Ryan and Minister for Infrastructure, Transport, Regional Development and Local Government

[2008] AATA 88

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 88

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0810

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAM BRUCE RYAN

Applicant

And MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date4 February 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

TRANSPORT – importation of vehicle – nonstandard vehicle – no identification plate – vehicle not owned and used for a continuous period of at least 12 months – vehicle did not comply with national standards – discretion – no grounds for exercise of discretion – decision affirmed.

Motor Vehicles Standards Act 1989 (Cth) ss 2, 5, 18, 19, 20
Motor Vehicles Standards Regulations 1989 (Cth) Regulations 11, 12, 13, 17

Motor Vehicles Standards Amendment Regulations 2005 (No 1) Regulation 4

Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073

REASONS FOR DECISION

4 February 2008   Senior Member R W Dunne

1.      This case involves a 1991 Isuzu self loader (“Self Loader”) which the applicant (Mr Graham Ryan) sought to import into Australia.  He applied for approval to the Administrator of Vehicle Standards (“Administrator”) to import the Self Loader and the Administrator, as delegate of the Minister for Transport and Regional Services (as the Department was known at the time) (“Minister”), refused the application.  The application was refused on the ground that, as a “road vehicle”, the Self Loader was a “nonstandard” road vehicle and was not fitted with an identification plate.  As such, it could not be imported into Australia unless it was approved for importation pursuant to the Motor Vehicles Standards Act 1989 (“MVS Act”) and the Motor Vehicles Standards Regulations 1989 (“MVS Regulations”).

2. On 17 March 2007 Mr Ryan applied to this Tribunal for review of the Administrator’s decision. At the hearing, he represented himself and gave oral evidence. Mr Michael Palfrey represented the respondent Minister. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence (Exhibit R1), together with the respondent’s statement of facts and contentions, with its Annexures A to D (Exhibit R2).

issues for the tribunal

3.      Under the relevant provisions of the MVS Act, a person must not import a “road vehicle” that is nonstandard or does not have an identification plate.  However, the MVS Act goes on to provide that a person may import a nonstandard road vehicle that does not have an identification plate, with the written approval of the Minister or in “prescribed circumstances”. 

4.      The issues before the Tribunal are:

(a)      whether the Self Loader was manufactured before 1 January 1991;

(b)whether the Self Loader had been owned and used by the applicant for a continuous period of at least 12 months; and

(c)whether the Minister’s discretion in the MVS Regulations should be exercised to allow the importation of the Self Loader.

5.      It was clear from the conduct of the hearing that there was no dispute that the Self Loader:

(a)      was a “road vehicle”;

(b)      was “nonstandard”; and

(c)       did not have an “identification plate”.

legislation

6.      The MVS Act and the MVS Regulations relevantly provide as follows:

MVS Act

Defined terms from s 5 of the MVS Act:

“motor vehicle means a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power (not being human or animal power) as the principal means of propulsion, but does not include a vehicle used on a railway or tramway.

...

nonstandard, in relation to a road vehicle or a vehicle component, means not complying with the national standards and not taken to comply with the national standards by virtue of an approval given under subsection 10A(2).

…

road motor vehicle means:

(a)       a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods; or

(b)       a motor vehicle that is permitted to be used on public roads.

…

road vehicle means:

(a)       a road motor vehicle; or

(b)       a road trailer; or

(c)       a partly completed road motor vehicle;

but does not include vehicles which the Minister has determined, under section 5B, are not road vehicles.”

Sections 18, 19 and 20 of the MVS Act:

“18  Prohibition of importation of nonstandard vehicles etc.

(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.

…

19  Importation of vehicles requiring modification

(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  Approval to import certain nonstandard vehicles

(1)A person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate:

(a)where the vehicle is to be exported from Australia (with or without further work being done on it) without having been used in transport in Australia; or

(b)      in prescribed circumstances.

…

(3)Regulations for the purposes of paragraph (1)(b) or (2)(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.”

