADMINISTRATIVE DIVISION ) Re ATTILIO MARRA Applicant
And
MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Date7 April 2003
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant’s application to import a 2000 Honda Montesa FX 650Y Vigor motorcycle (Vehicle Identification Number VTMRD09A0YE430145) is approved pursuant to reg 9B(1) of the Motor Vehicle Standards Regulations 1989.
.........(sgd S D Hotop_...............
Deputy President
CATCHWORDS
TRANSPORT – importation of road vehicle that does not have identification plate – applicant informed by Department that vehicle could be imported if owned and used for 3 months – applicant purchased vehicle in Italy in December 2000 and used vehicle in Italy until July 2001 – applicant again informed by Department of requirement of 3 months use of vehicle – applicant shipped vehicle in August 2001 and vehicle arrived in Australia on 6 September 2001 – on 20 September 2001 applicant applied for approval to import vehicle – in October 2001 Department requested applicant to provide proof of 3 months continuous use of vehicle – in November 2001 Department acknowledged previous error regarding required period of usage and requested applicant to provide proof of 12 months continuous use of vehicle – in December 2001 delegate of respondent refused approval to import vehicle – whether power to grant approval to import vehicle after vehicle has been imported – whether discretionary power to grant approval to import vehicle should be exercised in this case.
Motor Vehicle Standards Act 1989 ss 3, 18(1), 19(1), 20(1), 20(3)
Motor Vehicle Standards Regulations 1989 regs 9, 9A, 9B, 9D
Re Bene and Department of Transport and Regional Services [2002] AATA 1288
Re Chalmers Nurseries Pty Ltd and Department of Transport and Regional Services (2001) 33 AAR 69
Frost v Collector of Customs (Qld) (1985) 63 ALR 297
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
REASONS FOR DECISION
7 April 2003 Associate Professor S D Hotop, Deputy President Introduction
1. On 21 January 2002 the applicant lodged with the Tribunal an application for review of a decision of a delegate of the respondent, dated 24 December 2001, refusing to approve, under the Motor Vehicle Standards Regulations 1989 (“the Regulations”), the applicant’s application to import a 2000 Honda Montesa FX 650Y Vigor motorcycle (Vehicle Identification Number VTMRD09A0YE430145) (“the vehicle”).
2. At the request of the respondent, a Directions Hearing was held on 20 June 2002 for the purpose of the Tribunal’s considering, and making a preliminary ruling on, a question of law – namely, whether the respondent, or the Tribunal (on a review of a relevant decision of the respondent), has the power to make a decision granting an application to import a “nonstandard road vehicle” or a “road vehicle that does not have an identification plate” pursuant to ss 19 and 20 of the Motor Vehicle Standards Act 1989 (“the Act”) and regs 9B – 9H of the Regulations, after the act of importation of the relevant road vehicle has taken place. At that Directions Hearing Mr D O’Donovan, a solicitor employed by the Australian Government Solicitor, made oral submissions in support of the proposition that the respondent and the Tribunal did not have that power, and that the applicant’s application for review should accordingly be struck out. The applicant, who appeared in person without representation, made some general oral submissions. The Tribunal informed the parties that it proposed to adjourn the Directions Hearing and consider their submissions and that it would make a preliminary ruling on the abovementioned question of law on 21 June 2002.
3. At a Directions Hearing on 21 June 2002 the Tribunal orally announced its ruling (and the reasons therefor) that the respondent (or delegate) has the power, pursuant to regs 9B – 9H of the Regulations, to approve an application to import a road vehicle falling within the categories specified therein, either before or after that vehicle has been imported, and that the Tribunal, on a review of a relevant decision of the respondent (or delegate), has the same power. The Tribunal, accordingly, refused to strike out the applicant’s application for review.
4. On 21 June 2002 the Tribunal, with the consent of the parties, remitted, pursuant to s 42D(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), the decision under review to the respondent for reconsideration.
