RNYB and Minister for Infrastructure and Regional Development
[2015] AATA 576
•7 August 2015
RNYB and Minister for Infrastructure and Regional Development [2015] AATA 576 (7 August 2015)
Division GENERAL DIVISION File Number
2015/0159
Re
RNYB
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 7 August 2015 Place Perth The decision under review is affirmed.
.....................[sgd]..................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
TRANSPORT – importation of motor vehicle – nonstandard vehicle – inheritance -- discretion – no grounds for exercise of discretion – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) - s 35(2)(b)
Motor Vehicle Standards Act 1989 (Cth) - s 3 - s 5(1) - s 18 - s 19
Motor Vehicles Standards Regulations 1989 (Cth) - Regulation - 11 - Regulation 13(1)(ab) - 13(1)(ac) - 13(1)(ad) - 13(1)(a)CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Anor (2009) 181 FCR 130
Campos and Minister for Infrastructure and Transport [2012] AATA 244
Da Silva and Department of Transport and Regional Services [2004] AATA 1355Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417
Kowald and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 1018
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 595
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43
Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
7 August 2015
INTRODUCTION
Pursuant to section 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal can restrict the publication of the names of parties to proceedings and allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Anor (2009) 181 FCR 130 at [149].
The Applicant in these proceedings asked that his personal history not be publically disclosed. The Tribunal agreed and made orders restricting the name of, and any information that might identify, the Applicant.
In these reasons the Applicant will simply be referred to as “the Applicant”.
This matter requires the Tribunal to determine whether the Applicant can import a nonstandard car into Australia from the United Kingdom.
On 27 November 2014, the Applicant applied to import a 2011 Mercedes Benz E220 (“the Vehicle”).
On 22 December 2014, the Administrator of Vehicle Standards (“the Administrator”) determined not to approve the Applicant’s application to import the Vehicle.
The Administrator considered that the Applicant had not satisfied paragraph 13(1)(ab), 13(1)(ac), 13(1)(ad) and 13(1)(a) of the Motor Vehicle Standards Regulations 1989 (“the Regulations”), as enacted under the Motor Vehicle Standards Act 1989 (“the Act”).
The Administrator also considered that the Applicant’s circumstances did not warrant exercising the discretion permitted under Regulation 11 of the Regulations.
On 14 January 2015, the Applicant applied to this Tribunal for a review of the Administrator’s decision.
There is a general prohibition on the importation of “non-standard” motor vehicles into Australia (see section 18 of the Act). A non-standard vehicle is a vehicle that does not comply with the National Standards and the Australian Design Rules (see section 5(1) of the Act). It is not in dispute in these proceedings that the Vehicle concerned does not comply with those standards.
A person may, however, import a non-standard used vehicle but only if described in the Act or in the Regulations. Section 19 of the Act, together with Regulation 11, confer on the Minister a general discretion to approve the importation of a non-standard road vehicle.
It is apparent that the only Regulation of relevance to this application is Regulation 11 which gives the Minister a wide discretion to approve the importation of a non-standard vehicle as follows:
1.The Minister may approve an application to import a non-standard 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 subsection (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.
ISSUE BEFORE THE TRIBUNAL
The sole issue before this Tribunal is whether the Tribunal should exercise its discretion under Regulation 11 to allow the Applicant to import into Australia the non-standard vehicle which is the subject of his application.
ADMINISTRATOR’S DECISION
The Administrator’s decision of 22 December 2013 provided as follows:
Regulation 13(1) of the Motor Vehicle Standards Regulations 1989 specifies the criteria that must be met before an application to import a vehicle that does not meet the Australian Design Rules will be approved. Regulation 13(1) requires that:
(aa) the applicant owns the vehicle at the time the application is made; and
(ab) the applicant acquired ownership of the vehicle overseas; and
(ac)the applicant owned the vehicle while overseas and owned it for a continuous period of at least 32 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(ad)during that period of ownership the vehicle was available to the applicant for use in transport; and
(a)the application is made not later than 6 months after the applicant arrived in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(b) at the time the application is received by the Minister, the applicant is:
(i)an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely; or
a person who has applied to become an Australian citizen or permanent resident and provides evidence that he or she intend to remain in Australia indefinitely if granted Australian citizenship or permanent residency; or
(ii)a person who is entitled to remain in Australia indefinitely and provides evidence that he or she intends to do so; or
(iii)the holder of a visa that entitles him or her to apply to become a permanent resident (whether or not after a specified period or in specified circumstances) and provides evidence that he or she intends to remain in Australia indefinitely; 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 been granted an approval under this regulation within the period of 5 years ending on the day on which the vehicle in respect of which the application is made is landed in Australia.
