Whalley and Minister for Infrastructure, Transport and Regional Development
[2019] AATA 661
•8 April 2019
Whalley and Minister for Infrastructure, Transport and Regional Development [2019] AATA 661 (8 April 2019)
Division:GENERAL DIVISION
File Number: 2018/5759
Re:Jaron Whalley
APPLICANT
Minister for Infrastructure, Transport and Regional DevelopmentAnd
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:8 April 2019
Place:Brisbane
The Tribunal affirms the decision under review.
.................................[sgd]..................................
Deputy President J Sosso
CATCHWORDS
TRANSPORT – importation of motor vehicle – non-standard vehicle – gift from mother – exercise of discretion – no grounds for exercise of discretion – decision affirmed.
LEGISLATION
Motor Vehicle Standards Act 1989 (Cth)
CASES
Campos and Minister for Infrastructure and Trade [2012] AATA 244
Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756
Fraser and Department of Transport and Regional Services [2003] AATA 44
Grapsas and Minister for Infrastructure and Regional Development [2017] AATA 886
Gwilt and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 14
Marra and Minister for Transport and Regional Services [2003] AATA 323
Miller and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 608
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
RNYB and Minister for Infrastructure and Regional Development [2015] AATA 576
Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43
Tormey and Minister for Infrastructure and Regional Development [2015] AATA 104
SECONDARY MATERIALS
Motor Vehicle Standards Regulations 1989 (Cth)
REASONS FOR DECISION
Deputy President J Sosso
8 April 2019
INTRODUCTION
Mr Jaron Whalley seeks a review of a decision of 5 September 2018 by a Delegate of the Minister for Infrastructure, Transport and Regional Development (the Minister) refusing his application under regulation (r.) 10 of the Motor Vehicle Standards Regulations 1989 (the Regulations) to import a 2004 Porsche 997 motor vehicle (the motor vehicle). The motor vehicle has a VIN, but was assessed as being a used road motor vehicle with no identification plate, and therefore prohibited for importation under s 18 of the Motor Vehicle Standards Act 1989 (the Act) – Exhibit 1 T9 pp. 67 – 69.
Mr Whalley, on 30 September 2018, made application to the Tribunal for a review of the Delegate’s decision – Exhibit1 T1 pp. 1 – 10.
LEGISLATIVE REGIME
The main Objects of the Act (s 3) are:
(a)achieving uniform vehicle standards applicable to new vehicles when they begin to be used in transport in Australia; and
(b)the regulation of the first supply to the market of used imported vehicles.
The Minister may determine vehicle standards for road vehicles or vehicle components – s. 7. Section 5 defines “vehicle standard” to mean a standard for road vehicles or vehicle components that is designed to:
(a)make road vehicles safe to use; or
(b)control the emission of gas, particles of gas, particles of noise from road vehicles; or
(c)secure road vehicles against theft; or
(d)promote the saving of energy.
Subject to ss 19 and 20, a person must not import a road vehicle that is nonstandard or which does not have an identification plate – s 18(1).
The term “nonstandard” is defined in s 5 to mean:
“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).”
An “identification plate” is defined in s 5 to mean:
“a plate declaring the status of a road vehicle in relation to the national standards and approved to be placed on vehicles of that type or description under procedures and arrangements provided for in subsection 10(1).”
It is not contested that Mr Whalley’s motor vehicle does not have an identification plate.
The Act, however, vests in the Minister a discretion to, inter alia, give written approval to a person to import a nonstandard road vehicle, or a road vehicle that does not have an identification plate – ss 19(1), 20(1). The approval may be subject to written conditions determined by the Minister.
Regulation 11 of the Regulations deals with the Minister’s general discretion to import vehicles without identification plates.
Subregulation 11(1) vests the Minister with a general discretion to approve an application to import a nonstandard road vehicle, or a vehicle that does not have an identification plate.
Subregulation 11(2) provides that an approval may be given subject to conditions.