5. On 31 July 2002 the respondent commenced proceedings in the Federal Court of Australia under s 39B of the Judiciary Act 1903 (Matter No W188 of 2002) seeking:
· a declaration that the Tribunal erred on 21 June 2002 in declining to dismiss the applicant’s application for review of the decision of the delegate of the respondent (which decision refused the applicant’s application to import a motor vehicle) and instead ordering that the decision under review be remitted for reconsideration;
· a declaration that the applicant, having imported his motor vehicle into Australia before the making of any decision by the delegate to approve the applicant’s application to import, could not then lawfully be granted an approval of his application;
· a writ of certiorari quashing the decision of the Tribunal of 21 June 2002 to remit the decision under review to the respondent for reconsideration;
· a writ of mandamus requiring the Tribunal to hear and determine the decision under review according to law; and
· such further or other orders, declarations or relief as to the Court may seem appropriate.
6. On 7 February 2003 the Federal Court of Australia (Lee J) adjourned the abovementioned proceedings pending the Tribunal’s determination of the applicant’s application for review.
7. By letter dated 13 February 2003 the respondent informed the Tribunal that the abovementioned proceedings in the Federal Court had been adjourned “to allow the Tribunal to make a decision in matter number W2002/26” and requested the Tribunal to:
“(a)revoke the order under s 42D remitting the decision to the decision maker; and
(b) proceed to determine the application on the papers …”.
8. On 25 February 2003 the Tribunal conducted a Directions Hearing to deal with the abovementioned request by the respondent. At that Directions Hearing the applicant informed the Tribunal that he consented to the Tribunal’s acceding to the respondent’s request. Accordingly, the Tribunal, on 25 February 2003, revoked the remittal under s 42D(1) of the AAT Act made on 21 June 2002, and informed the parties that it would, as agreed by them, determine the applicant’s application for review “on the papers” pursuant to s 34B of the AAT Act.
The Material before the Tribunal
9. The Tribunal had before it the following documentary material lodged by the parties:
· the statement and documents lodged by the respondent pursuant to s 37 of the AAT Act (“the T documents”, T1 – T15, pp 1 – 51);
· the respondent’s Statement of Facts and Contentions lodged on 23 August 2002;
· the applicant’s Statement of Facts and Contentions lodged on 8 September 2002, including copies of the following publications:
-Information Bulletin, “Importing Vehicles to Australia”, issued by the Department of Transport and Regional Services, Vehicle Safety Standards, March 1996 (updated to September 2001);
-Information Bulletin, “Importing Vehicles to Australia”, issued by the Department of Transport and Regional Services, April 2002;
· copies of documents lodged by the respondent with the Federal Court of Australia in Matter No W188 of 2002;
· copies of documents lodged by the applicant with the Federal Court of Australia in Matter No W188 of 2002.
The Relevant Legislation
10. The relevant provisions of the Act, as in force at the material time, were as follows:
“3. The object of this Act is to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia.
…
18. (1) Subject to sections 19 and 20, a person must not knowingly or recklessly import a road vehicle that:
(a)is nonstandard; or
(b)does not have an identification plate.
…
19. (1) A person may import a nonstandard road vehicle, a road vehicle that does not have an identification plate or a nonstandard prescribed vehicle component with the written approval of the Minister, which may be approval subject to written conditions determined by the Minister.
…
20. (1) A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate:
(a)…; or
(b)in prescribed circumstances.
…
(3) Regulations for the purposes of paragraph (1) (b) … may provide for the importation, whether generally or in specified circumstances, of a road vehicle, or a vehicle component, as the case may be:
(a)with the written approval of the Minister; or
(b)with such approval subject to written conditions determined by the Minister.
…”.
11. The relevant provisions of the Regulations, as in force at the material time, were as follows:
“9.For the purposes of section 20(1)(b) of the Act, a person may import a nonstandard 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.
9A. A person may apply to the Minister for approval to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.
9B. (1) The Minister may approve an application to import a nonstandard road 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 subregulation (2), the Minister may require that an identification plate in such form and containing such information as the Minister determines be placed on the vehicle.
(4)An approval must be given by signed instrument.
…
9D. 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 on or before 8 May 2000 – 3 months; or
(ii)for a vehicle to which subparagraph (i) does not apply but for which the application is made on or before 8 November 2000 – 3 months; or
(iii)in any other case – 12 months; and
(b)at the time the vehicle is imported, the applicant is:
(i)an Australian citizen or an Australian permanent resident; or
(ii)a person who has applied to become an Australian citizen or an Australian permanent resident; and
(c)the applicant is of an age that entitles him or her to hold a licence or a permit to drive a road vehicle of that type; and
(d)the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister; and
(e)the applicant has not imported a road vehicle owned by him within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.”