MVS Regulations

Regulation 11 of the MVS Regulations:

“11      Minister’s approval to import vehicles without identification plates

(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.”

Regulation 12 of the MVS Regulations:

“12Approval to import complying vehicle without an identification plate

The Minister must approve an application to import a road vehicle that complies with the national standards but does not have an identification plate if:

(a)the vehicle complied with the national standards when it was first manufactured and delivered for use in transport; and

(b)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

(c)the applicant has not imported a road vehicle within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.”

Regulation 13 of the MVS Regulations:

“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 before 9 May 2000 — 3 months; or

(ii)       in any other case — 12 months.”

Regulation 17 of the MVS Regulations:

“17      Approval to import vehicles of a certain age without identification plates

The Minister must approve an application to import a nonstandard road vehicle, or a vehicle that does not have an identification plate, if the vehicle was manufactured before 1 January 1989.”

7.      The effect of Regulation 17 may be modified by Regulation 4 of the Motor Vehicles Standards Amendment Regulations 2005 (No 1) (“Transitional Regulations”), which relevantly reads:

“Regulation 17, as in force immediately before 13 May 2005, applies if:

(a)a person intending to import a vehicle paid an amount in relation to the intended importation of the vehicle before 7 February 2005; and

(b)       the vehicle was not imported before 13 May 2005; and

(c)       the vehicle was manufactured before 1 January 1991; and

(d)an application, made by the person, requesting the minister’s approval to import the vehicle is received by the Department before 1 January 2006.”

Regulation 17, as in force immediately before 13 May 2005, provided that:

“The Minister must approve an application to import a non-standard road vehicle or a vehicle that does not have an identification plate if the vehicle is 15 or more years old.”

background and evidence

8.      The applicant resided in Macau from 1999 to 2005, where he was previously employed as a construction manager.  In early March 2004, he inspected the Self Loader.  From Macau, he telephoned Isuzu Australia in Melbourne and was informed that, from the information provided, the Self Loader appeared to be a 1990 model.  At the same time, he telephoned the Department of Transport and Regional Services (“DOTARS”) in Canberra and discussed the requirements for the importation of the Self Loader.  He then went ahead with the purchase.  Although there was a purchase contract dated 9 April 2004 (Exhibit R1, T3 at page 16), the applicant’s evidence was that he purchased the Self Loader on 20 March 2004.  Although it was not registered in his name, the applicant took possession of, and started using, the Self Loader in early April 2004.  He made final payment of the purchase price on 22 April 2004.  In November 2004, he again made enquiries with Isuzu Australia in Melbourne who advised him that they had made enquiries with Japan, but due to the age of the vehicle, locating its history was a problem.  It was suggested that he should contact his nearest Isuzu dealer in Taiwan, which he did, but without success.  He left Macau on 6 February 2005 and arrived in Australia on 13 February 2005, leaving the Self Loader in Macau.  On 24 August 2005, he applied to DOTARS to import the Self Loader into Australia.  He described the Self Loader as a 1990 model and as a 15 year old vehicle, under the previous provisions of Regulation 17 (see paragraph 7 of these reasons).  When this application was refused, he lodged a revised application, which was received by DOTARS on 21 November 2005.  On 16 February 2007, the Administrator advised the applicant that his request to import the Self Loader had again been refused.  During the course of his oral evidence, the applicant said that the Self Loader was still in Macau and that he had been incurring storage costs since January 2006.  When asked by the Tribunal whether it was possible for him to sell the Self Loader in Macau, the applicant said that he would probably be unable to do this.  In any event, even if he could sell the Self Loader there, it would be at a “fire sale” price and the Chinese dealer would probably keep all of the proceeds.

consideration

9.      As was submitted by Mr Palfrey (and noted by the Tribunal) the main object of the MVS Act with respect to new vehicles was to achieve uniform vehicle standards which would apply to road vehicles when they began to be used in transport in Australia and, with respect to used imported vehicles, to regulate the first supply to the market.