From the information you have supplied with your application you do not satisfy the requirement of Regulation 13(1)(ab)(ac)(ad)(a). I have also considered the use of discretion (Regulation 11) in your case, but do not consider this warranted.
Accordingly, I have decided not to approve your application to import your 2011 Mercedes Benz E220 VIN WDD2120022A386289.
APPLICANT’S EVIDENCE
A summary of the Applicant’s evidence prior to his hearing before this Tribunal was provided by the Minister in its Statement of Facts, Issues and Contentions.
That summary provides as follows:
a)The Applicant applied to the Minister on 27 November 2014 for approval to import the Vehicle, under the form 101 - Personal Imports Option (T4). This form is the relevant form used to apply for importation of a vehicle under the Personal Imports Scheme administered under regulation 13.
b)In that application, the Applicant indicated that:
· he arrived in Australia in … 2009;
· he is an Australian citizen;
· he acquired ownership of the Vehicle on 17 March 2014; and
· the Vehicle was first registered in his name overseas on 17 March 2014.
c)The Applicant also attached a document to his application, setting out additional details of his circumstances. In this document, the Applicant stated that:
· prior to arriving in Australia, he and his family resided in England;
· he, his ex-wife and children were granted (Australian) permanent resident visas on …;
· he and his ex-wife separated on … ;
· he and his children became Australian citizens on … ;
· his stepfather (who resided in England) transferred ownership of the Vehicle to the Applicant on 17 March 2014 (free of consideration), so that the Applicant would have a car if he and his family decided to return to England to live;
· his stepfather passed away on … ;
· he has decided to remain in Australia for the foreseeable future; and
· the Vehicle remains garaged in England.
d)The document also states:
Whilst I do not think I am eligible to import the Mercedes under the personal import option, I ask that the Department of Infrastructure and Regional Development exercise its discretion to grant personal import approval.
e)On 22 December 2014, the Administrator decided not to approve the Applicant's application as the Applicant had not satisfied the requirements of paragraphs 13(1)(ab), 13(1)(ac), 13(1)(ad), and 13(1)(a) of the Regulations, nor was the Administrator satisfied that there were sufficient grounds to warrant the exercise of the discretion under Regulation 11 (T6).
f)On 16 March 2015, a teleconference was held between the Applicant, the Respondent's representatives, and the Tribunal. In that teleconference, the Applicant conceded that he had not met the requirements of Regulation 13, but requested that the discretion under Regulation 11 be exercised.
On 7 April 2015, the Applicant provided a detailed Witness Statement. That statement cannot be provided here in total due to the confidentiality order made by the Tribunal. The Minister did, however, provide an accurate summary of the Applicant’s witness statement, as follows:
In his witness statement, the Applicant stated that:
a)his mother and stepfather had previously informed the Applicant that when the Applicant's stepfather died, the Applicant would inherit the Mercedes Benz owned by the Applicant's stepfather at the time of his death;
b)in or about March 2014, he reached a financial settlement with his ex-wife, under which the Applicant agreed to transfer to her a car which the Applicant purchased in or about April 2009;
c)the terms of the financial settlement resulted in the Applicant being in a financial position where he was unable to purchase a new car;
d)because his stepfather's failing health prevented him from driving the Vehicle, and because the Applicant was not in a financial position to purchase a new car, the Applicant's stepfather transferred the Vehicle into the Applicant's name on 17 March 2014;
e)he has not purchased any other car in Australia;
f)he travelled to England on 26 December 2014 for two weeks, and drove the Vehicle on a daily basis;
g)if he sells the Vehicle in England, he will need to have it taxed and insured, and the Vehicle will need to undergo a roadworthy test; and
h)he will need to fly back to England to perform these tasks, as his mother is unable to do so herself, thus incurring further costs.
