Stavroulakis and Department of Transport and Regional Services
[2002] AATA 373
•21 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 373
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/108
GENERAL ADMINISTRATIVE DIVISION )
Re ANTONIOS STAVROULAKIS
Applicant
And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal The Hon R N J Purvis QC, Deputy President
Date21 May 2002
PlaceSydney
Decision The decision under review is affirmed.
[SGD] The Hon R N J Purvis QC
Deputy President
CATCHWORDS
TRANSPORT – import approval – whether Applicant complied with requirements of applicable regulations – whether vehicle owned and used by Applicant continuously for a 12-month period – no 'jurisdiction' in the Tribunal to grant permission for importation – whether Applicant competent to make application – ownership
Motor Vehicle Standards Act 1989 – section 3, 18 and 20 (as at 11 December 2000)
Motor Vehicle Standards Regulations 1989 – regulations 9, 9A and 9D (as at 11 December 2000)
Re Albanus and Department of Transport and Regional Services [2001] AATA 12
Re Chalmers Nurseries Pty Ltd and Department of Transport and Regional Services (2001) 33 AAR 69
REASONS FOR DECISION
The Hon R N J Purvis QC, Deputy President
the application
This is an application made by Mr Tony Stavroulakis ("the Applicant") on 25 January 2001, seeking review by the Tribunal of a decision of the Administrator of Motor Vehicles, Department of Transport and Regional Services ("the Respondent") of 21 December 2000, affirmed on 19 January 2001.
The said decision of the Respondent was to refuse approval for the importation into Australia by the Applicant of a 1997 BMW 528 motor vehicle. The original application of the Applicant to import the vehicle was made on 11 December 2000.
the hearingAt the hearing of the subject application the Applicant appeared on his own behalf, the Respondent being represented by Ms R M Henderson of Counsel.
There was admitted into evidence the documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Written material tendered by the Applicant was also admitted into evidence and marked accordingly, namely:
Exhibit Description
A Bundle of documents as detailed: Sales offer M Belle 15.8.2000, sales contract 22.11.2001 (in French) Bulletin No 10 Importing Vehicles to Australia Australian Customs Service Guide to the Importation of privately owned motor vehicles Australian Customs Service pro forma statement for vehicles imported by passenger Australian Customs Services pro forma "nature 10" Declaration G Pavlou 5.1.2001 Letter P Robertson, Dept of Transport and Regional Services 19.1.01 Transaction report 8.1.2001 Vehicle free passage card for Greece 19.4.2001
B Two documents dated 5.2.2001, one tax invoice another interstate removal request
C Bundle of 13 documents generally relating to movement of subject vehicle and Applicant
The Applicant gave evidence upon which he was cross-examined.
the issues for determinationThe issues as raised by the parties for determination are:
(a) Whether the Applicant satisfies the requirements of regulation 9D of the Motor Vehicle Standards Regulations 1989 as amended, that is, whether the vehicle was used for a continuous period of at least:
(1)for vehicle owned by the Applicant on or before 8 May 2000 – three months; or
(2) for a vehicle to which sub-paragraph (1) does not apply but for which the application is made on or before 8 November 2000 – three months; or
(3)in any other case – 12 months.
(b) Whether the Applicant is entitled to import the BMW 528, the subject of the application.
(c) Whether there is jurisdiction in the Tribunal to hear the application, the subject vehicle having at one time been landed in Australia.
(d) Whether an application the like of that now made is competent, the subject vehicle having now been disposed of by the Applicant.
the relevant legislative provisions
The Motor Vehicle Standards Act 1989 ("the Act") (as at 11 December 2000) so far as here relevant provides:
"Object of Act
3 The object of this Act is to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia.
…
Prohibition of importation of non-standard vehicles etc.
18 (1) Subject to sections 19 and 20, a person must not knowingly or recklessly import a road vehicle that:(a) is non-standard; or
(b) does not have an identification.
…Approval to import certain non-standard vehicles
20 (1) A person may import a non-standard road vehicle or a road vehicle that does not have an identification plate:(a)…
(b) in prescribed circumstances.…
20 (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."Regulations made pursuant to the Act as here relevant and as applicable as at the date of the Applicant making his application, namely 11 December 2000, provided:
"Regulation 9 Approval to import vehicles without compliance plates
For the purposes of section 20(1)(b) of the Act a person may import a non-standard road vehicle…if the Minister has approved an application by the person to import the vehicle.
Regulation 9A Application for approval to import vehicle without compliance plates
A person may apply to the Minister for approval to import a non-standard road vehicle...
