FEDERAL COURT OF AUSTRALIA

Grapsas v Minister for Infrastructure and Regional Development [2020] FCA 525

ORDERS

THE COURT ORDERS THAT:

1.    The application by way of appeal be dismissed.

2.    The applicant pay the respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    By an application dated 1 September 2015, the applicant applied to the Department of Infrastructure and Development to import into Australia a 2004 Mercedes-Benz CLK500 Avantgarde motor vehicle. The applicant claimed that he had acquired the vehicle in the United Kingdom in October 2014, and that he had subsequently taken the vehicle to Greece for his use while visiting his mother in Lefkas.

2    On 26 November 2015, a delegate of the Minister decided not to approve the application. The applicant then sought a review of the delegate’s decision by the Administrative Appeals Tribunal. On 9 June 2017, the Tribunal affirmed the delegate’s decision not to approve the application. The applicant now appeals from the Tribunal’s decision to this Court on questions of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

Legislative Background

3    The Motor Vehicle Standards Act 1989 (Cth) regulates (inter alia) the supply and importation of motor vehicles into Australia. Section 18 makes it an offence to import a road vehicle that is non-standard, or which does not have an identification plate. That prohibition is subject to exceptions, which include the importation of a vehicle with the written approval of the Minister, as permitted by s 19, or in prescribed circumstances, as permitted by s 20. The Motor Vehicle Standards Regulations 1989 (Cth) prescribe circumstances in which the importation of a vehicle that is non-standard, or which does not have an identification plate, is permitted. Relevant to the present case are regs 11 and 13, which provide –

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.

(3)    Without limiting the generality of subregulation (2), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.

(4)    An approval must be given by signed instrument.

…

13    Approval to import vehicle without an identification plate if owned and used by applicant overseas

(1)    The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate 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; or

(ii)    a person who has applied to become an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely if granted Australian citizenship or permanent residency; or

(iii)    a person who is entitled to remain in Australia indefinitely and provides evidence that he or she intends to do so; or

(iv)    the holder of a visa that entitles him or her to apply to become a permanent resident (whether or not after a specified period or in specified circumstances) and provides evidence that he or she intends to remain in Australia indefinitely; and

(c)    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

(d)    the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister; and

(e)    the applicant has not been granted an approval under this regulation within the period of 5 years ending on the day on which the vehicle in respect of which the application is made is landed in Australia.

(2)    An approval under subregulation (1) is subject to any written conditions determined by the Minister.

4    Regulation 11 gives the Minister a general discretion to approve the importation of a nonstandard vehicle, or a vehicle without an identification plate. Regulation 13 is directed to the particular circumstances of a migrant, or an expatriate Australian citizen or permanent resident, returning from a period overseas and bringing their vehicle with them, and is referred to as the “personal imports scheme”: Explanatory Statement to the Motor Vehicle Standards Amendment Regulations 2009 (No 1) (Cth), page 6; document titled Importing Vehicles into Australia, June 2015, Department of Infrastructure and Regional Development, page 10.

Further factual background

5    The applicant’s application to the Department for approval to import the vehicle stated that the option for which he was seeking approval was the “personal vehicle” option. The applicant wrote by hand on the form that –

By the time I live [sic] Greece I would have owned the vehicle for over 12 months.

6    The application was accompanied by a number of documents, which included a handwritten document in which the applicant stated –

Early in September 2014 whyle [sic] living in Melbourne Vic. Australia, I received information from my brother Nick who lives in Lefkas Greece with our mother, in that our mother (an Australian citizen living in Greece) was ill and wished to see me. My brother Nick owed me money and it was agreed that he Gie [sic] me a motor car so that I would be able to use it upon my arrival to Greece from Australia to visit our mother and take her to the - doctors and on one accassion [sic] to Hospital.

Due to child support depts [sic] back in Australia I was not able to leave until paid and cleared to fly, February 25th 2015. Once I took care of all my duties and responsibilies [sic] in Lefkas Greece I thought it reasnable [sic] and logical at the - - time to import the, my car, Mercedes CLK 500, 2004, to Australia (Mel. Vic) for the following reasons:

1)    Uppon [sic] my irrival [sic] in to Australia I would need a car in order to find a place to live and a job.

2)    The car is “Right hand drive”

3)    It meets Australian Standards

4)    Due to the economic climate in Greece I had buckleys chances [sic] of selling it locally

5)    It’s a “damn good car”.

7    The application was also accompanied by other documents, including: a one page typewritten document dated 18 October 2014, stating that Mr Argyris Rallis, of an address in England, sold the vehicle to the applicant for €5,000, and apparently signed by Mr Rallis and the applicant; what appeared to be a United Kingdom registration certificate showing the applicant as the “registered keeper” of the vehicle and apparently signed by the applicant and dated 18 June 2014 (being four months before the date of the sale document); a copy of a certificate of motor insurance purportedly in the applicant’s name and stating the date of commencement of insurance as 18 October 2013 (being one year before the date of the sale document); and a copy of what purported to be a ferry ticket for the vehicle for a voyage from Brindisi in Italy to Igoumenitsa in Greece departing 26 April 2015.

8    Subsequently, the applicant was requested to provide further information, including a request for a statement of travel, which request was as follows –

Statement of travel. This involves supplying a signed statement detailing any travel that you have made outside your main country of residence during the 12 Month qualifying period for ownership and use of the vehicle. The statement must include dates travelled, duration and reason for travel i.e. Recreation or Business. If your travel was for business reasons, you must supply a letter to that effect from your employer.

9    In a hand-written note dated “Sunday 4th October” the applicant stated, among other things –

Statement of travel

My main Country of residence has been Lefkas Greece.

I did travel to Brindisi Italy on the 22nd of April by ferry boat for recreational purposes. I returned on the 27th of April via same rout [sic].

For 90% of the time I used my vehicle on the Island of my birth Lefkas Greece.

10    The applicant also completed an additional form, which was a “Personal Imports Option” addendum to the application for importing a vehicle. In that addendum the applicant stated –

I have lived in Australia for over 45 years. I vissited [sic] Greece to see my sick mother, who is also an Australian citizen.

11    By the addendum, the applicant also stated that he had purchased the vehicle in England, and that he acquired ownership of the vehicle overseas on 18 October 2014, and the applicant ticked “Yes” to a question that asked, “Have you owned and used the vehicle while overseas for a continuous period of at least 12 months immediately prior to making this application?”.

12    Later, the applicant made a typewritten statutory declaration dated 19 November 2015, in which the applicant stated (inter alia) –

2.    My reasons for travelling to Greece were two fold:

(a)    To see and be with my mother who is 91 and had a stroke that landed her in Lefkas Hospital (information previously provided.)

(b)    And to relocate and try to live in the Island of my birth, Lefkas, Greece. While there I intended to start a business, Bakerie Patisserie as I had done in Melbourne, Victoria, Australia from 1984 to 2010. The first being Brumbies Bakery, Toorak Road, Burwood, the second Akropolis Bakery, Northcote, the third Baker Boys Bakery, Glen Centre and the last Baker Boys Bakery, 26 Station Street, Bayswater that I sold in January 2010.

…

4.    While in Greece I saw to my mother's needs and caught up with my sister and brother Nick who had bought the Mercedes Benz 500 on my behalf back in October of 2014. Unfortunately I could not travel to Greece sooner than February of 2015 due to child support matters (information provided).

5.    My car during this time was garaged and my home address in Exanthia Lefkas, Greece (information previously provided) where my mother, brother and sister live.

6.    Upon my arrival to Greece, I was able to use my car to take my mother to the Hospital and to visit the doctor, as well as to get around for my personal needs.

7.    Within a couple months of being in Greece, its economy began to slip into bankruptcy and by September of 2015 Banks shut down and it became unviable for me to stay there any longer to either find work or open a business and I therefore decided to return back to Australia in October of 2015.

8.    It is also important to note that I took my German Shepherd dog to Greece that I had since a pup in Australia - in total it cost me $3,500 by Jet Pets to fly my dog to Greece. And it cost me twice that by Jet Pets $6,700 to bring him back to Australia and another $2,000 for a 10 day stay at Spotswood Quarantine Station.