In his Witness Statement and in oral submissions before the Tribunal, the Applicant stressed that he has a strong personal attachment to the vehicle because of its association with his late step-father and his mother, who lives overseas.
The Tribunal notes that when the Applicant initially applied to have the Vehicle imported into Australia, he made no mention of this strong personal attachment to the Vehicle (T4 at 104-105). This was only raised at a later date in his Witness Statement.
In his Witness Statement, the Applicant emphasised this personal attachment as follows:
2.5[My Stepfather] and I would often discuss his latest car whenever we spoke or I met with him. He often took me for a ride in his car, whenever I met with him and my mum whilst I was still living in England, so that he could show me and talk to me about how it performed.
2.6In or about late February or early March 2014 [my Stepfather] and I spoke by telephone (Conversation) and he told me words to the effect that he rarely drove the Mercedes as he was now barely able to walk and had been repeatedly in and out hospital ... He was largely reliant on my mum to drive him about in the Mercedes and in my mum's own car.
2.7Prior to his death, my mum and [my Stepfather] had always made it clear to my … sisters and I, that when [my Stepfather] died I would inherit the Mercedes Benz he was driving at the time of his death, along with his watch and that when my mum died, my ... sisters would inherit all of her jewellery which has a value in excess of a second hand Mercedes Benz.
2.12Given his failing health, the fact that he was no longer driving the Mercedes and the fact that I was not in a financial position to purchase a car, [my Stepfather] told me during the Conversation that he was going to transfer ownership of the Mercedes to me and that he was not going to replace it with a new Mercedes Benz or any other car. I remember [my Stepfather] explaining to me that he hoped he had a few more years to live but that he had always promised me his car. [My Stepfather] also joked about the black interior and exterior colour of the Mercedes and said words to the effect that it was probably not the best colour combination for Australia.
2.13The Mercedes was transferred into my name on 17 March 2014 and l have not subsequently purchased any other car in Australia, as it has always been my intention to ship the Mercedes to Australia once in receipt of all necessary import approvals.
2.15The Mercedes has remained garaged [in England] since being transferred into my name.
2.16When [my Stepfather] died, l spoke extensively with my mum by telephone and l told her that I would travel to England for [my Stepfather’s] funeral and that I would also make an immediate application for import approval of the Mercedes so that I could make arrangements while in England for the funeral, to ship the Mercedes back to Australia, once import approval had been granted …
2.19I rang my mum after I received the respondent’s letter dated 22 December 2014, to explain what the decision meant and to express my disappointment. My mum was very upset and said words to the effect that [my Stepfather] had always wanted me to have the Mercedes if anything happened to him and that he would very upset if he knew about the decision. Notwithstanding my disappointment I travelled to England ... as planned …
2.20Whilst in England, my mum gave me [my Stepfather’s] watch as had always been promised and I drove the Mercedes on a daily basis, often with my mum accompanying … and I in the Mercedes.
SHOULD THE DISCRETION BE EXERCISED TO ALLOW THE APPLICANT TO IMPORT THE VEHICLE INTO AUSTRALIA?
Regulation 11 gives the Tribunal (standing in the shoes of the Minister) a wide discretion to approve an application to import a non-standard road vehicle into Australia. The discretion is intended to allow the Tribunal flexibility so that it can exercise justice in the often disparate circumstances which arise in relation to the importation of vehicles into Australia.
The Minister contended before the Tribunal that the discretion in Regulation 11 to allow the Applicant to import the Vehicle should not be exercised as to do so in these circumstances and on these facts would carve out an exemption that was never intended by those who drafted the legislation.
In this regard, the Tribunal was asked to look at the policy objectives of the Act.
Section 3 of the Act provides that its main objects are:
(a) to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and
(b) to regulate the first supply to the market of used imported vehicles.
