Re Van Duyker and Department of Transport and Regional Services

[2004] AATA 592

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 592

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/1391

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KAREL VAN DUYKER

Applicant

And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date11 June 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd)  J Handley

Senior Member

TRANSPORT – application to import motor vehicle into Australia from New Zealand – vehicle does not comply with Australian Standards – applicant not an Australian resident – vehicle had not been used for 12 months prior to application – whether circumstances exceptional – decision affirmed

Motor Vehicle Standards Act 1989

Motor Vehicle Standards Regulations 1989 Reg.11 and Reg.13

Motor Vehicles Standards Bill 1989

Re Trajkovski and Department of Transport and Regional Transport [2000] AATA 1073

Re Aston and Secretary Department of Primary Industry (1985) 4 AAR 65

Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331

REASONS FOR DECISION

11 June 2004 Mr J Handley, Senior Member      

1.      Mr Van Duyker applies to review a decision made by the Administrator of Vehicle Standards on 28 November 2003.  The decision-maker then decided to refuse to grant approval to the applicant to import a motor vehicle into Australia from New Zealand.

2.      The hearing of the application was conducted in Wangaratta on 26 May 2004.  Mr Van Duyker appeared without representation.  Mr Knowles of counsel appeared on behalf of the respondent.  The circumstances giving rise to the application were largely not in dispute.  A number of documents were received into evidence and will be referred to in these Reasons.

3.      Mr Van Duyker is a citizen of South Africa who arrived in New Zealand on 6 July 2002 to commence employment.  He initially purchased a small Toyota motor vehicle but later purchased a 1995 Isuzu MU Wizard motor vehicle, this vehicle being the subject of these proceedings.  He entered into a leasing arrangement with a finance company in New Zealand on 21 August 2002 and on 26 August 2002 the vehicle was registered in his name.

4.      In December 2002 Mr Van Duyker was offered employment by an Australian Company in Wodonga.  A condition of accepting the employment was commencement on 6 January 2003.  Mr Van Duyker decided to obtain a loan from the National Australia Bank (“NAB”) to pay out the balance of the lease arrangement over the vehicle in New Zealand.

5.      Mr Van Duyker departed New Zealand on 23 December 2002 and arrived in Sydney on the same day.  He has been a resident in Australia since that date and is working under a Temporary Residents Visa.  He has not applied for permanent residency.

6.      Mr Van Duyker made application to import the Isuzu vehicle in November 2003.

7. The decision-maker refused approval to import the Isuzu motor vehicle under Reg.13 of the Motor Vehicle Standards Regulations 1989 (“the Regulations”) which is reproduced as follows:

- REG 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 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.

8. Having regard to the circumstances of the application and by reference to Reg.13, it is not in dispute that the Isuzu vehicle is a “road vehicle” within the meaning of s5 of the Motor Vehicle Standards Act 1989 (“the Act”).  The word “used” is not defined but the word “use” is defined at s5 of the Act as meaning – in relation to a “road motor vehicle” (as defined and to which the definition applies in this application) as having been “driven”.

9. Accordingly, in so far as Reg.13 is concerned, Mr Van Duyker has applied to import a road vehicle which has not been used by him for 12 months at the time of application for importation. Additionally, Mr Van Duyker is not an Australian citizen nor is he an Australian permanent resident nor is he a person who has applied to become an Australian citizen or an Australian permanent resident.

10. The remaining parts of Reg.13 (c), (d) and (e) are not relevant to this application. Additionally for the purposes of this application an “identification plate” has not been fitted to the Isuzu vehicle.  It was submitted by Mr Knowles and not disputed by Mr Van Duyker, that an identification plate is only fitted when a vehicle lands in Australia.  The vehicle presently remains in New Zealand and accordingly an identification plate has not been fitted.

11.     Mr Van Duyker said that if he had known that there would have been “problems” in importing the vehicle into Australia he would not have paid out the lease and would have arranged for a motor car dealer to sell the vehicle.  He said that in those circumstances, he would have continued to make lease payments until the vehicle had been sold.  Presently, the motor vehicle is being used by a friend in New Zealand and Mr Van Duyker remains the registered owner.

12. Mr Van Duyker said that he made application to import the vehicle in November 2003, approximately 11 months after he arrived in Australia, because he understood that the vehicle had to be registered in his name for 12 months before he could make application. He now understands that a requirement under Reg.13 was to have driven (used) the vehicle for 12 months.

13.     Mr Van Duyker submitted that a discretion should be exercised in his favour to allow him to import the vehicle because of his financial circumstances.  He said that he currently makes payments over the NAB loan and does not have funds to purchase another vehicle in Australia.  He currently rents a utility vehicle at $200 per month from a friend.  His present employer does not provide a vehicle for his use.  He acknowledges that he could sell the vehicle in New Zealand and reduce the loan to the NAB but said he would continue to remain in debt.

