Consideration
33 In my judgment, the first asserted error of law is made out. Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 47-48 pointed out that the circumstances in which an error of law in the exercise of a discretion may be established are set out in House v The King (1936) 55 CLR 499 at 504-505. His Honour was there referring to the review of a judicial discretion, but where the review of an administrative decision is confined to review on a question of law. I think similar considerations apply. Consequently, as Mr Selway accepted, it is not enough to show that a reasonable decision-maker might or should have reached a different result. The first contention goes beyond that. It seeks to show that the Tribunal misdirected itself as to its proper inquiry by stipulating that the discretion should only be exercised in exceptional or very confined circumstances. Such an approach would involve an error on a question of law: Osland v Secretary to the Department of Justice (2010) 267 ALR 231 at [14] per French CJ, Gummow and Bell JJ.
34 I am mindful that the Court should not construe the Tribunal's reasons with an eye keenly attuned to the perception of error: Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. I have endeavoured to resist that temptation. Nevertheless, in my view, the Tribunal's reasons generally including the passages referred to in [21], [24] and [29] above indicate that it applied what it took to be a legislative prescription against exercising the discretion unless special or exceptional reasons were demonstrated to justify the exercise of the discretion, notwithstanding that the exercise of the discretion in this instance would not (as it found) impair the fulfilment of the objectives of the Act. The use of the expressions "exceptional circumstances" and the "rarest of cases" indicate the way in which the Tribunal assessed the factors it discussed in its reasons. I do not consider that its reasons indicate merely that it adopted a cautious approach to the exercise of the discretion, without imposing a test for its exercise beyond that which is provided in Reg 11. In reaching that view, I have taken into account that earlier in its reasons the Tribunal at one point appears to have accepted that the discretion was unfettered, as noted in [18] above. Nor do I accept that, as counsel for the Minister contended, the Tribunal adopted an appropriate construction in its application of Reg 11, albeit that it is expressed in unqualified terms, because of the terms of the adjacent Reg 13.
35 The principles are clear enough. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority (McHugh, Gummow, Kirby and Hayne JJ) at [69] re-emphasised that the primary object of construing a statutory instrument is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. In this instance, there are no apparently conflicting provisions.
36 The general rule is that a discretion expressed without any qualification is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the legislative scheme: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50 (the ABT decision) per Stephen, Mason, Murphy, Aickin and Wilson JJ. The Minister accepted that Reg 13 does not provide a code for the circumstances in which a vehicle intended to be privately used may be imported by a citizen returning to Australia after a period of work overseas. Once that is acknowledged, it is difficult to see how Reg 11 should be confined in the manner the Tribunal approached it.
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. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11. This is not a case where the Tribunal has found that the importation of the car would undermine or frustrate the policy or objectives of the legislative scheme. In fact, it accepted the opposite.
38 However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered. It would be appropriate to have regard to the criteria specified in Reg 13(1) when considering whether to exercise the discretion, but because the discretion under Reg 13 is a separate one, the fact that not all those criteria are satisfied is not itself a reason not to exercise the discretion under Reg 11. The Minister accepted that. In fact, on the Tribunal's findings, Mr Selway satisfied all those criteria except for that specified in Reg 13(1)(ac) because he had owned the car only for about nine months rather than 12 months immediately before arriving in Australia.
39 In my view, it was an error of law for the Tribunal to construe the apparently unlimited discretion in Reg 11 so that, even where the policy or objectives of the legislative scheme were not undermined, there had to be some exceptional or special or rare circumstances before the discretion could be exercised in favour of Mr Selway. I do not consider that Reg 11, in its context in the legislative scheme, implies that further fetter or gloss upon its operation. The observations of Deputy President Hotap in Marra do not suggest otherwise. He referred, appropriately to the observations of the majority judgment of the High Court in the ABT case at 49 to the following effect:
In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view", to use the words of Dixon J in Browning.
After referring to the particular circumstances of that case, their Honours went on at 50 to say:
Plainly enough, when the power to grant or refuse consent is unconfined by the express words of the statute the conclusion that the Tribunal has virtually no discretion at all is unacceptable.
40 It would not be accurate to attribute to the Tribunal the view that it had virtually no discretion under Reg 11. But in my view, it erroneously circumscribed or fettered its discretion by the formulation of the test to be applied before it could be exercised in Mr Selway's favour. I consider that such fettering is not warranted by the words of Reg 11 either taken alone or in their place in the Regulations having regard to the legislative scheme. The subject matter of the Act and the Regulations, and the scope and purpose of the legislative scheme, does not support such an implication: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason CJ. See also Bennion on Statutory Interpretation, (5th ed Lexis Nexis, 2008) at 90.
41 For those reasons, I consider that the Tribunal erred in law in the matter asserted.
42 It is therefore strictly necessary to address the other three alleged errors of law. As I propose to remit the matter to the Tribunal for reconsideration according to law, it is also not appropriate that I should determine the asserted errors (2) and (4) set out in [32] above as they involve some qualitative assessment of potentially relevant considerations.
