Tag Archives: AAT

Getting it wrong – AAT blasts CASA processes

Paul Phelan, June 1, 2015

In a comprehensive rejection of CASA’s decision to cancel a WA private pilot’s licence Administrative Appeals Tribunal Senior Member Egon Fice has bluntly told the authority:
The decision under review is set aside. The Applicant’s Private Pilot (Aeroplane) Licence and Student Pilot Licence remain valid and must be treated as never having been cancelled.
The decision is all the more notable because the pilot conducted his AAT appeal and subsequent responses without legal representation and because the Tribunal was highly critical of several aspects of CASA’s management of the case, explaining why “…….. we have concerns about the way in which this matter was investigated and dealt with.”
The Tribunal also declared:
“Having examined the evidence with some care, we find that CASA’s decision to cancel Mr Fadlalla’s PPL on the ground that he was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a pilot licence was not the preferable decision. In fact, we find that the evidence does not establish that he is not a fit and proper person to hold a pilot licence.” The decision did briefly discuss the arrival after last light, it also briefly mentioned possible contributing factors such as changes of altitude to meet ATC requirements, re-routing and variance between actual and forecast winds. ProAviation has discussed the fit and proper person issue with numerous pilots over the past 60 years and our perception has been that arriving two minutes after last light does not rank highly among available infractions in their minds, in terms of relative safety significance.
The AAT’s decision identified several erroneous statements by CASA employees, deficiencies in its evidence gathering and processing, its avoidance of independent witnesses, references to regulations that were not in force at the relevant times, relationships between and within the training organisation and CASA officials, and CASA’s well-recognised use of the “fit and proper person” process to back adverse administrative decisions. CASA was also taken to task for repeating untested allegations by College staff of larceny [of an iPad], later shown to be untrue, but which were repeated in CASA correspondence and in any case were irrelevant to air safety issues:
“The fact that CASA treated the information regarding the theft of the iPad given to it by WAAC as if it were true without making any further enquiries is deeply disturbing. In fact it appears in its Statement of Facts and Contentions as if that had been established as a fact. It causes us concern about the relationship that the investigating officers from CASA have with RACWA/WAAC. No such relationship has been disclosed in any of the evidentiary material.
Mr Fice delivered a comprehensive analysis of “fit and proper person” concepts which if heeded, might have been expected to reverse numerous CASA decisions ProAviation has researched in the past.
Nagid Fadlalla, a Sudan-born Australian citizen living in Perth, had held a private pilot (aeroplane) licence since July 2013 and had obtained an endorsement on Mooney M20. He arrived back at Jandakot about two minutes after official last light after a round trip to Geraldton.
The pilot was enrolled in a 150 (flying) hour commercial pilot training course conducted by Western Australia Aviation College (WAAC), the flight training content of which was provided by the Royal Aero Club of Western Australia (RACWA) at Jandakot.
CASA’s action against Mr Fadlalla was based on the fact that he did not hold a night VFR rating, and he was issued a notice of proposed action to vary, suspend or cancel his PPL and SPL (a “show cause” notice.)
The pilot responded to the notice in detail, but although it noted his response, CASA informed him on 16 June 2014 that it had cancelled his PPL and SPL on the grounds set out in CAR 269 (1) (c) and (d).
The relevant parts of that regulation are:

Variation, suspension or cancellation of approval, authority, certificate or licence
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:

(c) that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;

(d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;