9.    Had I intended to fly to Greece to buy a car and import it for a profit, I would never have thought of taking my dog to Greece and bring him back again. I could have left him at an Australian dog lodge for $2,000 to $2,500, far less than the $12,000 it cost me.

13    On 26 November 2015, a delegate of the Minister refused the applicant’s application to import the vehicle. The delegate found that the applicant’s application did not satisfy the requirements of regs 13(1)(ab), (ac) and (ad), and that the applicant’s case did not warrant the exercise of the discretion in reg 11.

14    The applicant filed an application with the Tribunal dated 17 December 2015 seeking review of the delegate’s decision of 26 November 2015. After the application for review was made and pursuant to s 37(1)(a) of the Administrative Appeals Tribunal Act, the delegate furnished a statement of reasons for the decision dated 29 January 2016. The material elements of the delegate’s reasons were as follows –

(1)    the delegate found that the applicant obtained ownership of the vehicle on 18 October 2014;

(2)    the delegate was not satisfied that the applicant had acquired ownership of the vehicle overseas so as to meet the requirement in reg 13(1)(ab), because when the applicant purchased the vehicle on 18 October 2014, he still resided in Australia;

(3)    the delegate was not satisfied that the applicant had “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” so as to meet the requirement in reg 13(1)(ac);

(4)    the delegate considered that the applicant’s stay in Greece in 2015 was in the nature of a casual visit, and that the date of the applicant’s arrival in Australia for the purpose of remaining in Australia indefinitely was when the applicant originally migrated to Australia, over 45 years before the date of the Application (see, reg 13(1)(a));

(5)    the delegate was not satisfied that the vehicle had been available to the applicant for use in transport for the 12 month period immediately before the applicant arrived in Australia so as to meet the requirement in reg 13(1)(ad);

(6)    the delegate identified a number of inconsistencies in the information that the applicant had provided, and observed that there were features of the type-faces used on parts of the registration certificate, the insurance certificate and the shipping documents, which could indicate that information had been added to those documents, in consequence of which the delegate gave little weight to them;

(7)    the delegate refused to exercise the discretion under reg 11 because the delegate was not satisfied that the circumstances advanced by the applicant constituted sufficient grounds to warrant the exercise of discretion. The delegate found that the applicant’s statements about his personal circumstances were in the nature of claims relating to personal events without further supporting evidence or indication of exceptional circumstances.

15    A hearing took place before the Tribunal on 10 October 2016. The applicant represented himself at the hearing before the Tribunal. The Tribunal had the applicant sworn, so that what the applicant said to the Tribunal could be treated as sworn evidence. The applicant addressed the Tribunal on a range of issues relating to his travel to Greece and the importation of the vehicle. The applicant was cross-examined on behalf of the respondent. The subject matter of the cross-examination included the apparent discrepancies in the documents which the applicant had provided in support of his application. The applicant called one witness, a Mr Tony Tiernan, who gave evidence about his conversations with the applicant before the applicant left for Greece. The tenor of that evidence was that Mr Tiernan had conversations with the applicant before the applicant departed for Greece which were consistent with the applicant seeking to depart for Greece permanently, and that Mr Tiernan was under no doubt that the applicant had gone to Greece to live there permanently.

The Tribunal’s reasons

16    The Tribunal found that the applicant left for Greece on 25 February 2015, and returned to Australia on 25 October 2015. Otherwise, the Tribunal did not make complete findings of fact, because it held that it was unnecessary to determine whether all of the requirements of reg 13 had been met. The Tribunal held that on the facts that were before it, the requirements of reg 13(1)(ac) were not met. The Tribunal held that the proper construction of reg 13(1)(ac) was that the applicant must have owned the vehicle while overseas, and that he must also have owned the vehicle while he was overseas for a continuous period of 12 months. The Tribunal held that because the applicant had not been overseas for a continuous period of 12 months, reg 13 was not engaged.

17    In relation to the general discretion under reg 11, the Tribunal determined that the discretion should not be exercised in favour of the applicant. The Tribunal cited the following passage from the reasons of Mansfield J in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43 (Selway v Minister for Infrastructure) at [37]-[38] –

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 a circumstance, 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 … However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered.

18    The Tribunal then stated that factors such as the policy objectives of the Act; unfairness or injustice to the applicant; financial hardship to the applicant; the unique nature of the vehicle in question; and whether there were any unpredictable or unexpected events, are relevant to consider in exercising the discretion. The Tribunal’s reasons for not exercising the discretion in favour of the applicant were stated as follows –

33.    Policy objectives of the Act – the exercise of the discretion would undermine the intended policy objective of the Act, which as set out in the policy document “Importing Vehicles into Australia”, includes the facilitation of importing foreign vehicles belonging to new migrants and Australian expatriates who have lived overseas for an extended period of time and are returning to their home country.

34.    Unfairness to the Applicant – The Applicant says that he needs the Motor Vehicle to assist him to get work. During the course of his oral evidence, the Applicant conceded that he owned another motor vehicle (albeit, there had been issues with respect to its registration). At one stage, he also said that, “he needed to have it available for my dog”. It seems to me that neither of these two propositions advanced by Mr Grapsas create any great unfairness to him. Furthermore, the Applicant contended that originally he intended to remain in Greece indefinitely and that his decision to return to Australia was unplanned. In a letter from Mr Tiernan (on the Applicant’s behalf) to the Respondent it stated:

Mr Grapsas was confident of settling indefinitely [in] Greece with his family and Mother.

35.    However, such a statement needs to be balanced against the fact that the Applicant has previously stated (as extracted in paragraph 18 above) that he travelled to Greece to visit his mother and take her to the hospital and that once his duties and responsibilities were discharged he thought it to be “reasonable and logical” to return to Australia with the Motor Vehicle.

36.    Furthermore, there was no evidence that the Applicant was given incorrect advice by the Department (see Brassington and Minister for Transport and Regional Services [2006] AATA 724 at [29]).

37.    Financial hardship to the Applicant – the fact that the Applicant’s financial position is poor and that he is reliant upon Government benefits does not, of itself, warrant the exercise of the discretion. See, for example, Burns and Secretary, Department of Infrastructure, Transport, Regional Development and Local Government [2009] AATA 972 at [34]. Furthermore, the Motor Vehicle could be sold to alleviate, at least in part, the financial hardship that he is currently suffering. Any holding costs he may be incurring by reason of it being held in Australia is as a result of his own actions to import the Motor Vehicle prior to obtaining approval.

38.    Whether the Motor Vehicle was unique – the Motor Vehicle does not appear to be unique and the Applicant made no such submission to the Tribunal. When pressed on this issue during the course of the hearing, he simply said in his oral evidence that it was, “a beautiful vehicle”.

39.    Whether there were any unforeseen circumstances – the Applicant submitted that unforeseen economic events in Greece meant that he could not gain employment and, as a consequence, stay in Greece on a permanent basis. The Respondent submitted, which I accept, that the economic troubles faced by Greece were well established by the time the Applicant purchased the Motor Vehicle and arrived in Greece.

40.    Last vestige of his inheritance from his parents – the Applicant submitted that the Motor Vehicle represented the last vestige of his inheritance from his parents. The authorities are clear that surprise or disappointment at the outcome, or sentimental attachment to a motor vehicle are insufficient to bring about an exercise of the discretion under r 11 of the Regulations. See, for example, Kowald and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 1018 at [23] and RNYB and Minister for Infrastructure and Transport [2015] AATA 576 at [43] in this regard.

The questions of law raised by the appeal

19    An appeal under s 44(1) of the Administrative Appeals Tribunal Act is an appeal “on a question of law”. Where an appeal lies “on a question of law”, the subject matter of the appeal is the question or questions of law. A question of law may extend to some mixed questions of fact and law: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [192]-[202]. Although s 44(1) of the Administrative Appeals Tribunal Act uses the words “appeal”, the Court exercises original, and not appellate jurisdiction, and the proceeding is in the nature of judicial review: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; 207 CLR 72 at [15] (Gaudron, Gummow, Hayne and Callinan JJ).

20    The applicant raised six questions of law in his amended notice of appeal, of which five were pressed at the hearing. Those questions of law were as follows –

Questions of law

1.    [Abandoned]

2.    Whether the Tribunal erred in law by misconstruing and/or misapplying r. 13(1)(ac) of the Motor Vehicle Standards Regulations 1989 (Cth) (“the Regulations”) as requiring that the applicant be overseas for a continuous period of 12 months.