The Agreed Factual Background
12. The following background facts are not in dispute and are found by the Tribunal on the basis of the T documents:
· the vehicle was purchased by the applicant in Italy on 15 December 2000 and the applicant became the registered owner of the vehicle on that date (T6, T7);
· the applicant ceased using the vehicle in Italy on 30 July 2001 (T8);
· the vehicle does not have an “identification plate”, within the meaning of the Act and the Regulations (T3, T14);
· on 6 September 2001 the vehicle, which was still owned by the applicant, was first landed in Australia at Fremantle, Western Australia, having been shipped from Italy on 8 August 2001 (T10);
· on 20 September 2001 the applicant lodged with the Department of Transport and Regional Services (“the Department”) a form of “Application for Vehicle Import Approval” in respect of the vehicle (T3);
· by letter dated 12 October 2001 the Administrator of Vehicle Standards within the Department requested the applicant to provide certain information in order that his abovementioned application might be processed, including:
“Passport Stamps – to demonstrate 3 months of continuous use overseas” (T11);
· the applicant responded to that request for information by letter dated 17 October 2001 (T12);
· on 9 November 2001 the Administrator of Vehicle Standards sent a facsimile to the applicant in the following terms:
“I refer to your application dated 20 September 2001 to import a 2000 Honda V160R (sic) and our correspondence to you dated 12 October 2001.
In the correspondence dated 12 October 2001 you were asked to provide:
‘Passport Stamps – to demonstrate 3 months of continuous use overseas’
This information was incorrect it should have read:
‘Passport Stamps – to demonstrate 12 months of continuous use overseas’
As outlined on the application form at part 8.
…” (T13);
· on 24 December 2001 the Administrator of Vehicle Standards, as delegate of the respondent, refused to approve the applicant’s application to import the vehicle (T15).
A Preliminary Question of Law – does the respondent or the tribunal have power under the act and the regulations to approve an application to import a “road vehicle that does not have an identification plate” after the act of importation of that vehicle has occurred?
13. As stated in paragraph 3 above, the Tribunal, on 21 June 2002, made a ruling in which it answered the abovementioned question in the affirmative. At the same time the Tribunal gave oral reasons for that ruling, which, at the request of the respondent, were subsequently reduced to writing as follows:
“4.Having regard to the relevant legislation — in particular, ss19 and 20 of the Act and regs 9B - 9H of the Regulations which authorise the respondent to approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate — there is no provision therein which expressly, or by necessary implication, prohibits the grant by the respondent (or delegate) of approval of an application to import such a vehicle after that vehicle has been imported (in the sense of landed in, or brought into, Australia from another country). Likewise, there is no provision in the Act or the Regulations which expressly, or by necessary implication, requires that such approval must be obtained before the importation of the relevant vehicle occurs. The Tribunal was referred by Mr O'Donovan to the decision of the Tribunal (Senior Member Kiosoglous) in Re Chalmers Nurseries Pty Ltd and Department of Transport and Regional Services (2001) 33 AAR 69 in which (at 73) a contrary view was apparently taken (at least in relation to s20(1) of the Act). To the extent that the ruling made by the Tribunal in the present case is inconsistent with the view expressed in Re Chalmers Nurseries, the Tribunal respectfully disagrees with that view.
5.The Tribunal was also referred by Mr O'Donovan to the decision of the Federal Court of Australia (Wilcox J) in Frost v Collector of Customs (Qld) (1985) 63 ALR 297 at 306-307 in support of the proposition that the power to approve importation can only be exercised prior to the act of importation. The Tribunal makes the following observations regarding Wilcox J's remarks in Frost (at 306 - 307). In the first place, those remarks were obiter. His Honour's decision turned on the fact that the applicant in that case had given a wilfully false answer to Customs officers and, by reason of that false answer, Customs officers were entitled to seize the motor vehicle in question as forfeited goods under s229 of the Customs Act 1901. His Honour's decision did not turn on the fact that an import licence had not been granted prior to the importation of the relevant motor vehicle. Secondly, Frost is clearly distinguishable from the present case and was decided on different legislation, namely, the Customs Act and the Customs (Import Licensing) Regulations.. In particular, there is no provision in the Regulations (presently before the Tribunal) equivalent to reg 8(2) of the Customs (Import Licensing) Regulations which, as his Honour noted (at 306), envisaged that an application for an import licence would precede the act of importation.
