Redmond and Department of Transport and Regional Services

[2003] AATA 985

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2003] AATA 985

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/436

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN PATRICK REDMOND

Applicant

And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date16 September 2003

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal  affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

TRANSPORT – import approval – whether vehicle has been owned and used continually for a period of 12 months – whether discretion to waive requirements should be exercised – whether exceptional circumstances exist

Motor Vehicle Standards Act 1989 section 18

Motor Vehicle Standards Regulations 1989 11, 13

Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Marra and Minister for Transport and Regional Services [2003] AATA 323

ORAL REASONS FOR DECISION

16 September 2003   Senior Member WJF Purcell           

1.      This is an application for review of a decision of a delegate of the respondent (the Department) of 18 June 2003, which refused to grant the applicant an import approval in relation to a vehicle which he had purchased in Hong Kong.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T Documents), together with an exhibit tendered by the applicant, who appeared on his own behalf and gave oral evidence.  Ms Bean represented the Department.

3.      The applicant, who is 49 years of age, moved to Hong Kong on 22 February 2001 to take up a 3-year employment contract with Chiaphua Industries Limited (the Company) as a Manufacturing Engineering Manager.  Due to company restructuring and global economic business downturn, the Company could not continue his contract to the nominated completion date of February 2004, and he was given 3 months’ notice that his contract would expire on 30 April 2003.

4.      Included in the applicant’s employment contract was a place of residence in Hong Kong, which was no longer available after termination of the contract.  The applicant was seeking employment opportunities in Hong Kong so that he could remain until his work permit expired in May 2004.  The Company supported his applications for alternative employment which would have allowed him to remain in Hong Kong until that time.  He was not successful in obtaining employment.

5.      The applicant obtained Hong Kong residency on 24 May 2001.  He purchased and registered a 1991 Mercedes Benz 300SL convertible coupe (the vehicle) on 8 June 2002.  He insured the vehicle for 12 months ending on  7 June 2003.  He holds a current Hong Kong driver’s licence..  The period of use of the vehicle ceased on 6 May 2003 when he returned to Australia from Hong Kong.  As his applications for employment with companies in Hong Kong were not successful, he remained in Adelaide where he now works for an Adelaide company, Clipsal Integrated Systems.

6.      On 9 June 2003 the applicant submitted an application for Vehicle Import Approval in relation to the vehicle, which was located in Hong Kong at the time he made his application, and remains in Hong Kong.  With his application, the applicant supplied, amongst other things, copies of his passport, proof of purchase, registration papers, insurance details and his South Australian driver’s licence.  He also provided a statement of travel showing his periods of absence from Hong Kong.

7.      On 18 June 2003, the delegate decided to refuse the import approval on the basis that the applicant had not used the vehicle for a continuous period of at least 12 months, and consequently did not meet the criteria set out in Regulation 13(a)(iii).  Regulation 13 provides:

“13.     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.      Regulation 11 provides:

“11(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 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.”

9. Section 18 of the Motor Vehicle Standards Act 1989 (the Act) provides:

“18(1) Subject to sections 19 and 20, a person must not import a road vehicle that:

(a)      is nonstandard; or

(b)      does not have an identification plate.

Penalty: 120 penalty units.

(2) Subject to sections 19 and 20, a person must not import a nonstandard prescribed vehicle component.

Penalty: 60 penalty units.”

10.     The applicant contends in relation to Regulation 13(a) requiring ownership and use for a continuous period of 12 months, that he has complied with the ownership clause and still owns the vehicle, which is currently stored in Hong Kong.  He believes that his application otherwise complies with all other requirements for import approval and the full set of required documents was submitted to the Department..  The Company the applicant was employed by could not extend his contract to the agreed 3 years, due to a downturn in business, and he had to leave Hong Kong 8 months earlier than expected, arriving back in Adelaide on 6 May 2003.  This meant he was one month short of the 12 month continuous use requirement.  He requests review of this shortfall, and also consideration to be given to the fact that the vehicle was regularly used over the other 11 months of the period, except for short annual leave periods where he returned home to Adelaide to see his son, daughter and parents.  He did intend to return to Hong Kong if another employment contract was offered, but this failed to materialise and he has now taken a position with a company in Adelaide.

11.     The applicant says he still owns the vehicle and it is being stored in Hong Kong at expensive storage rates, and if forced to sell the vehicle now he would lose a substantial sum of money.  It is a great concern to him in respect of security and care of the vehicle, and causing him a degree of stress in determining what course of action to take.  He is fully prepared to pay all duties and taxes that become due, and undertake not to sell the vehicle for at least 5 years, and fulfil any other requirements set by the Department.