3.    Whether the Tribunal erred in law by misconstruing and/or misapplying r. 11 as involving the exercise of one broad discretionary power instead of two.

4.    Whether the Tribunal erred in law by failing to exercise the discretionary power in r. 11(1) of the Regulations according to law.

5.    Whether the Tribunal erred in law by failing to consider exercising the discretionary power in r. 11(2) and 11(3).

6.    Whether the Tribunal erred in law by denying the applicant procedural fairness in one or both of the following ways:

(a)    by failing to give proper consideration to a substantial, clearly articulated argument contained in the applicant’s written statement dated 5 August 2016 at [29]-[30].

(b)    by depriving the applicant of the opportunity to make submissions or be heard.

The applicant’s submissions

Question 2 – the proper construction of regulation 13(1)(ac)

21    The applicant submitted that reg 13(1)(ac) did not require him to have owned the vehicle while he was overseas for a continuous period of 12 months. The applicant submitted that the construction adopted by the Tribunal required that words be inserted into reg 13(1)(ac) that were not there, being the repetition of the words “while overseas” before the reference to the ownership period requirement, so as to impose a requirement that the applicant himself be physically overseas for a continuous period of ownership of at least 12 months before arriving in Australia for the purpose of remaining in Australia indefinitely. The applicant submitted that the construction adopted by the Tribunal would be harsh and impractical, given that any applicant who visited Australia within 12 months of later arriving for the purpose of remaining in Australia indefinitely, which could reasonably be expected for a range of reasons, would be prevented from satisfying the requirement.

Questions 3 and 5 – whether regulation 11 involves the exercise of one discretion or two, and whether the Tribunal erred in failing to exercise the purported second discretionary power in regulations 11(2) and (3)

22    Questions 3 and 5 of the applicant’s amended notice of appeal raised related arguments and were addressed together during the hearing.

23    By reference to question 3, the applicant submitted that the Tribunal erred by treating reg 11 as involving the exercise of one broad discretion to approve an application to import a vehicle, rather than two separate discretions – first, the discretion in reg 11(1) to approve an application to import a vehicle, without any conditions, and second, the discretion in regs 11(2) and (3) to approve an application to import a vehicle, subject to conditions. The applicant submitted that a decision maker considering reg 11 should follow two sequential steps by considering whether to approve an application to import a vehicle without any conditions, and if that discretion was not exercised, then going on to consider whether an approval should be granted, subject to conditions.

24    By reference to question 5, the applicant submitted that the Tribunal’s failure to consider the exercise of the purported second discretion in regs 11(2) and (3) to approve an application to import a vehicle, subject to conditions, was unreasonable in the legal sense. The applicant submitted that even if the Tribunal was not under an express duty to consider exercising the purported second discretion, it was nonetheless unreasonable for the Tribunal to fail to consider exercising it to approve his application. The applicant proposed that the Tribunal could have, for example, approved his application subject to a condition that the vehicle be certified as compliant with the national standards as defined in the Act, and that the Tribunal’s failure to consider such a condition was legally unreasonable.

Question 4 – whether the Tribunal erred in failing to exercise the discretion in regulation 11

25    The applicant submitted that the Tribunal acted unreasonably in the legal sense in failing to exercise its discretionary power in reg 11 to approve his application to import the vehicle.

26    The applicant pointed to five aspects of the Tribunal’s reasons to support that submission.

27    First, the applicant submitted that the Tribunal failed to consider relevant factors outside of the following seemingly predetermined categories – the policy objectives of the Act; unfairness to the applicant; financial hardship to the applicant; whether the vehicle was unique; whether there were any unforeseen circumstances; and the last vestige of the applicant’s inheritance from his parents. The applicant submitted that in doing so, the Tribunal unlawfully fettered its discretion. The applicant submitted that the Tribunal’s focus on these factors led it to make inapposite findings, such as the finding at [36] of its reasons that there was no evidence that the Department gave the applicant incorrect advice about the application process, and distracted the Tribunal’s focus away from the applicant’s personal circumstances and the merits of exercising the discretion.

28    Second, the applicant submitted that in addressing the policy objectives of the Act, the Tribunal made no reference to the Act itself but instead relied solely on a “policy document” titled Importing Vehicles into Australia, June 2015, Department of Infrastructure and Regional Development. The applicant submitted that the Tribunal wrongly suggested that the policy document contained “the intended policy objective of the Act”, which it did not. The applicant also submitted that the Tribunal’s assertion that the exercise of the discretion would “undermine” the policy of the Act was baseless.

29    Third, the applicant submitted that in addressing the unfairness to the applicant, the Tribunal failed to take into account that he had obtained an alternative vehicle for a period out of necessity, and that his financial position was poor and he was unemployed and living in a regional area.

30    Fourth, the applicant submitted that in considering whether there were any unforeseen circumstances, the Tribunal failed to consider, or only gave cursory consideration to, a number of relevant matters which demonstrated that the applicant had intended to emigrate to Greece permanently, but because of unforeseen changes in his personal circumstances, he decided to return to Australia. By way of further written submissions filed after the hearing, the applicant pointed to nine specific matters that he alleged that the Tribunal failed to consider, or only gave cursory consideration to, and also submitted that the Tribunal omitted to make findings on material questions of fact regarding his intention to emigrate to Greece indefinitely and the unforeseen changes in his personal circumstances that led him to return to Australia. The applicant submitted that the Tribunal limited itself to considering what the applicant described as objective unforeseen circumstances, such as the state of the economy in Greece, and not what the applicant described as his subjective circumstances, such as his familial relations and inheritance, and in doing so, the Tribunal took an unduly narrow approach.

31    Fifth, the applicant submitted that the Tribunal’s consideration of whether there were any unforeseen circumstances was unfair to him because the Tribunal accepted that the economic troubles in Greece were already well established by the time the applicant purchased the vehicle and arrived in Greece, without providing the applicant with an opportunity to be heard on that issue.

Question 6 – whether the Tribunal failed to afford the applicant procedural fairness

32    The applicant submitted that the Tribunal failed to afford him procedural fairness in two ways.

33    First, the applicant submitted that the Tribunal failed to consider substantial and clearly articulated arguments put in support of his application. The applicant referred to particular paragraphs of his statement dated 5 August 2016 and filed in the Tribunal, in which he described changes in his personal circumstances in Greece that led him to decide to return to Australia. The applicant acknowledged that there was overlap between this alleged error of law and the appellant’s alleged error of law in relation to the first and fourth impugned aspects of the Tribunal’s reasons under question 4 of his amended notice of appeal, discussed above.

34    Second, the applicant submitted that the Tribunal deprived him of a meaningful opportunity to make submissions to the Tribunal or be heard. The applicant pointed to a passage at [34]-[35] of the Tribunal’s reasons in which it stated that the applicant’s contention that he originally intended to emigrate to Greece indefinitely and that his return to Australia was unplanned needed to be balanced against the fact that he had previously stated that he travelled to Greece to visit and care for his mother and that once those duties were discharged, he thought it reasonable and logical to return to Australia with the vehicle. The applicant submitted that the Tribunal, in effect, drew an adverse inference against him and did not give him an opportunity to meet or comment on that inference.

Proposed disposition

35    The applicant submitted that if the Court were to find error of law on the part of the Tribunal, then the Court should itself, pursuant to s 44(7) of the Administrative Appeals Tribunal Act, make the material finding of fact that the applicant’s application to import the vehicle met all of the criteria contained in regs 13(1)(aa)-(e). The applicant submitted that the Court’s power to make that material finding of fact for itself would be available because it would be convenient for it to do so, and the Court was in as good of a position as the Tribunal was to consider the evidence on the relevant issues. The applicant did not seek an order that the Court approve the applicant’s application to import the vehicle, and accepted that a remitter to the Tribunal would still be necessary.

The respondent’s submissions

Question 2 – the proper construction of regulation 13(1)(ac)

36    The respondent submitted that the Tribunal correctly construed reg 13(1)(ac) as imposing a requirement that the applicant was overseas while he owned the vehicle for a continuous period of 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely. The respondent supported this submission by reference to the text, context and purpose of reg 13(1)(ac), including by having regard to the legislative history and relevant extrinsic materials.