43 I observe in relation to asserted error (3) that there does appear to be some logical error or some misunderstanding of Mr Selway's case in the way the Tribunal approached the "unexpected events" topic in its reasons. If a person acquires a non-compliant motor vehicle overseas intending to seek to import it into Australia within the succeeding 12 month period, that would obviously be a factor against exercising the discretion under Reg 11. That is not this case. When he purchased the car, Mr Selway expected, and had good reason to expect, that he would own it for more than 12 months before he sought to import it into Australia. He expected to satisfy the criteria under Reg 13. The "unexpected" event was the job offer. The Tribunal said at [34] that the job offer and its acceptance was "not an unexpected event" because it was "an event over which he had complete control". It appears, therefore, to have discounted those circumstances in deciding whether to exercise the Reg 11 discretion in his favour. In my view, the circumstances giving rise to the earlier than anticipated return to Australia may well be relevant to its exercise. Here, there was an unexpected event, namely the obviously significant job offer. Mr Selway was entitled to ask the Tribunal to have regard to that circumstance. As the Tribunal recognised at [34] of its reasons, the circumstances prompting an earlier return to Australia than anticipated may well be relevant to the exercise of the discretion. The examples it gave from earlier decisions (earlier immigration following a violent robbery, the deterioration of a wife's disease, and the reduction in salary producing marital pressure) are not really different in kind, but only of degree, from Mr Selway's circumstances. In each instance, the early arrival in or return to Australia was prompted by personal circumstances. The Tribunal in those cases correctly, in my view, had regard to the reasons for that earlier arrival in or return to Australia. In this matter, too, there is a clear and unexpected event which prompted Mr Selway's earlier return to Australia than he intended. It may not have been of the same personal significance as the events considered in those other decisions, but it was nevertheless an important personal circumstance. I think the Tribunal's approach of discounting that circumstance because his decision to accept the job was within his "complete control" and because his recruitment did not, on its own cause a problem for Mr Selway in "his relationship with his motor vehicle" was erroneous. Whether that involved an error on a question of law I do not need to finally determine.
44 Until the amendments to s 44 of the AAT Act effected by the Administrative Appeals Tribunal Amendment Act 2005 (Cth), it is clear that the Court in the present circumstances could not have exercised the discretion which Reg 11 gives to the Tribunal, so the appropriate order would have been to remit the matter to the Tribunal for reconsideration according to law: see eg Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at 221. This is not a case where, in the light of the error of law identified, the decision of the Tribunal must have been favourable to Mr Selway: cf Statham v Federal Commissioner of Taxation (1988) 16 ALD 723 at 725. The error of law identified means that the discretion available to the Tribunal should be re-exercised. Whilst there is, in my view, a strong case for the discretion to be exercised in favour of Mr Selway having regard to the considerations I have discussed above, the position is not so clear that in reality there is no remaining discretion to be exercised (cf NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 66 ALD 545 at 555). As there is a residual discretion to be exercised (see Canberra Trademan's Union Club v Gambling and Racing Commission (2002) 72 ALD 359 at 367; and cf Commissioner of Taxation v Eskandari [2004] FCA 8), the appropriate order is to return the matter to the Tribunal.
45 Counsel for Mr Selway contended that the effect of subs (7)-(10) of s 44 of the AAT Act, introduced by that amendment, now permits the Court to do so.
46 I do not consider that, in the circumstances, those amendments enable the Court to exercise the discretion of the decision-maker. In my view, they are confined to enabling the Court, in certain circumstances, to make findings of fact additional to those made by the Tribunal in the circumstances stipulated. There is sometimes an obvious benefit in doing so, as it may save the parties costs and time. But those extended powers, in their terms, are confined to making additional findings of fact. They do not extend to exercising a discretion of the decision-maker. It appears that a legislative decision was made to limit the extended powers of the Court, consistent with the recommendations of the Administrative Review Council, (Parliament of Australia) Report No 41: Appeals from the Administrative Appeals Tribunal to the Federal Court (1977).
47 In this matter, the Tribunal has, in my view, made the findings necessary to exercise the discretion under Reg 11, although upon reconsideration there may be additional findings sought by either the Minister or by Mr Selway. It has found how Mr Selway came to be in his present situation, although I think it erred in the way in which it then apparently decided to give no weight to that matter. It accepted his evidence, including about the reasons why he returned to Australia earlier than he had planned at the time he required the car. It found that allowing the importation of the car would not transgress the policy of the legislative scheme. It found that, apart from the period specified in Reg 13(1)(ac) not being met by a period of about three months, the criteria in Reg 13 was satisfied. It made findings on the other matters raised by the parties.
48 Accordingly, I consider that the appropriate order is to remit the matter to the Tribunal for re-determination according to law. The parties were agreed that the costs of the application should follow the event, so I also order that the Minister pay to Mr Selway his costs of the application.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.