SHILLINGFORD Applicant And MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
[2010] AATA 195
•23 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 195
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4565
GENERAL ADMINISTRATIVE DIVISION ) Re BRADLEY SHILLINGFORD Applicant
And
MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
DECISION
Tribunal Dr M Denovan, Member Date23 March 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...............[Sgd]...............................
Member
CATCHWORDS
TRANSPORT – Prohibited import – Importation of a nonstandard road vehicle – Applicant did not own and use motorcycle for at least 12 months – Whether the Ministerial discretion should be applied – Decision affirmed
Motor Vehicle Standards Act 1989 (Cth) ss 3, 5, 18
Motor Vehicle Standards Regulations 1989 (Cth) regs 11, 13
Heath and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 9
Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417
Marra and Minister for Transport and Regional Services (2003) 73 ALD 704
Re Trajkovski and Department of Transport and Regional Services (2001) 32 AAR 457
Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
REASONS FOR DECISION
23 March 2010 Dr M Denovan, Member 1. Bradley Shillingford, the applicant, arrived in Australia to live on 6 January 2009. On 9 March 2008, whilst living in the United Kingdom, Mr Shillingford purchased a Kawasaki ZX400 1993 motorcycle. On 25 August 2009 (and confirmed on 28 October 2009) a delegate of the respondent refused Mr Shillingford’s application to import the vehicle into Australia because he had not used the vehicle for a continuous period of at least 12 months.
LEGISLATIVE SCHEME
2. The Australian Government maintains a federal scheme that applies national standards for road vehicles before they can be supplied to the Australian market. The rules and regulations of that scheme are contained in the Motor Vehicle Standards Act 1989 (Cth) (“the Act”) and the Motor Vehicle Standards Regulations 1989 (Cth) (“the Regulations”). The objectives of the Act are to achieve uniform vehicle standards to new vehicles and to regulate the supply to the market of used imported vehicles (section 3).
3. Importation of a nonstandard vehicle or a vehicle that does not have an identification plate is, subject to a few exemptions, prohibited (section 18). A nonstandard vehicle is one that does not comply with the national standards (section 5), known as the Australian Design Rules (ADRs).
4. Personal vehicles owned and used overseas for a continuous period of at least twelve months are exempt from the prohibition (regulation 13). There is also provision for a general discretion held by the Minister to approve importation (Regulation 11).
ISSUE
5. There was no dispute that the applicant’s motorcycle is a nonstandard road vehicle. There was also no dispute that Mr Shillingford did not own and use the motorcycle for at least twelve months.
6. The issue is whether the discretion in regulation 11 should be exercised in Mr Shillingford’s favour.
Should the Discretion in Regulation 11 be exercised?
7. Mr Shillingford told me that he has a very strong emotional attachment to the motorcycle as the money used to purchase it was contributed to by both his grandparents and parents, by way of gifts for his eighteenth birthday. He said that the unique paint work made the bike particularly valuable and irreplaceable to him.
8. Mr Shillingford said that he needed his own transport to get to his job in Robina, as the public transport in his area was unreliable and has caused him to receive a number of warnings for late arrival at work.
9. Purchasing a cheap car is not a viable option as he does not have a motor car driver’s licence. In any case, he has very limited funds and could not afford to buy and maintain a car, or even a replacement motorcycle. There are no motorcycles available for sale that are similar to the one he owns in England at a price he could afford, even if he sold his bike in England.
10. Mr Shillingford’s father, Mr Robert Shillingford who represented the applicant contended that his son’s circumstances were similar to those in Heath and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 9. Like Mr Heath, Bradley had to leave his home because of circumstances beyond his control. Mr Shillingford said that Bradley had no choice in the timing of his migration to Australia, as it was determined solely by his parents.
11. Mr Shillingford senior also contended that Bradley’s case was similar to the applicant in the matter of Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417, in that Mr Shillingford has a strong emotional attachment to his motorcycle as the money he used to purchase the bike was a gift from his parents and grandparents.
12. The Tribunal has stated in previous matters that the discretion provided by regulation 11 should be exercised sparingly and consistently so as to achieve a uniform approach to the supply to the market of used imported vehicles (see Re Trajkovski and Department of Transport and Regional Services (2001) 32 AAR 457 and Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48).
13. I accept that the timing of Mr Shillingford’s migration to Australia was determined by his parents and he had little or no input into that decision. The evidence before me was that Mr Shillingford could have remained in England with his grandparents, and indeed expressed reluctance to come to Australia. Mr Shillingford’s grandparents live in a remote location and the cost of travelling to see his friends and to work would have been high. Nonetheless there was no evidence to suggest that had Mr Shillingford delayed his migration to Australia his life would have been in danger. Therefore, in my opinion, the circumstances of this case are too far removed from those that existed when the discretion was exercised in favour of Heath.
14. Mr Shillingford told me that after his parents and grandparents pledged money towards the purchase of a motorcycle for his 18th birthday, he began an extensive search to find a suitable vehicle. His search was restricted to bikes of a suitable size and power that he could afford. Neither his parents nor his grandparents influenced his decision in the particular selection of the motorcycle that he now wishes to import. Unlike the circumstances in Hunt, the motorcycle owned by the applicant was not previously owned and used by a close relative, and not specifically gifted or bequeathed to him. Presumably was he to sell the motorcycle the money from that sale, originally given to him for his birthday would transfer into the new motorbike. The gift would not be lost or abandoned.
15. Unfairness or injustice to the applicant has been a reason to exercise the discretion in some cases (see Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 704). Although I am sure that he will be greatly disappointed, I do not consider that Mr Shillingford would suffer any injustice or unfairness if the discretion were exercised. Mr Shillingford has relatives who could sell the motorcycle on his behalf, and that money together with the money he saved from not paying for the motorcycle to be imported and modified, would enable him to buy an alternative motorcycle in Australia, albeit not necessarily of the same make, model and colour.
16. For these reasons I find that to exercise the discretion and allow Mr Shillingford to import the motor cycle in this case would be inconsistent with the objectives of the Act.
DECISION
17. The Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ....................[Sgd].........................................................
Kate Slack, Research AssociateDate/s of Hearing 18 February 2010
Date of Decision 23 March 2010
Applicant Represented by Robert Shillingford (father)
Solicitor for the Respondent Andrew Klein, DLA Phillips Fox
1
3
0