37    The respondent submitted that reg 13(1)(ac) builds on the requirements of regs 13(1)(aa) and (ab), under which, on the respondent’s construction as advanced before the Tribunal and in this proceeding, the applicant must have been overseas when he acquired the vehicle (reg 13(1)(ab)), and the applicant must have owned the vehicle at the time of the application (reg 13(1)(aa)). The respondent submitted that in that setting, it follows from the scheme of the regulation that the period for which the applicant must have been overseas is the 12 months of continuous ownership of the vehicle referred to. The respondent submitted that if reg 13(1)(ac) were interpreted as containing two distinct requirements as advanced by the applicant – first, that the applicant owned the vehicle while overseas, and second, that the applicant owned the vehicle for at least 12 months immediately before arriving in Australia for the relevant purpose – then the first of those requirements would be redundant because it was already contained in reg (1)(ab), which required that the person acquired ownership of the vehicle overseas. The respondent submitted that for that reason, reg 13(1)(ac) contained one compound requirement – that the applicant owned the vehicle while overseas for a continuous period of 12 months immediately before arriving in Australia for the relevant purpose. The respondent also submitted that the heading of reg 13, being “Approval to import vehicle without an identification plate if owned and used by applicant overseas”, supported the construction that reg 13(1)(ac) imposed a requirement that the applicant was overseas during the required period.

38    The respondent submitted that his construction of reg 13(1)(ac) also supported the purpose of the Act and the Regulations. The respondent pointed to the main objects stated in s 3 of the Act, being (a) to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia, and (b) to regulate the first supply to the market of used imported vehicles, and also pointed to the general prohibition in s 18 on importing road vehicles that are nonstandard or do not have an identification plate, and to the limited exceptions to that prohibition, including in reg 13. The respondent also relied on the Explanatory Statement to the Motor Vehicle Standards Amendment Regulations 2009 (No 1), which accompanied the amending regulation made in 2009 that introduced regs 13(1)(aa)-(ad), and emphasised certain passages of that Explanatory Statement, which were said to support his construction of reg 13(1)(ac).

39    The respondent also submitted that an earlier decision of the Tribunal in Re Liden and Minister for Infrastructure [2012] AATA 280; 133 ALD 418 did not suggest any different result. The respondent submitted that in that decision, Tamberlin DP considered the meaning of “available” for use in reg 13(1)(ad), which concerned only the period of ownership of the vehicle and not the place of ownership, whereas reg 13(1)(ac) was concerned with both. The respondent also submitted that in the decision presently under review, the Tribunal correctly noted that previous decisions of the Tribunal had interpreted reg 13(1)(ac) as requiring the ownership for 12 months to have occurred overseas, citing Miller and Minister for Infrastructure [2010] AATA 608 at [9] (Kenny SM) and Kowald and Minister for Infrastructure [2010] AATA 1018 at [14] (Dunne SM).

40    The respondent also opposed the applicant’s submission that the respondent’s construction would be harsh and impractical, on the basis that any applicant who visited Australia within 12 months of later arriving for the purpose of remaining in Australia indefinitely would be prevented from satisfying the requirement. The respondent submitted that his construction would not have that result. The respondent submitted that, properly construed, while the expression “while overseas” in reg 13(1)(ac) attached to the applicant being overseas for the relevant period, as a matter of substance over form and adopting a practical approach consistent with the reasoning in Re Liden in relation to reg 13(1)(ad), the requirement was for the applicant to reside overseas, and not to be continuously overseas, during that period. Therefore, the respondent submitted that any visit to Australia during the relevant period would not necessarily prevent satisfaction of the requirement, which would need to be considered on the facts of the particular case.

Questions 3 and 5 – whether regulation 11 involves the exercise of one discretion or two, and whether the Tribunal erred in failing to exercise the purported second discretionary power in regulations 11(2) and (3)

41    In response to the applicant’s submissions raised in relation to question 3, the respondent submitted that the Tribunal did not err in referring to reg 11 as providing a single, broad discretion to allow the importation of a nonstandard vehicle, or a vehicle that does not have an identification plate. The respondent referred to this Court’s judgment in Selway v Minister for Infrastructure, in which Mansfield J repeatedly referred to the “discretion under Reg 11”, without distinguishing between a discretion in reg 11(1) to approve an application to import a vehicle, without any conditions, and a separate discretion in regs 11(2) and (3) to approve an application to import a vehicle, subject to conditions.

42    In response to question 5, the respondent submitted that it was not legally unreasonable for the Tribunal not to consider exercising the purported second discretion to approve an application to import a vehicle, subject to conditions. The respondent submitted that at no point did the applicant contend before the Tribunal that it should attach conditions to its approval, such that it can hardly be unreasonable for the Tribunal not to consider exercising a power that the applicant did not request it to exercise.

Question 4 – whether the Tribunal erred in failing to exercise the discretion in regulation 11

43    The respondent submitted that the Tribunal did not act legally unreasonably in failing to exercise the discretion in reg 11 to approve the applicant’s application to import the vehicle.

44    The respondent acknowledged that the terms of reg 11 conferred an unfettered discretion on the Minister to approve an application to import a nonstandard vehicle, or a vehicle that does not have an identification plate. That discretion is not stated to be reserved for “special circumstances” or “exceptional circumstances”, or any other such qualifying terms commonly used to fetter statutory discretions. However, the respondent submitted that the discretion must be understood in its context, and that context suggested that the discretion should be exercised narrowly. In particular, the respondent pointed to the specific discretions in regs 12 and 13, by which the Minister could approve applications to import vehicles that complied with the national standards but did not have an identification plate (reg 12), or vehicles that were nonstandard or did not have an identification plate (reg 13), if certain specific criteria are met. The respondent submitted that the general discretion in reg 11, and the specific discretions in regs 12 and 13, should be read together so that each had some separate work to do. The respondent submitted that the Minister may sometimes approve an importation under reg 11 that falls outside of the specific circumstances in regs 12 and 13, but that the general discretion should not operate so widely as to render the specific provisions unnecessary. The Minister characterised the general discretion in reg 11 as a “failsafe” that could be used after first considering the more specific discretions. The respondent submitted that the question whether to exercise the general discretion in reg 11 must be informed by the purpose of any other specific provision which could otherwise provide for the proposed importation – in the applicant’s case, reg 13, which was not satisfied. By reference to the Explanatory Statement to the Motor Vehicle Standards Amendment Regulations 2009 (No 1), the respondent submitted that the purpose of reg 13 was to establish a concessional scheme for a limited number of vehicles that do not comply with the uniform national standards in the Act, and the general discretion in reg 11 should not be exercised to defeat the purpose of reg 13. In making this submission, the respondent relied on Selway v Minister for Infrastructure, and in particular, emphasised Mansfield J’s comment on the nature of the discretion in reg 11 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 a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty counterveiling factors…

45    The respondent submitted that given that the applicant did not satisfy reg 13, if the Tribunal were to approve the applicant’s application under the general discretion in reg 11, that would prima facie undermine the purpose of the Act and in particular the purpose of reg 13 as establishing a limited concessional scheme to the general prohibition on importing road vehicles that are nonstandard or do not have an identification plate. By reference to Selway v Minister for Infrastructure, the respondent submitted that the fact that the applicant did not satisfy reg 13 was not of itself reason not to exercise the discretion in reg 11, but rather that therefore the Tribunal would require there to be weighty counter-veiling factors to exercise the discretion.

46    The respondent also made submissions in response to the five specific aspects of the Tribunal’s reasons relied upon by the applicant in support of his submission that the Tribunal acted legally unreasonably in failing to exercise the discretion in reg 11.