12.     The Department submits that the applicant does not satisfy the criteria set out in Regulation 13, as he did not use the vehicle for a continuous period of 12 months, and that it has been consistently held by the Tribunal that the discretion available in Regulation 11 should only be exercised in exceptional circumstances, such as when failure to do so would result in injustice to the applicant.  The Department relies on  Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 and Marra and Minister for Transport and Regional Services [2003] AATA 323.

13.     The Tribunal, the Department maintains, has also held that a discretion such as the one provided for in Regulation 11 must be exercised consistently, and the fact that the applicant was required to return to Australia earlier than he expected with the result that he used the vehicle for only 11 months is not an exceptional circumstance.  He could have remained in Hong Kong for the required period, but chose not to do so.  Further, failure to exercise the discretion in his favour will not result in any hardship or injustice to the applicant.  Having purchased the vehicle in Hong Kong there is no disadvantage to him in selling it there and recouping the market value.

14.     The applicant gave evidence that his Hong Kong contract was for 3 years commencing on 22 February 2001.  It was not until June 2002 that he received a performance bonus and purchased the 1991 Mercedes Benz 300SL convertible sports car for HK$100,000, equivalent to A$22,000.  To an engineer, this was a coveted and unique vehicle, that he could never afford if it were available in Australia.  He purchased it with the intention of bringing it back to Australia when his contract expired in February 2004.  He intends to retain the vehicle.  Although he was aware of the 12 month requirement which affected purchases after 8 May 2000, he relied on the views of friends, and did not think that his ownership for less than 12 months would be an issue.  His accommodation was no longer available, but if he had known, he could have stayed with a friend until the end of the 12 month period.  He is in the situation now, that he understands that he will get only between HK$60,000 and HK$85,000, some 15 to 40% less than the purchase price, with the Hong Kong exchange rate, in addition, reduced to 4:1 rather than 5:1.

15.     I have examined the evidence carefully, and in detail, and taken into account the parties’ submissions.  On the applicant’s evidence, the vehicle is unique, and he is disadvantaged by not being able to bring it to Australia; but he was aware of the 12 month requirement.  It is clear also that he knew that prior to May 2000 the holding requirement was 3 calendar months, and he understood from friends who had imported vehicles that during the transition period they had been successful in obtaining approval.  It is unfortunate that he chose not to make any further inquiries, and thus remedy the situation.  He instead made an error of judgment, and finds himself a little more than one month short of the required period.  The question remains whether it is appropriate in the circumstances of the matter that the discretion available in Regulation 11 should be exercised in his favour.

16.     In the matter of Trajkovski, Deputy President Purvis was required to apply Motor Vehicle Standards Regulations 9B to 9G, the predecessors to the current Regulations 11 and 13, having regard to the Second Reading Speech:

“…

32. Section 19 of the Act empowers the Minister and so the Tribunal to approve the importation of a non-standard road vehicle or a road vehicle that does not have an identification plate. The regulations by regulation 9B empower the Minister and hence the Tribunal to approve the importation of a non-standard vehicle or a road vehicle that does not have a compliance plate. The terms "non-standard" and "national standard" are relevantly defined in the Act. Section 19 and regulation 9B provide an exception to the intent of the legislation namely the achieving of uniform standards to apply to relevant vehicles when they begin to be used in transport in Australia. The policy framework as seen in the legislation and referred to in the Second Readings Speech to the bill earlier detailed in these reasons, is to be considered in the context of the exception provisions. Regulations 9C to 9G envisage particular circumstances, no one of which is relevant to the present application. Thus the Applicant must rely upon regulation 9B, it being said on behalf of the Respondent that this regulation provides:

"for those 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".

On a proper construction of the regulations, such a situation would be exceptional.

…

34. In order to consider whether approval pursuant to section 19 and/or regulation 9B should be granted, the Tribunal is to look at the facts and circumstances as revealed by the evidence placed before it. It was said on behalf of the Respondent that approval would constitute a departure from the stated objects of the Act and for a reason or reasons external to the possible reasons for such departure contemplated by the legislature. 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. It was submitted that no injustice is apparent in this matter. The circumstances giving rise to the Applicant being in possession of the vehicle, if this be so, and Swissnet Pty Ltd being without authority to affix an identification plate to it are of the Applicant's and the company's own making.

…”

17.     I consider that the fact the applicant's employment contract was cut short and he was unable to find alternative employment in Hong Kong is not exceptional or unusual.  He was aware of the 12 month period, and as he said in evidence, it was within his power to arrange to stay with a friend for the required time.  He, in effect, took the risk that the extra month required would not be an issue.

18.     In my view, the circumstances of the matter are not so unusual or rare that it is appropriate that the discretion provided in Regulation 11 should be exercised in his favour.

19.     For these reasons the Tribunal affirms the decision under review. 

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .......................................................................................
  Associate

Date of Hearing  16 September 2003
Date of Decision  16 September 2003
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms K Bean
Solicitor for the Respondent     AGS