Subregulation 13(1) of the Regulations provides that the Minister may approve an application to import a nonstandard road vehicle, or a road vehicle that does not have an identification plate, where such vehicle was owned and used by the applicant overseas, if the Minister is satisfied 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 12 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…”
It should be noted that the discretion granted by r. 11 is available, even though the criteria for a discretionary approval under r. 13 are not met. In short r. 13 neither covers the field nor defines exclusively the circumstances in which a nonstandard vehicle may be imported into Australia. Regulation 13 does not provide a code for the circumstances in which a vehicle, intended to be privately used, may be imported into Australia – Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43 at [17], [36] per Mansfield J (Selway).
BACKGROUND
On 19 August 2018 Mr Whalley applied to the Minister, under r. 13 of the Regulations, for approval to import the motor vehicle – Exhibit 1 T7 pp. 27 – 36.
In addition to his application, Mr Whalley also submitted a letter with attached documents. Relevant extracts from the letter are set out below – Exhibit 1 T7 pp. 37 – 38:
“B. List of Compliances to the Import Option
The information I am providing below is to prove I personally comply with most of the requirements required for the personal import option.
I was a resident of the UK for 36 years before I emigrated to Australia.
I am now an Australian citizen where I own a house and with my wife and two children.
I do not intend to leave Australia and both of my children attend a school in Australia.
I am employed by an Australian registered company in Brisbane.
In the time I have lived in Australia I never requested to import a car into Australia.
I am an individual and not part of a company involved in buying and selling and importing cars into Australia.
I have purchased the Porsche car for myself. To prove this, I have got the previous owner of the car to include my personal details and Australian address on the receipt for the car.
C. Reason for any Non-Compliances to the Import Option
I have not owned the car for 12 months prior to arriving in Australia. The reason for this is 13 years ago I would not have had enough funds to purchase a Porsche when I first emigrated to Australia and I needed the funds to pay for living expense in the event that it took me up to 1 year to find employment when settling in Australia. In addition, I also has [sic] also taken me a long time to build up enough funds to allow me to eventually purchase the Porsche out right which were not available to me when I first settled in Australia.
D. Other information relevant to my application
In my quest to purchase an affordable reliable Porsche 997 Generation 1, I initially carried out research to understand the faults of the car. Quite alarmingly I discovered the Porsche 997 gen 1 and 996 cars had a manufacturing fault, namely piston scoring and the sudden failures of the IMS bearing both of which resulted in catastrophic damage to the engines resulting with complete engine rebuilds. Due to the larger quantities of cars sold in Europe I started to search for engine builder who had experience with the repairs of these Porsche engines. My research led me to a company in the U.K. called Hartech. Other than Porsche Australia I had found an engine builder in Australia experienced with 996 & 997 Gen 1 Porsches….
F. Summary
The type of Porsche that I was looking for with a rebuilt engine is not available in Australia. I am a migrant of the UK. I am an individual who has purchased the car for himself. The car is safe, roadworthy, has a long service history and is compliant with European emission legislation which is acceptable to Australian standards. I consider that I comply with the main requirements of the personal import requirements. I have included all the documents I can find which proof the validity of the statements I have made in the above sections A-E inclusively.
Based on all the above information that I have provided can you please consider my case and allow me to import my Porsche 997 gen 1 car into Australia and allow me to use it for my personal use only.”
In the attached documents was a Sales Invoice dated 13 August 2018. The Invoice was issued by GPi Automotive Limited of Norfolk in the United Kingdom to Mr J Whalley of Eatons Hill, Brisbane. The Invoice was for a Porsche motor vehicle with the Model described as “911 Carrera 2 S TIPT-IC S”. The Invoice also provided details of the UK registration number and VIN. The odometer reading was 81,087 miles and the purchase price was 24,000 pounds sterling.
In rejecting Mr Whalley’s application, the Delegate found that he did not satisfy the requirements of r. 13(1)(ab)(ac),(ad) and (a). Further, the Delegate did not consider that the circumstances outlined by Mr Whalley warranted the exercise of the general discretion in r. 11 – Exhibit1 T9 pp. 68 – 69.
THE HEARING
A Hearing was convened in Brisbane on 30 January 2019. Mr Whalley was self-represented and called no witnesses. The Minister was represented by Mr Palfrey, who also called no witnesses.
CONSIDERATION
Introduction
Subject to the changed factual circumstances, concerning the purchase of the motor vehicle, given by Mr Whalley at the Hearing, the factual matrix is not contested.