47    First, the respondent submitted that the Tribunal did not unlawfully fetter its discretion by failing to consider relevant factors outside of certain predetermined factors. The respondent identified that the Tribunal derived those factors from earlier decisions in which the Tribunal applied the discretion. The respondent submitted that the Tribunal treated those factors as a useful checklist of considerations that were likely to be relevant, which provided a framework to inform the Tribunal’s consideration of whether or not to exercise an unconstrained discretion. The respondent submitted that in utilising the checklist, the Tribunal did not err by unlawfully narrowing the breadth of the statutory discretion or failing to consider the applicant’s particular circumstances. Rather, the respondent emphasised that the first two factors considered, the policy objectives of the Act and unfairness to the applicant, necessarily inform the exercise of the statutory discretion and take into account the applicant’s particular circumstances. Where the Tribunal’s use of the checklist led it to dismiss potential arguments that were not in fact put by the applicant, such as at [36] of its reasons where it found that there was no evidence that the Department gave the applicant incorrect advice about the application process, the respondent submitted that was a harmless surplusage of reasoning.

48    Second, the respondent submitted that the Tribunal did not err in referring to the Importing Vehicles into Australia policy document. The respondent submitted that while the Tribunal did refer to that policy document in identifying a policy objective of the Act, that policy objective was accurately identified and was also reflected in the Explanatory Statement to the Motor Vehicle Standards Amendment Regulations 2009 (No 1).

49    In respect of the third, fourth and fifth specific aspects of the Tribunal’s reasons relied upon by the applicant, the respondent submitted that the applicant was seeking only to challenge the merits of the Tribunal’s decision by claiming that the Tribunal’s discussion was “cursory” or “unfair”.

50    The respondent also made submissions opposing each of those aspects relied upon by the applicant.

51    Third, the respondent submitted that the Tribunal did consider the applicant’s poor financial position and his reliance on government benefits, and that the Tribunal was not required to expressly refer to the fact that the applicant was living in a regional area or his intra-familial conflict, as those matters were of marginal relevance.

52    Fourth, the respondent addressed the applicant’s argument that the Tribunal failed to consider his representations about unforeseen circumstances in responding to question 6 of the applicant’s amended notice of appeal, which raises a question as to whether the Tribunal failed to afford the applicant procedural fairness.

53    Fifth, the respondent submitted that the Tribunal was not obliged to put to the applicant that it was inclined to accept the respondent’s arguments in relation to the economy in Greece, but rather it was a matter for the applicant to satisfy the Tribunal that the discretion in reg 11 should be exercised in his favour.

Question 6 – whether the Tribunal failed to afford the applicant procedural fairness

54    The respondent submitted that the Tribunal did not deny the applicant procedural fairness in either of the ways alleged by the applicant.

55    First, the respondent submitted that the Tribunal did not fail to consider substantial and clearly articulated arguments put by the applicant in support of his application. The respondent submitted that the Tribunal engaged with the substance of the applicant’s claims, and rejected them. In respect of the various specific matters that the applicant alleged demonstrated that he intended to emigrate to Greece indefinitely and that the Tribunal failed to consider, or only gave cursory consideration to, the respondent submitted that those matters were subsumed in the Tribunal’s consideration of the applicant’s submission that he intended to emigrate to Greece indefinitely, and did not require individual findings or consideration.

56    Second, the respondent submitted that the Tribunal did not deprive the applicant of a meaningful opportunity to make submissions or be heard in response to an alleged adverse inference that the Tribunal drew against the applicant by discounting his evidence that he intended to emigrate to Greece indefinitely in light of his other inconsistent statements. The respondent submitted that the Tribunal was not bound by the rules of evidence, including the rule in Browne v Dunn (1893) 6 R 67, and that the respondent had raised the issue of the applicant’s inconsistent statements in his statement of facts, issues and contentions filed in the Tribunal before the Tribunal hearing, so the applicant had ample opportunity to comment.

Proposed disposition

57    The respondent’s primary submission was that the Tribunal did not commit any error of law, and therefore the applicant’s appeal to this Court should be dismissed.

58    The respondent also submitted that if this Court were to find an error of law on the part of the Tribunal, then the Court nonetheless would not have power pursuant to s 44(7) of the Administrative Appeals Tribunal Act to make the finding of fact sought by the applicant that his application met all of the criteria in regs 13(1)(aa)-(e). Further, the respondent submitted that there was no basis for making the finding of fact sought by the applicant, including by noting that he maintained arguments put to the Tribunal that the applicant did not satisfy other requirements in reg 13, which the Tribunal did not decide.

Consideration

Question 2 – the proper construction of regulation 13(1)(ac)

59    For substantially the reasons stated by the Tribunal at [25] of its reasons and the additional reasons advanced by the respondent before this Court, I agree with the Tribunal’s construction of reg 13(1)(ac), being that it imposed a requirement that the applicant was overseas while he owned the vehicle for a continuous period of 12 months immediately before arriving in Australia for the relevant purpose. As stated by the Tribunal at [25(b)] and [25(c)] of its reasons, that construction accords with the construction adopted in the earlier decisions of the Tribunal in Miller and Minister for Infrastructure [2010] AATA 608 at [9] (Kenny SM) and Kowald and Minister for Infrastructure [2010] AATA 1018 at [14] (Dunne SM).

60    For ease of reference, I have again extracted the regulation, in context with some of the immediately surrounding provisions, below –

13    Approval to import vehicle without an identification plate if owned and used by applicant overseas

(1)    The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate 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

…

61    The starting point for the proper construction of a legislative provision is its text, while at the same time having regard to its context and purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). Context should be regarded at this first stage, not some later stage, and should be regarded in its widest sense: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). Context includes legislative history and extrinsic materials: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] [HCA] 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). It is permissible to have regard to extrinsic material in order to identify the context and purpose of a statutory provision, including the identification of any mischief to which a legislative amendment was directed: eg, Li v Chief of Army [2013] HCA 49; 250 CLR 328 at [17]; Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; 248 CLR 619 at [59]; Akiba v The Commonwealth [2013] HCA 33; 250 CLR 209 at [31]; Commissioner of Taxation of The Commonwealth of Australia v Unit Trend Services Pty Ltd [2013] HCA 16; 250 CLR 523 at [54]-[55]. The examination of extrinsic material for that purpose may occur at the first stage and does not first require the identification of ambiguity in the text of the provision being considered: see generally the discussion in CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at [44]-[61] (O’Callaghan and Wheelahan JJ).

62    The text of reg 13(1)(ac) itself, considered in isolation, permits either the applicant’s construction or the respondent’s construction. It is ambiguous whether the requirement “while overseas” attaches only to the first half of the provision, that “the applicant owned the vehicle while overseas”, or whether it also attaches to the second half of the provision, regarding the ownership period requirement. I do not accept the applicant’s submission that the respondent’s construction requires that the words “while overseas” be repeated in the text of the regulation before the reference to the ownership period requirement. As found by the Tribunal at [25(a)] of its reasons, I consider that the word “and” can be read conjunctively, such that the words “while overseas” in the first part of the regulation, that “the applicant owned the vehicle while overseas”, can be fairly read to also apply to the second part of the regulation, “and owned it for at least 12 months” before arriving in Australia for the relevant purpose.

63    The proper construction must be informed by the context and purpose of the provision. The context of the immediately surrounding provisions, extracted at [60] above, supports the respondent’s construction. I accept the respondent’s submissions, outlined at [37] above, that the heading to reg 13 and the scheme of regs 13(1)(aa)-(ad) support his construction. No argument was addressed as to whether s 13(1)(a) of the Legislation Act 2003 (Cth) renders s 13 of the Acts Interpretation Act 1901 (Cth) applicable to the interpretation of the Motor Vehicle Standards Regulations, which (putting aside amendments) were made in 1989 before the commencement of the Legislative Instruments Act 2003 (Cth), as the Legislation Act was then titled: cf, Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [15] (French CJ, Gummow and Crennan JJ). However, I am satisfied on the authorities that, independently of the interpretation statutes, regard may be had to a heading in regulations as an aid to construction in the event of ambiguity: Silk Bros Pty Ltd v State Electricity Commission (Vic) [1943] HCA 2; 67 CLR 1 at 16 (Latham CJ); see also, Bennion on Statutory Interpretation (5th Edition), p 716. The reference in the heading of reg 13 to the vehicle being “owned and used by [the] applicant overseas” supports the construction that the applicant must be overseas for the 12 month period prescribed in the ownership and use requirements. Further, on the respondent’s construction, there is a logical scheme to the requirements of the successive provisions – that the applicant was overseas when he acquired ownership of the vehicle (reg 13(1) (ab)); that the applicant was overseas during the 12 month period of continuous ownership (reg 13(1) (ac)); and that the vehicle was available to the applicant for use in transport during that 12 month period (reg 13(1) (ad)). The logic of that scheme supports the construction that the applicant must have been overseas for 12 months of continuous ownership of the vehicle referred to. The concession in reg 13 is directed towards an applicant being overseas with his or her vehicle for that ownership period, and then coming to Australia with his or her vehicle for the purpose of remaining in Australia indefinitely. Telling support for the respondent’s construction is found in the Explanatory Statement to the Motor Vehicle Standards Amendment Regulations 2009 (No 1), which accompanied the amending regulation made in 2009 that introduced regs 13(1)(aa)-(ad). I consider that the following passages, which were emphasised by the respondent, support the submission that the purpose of reg 13(1)(ac) was to impose a requirement that the applicant was overseas for the 12 months of continuous ownership of the vehicle referred to:

(1)    The purpose of the “personal imports scheme” in reg 13 “is to enable migrants and expatriate Australians returning from long periods overseas to bring their vehicles with them”, noting that those vehicles bypass the ordinary certification standards: pages 2 and 6.