10.     For the most part, the relevant facts of this case are not in dispute.  The applicant’s evidence (which the Tribunal accepts) was that the Self Loader was purchased by him on 20 March 2004 and he started using the vehicle in early April 2004.  He left Macau on 6 February 2005, arriving in Australia on 13 February 2005.  He applied for approval to import the Self Loader into Australia on 24 August 2005 and again on or around 21 November 2005.   

11.     The importation of nonstandard motor vehicles into Australia is prohibited under s 18 of the MVS Act.  Section 19 then provides that a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate, with the written approval of the Minister.  Section 20 also permits a person to import a nonstandard road vehicle or a road vehicle that does not have an identification plate in “prescribed circumstances”.  The prescribed circumstances are set out in the MVS Regulations, specifically in Regulations 12 and 13.  To comply with Regulation 12(a), the Self Loader must have complied with the Australian Design Rules that were in force at the date the Self Loader was first manufactured and delivered for use in transport.  The Tribunal finds, on the evidence, that the Self Loader did not comply with the Australian Design Rules when it was first so manufactured and delivered for use in transport.

12.     Regulation 13 relevantly provides, for present purposes, that the Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the vehicle has been owned and used by the applicant for a continuous period of at least 12 months.  On the evidence, the Self Loader was first used by the applicant in early April 2004.  He departed Macau for Australia on 6 February 2005.  In these circumstances, the applicant is unable to satisfy the ownership and use requirements of Regulation 13(a)(ii).  As the Minister has refused approval and there are no prescribed circumstances, the applicant in unable to satisfy the requirements of ss 19 and 20 of the MVS Act.

13.     Regulation 17, along with Regulation 4 of the Transitional Regulations, provides for approval to import road vehicles over a certain age that do not have identification plates.  The effect of Regulation 17, in the case of the applicant and when read with Regulation 4 of the Transitional Regulations, is that the Minister must approve his application if the Self Loader was manufactured before 1 January 1991 (see Regulation 4(c)).  In Annexures to the respondent’s statement of facts and contentions (Exhibit R2) a list of chassis numbers compiled by the Japan Motor Vehicle Industry Association, together with written confirmation from Isuzu Motors Limited in Japan, indicates that the Self Loader was manufactured in 1991 and not 1990.  The Tribunal is, therefore, satisfied that the applicant is unable to comply with the Minister’s approval requirements in Regulation 17.

14.     As to the application of the discretion in Regulation 11 of the MVS Regulations, the Tribunal notes that the discretion should be exercised only in exceptional circumstances and not in such a way as would undermine or frustrate the objects of the MVS Act and MVS Regulations (see Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704 per Deputy President SD Hotop at [26] in considering Regulation 9B (now Regulation 11) of the MVS Regulations)). Further, as Deputy President RNJ Purvis said in Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 at paragraph 35:

““… There is no question that the decision to be made now by the Tribunal is not to be arbitrary but is to be one consistent with the policy sought to be achieved by the legislation, taking into consideration the matters relied upon by the Applicant. Thus the matter is to be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. (Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 337). …”

15.     The applicant said that, in making the application to import the Self Loader into Australia, he had twice contacted Isuzu Australia in Melbourne regarding the year of manufacture, which had been stated by the seller to be 1990.  The initial enquiry of Isuzu Australia indicated that the 1990 year of manufacture was probably correct.  On the evidence, this information has since been found to be incorrect.  The applicant has incurred storage costs for the Self Loader in Macau since January 2006.  Moreover, it appears the applicant is now unemployed, but not as a result of the respondent’s refusal to approve the application to import the Self Loader.  Although the applicant has obviously suffered some financial hardship, the Tribunal finds that his circumstances are not exceptional, such as to warrant the exercise of the discretion under Regulation 11 of the MVS Regulations in favour of the applicant.

decision

16.     In considering the issues before the Tribunal and for the reasons given above, the decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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

Date of Hearing  5 November 2007
Date of Decision  4 February 2008
Advocate for the Applicant       In person

Solicitor for the Respondent     Mr M Palfrey

Clayton Utz