The only significant issues for resolution by the Tribunal are whether the requirements for the grant of an approval under r. 13 are satisfied, and, if that is not the case, whether it is appropriate to exercise the general discretion under r. 11.
Changed factual matrix
When Mr Whalley addressed the Tribunal on 30 January 2019 he said that his mother had purchased the motor vehicle for him. He went on to say that his mother has been diagnosed with cancer and he has a personal attachment to the motor vehicle as it reminded him of her. This was despite the fact that he admitted that he had never actually seen the motor vehicle or had any physical contact with it.
Mr Whalley stated that the motor vehicle, due to the costly modifications carried out, was safer than if he had purchased it in Australia, and that, accordingly, he was upholding the safety requirements of the Act.
Mr Whalley also articulated other reasons for the Tribunal finding in his favour, including the financial hardship that would be caused to his family, if the motor vehicle could not be imported.
In support of his submissions, Mr Whalley provided a copy of a hand written note from his mother, which although not dated appears to have been made in late 2018. Mr Whalley’s mother provided the following information – Exhibit 3:
“I was diagnosed with cancer in APRIL this year.
My son Jaron who is very dear to me – kept constantly in touch with me in ENGLAND over all my treatment.
I knew he had always wanted a PORSCHE – so I thought this might be the last gift I could give him to remember me by.
So I purchased the PORSCHE on the 13th August 2018…
Hoping to send it to Australia as a precious gift the porsche.”
Mr Whalley also produced extracts from a medical report, dated 11 April 2018 from a Consultant General Surgeon, which confirms that Mr Whalley’s mother is suffering from a very serious cancer condition – Exhibit 4.
Regulation 13
Introduction
In order that the discretion in r. 13 is exercised in favour of an applicant, all of the criteria prescribed in r. 13(1) must be met – Miller and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 608 at [8].
Regulation 13(1)(aa)
The question of ownership of the motor vehicle is not beyond doubt. Mr Whalley made representations when making his application that he had purchased the motor vehicle for himself – Exhibit 1 T4 p. 22, T7 p. 37. At first glance the Sales Invoice suggests that the vehicle was purchased by Mr Whalley as the addressee of the Invoice is in his name. However, a closer reading discloses that the customer is Mr Whalley’s mother. In short, it would appear that the vehicle was, in fact, purchased by Mr Whalley’s mother.
The fact that a motor vehicle is purchased by a third party and not by an applicant is not determinative of ownership. Indeed, even if a motor vehicle is registered in the name of a third party, this is not conclusive proof of ownership. The Tribunal has previously determined that if a third party purchases a motor vehicle as a bona fide gift, and there is a reasonable explanation as to why the registration transfer documentation is not concluded, it is open to find that an applicant is in fact the owner of the vehicle - Tormey and Minister for Infrastructure and Regional Development [2015] AATA 104 at [14] – [17].
The Tribunal accepts that the motor vehicle was purchased by Mr Whalley’s mother as a bona fide gift for her son and that at the time Mr Whalley made application he was the beneficial owner of the motor vehicle.
Regulation 13(1)(ab)
It is clear that the “customer” who purchased the motor vehicle in the United Kingdom on 13 August 2018 was Mr Whalley’s mother. At all material times Mr Whalley was in Australia. In these circumstances Mr Whalley cannot meet the requirement of r. 13(1)(ab).
Regulation 13(1)(ac)
Even if one accepts that the requirements of r. 13(1)(ab) have been met, it is clear that Mr Whalley does not meet the requirements of r. 13(1)(ac).
There are two limbs to r. 13(1)(ac) and an applicant must satisfy both limbs – Grapsas and Minister for Infrastructure and Regional Development [2017] AATA 886 at [24] – [25].
The first limb requires that an applicant owned the vehicle “while overseas”. The undisputed evidence is that Mr Whalley was not overseas when the motor vehicle was purchased. At all material times Mr Whalley was in Australia – Exhibit 1 T7 p. 47.
The second limb is an applicant must have owned the vehicle for a continuous period of at least 12 months immediately before arriving in Australia. As the motor vehicle was only purchased in August 2018 and the application was made approximately one week thereafter, the requirements of the second limb are not met.