14. Mr Knowles submitted that approval to import a non standard road vehicle or a road vehicle which does not have an identification plate must be made if there is compliance with Reg.13. He said in the circumstances, of the present application, the decision-maker was correct to refuse approval.

15. It was acknowledged however a discretion is available to the Minister – and therefore to the Tribunal – to permit approval to import a non standard or road vehicle without an identification plate under Reg.11. It was conceded that the Regulations and the Act do not provide guidelines for the manner in which the discretion is to be exercised but it was submitted that the policy and objective of the legislation and the Regulations should be upheld.

16.     Mr Knowles relied on the Tribunal decision of Re Trajkovski and Department of Transport and Regional Transport [2000] AATA 1073 (“Re Trajkovski”),  a decision of Deputy President Purvis made on 6 December 2000.

17.     In that decision, the Second Reading Speech introducing the Motor Vehicles Standards Bill 1989 was referred to, where the Minister specifically drew attention to the need to provide a “national uniformity” with respect to motor vehicle standards and the maintaining of levels of safety and environmental standards.  The Minister recommended the Bill to Parliament because, for the first time in Australia, it would provide a “single set of standards for the design and construction of motor vehicles and trailers.  As a direct result of this national uniformity, every Australian will benefit”.

18.     The particular circumstances in the Re Trajkovski application were highlighted by Mr Knowles and it was noted that financial circumstances and ill-health, amounting to “compassionate grounds” would not of themselves be exceptional circumstances for the purposes of exercising the discretion under Reg.11 in favour of a person intending to import a vehicle.

19.     In Re Trajkovski, Deputy President Purvis adopted a submission of the respondent (paragraph 32) that Reg.9B (being the predecessor to the current Reg.11) contemplated -

“rare and exceptional cases where it is appropriate to allow the importation of a road vehicle to be used for transport of people on Australian public roads despite its non-compliance with applicable vehicle standards and if not falling within any of the specified grounds for such exemption contemplated by the Parliament”.

Deputy President Purvis decided “on a proper construction of the Regulations such a situation would be exceptional”.

20. Additionally it was decided (paragraph 35) that if the factors to be taken into account when exercising a discretion are not expressly stated by the legislation or by the Regulations, the matters to be determined by necessary implication are the subject matter scope and purpose of the Act. It therefore followed – and by reference to other decisions (refer Re Aston and Secretary Department of Primary Industry (1985) 4 AAR 65 and Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331) that exceptions to vary a statutory scheme must “of necessity be exceptional”.

21.     On balance I am not satisfied that the circumstances advanced by Mr Van Duyker are in the circumstances “exceptional”.

22. I acknowledge that he misunderstood the Statutory requirement as a pre-condition for importation namely continuous use as opposed to continuous registration for 12 months. This was first learnt at the hearing. It did not form part of any pre-hearing submissions. There was no evidence that advice of this type was given by a department officer or official, nor was there any evidence of same. If there was, and subject to a finding of that advice having been given, there may have been a basis to find exceptional circumstances by Mr Van Duyker acting to his detriment by such negligent or incorrect advice. But such a finding could only apply with respect to Reg.13(a)(iii) and then, only with respect to the “use” of the vehicle. The applicant could not satisfy this part of the Regulation with respect to ownership for 12 months, nor could he satisfy Reg.13(b)(i) and (ii). Regulation 13, is conjunctive in construction. Negligent or incorrect advice, if given, with respect to one part of Reg.13, would be unlikely to permit a finding of exceptional circumstances of a magnitude to allow the discretion to import being exercised.

23.     I acknowledge that Mr Van Duyker has incurred financial loss by having to meet his obligations under a leasing agreement and in doing so he entered into a personal loan with the NAB.  Financing however of motor vehicles is not uncommon and could not be regarded as exceptional.  Additionally, movement by persons from one State or Country to another to take up employment is not unusual and the disposal or transfer of assets is not uncommon.  Sometimes financial loss is incurred.  Again those circumstances could not be regarded as being exceptional.

24.     I note that Mr Van Duyker would be in a position to ameliorate his present loss by disposing of the motor vehicle which remains in the possession of a friend in New Zealand.  Even if moneys raised upon sale of that vehicle were less than the current amounts outstanding to the NAB, his financial circumstances could only be improved because his financial liability would be reduced.

25.     In all of the circumstances I cannot find that there are exceptional circumstances with respect to the application made by Mr Van Duyker and in those circumstances I am unable to exercise the discretion available under Reg.11 in his favour.

26.     The decision under review will be affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr J Handley, Senior Member

Signed:Grace A. Carney

Associate

Date of Hearing  26 May 2004
Date of Decision  11 June 2004
Solicitor for the Applicant          Self Represented
Counsel for the Respondent     Mr R Knowles
Solicitor for the Respondent     Clayton Utz