RNYB and Minister for Infrastructure and Regional Development

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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 1355

Hunt 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

  1. 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].

  2. 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.

  3. In these reasons the Applicant will simply be referred to as “the Applicant”.

  4. This matter requires the Tribunal to determine whether the Applicant can import a nonstandard car into Australia from the United Kingdom.

  5. On 27 November 2014, the Applicant applied to import a 2011 Mercedes Benz E220 (“the Vehicle”).

  6. On 22 December 2014, the Administrator of Vehicle Standards (“the Administrator”) determined not to approve the Applicant’s application to import the Vehicle.

  7. 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”).

  8. The Administrator also considered that the Applicant’s circumstances did not warrant exercising the discretion permitted under Regulation 11 of the Regulations.

  9. On 14 January 2015, the Applicant applied to this Tribunal for a review of the Administrator’s decision.

  10. 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…

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Details
Case
[2015] AATA 576
Decision Date

CaseChat Overview and Summary

In the case of RNYB and Minister for Infrastructure and Regional Development, the applicant sought to import a non-standard vehicle into Australia, which did not meet the Australian Design Rules. The applicant had acquired the vehicle from his stepfather in England, who transferred ownership to him on 17 March 2014, shortly before his arrival in Australia on 27 November 2014. The Minister, exercising its discretion under Regulation 11 of the Motor Vehicle Standards Regulations 1989, rejected the applicant's application to import the vehicle. The Tribunal was tasked with determining whether the Minister's decision was correct and whether the Tribunal should exercise its discretion to allow the importation of the vehicle.

The key legal issue before the Tribunal was whether the Tribunal should exercise its discretion under Regulation 11 to allow the applicant to import the non-standard vehicle into Australia. The Tribunal considered whether the applicant had satisfied the criteria set out in Regulation 13(1) of the Motor Vehicle Standards Regulations 1989, which includes the requirement that the applicant must have owned the vehicle for a continuous period of at least 32 months immediately before arriving in Australia and that the application must be made within 6 months of arrival. The Tribunal also considered the Minister's discretion under Regulation 11 to approve the importation of a non-standard vehicle if certain conditions were met.

The Tribunal found that the applicant did not satisfy the criteria under Regulation 13(1) of the Motor Vehicle Standards Regulations 1989. The Tribunal noted that the applicant had only owned the vehicle for a short period before his arrival in Australia, and the application was made more than six months after his arrival. The Tribunal further found that there were no grounds to exercise the discretion under Regulation 11. The Tribunal affirmed the Minister's decision not to approve the applicant's application to import the vehicle into Australia.

The Tribunal affirmed the decision of the Minister not to approve the applicant's application to import the non-standard vehicle into Australia. The Tribunal concluded that the applicant had not met the requirements under Regulation 13(1) and that there were no grounds to exercise the discretion under Regulation 11. The applicant's application was dismissed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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; ora 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.

Decision

Reasons for decision

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; ora 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.