6.As regards the Regulations, the Tribunal acknowledges that, as a general rule, an application, pursuant to reg 9A, for approval to import a nonstandard road vehicle or a road vehicle that does not have an identification plate should, in practice, be made prior to the importation of the relevant road vehicle. But an exceptional case — of which the present case may well be an example — may arise where an application for approval is, for good reason, not made prior to the importation of the road vehicle. In such a case, a lack of power to grant import approval (albeit ex post facto) might cause substantial hardship and, depending on the circumstances, might also involve serious injustice. Section 20 of the Act, and the relevant regulations, should not be construed in such a restrictive way as would produce such a result, especially given that a broader and more beneficial construction of those provisions is open.
7.Accordingly, the preliminary ruling of the Tribunal is that the respondent (or delegate) is authorised by regs 9B-9H of the Regulations to approve an application to import a road vehicle falling within the specified categories either before, or after, that vehicle has been imported.
8.The abovementioned ruling will in no way tend to frustrate the policy and objects of the Act (as stated in s3) because the importer will not be able to take delivery of the relevant vehicle from the port of entry until the necessary importation approval has been given. Furthermore, such an approval may be given subject to conditions, and, pursuant to reg 9I, such approval may be revoked if the person concerned fails to comply with any such condition.
9.It follows from the foregoing remarks that the Tribunal on review, standing in the shoes of the original decision maker, also has the power, pursuant to regs 9B - 9H of the Regulations, to approve an application to import a relevant road vehicle either before, or after, that vehicle has been imported.”
14. Since the abovementioned oral ruling and reasons were delivered, however, a contrary view has been taken by the Tribunal (differently constituted) on 13 December 2002: see Re Bene and Department of Transport and Regional Services [2002] AATA 1288. In that case all the conditions specified in reg 9D of the Regulations had been satisfied but the applicant did not apply for approval to import the relevant vehicle (a motorcyle) until 6 days after its arrival in Australia. The Tribunal said (at paras 28 and 32):
“28. …the legislation seems to be clear. In particular section 20 refers to a person importing a vehicle, ‘with the written approval of the Minister’ and regulation 9 refers to, ‘ if the Minister has approved an application by the person to import the vehicle’.. It appears clear to the Tribunal that these words, given their ordinary meaning, must lead one to the conclusion that approval must be requested and approval given prior to the vehicle being imported.
…
32. In the circumstances the Tribunal determines that the motorcycle has been imported into Australia without the necessary approval having been obtained. The Act does not allow for approval now that the motorcycle is in Australia and accordingly it will need to leave Australia, approval will need to be sought and received, before the motorcycle can be imported in Australia in accordance with the approval and any conditions attaching.”
15. The legislative provisions to which the Tribunal in Re Bene referred – namely, s 20 of the Act and reg 9 of the Regulations – (and also s 19 of the Act) are, with respect, addressed to the importer and authorise the importation of the relevant road vehicle by the importer; those provisions are not addressed to the Minister and do not themselves expressly confer power on the Minister to approve that importation or limit that power. The legislative provisions which are addressed to the Minister, and which do expressly confer on the Minister the power to approve the importation of a road vehicle in various circumstances, are regs 9B-9H of the Regulations. None of those regulations, however, either expressly or by necessary implication, confines the Minister’s power to approve the importation of a road vehicle to a circumstance where the application for import approval is made before the act of importation. On the contrary, some of those provisions appear to contemplate the grant of import approval by the Minister at the time when, or after, the act of importation of the road vehicle occurs or has occurred: see, for example, regs 9C(c), 9D(b), (e).
16. The Tribunal, with respect, disagrees with the decision in Re Bene and reiterates the ruling made by it on 21 June 2002 that the power conferred by regs 9B-9H of the Regulations to approve an application to import a relevant road vehicle may be exercised either before or after that vehicle is imported.