Regulation 13(1)(ad)
Mr Whalley is also unable to meet the requirement of r. 13(1)(ad) that during the period of ownership the vehicle was available to the applicant for use in transport. Mr Palfrey drew the Tribunal’s attention to the following observation of Senior Member Sweiden in Gwilt and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 14 at [29]:
“The combined effect of paragraphs 13(1)(ac) and (ad) is clearly that the applicant needs to have been overseas with the Vehicle so that the Vehicle was available for use, for a continuous period of at least 12 months immediately before moving to Australia to remain indefinitely.”
The Tribunal accepts the correctness of Senior Member Sweiden’s observations. A plain reading of paragraphs (ab), (ac) and (ad) is that the acquisition of ownership, the lengthy period of ownership and the potential use of the vehicle, all must occur whilst an applicant is overseas. The heading to r. 13 puts this beyond any doubt. It refers to the importation of a vehicle “if owned and used by an applicant overseas”.
It follows that if an applicant, during the period of ownership, is unable to use the subject vehicle for transport because of an international separation, then the requirements of r. 13(1)(ad) cannot be met.
Regulation 13(1)(a)
Paragraph (a) requires that an application be made not more than 6 months after an applicant arrives in Australia for the purpose of remaining indefinitely.
Mr Whalley migrated to Australia with the intention of remaining here indefinitely some 13 years ago – Exhibit 1 T7 p. 37, 47.
Clearly, in these circumstances the requirement of paragraph (a) cannot be met.
Conclusion
Regulation 13 is drafted to cater for an applicant who purchases a vehicle overseas, owns it for a lengthy period before moving to Australia and has had the benefit of using it for transport. Further, in order to obtain the benefit of r. 13 an application must be made promptly after arriving in Australia. In this matter, none of these requirements are met. Mr Whalley is an Australian citizen and has lived here since 2005. The policy underpinning r. 13 is clearly not applicable to Mr Whalley’s situation.
Regulation 11
Introduction
The discretion vested in the Minister by r. 13 is unfettered, and neither the Act nor the Regulations set out specific factors to be taken into account when applying it – Selway at [18]. In these circumstances, the factors to be considered are determined by the subject matter, scope and purpose of the Act – Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.
It would an error to assume that the discretion vested in the Minister by r. 11 could only be exercised in exceptional circumstances. This is particularly the case if the Minister determines that the policy or objectives of the Act and Regulations would not be undermined by a positive exercise of the discretion – Selway at [39].
It is appropriate to have regard to the criteria in r. 13(1) when considering whether to exercise the discretion, but the fact that not all of those criteria are satisfied is not of itself a reason not to exercise the discretion under r. 11 – Selway at [38].
Mr Palfrey helpfully drew the Tribunal’s attention to the introductory speech when the Act was introduced into Parliament. The Minister introducing the legislation said – Exhibit 2 para 30:
“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.”
Mr Palfrey also drew the Tribunal’s attention to a decision of Senior Member Toohey – Campos and Minister for Infrastructure and Trade [2012] AATA 244. This decision was handed down after Selway and Senior Member Toohey highlighted the error in requiring an applicant to demonstrate something exceptional about his or her case. Nonetheless, Senior Member Toohey first said (at [29]):
“The legislation imposes a prohibition against the importation of vehicles that is broad in 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 this background, there needs to be good reason for the discretion in reg 11 to be exercised.”
In addition, Senior Member Toohey also made the following observation (at [31]):
“That said, Tribunal decisions have generally required ‘some element of unfairness or injustice to the applicant if approval were not granted’: Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540 at [19].”
It is certainly the case that before the discretion in r. 11 is exercised care needs to be taken to ensure that the policy objectives of the legislation are not undermined or weakened. This is particularly the case where legislation is drafted to effect a broad prohibition on the importation of nonstandard vehicles, subject to a limited set of discretions. It would be strange if legislation so carefully and strictly drafted was undermined by the exercise of an unfettered discretion, without carefully weighing the public good achieved by the strict enforcement of the Act, against the individual rights of an aggrieved applicant. So while the discretion in r 11 is unfettered, its exercise requires a careful consideration of the evidence and a weighing of the case advanced by the applicant against the harm, if any, that may be caused to the integrity of the legislation by a favourable exercise of the discretion.