(2)    In order to qualify for the reg 13 personal imports scheme, “a vehicle must be owned and used overseas by the applicant for a continuous period of at least 12 months”, to ensure that the vehicle “is the personal vehicle of the applicant migrant or expatriate Australian”: page 6.

(3)    Specifically in respect of reg 13(1)(ac), “the applicant must have owned the vehicle (while overseas) for a continuous period of at least 12 months immediately before arriving in Australia” (emphasis added): page 7.

64    For completeness, while it did not arise on the facts before the Tribunal because the applicant was overseas for a period of approximately 8 months and did not visit Australia before returning indefinitely, I do not accept the applicant’s submission that the respondent’s construction would be harsh and impractical. Rather, I accept the respondent’s submission that the requirement in reg 13(1)(ac) should be construed in a practical manner, such that any visit to Australia by an applicant within 12 months of later moving to Australia indefinitely would not necessarily prevent satisfaction of the requirement. The scope of the requirement, including whether it should be construed as requiring an applicant to reside overseas during the relevant period, or the nature of any time spent in Australia during the qualifying period that would prevent satisfaction of the requirement, does not arise in this case and need not be decided.

65    For the reasons above, I do not accept the applicant’s alleged error of law that is the subject of question 2 to be made out.

Questions 3 and 5 – whether regulation 11 involves the exercise of one discretion or two, and whether the Tribunal erred in failing to exercise the purported second discretionary power in regulations 11(2) and (3)

66    The alleged errors the subject of questions 3 and 5 can be dismissed relatively succinctly.

67    In respect of question 3, I do not accept that reg 11 gives rise to two discretions – first, a discretion to approve an application to import a vehicle, without conditions, and second, a discretion to approve an application to import a vehicle, subject to conditions. Regulation 11 gives rise to a single discretion, to approve an application to import a vehicle, and that discretion can be exercised by granting an approval, with or without conditions attached. The purpose of regs 11(2) and (3) is to make clear that the discretion can be exercised by approving an application, subject to conditions: cf, Country Roads Board v Neale Ads Pty Ltd [1930] HCA 5; 43 CLR 126 at 134 (Knox CJ, Starke and Dixon JJ). That clarification does not give rise to a separate discretion. If such clarifying provisions were construed as giving rise to separate discretions, and the decisions of administrative tribunals and courts were attacked for failing to consider the exercise of such purported separate discretions (as the applicant has sought to do by question 5, discussed below), the task of those administrative tribunals and courts would be unreasonably burdened by recording their consideration of a myriad of purportedly separate discretionary powers. The proper construction of reg 11 as giving rise to a single discretion, which can be exercised by granting an approval with or without conditions attached, accords with Selway v Minister for Infrastructure, in which Mansfield J repeatedly referred to the “discretion under Reg 11”. I respectfully agree with Mansfield J’s characterisation of reg 11 as giving rise to a single discretion.

68    In respect of question 5, I do not consider that the Tribunal acted unreasonably in the legal sense in failing to consider exercising a separate discretion to approve the applicant’s application to import the vehicle, subject to conditions. A failure to consider the exercise of a discretionary power can constitute a failure to act reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 382 at [102]-[103] (Gageler J). As I have found above, reg 11 gives rise to a single discretion, which can be exercised by granting an approval, with or without conditions attached. Further, I accept the respondent’s submission that since the applicant did not contend before the Tribunal that it should attach conditions to its approval of his application to import the vehicle, it cannot be unreasonable for the Tribunal not to have considered, or at least not to have recorded in its reasons, approving the applicant’s application, subject to conditions. Although the procedure before the Tribunal is inquisitorial, it was nonetheless for the applicant to establish his claims and to put issues before the Tribunal: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). The applicant did not put the issue of approving his application, subject to conditions, to the Tribunal. In written submissions filed after the hearing in this Court, the applicant submitted that one “obvious” condition that the Tribunal could have attached to an approval of his application was that the vehicle be certified as compliant with the national standards as defined in the Act. However, the applicant did not propose that condition, or any other, before the Tribunal. In the circumstances of the present case, it was not legally unreasonable for the Tribunal not to have conceived of attaching some condition that the applicant did not propose.

69    For the reasons above, I do not find the applicant’s alleged errors of law in questions 3 and 5 to be made out.

Question 4 – whether the Tribunal erred in failing to exercise the discretion in regulation 11

70    The applicant framed question 4 as a failure by the Tribunal to act reasonably, in the legal sense, in coming to its view that the discretion in reg 11 should not be exercised in the applicant’s favour.

71    The standard of reasonableness to be applied to the exercise of a discretionary power conferred by a legislative instrument is the standard indicated by the true construction of that legislative instrument: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 382 at [67] (Hayne, Kiefel and Bell JJ). Therefore, the question whether the Tribunal’s refusal to exercise the discretion under reg 11(1) was legally unreasonable must be understood in light of the true construction of that provision, in its context within the broader regulatory scheme. The question to which the standard of reasonableness is addressed is whether the legislative power has been abused: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 382 at [67] (Hayne, Kiefel and Bell JJ).

72    The applicant did not submit that the outcome, being the non-exercise of the discretionary power, itself necessitated a finding of legal unreasonableness. The Tribunal’s conclusion that the applicant’s application did not warrant the exercise of the discretion was not inherently unreasonable. Rather, the applicant submitted that the Tribunal acted unreasonably in coming to its view that the discretion should not be exercised. That is, the applicant submitted that the Tribunal acted legally unreasonably by committing other recognised kinds of legal error in its reasoning process, and not simply because of the outcome of that process: see, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44] (Allsop CJ, Robertson and Mortimer JJ); Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [6] (Allsop CJ). The applicant pointed to five aspects of the Tribunal’s reasons to support his submission that the Tribunal acted legally unreasonably in deciding to refuse to exercise the discretion. In doing so, the applicant alleged more specific recognised kinds of legal error, or grounds of judicial review, that may be seen as encompassed by unreasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 382 at [72] (Hayne, Kiefel and Bell JJ). I have considered each of those identified aspects of the Tribunal’s reasons in turn, below.

73    First, I do not consider that the Tribunal erred in having regard to certain factors, which had been developed in earlier decisions of the Tribunal, to inform its consideration of whether or not to exercise the discretion. The Tribunal considered whether or not to exercise the discretion at [28]-[40] of its reasons. In doing so, the Tribunal did not misunderstand its statutory task or unlawfully fetter the discretion in reg 11. Before considering the facts of the applicant’s application, the Tribunal made general comments about the nature of the discretion –

28.    Regulation 11 contains a broad discretion to allow the importation of a nonstandard vehicle or a vehicle without an identification plate. The Act and the Regulations do not set out the specific facts to be taken into account for the exercise of this discretion. Accordingly, they must be 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.

29.    In Compos and Minister for Infrastructure and Transport [2012] AATA 227, Toohey SM held at [29]:

[T]here needs to be good reason for the discretion in reg 11 to be exercised.