The AAT noted that CASA had said in its “Statement of Facts and Contentions” that “at no time was Mr Fadlalla authorised to operate the [Mooney] M20J aircraft because he did not hold any special design feature endorsements.
The CASA Statement had then added:
Although the application has claimed that prior to 19 February 2014 he undertook the training necessary to be endorsed upon the M20J and to operate the special design features of that aircraft type, there is no evidence presented in support of that contention.
In fact, there was ample evidence, which people intent on harming the pilot’s reputation appear to have either deliberately ignored or negligently overlooked.
Following a total of 7.5 hours of endorsement training including a check flight by RACWA Grade 1 flying instructor James Sturrock, Mr Fadlalla qualified for a “special design feature” endorsement allowing him to fly the Mooney M20J in which he conducted the return flight to Geraldton,. The AAT deemed that following the check flight, Mr Fadlalla had met all the requirements for a Mooney endorsement and that the flying training organisation (RACWA) should have entered the endorsement in his personal log book and on his PPL.
Despite that, CASA apparently failed to identify significant matters that didn’t support its decision, including a statement in its “show cause notice regarding the alleged larceny.
The AAT also noted there was no evidence from Mr Sturrock, nor did CASA produce any of the documents which related to Mr Fadlalla’s endorsement training and check flight:
“In fact, despite Mr Fadlalla stating in his response to the Show Cause Notice that he believed he was endorsed to fly the M20J having completed a check with a Grade 1 senior instructor, in its notice of cancellation CASA simply noted that he flew the M20J aircraft………..without being appropriately endorsed: “There was no evidence that CASA had attempted to ascertain or to obtain documents from RACWA to the effect we have described above,” said the Tribunal.
The Tribunal also commented on another bizarre CASA assertion in its “Statement of Facts and Contentions”:
“CASA contended that it would be open for the Tribunal to conclude that Mr Fadlalla’s cancelling what was supposed to be a solo flight in a Cessna 172 on 18 February 2014 and instead conducting the flight in the M20J aircraft on 19 February 2014 with his three friends was simply a social event and to show off.”
Why could his motivation not be to broaden his experience base by flying a newly-authorised type?
In any case Mr Fadlalla denied that was the case. He asked, rhetorically, why would he pay $5000 per month to show off to his friends?
As readers can see from the complete report, the interactions between CASA and the training organisations also leave us open to question whether a student pilot caught up in matters such as this can expect those bodies to act primarily in their interests. In his closing summary, Mr Fice commented:
By way of a postscript to our decision, for Mr Fadlalla to complete his flying training for the CPL, he should enrol with an approved flying training organisation other than RACWA/WAAC. His flight training records from RACWA/WAAC should be transferred to the new training organisation in accordance with reg 141.280(2) of the CASR.
CASA officials and FTO staff might find some useful guidance by reading  the the entire AAT decision, as might anybody who is contemplating an action that might identify them as unfit and/or improper. The Director may also find it informative if one of his trusted lieutenants draws it to his attention.

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Fifty shades of red and green – Opinion

What on earth is the problem that Dr Navathe and CASA are expending so much energy trying to solve? It certainly has the close attention of hundreds of Australian pilots as yet another of their number, John O’Brien, prepares to confront CASA’s massive publicly funded legal firepower in the Administrative Appeals Tribunal in a hearing set down for July 21. The case is scheduled to run for two weeks, and sources close to the matter believe CASA has about a dozen expert witnesses (mostly optometrists) from all over the world and, we’ve been told, has engaged Ian Harvey QC, to parade them before the AAT to convince the Tribunal that aeroplanes will start plummeting out of the sky because some of their pilots, in common with around 8% of the world’s male population, have some degree of colour vision deficiency (CVD). CASA lawyer Joseph Rule told a recent Senate Estimates hearing that CASA’s costs for this extravaganza had already reached about $43,000, and when pushed a bit more by Senator Fawcett he also admitted to that “It would not be out of the realms of possibility to accumulate another $40,000 in costs.” Is there $83,000 worth of demonstrably enhanced safety in there somewhere? Other (usually reliable) sources reckon CASA’s ultimate total costs of running the O’Brien case could stack up to somewhere between $300,000 and $400,000 – not counting John O’Brien’s costs of course, and they’re wondering out loud whether all those dollars might not be better spent scouring global accident history for events that have any statistical link at all with CVD. Aha! It seems there’s a new development that can maybe shine a little more light into those dark corners. One of Dr Navathe’s colleagues, Mr Peter Fereday at the CASA “Permissions Centre”, wrote to all AOC holders on June 05 that:

Recent medical research indicates that the safety-related implications of an individual’s CVD may be more significant than they were initially considered to be.

And the following day in a similar letter he told all CVD-affected pilots about the same “recent medical research.” Our curiosity aroused, we asked CASA’s redoubtable spokesperson Peter Gibson…….

Could CASA please direct me to the references to the original medical research papers that present the evidence referred to in the first and third paragraphs of the attached letter? [That’s Mr Fereday’s letter to AOC holders about CVD.]

…… and after only six days of probing, good old reliable PG bounced right back:

  • The recent medical research mentioned by CASA in its letter to AOC holders of 5 June 2014 refers to the research described in an article by Dougal B Watson, principal medical officer of the New Zealand CAA [and Dr Navathe’s former boss in NZ], appearing in the February 2014 issue of the Journal of Aviation, Space, and Environmental Medicine.
  • In May 2014, an article appeared in the magazine Aerosafety World, published by the Flight Safety Foundation, summarising Dr Watson’s research on inconsistencies in the assessment of pilots with CVD.