In Selway Mansfield J made the following observations (at [37]):
“It may well be that it will not be a common circumstance that a person seeking to import a non-standard vehicle will have the discretion available under Reg 11 exercised in that person’s favour. In some circumstances, such an importation might undermine or frustrate the policy and objectives of the Act. Clearly, in such circumstances, the favourable exercise of the discretion under Reg 11 would require there to be weighty counterveiling factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11. This is not a case where the Tribunal has found that the importation of the car would undermine or frustrate the policy or objectives of the legislative scheme. In fact, it accepted the opposite.”
In considering the exercise of the discretion, the Tribunal has, in a number of determinations, outlined factors which are relevant. It must be emphasised, however, that these factors are not exhaustive and nor are they prescriptive. They provide a helpful checklist of the type of considerations that are relevant to a decision-maker when applying the unfettered discretion allowed in r. 11. Moreover, in any particular matter, it may be that one factor will have more weight than others. Ultimately the task of the decision-maker is to ensure that the decision, whether or not to exercise the discretion, comports with policy underpinnings and integrity of the Act and the Regulations. Reference can be made to the following determinations of the Tribunal: Grapsas and Minister for Infrastructure and Regional Development [2017] AATA 886 at [33] – [39] and RNYB and Minister for Infrastructure and Regional Development [2015] AATA 576 at [33].
The factors that have been considered by the Tribunal include the following:
(a)the policy objectives of the Act;
(b)any unfairness or injustice to an applicant;
(c)any financial hardship that would be occasioned by not being approved to import the vehicle;
(d)whether the vehicle is unique;
(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 and Regulations.
It should be noted that in determining to exercise the discretion in r. 11, care needs to be taken to not unduly fetter the exercise of that discretion by assuming that the existence of any one of these factors is a necessary precondition. For example, in Fraser and Department of Transport and Regional Services [2003] AATA 44 at [43], Member Cowdroy pointed out that financial hardship did not need to be demonstrated, but rather it was one of a range of factors to which regard may be had.
Policy objectives of the Act
The Minister contends (Exhibit 2 para 42) that the Tribunal should take into account that approving the importation of the motor vehicle in circumstances where r. 13 has not been met, and without compelling reasons provided for why a discretion should be exercised, might set a precedent that would undermine the policy underlying the legislative scheme established by the Act.
Further, it is contended that to exercise the discretion in Mr Whalley’s favour would undermine and frustrate the policy and objectives of the Act – Exhibit 2 para 43.
There are two aspects of the Minister’s submissions, and each requires separate attention.
The first submission of the Minister is misconceived. As was set out earlier, Mansfield J in Selway held that r. 13 does not provide a code for the circumstances in which a vehicle intended to be privately used may be imported into Australia. The fact that an applicant has failed to satisfy the criteria prescribed pursuant to r. 13 and then turns to r. 11 for relief is axiomatic. The fact of failure to satisfy r. 13 does not result in a failure to satisfy r. 11, on the contrary it is a precondition for consideration.
The second submission has more weight. It is contended that the exercise of the discretion would undermine or frustrate the policy and objectives of the Act. This is a serious question and needs to be considered in the light of all of the material and contentions presented. Clearly, there will be instances where it is obvious that this fundamental proposition is manifest. In such cases no more is required. In this matter, however, there are some further considerations that need to be addressed. Accordingly, this factor will be addressed in conjunction with other factors discussed below.
Unfairness or injustice to the applicant
The question of unfairness or injustice is always an inherently subjective question. There are instances of unfairness and injustice that require no further explanation or exposition. Then, there are the many other instances where contended unfairness and injustice are less clear and where personal choice becomes an ever increasing element in the equation. Here, the only unfairness lies in the fact that Mr Whalley’s sick mother has purchased the motor vehicle for him and he wants to import it. The unfairness lies less with the regulatory regime but rather with the frustration of not being able to effect the object of Mr Whalley’s mother’s bequest and his personal wish to acquire the vehicle. With respect, there is no viable connection between his personal disappointment in not being able to obtain the motor vehicle and anything inherently unfair in the regulatory regime.