30.    In Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43, Mansfield J held at [37] – [38]:

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 a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty countervailing factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11…However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered…

31.    Factors such as the policy objectives of the Act; unfairness or injustice to the Applicant; financial hardship to the Applicant; the unique nature of the vehicle in question; whether there were any unpredictable or unexpected events, are relevant to consider in exercising the discretion.

    (emphases added)

74    As emphasised above, the Tribunal accurately summarised the breadth of the discretion, which did not have any expressly prescribed limits, and the limited relevance of having regard to certain factors developed in earlier decisions of the Tribunal. The Tribunal stated that factors “such as” those listed were “relevant to consider”. The Tribunal did not state that the applicant was required to satisfy any of those listed factors, or that they constituted an exhaustive list of the relevant factors that could inform its consideration of whether or not to exercise the discretion. The respondent submitted that the Tribunal treated those factors as a useful checklist that provided a framework to inform its consideration of whether or not to exercise an unconstrained discretion. I accept that characterisation.

75    The Tribunal went on at [33]-[40] of its reasons, extracted at [18] above, to consider the facts of the applicant’s application and decide not to exercise the discretion in his favour. The Tribunal considered each of the factors that it derived from earlier decisions of the Tribunal. In doing so, I do not consider that the Tribunal impermissibly fettered the discretion or limited itself, or failed to have regard to the particulars of the applicant’s application. As submitted by the respondent, the first two factors considered by the Tribunal – the policy objectives of the Act and unfairness to the applicant – necessarily inform the proper exercise of the statutory discretion. The discretion must be guided by the policy objectives of the Act, and consideration of any unfairness to the applicant requires the Tribunal to consider the particular facts of the applicant’s application and the consequences of the exercise of the discretion. The remaining factors derived from earlier decisions of the Tribunal – financial hardship to the applicant; whether the motor vehicle was unique; and whether there were any unforeseen circumstances – were also relevant to the exercise of the discretion, in light of the purpose of the regulatory scheme and the facts of the applicant’s application. To the extent that the Tribunal’s regard to earlier decisions caused it to dismiss potential arguments that were not in fact put by the applicant, such as at [36] of its reasons where it found that there was no evidence that the Department gave the applicant incorrect advice about the application process, I accept the respondent’s submission that this was a harmless surplusage of reasoning. Beyond being harmless, I consider that it was appropriate and prudent for the Tribunal expressly to make this reference, given that before the Tribunal, the respondent specifically submitted that the Department giving incorrect advice about the application process may warrant the exercise of the discretion, but those circumstances did not arise in the applicant’s case. Finally, it is apparent that the Tribunal did not consider itself limited to the factors that it derived from earlier decisions. At [40] of its reasons, the Tribunal considered an additional factor, that the vehicle was the last vestige of the applicant’s inheritance from his parents, which it did not derive from any earlier decision, but rather that was responsive to the applicant’s submissions and the particular facts of his application.

76    Second, I do not accept the applicant’s submissions that the Tribunal erred in referring to the Importing Vehicles into Australia policy document. The Tribunal, at [33] of its reasons, in addressing the policy objectives of the Act when considering whether or not to exercise the discretion, referred to that policy document and stated that the intended policy objectives of the Act included the “facilitation of importing foreign vehicles belonging to new migrants and Australian expatriates who have lived overseas for an extended period of time and are returning to their home country.” This policy objective was accurately identified and is reflected in the Explanatory Statement to the Motor Vehicle Standards Amendment Regulations 2009 (No 1) (Cth), which states that the purpose of the “personal imports scheme” in reg 13 “is to enable migrants and expatriate Australians returning from long periods overseas to bring their vehicles with them”. The applicant’s submission that the Tribunal’s finding that the exercise of the discretion would undermine the intended policy objective of the Act was baseless, requires more detailed consideration. The Tribunal’s reasons on this issue are brief. At [33] of its reasons, the Tribunal stated that “the exercise of the discretion would undermine the intended policy objective of the Act, which as set out in the policy document “Importing Vehicles into Australia”, includes the facilitation of importing foreign vehicles belonging to new migrants and Australian expatriates who have lived overseas for an extended period of time and are returning to their home country.” The Tribunal did not explain in detail why that was so. However, the Tribunal’s reasons must be read fairly as a whole and not over scrutinised to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [31] (Brennan CJ, Toohey, McHugh and Gummow JJ). When read in the context of the decision as a whole, which involves the Tribunal first finding that the applicant did not satisfy the specific “personal imports scheme” in reg 13 before turning to the general discretion in reg 11, I consider that it is tolerably clear that the Tribunal considered that to approve the application under the general discretion would undermine the policy objective that the import of vehicles that are nonstandard, or do not have an identification plate, should generally be limited to circumstances where the specific criteria in reg 13 are met. In this sense, I consider that the Tribunal adopted the respondent’s understanding, as submitted to this Court, of the proper role of the general discretion in reg 11, as outlined at [44] above. The Tribunal’s statement that importation under the general discretion would undermine the policy objectives of the Act was premised on its understanding of the general discretion as a “failsafe” that may be exercised where the more specific provisions are not made out, but should not operate so widely as to render those more specific provisions unnecessary or to defeat the purpose of the limited nature of the concessions that they provide. The Tribunal referred to and sought to apply the reasoning of Mansfield J in Selway v Minister for Infrastructure that in some circumstances, an importation under the general discretion might undermine or frustrate the policy objectives of the Act, such that weighty countervailing factors should be required to exercise the general discretion. The Tribunal found that exercising the general discretion would undermine the policy objectives of the Act (at [33]). It then went on to consider potential counter-veiling factors (at [34]-[40]), and concluded that the circumstances did not warrant the exercise of the discretion (at [41]).

77    In respect of the third, fourth and fifth specific aspects of the Tribunal’s reasons relied upon by the applicant, I do not accept the respondent’s submission that the applicant was seeking only to challenge the merits of the Tribunal’s decision. I consider that these parts of the applicant’s case properly raised questions of law that are amenable to review by this Court under s 44(1) of the Administrative Appeals Tribunal Act.

78    Third, I do not consider that the Tribunal erred in failing to consider certain matters in addressing the unfairness to the applicant at [34] of its reasons. While the Tribunal was required to provide a statement of reasons referring to the evidence or other material on which its findings were based, the Tribunal was not required to refer expressly in its reasons to every piece of evidence and every contention made to it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ); Reece v Webber [2011] FCAFC 33; 192 FCR 254 at [67] (Jacobson, Flick and Reeves JJ). Under this heading, the applicant complained that the Tribunal did not take into account that he had obtained an alternative vehicle for a period of time out of necessity, and that his financial position was poor, and that he was unemployed and living in a regional area. The Tribunal expressly referred to the applicant’s poor financial position and reliance on government benefits at [37] of its reasons. The fact that the Tribunal made these references under the heading of financial hardship to the applicant, and not under the heading of unfairness to the applicant, is immaterial: the Tribunal’s reasons must be read as a whole. Further and as discussed above, the Tribunal only adopted those headings as a useful checklist, so whether it recorded its consideration of particular material under one heading or another, it all went towards the Tribunal’s consideration of whether or not to exercise the broad discretion in reg 11 to approve the applicant’s application. The other matters were of marginal relevance and the Tribunal was not required to refer to them expressly.

79    Fourth, I have addressed the applicant’s submission that the Tribunal failed to consider, or gave only cursory consideration to, certain matters when considering whether there were any unforeseen circumstances in addressing question 6 of the applicant’s amended notice of appeal, below.

80    Fifth, I do not consider that the Tribunal acted unfairly towards the applicant, in the sense that it failed to afford him procedural fairness, by accepting that the economic troubles in Greece were already well established by the time he purchased the vehicle and arrived in Greece, without providing him with an opportunity to be heard on that issue. The Tribunal expressly stated at [39] of its reasons that it made that finding by accepting the respondent’s submission. The applicant had ample opportunity to make his own submissions about the point before the Tribunal. Further, as stated by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) –

..as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry,

“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

The Tribunal was not obliged to put to the applicant that it was inclined to accept the respondent’s submission on this point.

81    For the reasons above, I do not accept that the error of law raised by question 4 is established.

Question 6 – whether the Tribunal failed to afford the applicant procedural fairness

82    By question 6 of his amended notice of appeal, the applicant submitted that the Tribunal failed to afford him procedural fairness in two ways. I shall address each in turn, below.