The Substantive Matter for Determination on the Merits – should the applicant’s application to import the vehicle be approved or refused?
17. It was common ground that, on the basis that the power to grant approval to import a road vehicle under the Regulations can validly be exercised after the relevant vehicle has been imported, the only relevant sources of such power in the present case are regs 9B and 9D. The respondent contended that, on the undisputed facts of this case, approval to import the vehicle cannot validly be granted under reg 9D because an essential precondition for the exercise of the power conferred by that regulation – specifically, the condition prescribed in subpara (a)(iii) thereof – has not been fulfilled in this case. The “real question for the Tribunal”, the respondent contended, is “whether the discretion to approve importation of the vehicle under reg 9B should be exercised”.
Regulation 9D
18. The Tribunal accepts the respondent’s contention that, on the facts of this case, reg 9D is inapplicable because the precondition for its application specified in subpara (a)(iii) thereof has not been met. The relevant facts (as set out in paragraph 12 above), and their consequences as regards the application of reg 9D, are:
· the vehicle was not owned by the applicant on or before 8 May 2000 – it was purchased by him on 15 December 2000 – and, accordingly, subpara (a)(i) of reg 9D is not applicable;
· the applicant’s application to import the vehicle was not made on or before 8 November 2000 – it was made on 20 September 2001 – and, accordingly, subpara (a)(ii) of reg 9D is not applicable;
· the vehicle had not been used by the applicant for a continuous period of at least 12 months – it had instead been used by him in Italy for a continuous period of approximately 7½ months (from 15 December 2000 to 30 July 2001) – and, accordingly, subpara (a)(iii) of reg 9D is not satisfied.
Finding
19. Accordingly, the Tribunal finds that the applicant’s application to import the vehicle cannot be approved under reg 9D of the Regulations.
Regulation 9B
20. Regulation 9B(1) of the Regulations, unlike reg 9D, confers a broad and, in terms, unstructured discretionary power to “approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate”. That discretionary power is, however, not at large – it must be exercised in accordance with the policy and objects of the Act and the 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 that legislation: 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.
21. The object of the Act, as stated in s 3 thereof, is “to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia”.. The policy of the legislation, as stated by the Minister in his Second Reading Speech when introducing the Motor Vehicle Standards Bill 1989 into Parliament (quoted in Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 at para 7), is “to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community”.. Sections 19 and 20 of the Act, and regs 9B-9H of the Regulations, however, provide for certain circumstances in which a person may, notwithstanding the abovementioned legislative policy and object, import a road vehicle, even though it is a “nonstandard” vehicle or it does not have an “identification plate”, and in which the Minister may approve the importation of such a road vehicle. The ultimate matter for the Tribunal’s determination in the present case is whether, having regard to the abovementioned policy and object of the Act and the Regulations, it is appropriate, having regard to the circumstances of the applicant’s case, to exercise the discretionary power conferred by reg 9B(1) of the Regulations to approve the applicant’s application to import the vehicle.
The applicant’s case
22. The applicant’s case in support of a favourable exercise of that discretionary power is set out in his Statement of Facts and Contentions, as supplemented by a written submission filed on 24 February 2003. The respondent, although in its Statement of Facts and Contentions it described the question whether the discretion to approve importation of the vehicle under reg 9B should be exercised as the “real question for the Tribunal”, declined to present a case on that question to the Tribunal, notwithstanding that the Tribunal, at a Directions Hearing held on 25 February 2003, specifically invited it to do so. Accordingly, the Tribunal will consider the case presented by the applicant and determine on the merits thereof whether his application to import the vehicle should, or should not, be approved pursuant to reg 9B(1) of the Regulations.
23. The applicant’s Statement of Facts and Contentions (as amended) is as follows:
“FACTS
1.During a family Christmas/New Year visit from Italy to Perth in both 1998/99 and 1999/2000 the applicant and his relative Mr Joe Tizzano made telephone enquires regarding the rules for bringing the possessions. We were advised that the vehicle could come into the country as ‘Personal Imports’ if it was owned and used for three months minimum.
2.On 22 May 2000 the applicant applied to immigrate to Australia. It took nearly a year from the date of application until the applicant and his family received the positive decision from the Australian Embassy.