…
Regulation 9D Approval to import vehicle without a compliance plate if owned and used by applicant overseas
The Minister must approve an application to import a non-standard road vehicle or a road vehicle that does not have a compliance plate if:(a) the vehicle has been owned and used by the applicant for a continuous period 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 sub-paragraph (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
…"
the factual situation
In May 2000 the Applicant visited an office of the Respondent in Perth, Western Australia and inquired as to the conditions governing the bringing into Australia, for his personal use, of a motor vehicle to be purchased by him in Europe. He was provided with relevant documentation included amongst which was an Office of Road Safety Bulletin No 10 ("the Bulletin"). The Bulletin detailed the then pre-requisites for personally importing a vehicle, included amongst which was a requirement that the Applicant should "have owned and used the vehicle while overseas for a period of not less than three consecutive calendar months (this period is not accumulative)…".
Consequent upon obtaining the above information the Applicant proceeded to make arrangements to purchase a BMW vehicle. An order was placed by him on 11 May 2000; a deposit of $10,000 forwarded on 18 May 2000. The Applicant took ownership and possession of the vehicle in Brussels on or about the 15 August 2000. The vehicle was registered in the name of the Applicant on 16 August 2000. The Applicant drove the vehicle in Europe and to Athens, Greece where he arranged to have it transported to Sydney. He departed Athens on 28 November 2000 and made his application to import the vehicle on 11 December 2000.
The vehicle was shipped to Sydney, arriving sometime after 5 January 2001, but on refusal for entry into Australia being given by the Respondent it was in due course returned to Europe. However, as it had been out of Europe for a stipulated period the Applicant could not initially take possession of it. In due course and on 8 June 2001 he took possession of the vehicle in Athens, had it registered with Dutch registration plates in September 2001, advertised it for sale and in November 2001 sold it in Europe to a motor vehicle dealer.
On 24 July 2000 the Motor Vehicle Standards Regulations 1989 made under the Act, were amended. Regulation 9D(a) as it had been in May 2000 and as noted in the Bulletin was amended to read as it is set forth earlier in these reasons.
compliance with the regulationsThe applicable regulations are those existent at the time of the making of the application to import the vehicle, namely 11 December 2000. The Minister must approve an application if compliance is had with the Act and the relevant regulations. There is no power conferred on the Minister to grant an application in the event of non-compliance with such regulations. There is not an available discretion (see Re Albanus and Department of Transport and Regional Services [2001] AATA 12 at paragraphs 11, 12 and 13).
The regulations in existence as at May 2000 were as they were given to the Applicant and as set forth in the Bulletin. However, they were amended under the hand of the Governor General on 24 July 2000 and gazetted the following day. Transitional provisions enabled an application made prior to 8 November 2000 to only require a three months ownership and use period. The relevant application was signed by the Applicant on 11 December 2000. As such the Applicant needed to comply with the regulations as amended, that is, to have continuously owned and used the vehicle for a 12-month period. This he had not done and the vehicle could not be imported under regulation 9D.
retrospective permissionIn view of the decision above indicated and there being non-compliance with the applicable regulations, it is not necessary to deal with the other basis upon which it was said the application should be refused. However, they were raised and should be noted.
It was submitted on behalf of the Respondent that as the vehicle had on the evidence been landed in Australia on a date subsequent to 5 January 2001, that there was no "jurisdiction" in the Tribunal to grant permission for importation.
This submission was supported by the reasoning set forth in Re Chalmers Nurseries Pty Ltd and Department of Transport and Regional Services (2001) 33 AAR 69, where at paragraph 27 it was stated:
"…In that regard, application for review of a decision made pursuant to s 20(1) of the Act needs to be made prior to the importation of the vehicles to which the decision relates, as s 20 operates as an enabling provision. What it enables is importation. Where importation has already occurred, variation of the conditions of the importation will achieve nothing, as that action which the section enables has already been acted upon. Upon the importation being acted upon, there will no longer be a vehicle that is rightly the subject of the original application."
As the Tribunal notes the position, the purpose of the Act and Regulations is to allow or refuse an application to import a vehicle. When importation occurs would be a matter of fact. A mere landing of a container containing a vehicle, the same being held by the relevant authority pending permission to remove the vehicle from the container and allow it to be driven or used or pending the container and vehicle being returned to the place from which they came, may not constitute importation of a vehicle.
The evidence in this matter is not such as to allow a finding to be made as to whether or not importation occurred.
ownershipThe application to import can only be made by an owner in the circumstances detailed in the applicable regulations. The Applicant is not on the evidence now the owner of the vehicle. The Tribunal acts as if in the shoes of the original decision-maker but on the basis of the facts as they are presented before it.
The vehicle sought to be imported is not owned by the Applicant and it is not now competent for him to make a relevant application.
decisionThe Tribunal is satisfied that the Applicant, for reasons over which he had no control, was not competent to make the relevant application. He did not, nor could he, comply with the regulations as they existed as at the time of his application.
For the reasons herein before set forth the decision under review is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis QC, Deputy President
Signed: O. Caragianni .....................................................................................
AssociateDate of Hearing 16 April 2002
Date of Decision 21 May 2002
Applicant self-represented
Counsel for the Respondent R Henderson
Solicitor for the Respondent O Liavas
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