Winter and Department of Transport and Regional Services

[2006] AATA 674

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 674

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/4

GENERAL ADMINISTRATIVE DIVISION		)
Re		ZOE WINTER

Applicant

And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date26 June 2006  

PlaceCairns

Decision The Tribunal affirms the decision under review.

.......[Sgd]…....

MJ Carstairs
  Member

CATCHWORDS

TRANSPORT – import approval - non-standard vehicle – compliance – importation of motor vehicle into Australia – unable to meet Australian standards – approval of minister.  

Motor Vehicles Standards Act 1989 ss 5, 10, 10A, 10A (2), 19
Motor Vehicles Standards Regulations 1989 ss11, 13

Re Marra and Minister for Transport and Regional Services [2003] AATA 323
Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073

WRITTEN REASONS FOR ORAL DECISION

1 August 2006   Ms M J Carstairs, Member

Ms M J Carstairs, Member

1. The issue before the Tribunal is whether Ms Zoe Winter can import her 2003 Easy Rider M50 motorbike into Australia. This matter was heard in Cairns on 26 June 2006 and after the hearing I made an oral decision refusing Ms Winter’s application. The respondent has requested written reasons for the decision pursuant to s43(2A) of the Administrative Appeals Tribunal Act 1975, and these reasons answer that request.

2.      One requirement of the relevant legislation (Motor Vehicle Standards Act 1989) is that the person seeking to import a vehicle must be an Australian citizen who has permanent residence or who had applied for either status at the time they imported the vehicle.

3.      Ms Winter is in Australia as a student, studying Hospitality and Commercial Cookery. She has a stated intention that, in the future, she will apply for permanent residency.

4.      Ms Winter says (T1,p3) the bike is a cherished possession, and she had understood as a result of what she was told by a shipping agent in the United Kingdom who she engaged to import the bike, that there would be no problem shipping her bike from the United Kingdom to Australia.  She says that she is now incurring the costs of storing the bike with the shipping company at $59.50 per week, and that it would cost her $1470.00 to ship the motorbike back to the United Kingdom to arrange its sale if she is prevented from importing it now (Exhibit A1).

CONSIDERATION

5.      The basic matters raised here are that there is a legislative scheme for vehicle standards in Australia provided for in the Act and Regulations. The requirement is that vehicles comply with Australian standards and have an Australian identification plate.  It was the case here that the vehicle is non compliant, and the respondent’s representative stated this was because the vehicle is a non-standard vehicle for the purpose of the legislation and did not have an Australian identification plate, or compliance plate, as required.  (It was not part of the respondent’s case that there would necessarily be compliance issues with this bike, other provisions of the legislation being met, that is).

6.      To be approved for importation into Australia it is necessary to satisfy Regulation 11 and 13 of the Motor Vehicles Standards Regulations 1989. Broadly speaking, regulation 11 provides a discretion and regulation 13 a power without discretion, if certain facts are met.

7.      Ms Winter agrees that she does not meet the requirements in regulation 13(b)(i) and 13(b)(ii) because she is not an Australian citizen or an Australian permanent resident and has not applied for either status.

8.      Therefore Ms Winter cannot satisfy regulation 13.

9.      Under s5 of the Act, a vehicle will be non-standard if it does not comply with the national standards by virtue of an approval given under subsection 10A(2) of the Act.  I am satisfied that Ms Winters vehicle does not have an identification plate as provided in s10A and 10 of the Act.

10.     Section 19 of the Act provides that a person may import a non-standard road vehicle, a road vehicle that does not have an identification plate or a non-standard prescribed vehicle component with the written approval of the Minister. However, Ms Winter does not have written approval from the Minister to bring this motor bike into Australia.  

APPLICATION OF REGULATION 11

11.     I was referred to a number of authorities including the Tribunal decision Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073.

12.     The authorities show substantial agreement that the purpose of the legislative schemes is to ensure that vehicles imported into Australia meet uniform safety and environmental standards and any exercise of the discretion in Regulation 11 must be exercised in a manner consistent with the legislative purpose.

13.     In Re Trajkovski this was expressed as follows:

“This application is to then be considered having in mind the facts and circumstances before the Tribunal but in the context of a regime having been established for the importation of vehicles and the same not being allowed onto roads in Australia without  safety being ensured. The exceptions as provided for in the regulations where variation from the scheme may be enabled apart from the circumstances therein specified must of necessity be exceptional. The Tribunal in making its decision is to give the primary weight to the scheme and the intent of Parliament in enacting the legislation.”

14.     Referring to Re Trajkovski the Tribunal in Re Marra and Minister for Transport and Regional Services [2003] AATA 323 said:

“the Tribunal accepts that the discretionary power conferred by reg 9B(1) of the Regulations [equivalent of the current regulation 11], although broad and unstructured in its terms, should in practice be exercised only in exceptional circumstances and then only in such a way as would not serve to undermine or frustrate the policy and objects of the Act and Regulations: see, for example Re Trajkovski at para 32. One such kind of circumstance, envisaged in Re Trajkovski (at para 34), where it might be appropriate to exercise that discretionary power is in the event that, if that were not done, injustice would necessarily be suffered by the relevant importer.”

15.     The Tribunal in Re Marra [at 27] in fact set aside the decision under review giving significant weight to the fact the applicant in that case had been given incorrect advice or information from the relevant government department and this combined with the fact that in exercising the discretionary power it did not undermine or frustrate the objects of the relevant Act and Regulations.

16.     I do not see Ms Winter’s facts as ones that warrant the discretionary power conferred by regulation 11 being exercised in her favour.  In contrast to the applicant in Re Marra, Ms Winter had only obtained advice and information from the shipping agent and not the relevant government department.  Also I do not see the refusal to allow Ms Winter to import the vehicle as causing a serious injustice.  Her acceptance of information from the shipping agent was misguided, but goes no way to contributing to special circumstances except that she will incur costs in now dealing with the motorbike.

17.     I do not see the costs as providing so great a burden upon her as to come within the stated exceptional circumstances where the discretion would be exercised and I decline to do so.

DECISION

18.     The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member.

Signed:         J Lauriston

(for) Legal Research Officer

Date/s of Hearing  26 June 2006
Date of Decision  26 June 2006
Date of Written Reasons          1 August 2006
For the Applicant  Unrepresented  
For the Respondent                  Mr M Palfrey, Senior Associate