3.Meanwhile, because the outcome of the application was uncertain and because the applicant’s existing motorcycle had become unreliable for work purposes, he purchased a new motorcycle on 15 December 2000.
4.The applicant received the VISA on 12 February 2001, under the condition of first entry being no later than 26 October 2001 (8 months time).
5.In March 2001 Mr Joe Tizzano, an Australian citizen resident in Perth, called for a second time the Transport Office on my behalf to request information relating to importation of the motorcycle. He was told that under the category of Personal Importation there wasn’t problem if someone had owned and used the motorcycle at least three months overseas under Personal Import. The motorcycle could be imported as a personal import without proof that it met the ADRs but the vehicle was expected to provide a level of safety similar to Australian vehicle.
6.The applicant sold the apartment in Italy, two left-hand drive motor vehicles and some other goods but because he was informed that the motor cycle would not attract different duty, he took it in the container along with our furniture and other personal effects, sending all on 8 August 2001.. The other motorbike the applicant had owned for approximately 9 year was left in Italy with a family member.
7.On 6 September 2001 the 2000 Honda Montesa Vigor VIN VTMRD09AYE430145 (the vehicle) owned by the applicant was landed in Australia, at Perth, Western Australia along with the applicant’s furniture and other personal effects.
8.Before importing this vehicle into Australia, the applicant had owned and used the vehicle for a continuous period of 7 months overseas.
9.After the arrival of the applicant and his family on 11 September 2001, he received a posted Information Bulletin from the Department of Transport on 15 September 2001.
10.As soon as practical after arriving the applicant applied for Personal Import Vehicle Approval (after translation into English the technical document) on 20 September 2001. He declared in good faith the propriety and use of the vehicle for a continuous period of 7 months overseas.
11.The Office of Transport responded twenty days later via a fax dated 12 October 2001, in which payment of due fee and proof of 3 months of continuous use overseas was requested.. This was consistent with the information he had previously obtained before coming to Australia.
12.On 17 October 2001 the applicant sent the cheque and other documents to prove the seven months of ownership and use overseas such as already declared in Application for VIA.
13.Subsequently, however, the Office of Transport and Regional Services sent me a new letter, dated 9 November 2001, with new and different information. This subsequent letter now required me to have owned and used the motorcycle for at least 12 months before importation, as well as to gain a letter of compliance from Honda Australia.
14.On 7 December 2001, the applicant kindly tried to explain the situation to The Administrator of Vehicle Standards and asked him to give consideration to granting the Personal Import of the motorbike.
15.On 24 December 2001, the Administrator of Vehicle Standards wrote to the applicant refusing to approve the application to import the vehicle because the applicant did not satisfy the requirement of reg 9D(a) of the Motor Vehicle Standards Regs 1989 (the Regs).
16.On 19 January 2002 the applicant lodged an application for review, as written in the Refusal, with the Perth Registry of the Administrative Appeals Tribunal, seeking review of a decision of the Administrator dated 24 December 2001.
17.On 14 May 2002 the applicant was forced into the Federal Court regarding this matter.
CONTENTIONS
18.The respondent contends that he has no power to approve a vehicle once it has already arrived in Australia. Yet, at no stage when the applicant made reasonable and appropriate enquiries regarding importation of his goods and chattels did the respondent and/or his agents advise that he must make application prior to bringing the vehicle to Australian shores.
- No verbal advice was ever received in this regard despite the discussion with the respondent’s representative and /or agents.
- The respondent’s publication in force at the time that queries were made (and at the time of import) was the Vehicle Standard Bulletin No.10 – ‘Importing Vehicles to Australia’ (Date of Issue – March 1996). This is what the applicant received directly from the respondent on the 15th September 2001. This publication (page 2) advises that
‘It is recommended that you do not ship your vehicle until you have received your Import Approval’ and that the Application Form in this brochure (page 3) ‘should be completed and sent to the Administrator of Vehicle Standards before the vehicle arrives in Australia’.
We believe that this document has only recently been superseded with a new issue dated April 2002, which now states (page 2)
‘An Import Approval MUST be obtained before a vehicle is imported’.
Also,
‘If you do ship your vehicle before receiving an approval and your vehicle arrives before the application is processed, an approval cannot be issued.’