83    First, I do not accept the applicant’s submission that the Tribunal erred by failing to consider substantial and clearly articulated arguments put in support of his application.

84    A failure by the Tribunal to respond to a substantial, clearly articulated argument can amount to a failure to afford procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ). A failure by the Tribunal to set out in its reasons a finding on some question of fact may found an inference that no finding was made on the matter, and that the Tribunal did not consider it to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ); Administrative Appeals Tribunal Act, s 43(2). However, a failure to mention expressly some particular matter is not conclusive that it has not been taken into account: Reece v Webber [2011] FCAFC 33; 192 FCR 254 at [65] (Jacobson, Flick and Reeves JJ); see also, Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; 140 CLR 675 at 680 (Barwick CJ) and 682 (Stephen J, Gibbs, Mason and Aickin JJ agreeing). As stated above, the Tribunal was not required to refer expressly in its reasons to every piece of evidence and every contention made to it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ); Reece v Webber [2011] FCAFC 33; 192 FCR 254 at [67] (Jacobson, Flick and Reeves JJ). Further, the Tribunal may not be required specifically to address or make a finding on a particular matter if it has been subsumed into its consideration of a matter of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ). Whether a failure by the Tribunal to refer to a particular matter put by the applicant amounts to a failure to afford procedural fairness must be assessed in the legal and factual context of the particular case, with due regard to the materiality of the particular matter. What is required is the reality of consideration by the Tribunal, and therefore what the Court must assess, in a qualitative way, is whether the Tribunal has as a matter of substance had regard to the representations put: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [45] (Rares and Robertson JJ). The Tribunal is not a court. It is an administrative body operating in an environment that requires expeditious determination of a high volume of applications, and its reasons are not to be scrutinised with an eye keenly attuned to error: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ).

85    As outlined at [30] and [33] above, the applicant made detailed submissions alleging that the Tribunal erred by failing to consider, or giving only cursory consideration to, a number of relevant matters which the applicant asserted demonstrated that he had intended to emigrate to Greece permanently, but because of unforeseen changes in his personal circumstances, he decided to return to Australia. Those submissions went towards question 4 of the amended notice of appeal, under the fourth impugned aspect of the Tribunal’s reasons, and also to question 6 of the amended notice of appeal, under the first alleged failure to afford procedural fairness. Those matters included particular facts presented by the applicant, including that he went to Greece on a one-way ticket, that he took his dog with him to Greece at significant expense, that he was aware that elections were upcoming in Greece and thought that may result in greater political stability and economic stimulus, that he obtained a tax file number and identity card in Greece and believed that he would be able to find work there, and that he thought that he had some economic security due to his inheritance but a dispute arose between him and his family about the status of that inheritance which led to him engaging solicitors to write a letter of demand to his siblings. I do not consider that the Tribunal was required to record expressly in its reasons its consideration of those specific matters. Nor do I consider that the Tribunal erred by not considering what the applicant described as his subjective circumstances, which I understand to mean matters that were personal to the applicant. Rather, when the Tribunal’s reasons are read as a whole and not over-scrutinised, and considered in light of the legal context of the Tribunal’s task of considering whether to exercise the broad discretion under reg 11, I consider that the Tribunal dealt with the substance of the applicant’s claim. The Tribunal’s reasons were relatively brief, but that in and of itself does not disclose error. The Tribunal did not record its consideration of all of the specific integers advanced by the applicant in support of that claim, but it did not need to. The Tribunal captured the substance of the applicant’s submission at [34] of its reasons, where it stated that the applicant “contended that originally he intended to remain in Greece indefinitely and that his decision to return to Australia was unplanned”. In the same paragraph of its reasons, the Tribunal also referred to the corroborating written and oral evidence of Mr Tiernan, which was to the effect that the applicant originally intended to emigrate to Greece indefinitely. It is clear that the Tribunal considered that aspect of the applicant’s case. The particular matters relied upon by the applicant in this Court as not having been considered, or having been given only cursory consideration, were captured in the Tribunal’s consideration of the submission at a higher level of generality. The Tribunal went on to evaluate that submission, and it formed part of its broader assessment of whether to exercise the discretion in reg 11. That was sufficient.

86    Second, I also do not accept that the Tribunal deprived the applicant of a meaningful opportunity to make submissions to the Tribunal or be heard. As stated at [80] above, and by reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, the Tribunal was not required to give the applicant a running commentary on what it thought about the evidence that was given. The applicant complains that the Tribunal at [34]-[35] of its reasons, extracted at [18] above, drew an adverse inference against him on the basis of his inconsistent statements about his intention to remain in Greece indefinitely, and did not give him an opportunity to meet or comment on that inference. I do not accept that submission. In that passage of its reasons, the Tribunal stated that the applicant’s later statements that he intended to remain in Greece indefinitely needed “to be balanced against” his earlier statements that he travelled to Greece to visit his mother and take her to the hospital, and that once his duties and responsibilities were discharged, he thought it “reasonable and logical” to return to Australia with the vehicle. In any event, the applicant was on notice that his inconsistent statements were in issue before the Tribunal because the respondent’s statement of facts, issues and contentions dated 7 September 2016 and filed in the Tribunal, squarely put to the applicant and to the Tribunal the issue of the applicant’s inconsistent statements. At paragraph [72] of that submission, the respondent stated that –

The Respondent notes that this claim [that the applicant intended to stay in Greece indefinitely] was only raised after the Department had sent its provisional assessment to the Applicant, indicating that he did not meet the requirements for the grant of an approval to import a nonstandard vehicle into Australia. Up until this point, the Applicant had consistently claimed that he had travelled to Greece temporarily in order to visit his family. A number of statements made by the Applicant suggest that he only intended to remain in Greece temporarily, for example:

(a)    the Applicant claimed that he travelled to Greece to ‘visit’ his mother, ‘take her to the hospital’ and that once his ‘duties and responsibilities’ to his family were discharged he thought it ‘reasonable and logical’ to return to Australia with the vehicle;

(b)    the Applicant claimed that he was returning to Australia after visiting his mother and his father’s grave;

(c)    the Applicant made no reference to his purported intention to reside in Greece indefinitely. Further, the Applicant made no mention of economic circumstances in Greece or a dispute with his family as being reasons which compelled his return to Australia. Indeed, the only mention of the Greek economic crisis in the Applicant’s application to import the Vehicle under regulation 13, is that the Applicant considered he had ‘buckleys chances [sic]’ of selling the vehicle in Greece.

87    The applicant had an opportunity to make his own submissions about this point to the Tribunal. The applicant made oral submissions and gave evidence at the hearing, and also filed further written submissions after the hearing. The Tribunal was not obliged to give further notice to the applicant before evaluating the applicant’s inconsistent statements. As submitted by the respondent, the Tribunal was not bound by the rules of evidence, including the rule in Browne v Dunn, and it did not err by evaluating the parties’ submissions, and finding that the applicant’s later statements about his intention to remain in Greece indefinitely needed to be balanced against his earlier inconsistent statements.

88    For the reasons above, I do not accept the error of law alleged within question 6 to be established.

Disposition

89    Given that I have found that the applicant did not identify any error of law on the part of the Tribunal, I am not required to consider the parties’ submissions in relation to the disposition of this proceeding that would only arise if such an error were identified.

90    For the above reasons, the applicant’s application by way of appeal from the Tribunal’s decision is dismissed. The applicant should pay the respondent’s costs of the application.

Concluding comments

91    The adversarial system of hearing depends upon the presentation of cases by competent counsel. This application was well argued by both counsel. I make specific mention of Mr Kelsey-Sugg, counsel for the applicant, who accepted a pro bono brief to appear for the applicant upon referral from the Court. Mr Kelsey-Sugg’s amended application, written submissions, and oral submissions at the hearing were the product of a great deal of thought and preparation. The Court is most grateful for the assistance that Mr Kelsey-Sugg provided, which had the consequence that Mr Grapsas had his case presented in a thorough and helpful way and to a very high standard. Mr Kelsey-Sugg is to be commended for acting in this application in the best traditions of the Victorian Bar.

Associate:    

Dated:    23 April 2020