When the then Minister for Land Transport and Shipping Support introduced the Act into Parliament in May 1989, he described the policy objective underpinning the legislation as follows:
A vital component of the Federal Government’s road safety strategy is to make the motor vehicle as safe as possible. Our aim is to prevent the crash in the first place and, in the event that a crash occurs, to protect the occupants.
…
The principal objective of this Bill, then, is to enable the Federal Government to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community.
The Tribunal also notes the comments of Senior Member Toohey in Campos and Minister for Infrastructure and Transport [2012] AATA 244 (at [29]) as follows:
The legislation imposes a prohibition against the importation of vehicles that is broad in its scope and purpose, underpinned by the compelling policy of maintaining the safety of the public on the roads. Consistent with its policy and objectives, it is, in effect, a blanket prohibition against personal importation of nonstandard vehicles except in very limited circumstances. Against that background, there needs to be good reason for the discretion in Reg 11 to be exercised.
The Tribunal also notes the comments of Senior Member McCabe in Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48 wherein Senior Member McCabe (at [11]) stated:
… by its nature, the discretion must be exercised sparingly; there is no point having a national scheme if the discretion is used to make so many exceptions that the standards become meaningless.
In the same decision (at [11]), Senior Member McCabe states
… the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised.
In Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417 at [18], Deputy President, The Hon R J Groom noted that in a number of previous decisions various words have been used to describe the circumstances which must be present before a tribunal exercises the discretion under Regulation 11. These include “exceptional”, “extraordinary”, and “special”. Deputy President Groom indicated that he agreed with the following statement by member M J Allen in Da Silva and Department of Transport and Regional Services [2004] AATA 1355 (at [55]):
For my own part, I do not believe that it is particularly helpful to resort to adjectives of the kind referred to. … Rather, I believe that it is sufficient to pose the question in terms of whether, having regard to the policy and objectives of the act and regulations, and to all the relevant circumstances of the applicant, is appropriate exercise the discretionary power in favour of the applicant.
This Tribunal agrees.
It was contended by the Minister in submissions before this Tribunal that the structure of the legislative regime, involving a broad prohibition on the importation of non-standard vehicles, subject to particular exceptions based on specific circumstances set out in the Regulations, suggests that there should be a persuasive basis for the exercise of the discretion in Regulation 11. This view is supported by Mansfield J’s comment in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43 (at [37]) that “… it may well be that [the favourable exercise of the Regulation 11 discretion] will not be a common circumstance”.
The Tribunal notes that in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 595, Senior Member Dunne of the Tribunal identified a number of matters which might be relevant to the exercise of the discretion in Regulation. While an appeal was allowed against that decision in the 2011 Federal Court decision cited above (on the basis that the Tribunal had fettered its discretion in finding that the discretion could not be exercised other than in "exceptional" circumstances), Mansfield J did not disagree that the matters identified in the Tribunal's reasons for decision were relevant to the exercise of the discretion.
The matters that Senior Member Dunne identified in Selway as being potentially relevant to deciding whether to exercise the discretion in Regulation 11 in an applicant's favour were:
(a) the policy objectives of the Act;
(b) any unfairness or injustice to the Applicant;
(c) financial hardship that would be occasioned by not being approved to import the Vehicle;
(d) whether the Vehicle is unique; and
(e) whether there were any unpredictable or unexpected events, beyond the Applicant's control, that intervened to thwart their plans to comply with the Act.
The Tribunal also notes Deputy President Groom’s comment in Hunt (at [20]) that “each case must, of course, be treated on its own merits”.
The question before this Tribunal is whether, based on all of the evidence before it, it has been demonstrated that there is a good reason to exercise the discretion under Regulation 11.
In submissions before this Tribunal, reference was made to the facts in Hunt. The Applicant contended that his case was, effectively, indistinguishable from Hunt.