19.The applicant contends that the respondent and/or his agents erred in the advice and written confirmation originally given to the applicant. The respondent has only recently, (with the April 2002 Issue) commenced advising ‘would-be’ importers that they cannot approve import after the vehicle has arrived in Australia. If this was the respondent’s policy at the time the vehicle was brought into the country:-
1. Why didn’t the respondent include this critical information in the verbal and written advice given by him and/or his agents?
2. Why didn’t the respondent mention the requirement in his initial rejection of the application? It wasn’t until the respondent wrote on the 5th March 2002 that this was even mentioned as grounds for rejection – five months (and significant other correspondence) after the application was lodged.
20.The applicant contends that the respondent has previously (and on many occasions) approved application to personally import vehicles by individuals despite the vehicle arriving in Australia before approval was given.
21.The applicant contends that a three-month ownership requirement was advised twice in verbal inquiries prior to him bringing his vehicle to Australia; this was also confirmed in writing by the respondent after the vehicle’s arrival. The respondent only later advised of the revised 12 month ownership requirement and the respondent failed to advise either verbally or in writing the critical requirement that approval must be obtained before the vehicle arrived in Australia – until five months after the vehicle arrived.
22.The applicant contends that if he had been correctly advised of the rules he would have had the option of bringing one of his other vehicles to Australia and lodging his application prior to the vehicle arriving.
23.The applicant contends that if he attempts to return the vehicle to Italy for disposal the costs involved in attempting to re-register the vehicle will be considerable and the delays extensive, these costs are likely to exceed the vehicle’s worth.
24.The applicant contends that he has suffered financial hardship and loss due to lack of (or incorrect) advice received from the respondent. The applicant respectfully requests that the respondent be required to either:-
a) allow Personal Import of the vehicle despite only satisfying the earlier 3 month requirement of ownership and despite application only been made after arrival of the vehicle;
or if this is not possible, then;
b) make payment to the applicant for loss of his vehicle (market value of equivalent Australian vehicle), holding costs and loss of vehicle usage to date. The applicant agrees that the respondent will take over ownership of the vehicle and dispose under these circumstances.”
(original emphasis)
24. The applicant’s supplementary written submission reiterated some of the abovementioned contentions and concluded:
“In conclusion, I assure the Administrative Appeals Tribunal that this vehicle was a genuine personal purchase. It was bought and used for seven months prior to coming to Australia. As an engineer and member of The Institution of Engineers of Australia, I want also to confirm that the HONDA VIGOR 650, built under European regulations (CEE), is roadworthy and meets all Australian safety rules. Moreover my motorcycle has almost same specification as the HONDA XR 650L – regularly imported to Australia – but it’s less powered and safer. It is a current European, roadworthy model and it was in excellent condition when I sent by sea it to Australia. I would not have brought it with me if I had known it did not satisfy the new criteria.”
Findings
25. The respondent has not disputed any of the facts set out in the applicant’s Statement of Facts and Contentions and, in requesting that this matter be heard “on the papers”, it thereby elected not to put the applicant to proof in respect of those asserted facts. The Tribunal has no reason to doubt the truth of the facts as stated by the applicant. The Tribunal notes that, in the various pre-hearing proceedings in this matter, the applicant invariably conducted himself with dignity and courtesy, and he impressed the Tribunal as a person of honour, integrity and credit. Accordingly, the Tribunal finds the matters set out in paras 1-17 of the applicant’s Statement of Facts and Contentions (see paragraph 23 above) to be relevant background facts in this matter.
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 para 32. One such kind of circumstance, envisaged in Re Trajkovski (at para 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.
27. In the Tribunal’s opinion the following facts are especially relevant to the question whether the discretionary power conferred by reg 9B(1) of the Regulations should be exercised in favour of the applicant in the present case:
· in March 2001 Mr J Tizzano, a relative of the applicant, visited the Perth office of the Department to make inquiries on behalf of the applicant (who was still living in Italy) regarding the importation of the vehicle and he was there incorrectly advised that there would be no problem if the vehicle had been owned and used for a period of 3 months;
[The Tribunal notes that that advice was consistent with the advice that had been (correctly) given to the applicant on 2 previous occasions but that, in the meantime (in July 2000), reg 9D(a) of the Regulations had been amended so as to increase the required minimum period of ownership and continuous use of a vehicle from 3 months to 12 months.]