Financial hardship
As became clear at the Hearing, any financial hardship lies not with Mr Whalley but with his mother, and, as the motor vehicle was a gift from her, any loss from any future sale would not have been a factor in her purchase in the first place. Further, the Tribunal has not been provided with any information that Mr Whalley’s mother or Mr Whalley are suffering any financial hardship.
Uniqueness of the motor vehicle
There is no evidence that the motor vehicle is unique in the sense described in previous Tribunal decisions. Further, despite Mr Whalley claiming he has some emotional attachment to the motor vehicle because it has been purchased by his mother, the reality is that it was recently purchased in England, he has never driven or even seen it and it would not be sensible to even suggest that he has the degree of emotional attachment that would activate the exercise of a r. 11 discretion.
Unpredicted or unexpected events
There are no unpredicted or unexpected events that may enliven the exercise of a favourable r. 11 outcome.
Other factors
As previously noted, the above list of factors are not exhaustive. A reading of the many Tribunal determinations on the exercise of the discretion in r. 11 highlights that a favourable exercise of the discretion has sometimes been given when an applicant has received incorrect advice and has acted in good faith on it – Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756, Fraser and Department of Transport and Regional Services [2003] AATA 44 and Marra and Minister for Transport and Regional Services [2003] AATA 323. Whilst the various Tribunal determinations have not made it clear, such advice would need to be given by a person in whom an applicant should be able to repose trust. In short, the advice must be given by a person in a position of authority, whether professionally or from a relevant government agency. The fact that an applicant has received incorrect advice is not of itself determinative, but it is a valid consideration when considering the exercise of the discretion in r. 11.
In this matter, there has been no suggestion that Mr Whalley received incorrect advice and acted to his detriment by relying on same.
Conclusion
To sum up, in this matter Mr Whalley clearly falls outside the requirements of r. 13 and does not present a case that would allow the exercise of the general discretion pursuant to r. 11.
Mr Whalley’s case is relatively simple. He wishes to import a motor vehicle, which, according to his submissions, is safe and would comport with ordinary road safety standards. The motor vehicle was purchased by his aged and sick mother and has been subjected to extensive modifications to ensure it is safe to drive.
Nonetheless, it is equally clear that what Mr Whalley wishes to do is contrary to the policy and terms of the legislative regime governing the importation of motor vehicles.
Here, when the Tribunal considers the totality of the relevant circumstances, it is clear that there is no case for exercising the discretion pursuant to r. 11. In Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756 the Tribunal considered a matter where the applicant was an immigrant from England who sought approval to import a 1986 Ferrari motor vehicle and a 1994 Porsche. Both motor vehicles had been physically delivered to Australia. The applicant had employed agents to undertake all necessary documentation to permit the vehicles to be imported, but this proved unsuccessful.
Member Allen noted that the applicant had “almost but not quite” satisfied the requirements of r. 13, that there would be an element of unfairness if the discretion in r. 11 was not exercised and that the exercise of the discretion would not undermine or frustrate the policy and objects of the legislative regime. Member Allen made the following observations (at 767):
“In my opinion, the exercise of the discretion in reg 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour. The totality of the relevant circumstances must be considered – including the reasons why an applicant ‘almost but not quite’ satisfied one of the set of circumstances that would have required approval to be granted.”
While it is by no means determinative, it is relevant to note that Mr Whalley failed to satisfy almost all of the criteria mandated by r. 13. The failure to satisfy some of the criteria mandated by r. 13 is to be expected if an applicant wishes to rely on the general discretion in r. 11. However, when an applicant, as with Mr Whalley, fails to comply with the bulk of the factors in r. 13, this necessarily raises the question whether the application is contrary to the policy objectives of the legislation. In this matter, it is tolerably clear that a favourable exercise of the general discretion in r. 11 would be contrary to the policy underpinnings of the regulatory regime as it is presently drafted.
DECISION
The decision under review is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
..............................[sgd]............................
Associate
Dated: 8 April 2019
Date of hearing: 30 January 2019 Applicant: In person Counsel for the Respondent: Mr Michael Palfrey Solicitors for the Respondent: HWL Ebsworth Lawyers
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