The facts in Hunt were described by Deputy President Groom as follows:
13. The applicant's father, the late Mr Ralph Hunt, died in the United Kingdom in December 2006. The applicant, who migrated from England to Australia in 1999 and is now an Australian citizen, became the owner of the vehicle on the distribution of his late father's estate. After being diagnosed with cancer and on a visit to Tasmania Mr Ralph Hunt had expressed a personal wish that after his death the vehicle should be shipped to Australia so that the applicant and his family could enjoy the use of the vehicle. In particular the father wished that it be driven to horse race meetings as Mr Ralph Hunt had done in the United Kingdom. The applicant has a strong personal attachment to the vehicle because of its association with his late father. It is not intended that this importation be for personal gain. The vehicle which was purchased by Mr Ralph Hunt in 2002 is a right-hand drive 1999 Mercedes Benz E300. It is a relatively late model car in good condition. The vehicle has been registered in the United Kingdom and meets the relevant vehicle standards in the United Kingdom and more widely in Europe.
14. The applicant’s strong emotional attachment to the vehicle is well expressed in the following passage in a letter he wrote to the Administrator of Vehicle Standards dated 15 January 2007 (T5):
“... Unfortunately my father lost his long term battle with Cancer on the 23 December 2006. A year prior, he came to visit me here in Tasmania. We did all the things that he loved like going to the horse racing, fishing etc. While he spent time with me we spoke about his illness and what may happen in the future. One day we were driving to the races in Launceston and were talking about his pride and joy, his Mercedes Benz. How he goes to the races in it, drives to the members enclosure and feels like a million dollars. He said that when he was to pass away that he would love me and my family to have his car and have it shipped out to us in Tasmania, then I and the family could go racing and his spirit lives on in his car...”
In determining whether the Tribunal should exercise its discretion under Regulation 11, Deputy President Groom wrote:
15. It was submitted on behalf of the respondent that allowing the importation of the vehicle in these circumstances would frustrate the policies and objectives of the legislation. It was further argued that the circumstances of this application are not so unusual and that quite often people are bequeathed cars and sometimes wish to import them. It was suggested that if Parliament had intended to allow importation in these circumstances it would have expressly provided for it in the Regulations. The respondent also argued that this was not a case of unfairness or injustice of the kind present in Anthony Andrew Da Silva and Department of Transport and Regional Services [2004] AATA 1355. In that case there was a history of ownership and also incorrect advice had been provided. It was contended that in the present case no injustice or unfairness has been caused. The circumstances are not sufficiently exceptional to justify the exercise of the discretion.
…
17. In exercising the discretion, however, proper regard must be had to the policy and objectives of the Act and the Regulations made under it. Section 3 of the Act states that the main object of the Act in relation to used vehicles is to "... regulate the first supply to the market of used imported vehicles". (see Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073; (2000) 32 AAR 457, Re Van Duyker and Department of Transport and Regional Services [2004] AATA 592 and Murase and Department of Transport and Regional Services [2005] AATA 705).
20. The respondent placed some reliance on the Tribunal’s decision in Bastian and Minister for Transport and Regional Services [2007] AATA 1646 in that decision the vehicle concerned had also been inherited. The applicant in Bastian had arranged to import the vehicle from England to Australia without approval. It was said by the Tribunal to be an “imprudent” act. There are, of course, no such circumstances in the present case. In the present application Mr Ralph Hunt, when dying of cancer, had expressed a wish that the vehicle be brought to Australia to be used by his son. That wish is the main source of the applicant’s sense of grievance in the decision under review and his feeling that he has not being [sic] treated fairly. There is more to this case than the mere inheritance of a vehicle. The present case can therefore be distinguished from Bastian on the facts. Each case must, of course, be treated on its own merits.
21. After considering all of the material before it the Tribunal concludes that in the circumstances of this case and taking into account the policy and objectives of the Act and regulations it would be fair and just to exercise the discretion in Regulation 11 in favour of the applicant.
22. It so concludes because of the following circumstances:
a) The vehicle was owned by the applicant's late father who, when dying of cancer, expressed a special wish that the vehicle should be brought to Australia for the personal use of the applicant and his family.
b) The applicant, who settled in Australia in 1999 and is now an Australian citizen, has a very strong emotional attachment to the vehicle because of its association with his late father and family in England.
c) The vehicle is a relatively late model right-hand drive 1999 Mercedes Benz which remains in good condition. It meets the relevant vehicle standards applying in the United Kingdom and Europe.
d) The importation would be for personal use and not for commercial gain.
e) In this case the applicant has been open about the issue and has abided by the law.