·relying on that advice in good faith the applicant, having decided to migrate to Australia and having owned and continuously used the vehicle for a period of 7 ½ months, arranged in August 2001 to ship the vehicle to Australia;
·the vehicle arrived in Australia on 6 September 2001 and the applicant and his family arrived in Australia on 11 September 2001;
·after his arrival in Australia the applicant obtained a copy of the Department’s current Information Bulletin, “Importing Vehicles to Australia”, which contained a form of “Application for Vehicle Import Approval” and, after arranging certified English translations of the official Italian documents regarding ownership and registration of the vehicle, he lodged that application and accompanying documentation with the Department on 20 September 2001;
·following receipt of his “Application for Vehicle Import Approval”, the Department, by letter dated 12 October 2001, requested him to provide, inter alia, proof of “3 months of continuous use overseas” – thereby implying that it was still proceeding on the (incorrect) basis that the relevant minimum period of continuous use was 3 months, as previously conveyed to Mr Tizzano in March 2001; that error was, however, eventually corrected by the Department in a facsimile to the applicant on 9 November 2001.
28. In the Tribunal’s opinion, none of the applicant’s abovementioned dealings with the Department in connection with the importation of the vehicle into Australia involved any lack of good faith or any fault, blameworthiness or lack of due diligence on his part. It might, however, be said, with the benefit of hindsight, that it would have been prudent for the applicant to have sought and obtained import approval before he shipped the vehicle. On the other hand, the applicant, according to the advice he had been given by the Department, had no reason to doubt that he would ultimately be granted import approval. Nor was it Departmental practice at that time to require that import approval be obtained before a vehicle was imported. The Department’s then current Information Bulletin went no further than to recommend that a vehicle not be shipped until import approval had been granted. The applicant had not, however, seen that Information Bulletin before he shipped the vehicle and he was not, and did not have reason to be, aware of that recommendation.
29. The Tribunal finds that the applicant, in his dealings with the Department in connection with the shipping of the vehicle and in applying for import approval upon its arrival in Australia, at all material times acted honestly, reasonably and in good faith in reliance on incorrect information given to him by the Department, and that the decision to refuse import approval has caused him significant hardship (which would be compounded if that decision were to be affirmed by the Tribunal) through no fault on his part. That hardship includes at least the costs of shipping the vehicle to, and from, Australia, and the not inconsiderable storage costs which have been incurred since the vehicle’s arrival in Australia on 6 September 2001, as well as, of course, the loss of the use and enjoyment of the vehicle since that date. In short, in the opinion of the Tribunal the delegate’s decision to refuse import approval to the applicant in respect of the vehicle has, having regard to all the circumstances, caused him serious injustice, and that injustice would be compounded if the Tribunal were to affirm that decision.
30. As regards the policy and objects of the Act and the Regulations, the applicant, a professional engineer, has submitted that the vehicle:
· was in excellent condition when he shipped it in August 2001 (having bought it new in December 2000 and used it for 7 ½ months);
· is a current European model;
· is roadworthy and meets all Australian safety requirements;
· has almost the same specifications as the Honda XR 650L motorcycle (which is regularly imported into Australia), but has less power and is safer than that model.
In the absence of any contrary contention by the respondent, the Tribunal accepts that submission. The Tribunal, furthermore, accepts that the applicant’s purchase of the vehicle was a genuine bona fide purchase for personal use and that there was no element of attempted profiteering in the applicant’s seeking to import the vehicle within the period of 12 months since he purchased and began to use it.
31. In the Tribunal’s opinion a decision by it to grant to the applicant approval to import the vehicle, in exercise of the discretionary power conferred by reg 9B(1) of the Regulations, would not be inconsistent with, or in any way serve to undermine or frustrate, the policy and objects of the Act and the Regulations, and would, in all the circumstances, be appropriate in this case.
Decision
32. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant’s application to import the vehicle is approved pursuant to reg 9B(1) of the Regulations.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed: .......(sgd V Wong)............................................
AssociateDate/s of Hearing N/a (on the papers)
Date of Decision 7 April 2003
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