23. The Tribunal is satisfied that allowing the importation, in these particular circumstances, of a single relatively late model vehicle which meets the relevant vehicle standards in the United Kingdom and in Europe will not frustrate the relevant policy considerations upon which the Act and regulations are based. It is equally satisfied that in the circumstances it is fair and just to the individual concerned to allow the importation.
The Tribunal was also referred to the decision of Senior Member Dunne of the Tribunal in Kowald and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 1018.
The facts in Kowald are described by Senior Member Dunne as follows:
9. Ms Kowald was born in the United Kingdom. She married her Australian husband in her home city of Hereford, England on 30 August 1986. They moved to South Australia and live in the Adelaide Hills. She is now a citizen of both Australia and the United Kingdom. Every two years she and her husband would return to England to visit her parents and family for up to six weeks. For the last 11 years, due to her mother’s sickness, she has returned to England at least every year for about five to six weeks at a time. In the last few years, because of her father’s sudden illness and passing, Ms Kowald has been at Hereford from December 2008 to January 2009, from August 2009 to September 2009 and from February 2010 to March 2010, a total of about 18 weeks. Her father died on 21 August 2009, aged 91 years, while she was at his bedside. Her father bought the Vehicle in April 1998.
10. In giving her evidence, Ms Kowald said that, during her trips to England, she would use the Vehicle, which her father told her he had insured for her to drive. He had left a Will, one of the executors being Ms Kowald’s brother, Robert Brailsford. A letter from Mr Brailsford appears in the T documents (Exhibit R1, page 108) and reads, in part:
“He [his father] bought this car in April 1998 just before his 80th birthday. It brought him a great deal of pleasure over the 11½ years that he owned it. His daughter, Susan Kowald, has lived in Australia for some years and has shared Dad’s love of the car. She would very much like to have the car in Australia and this is something that my father would have wanted. Although there is no specific bequest in the will, the executors can confirm that he would have wished his daughter to have the car after his sudden demise. She has visited the UK for about 2 months nearly every year during my father’s ownership of the car and, due to his advancing years, has been one of its main drivers over the past 12 years. The car has been specifically insured for her to drive.”
In determining whether the Tribunal should exercise the discretion under Regulation 11, Senior Member Dunne concluded:
15. The sole issue in this case, therefore, is the exercise of the discretion by the Tribunal (standing in the shoes of the Minister) under Regulation 11 of the Regulations. It confers an unfettered discretion on the Tribunal to approve the importation into Australia of a nonstandard road vehicle or a road vehicle that does not have an identification plate. It was Ms Kowald’s contention that, on the basis of compassionate grounds and the interests of being just and fair, the discretion should be exercised in her favour. However, as was said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at paragraph [15], an unconfined discretion must be exercised consistently with the limitations implied from the subject matter, scope and purpose of the legislative scheme of which it forms a part.
21. The respondent … contended that no unfairness or injustice would flow to Ms Kowald if her application was refused. There is no evidence that she was given incorrect advice by the respondent’s department (see Re Marra (supra) and Re Brassington and Minister for Transport and Regional Services [2006] AATA 724), or given out of date and misleading documents (see Re Fraser and Department of Transport and Regional Services [2003] AATA 44) upon which she relied to her detriment. She said she was surprised and disappointed by the decision reached by the respondent to refuse her application for importation of the Vehicle. The respondent referred to the decisions in Re Bastian and Minister for Transport and Regional Services [2007] AATA 1646, where the Tribunal found that sentimental attachment was not a sufficient reason to exercise the Regulation 11 discretion, and Re Miller and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 608, where the Tribunal said (at paragraph 14):
“...This is not a case where incorrect advice was provided about the importation process and, indeed, Ms Miller made no inquiry of the respondent about the prospects of importing the vehicle into Australia until she arrived here. In the context of the purpose of the legislative scheme under the Act and Regulations, rejection of Mr Miller’s application does not reflect unfairness or injustice to her and I am satisfied that the discretion in reg 11 of the Regulations should not be exercised in favour of Ms Miller .”
22. In Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417, the Tribunal was required to consider the refusal by the delegate to allow the importation from the United Kingdom of a 1999 Mercedes Benz E300 motor vehicle, where the applicant became the owner of the vehicle on the distribution of his late father’s estate. The late father had expressed a personal wish that after his death the vehicle should be shipped to Australia so that the applicant and his family could enjoy its use. The Tribunal distinguished Re Bastian (supra) on the facts and found that there was more to the case before it than the mere inheritance of a vehicle. The Tribunal found that it would be fair and just to exercise the discretion in Regulation 11 in favour of the applicant.
23. In my view, the decision in Re Hunt is distinguishable in Ms Kowald’s case on the facts. Ms Kowald was obviously disappointed that the respondent refused her application for importation and I have sympathy for her position. However, surprise, disappointment and sentimental attachment to a motor vehicle, to be consistent with earlier Tribunal decisions, are feelings insufficient to bring about an exercise of the discretion under Regulation 11 of the Regulations. As was said by the Tribunal in Re Williamson (supra), by its nature, the discretion must be exercised sparingly. To exercise the discretion in the present circumstances would undermine the clear purpose of the legislative scheme.
Having reviewed all of the evidence before it, the Tribunal finds the facts in Hunt are distinguishable from the facts before it. Although the matter before it also relates to an inheritance, this matter is more akin to the facts in Kowald. In Hunt, Mr Hunt’s father had specifically requested that his son export the car to Australia because he himself had visited Australia and had discussed the significance of the Mercedes in his life and its relation to his trips to the races. The evidence in Hunt paints a picture of a very clear and specific emotional attachment to the Mercedes in question. On the evidence before it, the Tribunal finds that this emotional attachment is not so evident in relation to the matter before it. The evidence does not demonstrate any strong emotional attachment of the sort described in Hunt.
The Tribunal also notes Senior Member Dunne’s statement in Kowald that “surprise, disappointment and sentimental attachment to a motor vehicle, to be consistent with earlier Tribunal decisions, are feelings insufficient to bring about an exercise of the discretion under Regulation 11 of the Regulations”.
The Tribunal finds that the Applicant is in effect seeking to use minor sentimental attachment as the central basis upon which to have the discretion in Regulation 11 used in his favour. The Tribunal finds that this is an inappropriate basis upon which to use this discretion. There is no element of unfairness here of the sort articulated in previous case law. There is also no evidence that the Applicant will suffer financial hardship if he is not allowed to import the Vehicle into Australia. As contended by the Minister before the Tribunal, the Applicant has not paid for the Vehicle, as it was given to him by his stepfather free of consideration (T4). Any costs he may incur in the course of disposing of the Vehicle are normal transactional costs. At the end of the day, he will still be better off financially than if he had never inherited the Vehicle in the first place.
Significantly, the objectives of the legislation governing the importation of non-standard vehicles into Australia are clear. At its core, the legislation seeks to ensure road safety. Mere sentimentality, of the sort evident in this matter, cannot be used to override legislative measures designed to ensure public safety. If the Tribunal were to allow the Applicant to import the Vehicle in question, it would effectively set a precedent that anyone who inherits a car overseas has the right to ignore the Commonwealth’s clear policy objectives and import that car into Australia. At its core, this is a simple inheritance matter. To allow this particular vehicle to be imported into Australia in these circumstances would frustrate important policy objectives without valid justification.
The evidence does not justify the Tribunal exercising its discretion under Regulation 11 in relation to the Applicant’s wish to import the Vehicle into Australia.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 47 (forty- seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
..............[sgd D Brodie]....................................................
Administrative Assistant
Dated 7 August 2015
Date of Hearing 9 July 2015 Representative of the Applicant Self represented Counsel for the Respondent
Solicitors for the Respondent
Mr Marcus Priest
Sparke Helmore Lawyers
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