Enlightenment at last? Afraid not. It transpires that the article is only available to super-rich people who can afford to commit US$30 (and their credit card details) to a little-known offshore organisation, especially before checking product quality. However as we were coming to grips with this formidable challenge to astute journalism, a copy of Dr Watson’s treatise fell off the back of a passing truck, and we were back in business. Or so we thought. But a careful perusal of the document, tantalisingly titled Lack of lnternational Uniformity in Assessing Color [sic] Vision Deficiency in Professional Pilots, quickly convinced us we must have the wrong bit of paper. A note attached to the article off the truck had warned:

Take a gander at this rubbish. This [Dr Watson’s treatise] is not evidence of anything of any consequence in this entire debate. Indeed, it is evidence of what a mess the aviation colour perception standard is in worldwide. Imagine relying on this as legal evidence to impress a judge just how dangerous colour vision defective pilots are!

A bit harsh? Well not really. If I were Mr Fereday (or Peter Gibson) I’d be quietly seeking a second opinion before I passed on anything originating from the source of those assertions. Let’s remind ourselves: Recent medical research indicates that the safety-related implications of an individual’s CVD may be more significant than they were initially considered to be.” Can CASA point out any recent research presented in the Watson article that indicates anything of the sort? As anybody familiar with the debate would observe, the Watson prose is packed with subjective assertions, mind-numbing statistics, tables and flow charts that are in no way relevant to the “safety-related implications of an individual’s CVD”. In fact they don’t depict any safety-relevant medical research, and are in bad English, exacerbated by American spelling. The reason Watson doesn’t refer to relevant accident statistics (because there aren’t any) and his article comes up with just two not quite earth-shattering assertions that actually admit in its two listed findings:

“The main conclusions from this research are that:

  • There is a high degree of variation between States in the detection and medical assessment of CVD applicants; and
  • The observed variation stems not from the wording of the medical standards of the States, but from the application of those standards.

So 190 separate states have all figured out different but similar satisfactory ways of managing the same issue, right? Furthermore Dr Watson’s research actually refers to:

  • the paucity of documented aircraft accidents or incidents where CVD is implicated as a contributory factor.” [Because there are none]. And states that:
  • It is beyond the scope of this report to analyze [analyse] the issues and the debates concerning CV standards and civil aviation”.

So! Dud information has been unintentionally passed back to us via CASA PR? We haven’t yet seen any AOC-holder response to Mr Fereday’s June 5 letter, but its next-day follow-up to pilots has already caused at least one pilot body to reach for its keyboard and mouse. The Australian Federation of Air Pilots has directed a sharp response from its President Capt Bryan Murray to current CASA CEO John McCormick:

Dear Mr McCormick,

Re: Colour Vision Deficiency (CVD)

I am writing on behalf of the AFAP to express our concern over the letter dated 5 June 2014 from Peter Fereday to AOC holders regarding Colour Vision Deficiency (CVD).

The AFAP believes it is unreasonable and inappropriate that CASA is asking companies or the affected pilots to make assessments about their ability to hold a medical certificate. CASA issued the medical certificates in question and the affected pilots have been operating under these certificates in good faith.

AOC holders and the pilots themselves are not privy to the “recent medical research” to which CASA refers in its letter nor are they medically qualified to make the assessment requested. If CASA wish to change the regulations regarding colour vision then CASA should follow the correct and established processes. CASA’s letter of 5 June 2014 is in our view an abuse of process.

We request that CASA formally retract the letter of 5 June 2014.

Please also be aware that we will be supporting any of our members who are unfairly discriminated against as a result of CASA’s letter.

Meanwhile nowhere has CASA attempted to express in cost benefit terms, the safety benefits its proposed actions would deliver. So what is the problem to which all that public expense is supposed to be the answer? Where’s the history? Where are all the accidents that are linked to CVD pilots? Although there isn’t any such history, there’s plenty that covers related legal activity. In October 1987 the AAT reviewed a negative decision by the (then) Civil Aviation Authority that had been made in respect of Dr Arthur Pape, a licensed pilot, medical practitioner and DAME, and recognised as a world expert on colour deficiency in aviation. However the AAT decision was only in respect of Dr Pape’s private pilot licence, and imposed restrictions related to aircraft equipment, night flying, maximum takeoff weight and cruising speed, but and weather conditions. 18 months later in April 1989 the Tribunal heard another application by a CVD pilot, this one from commercial pilot Hugh Denison, a young colour defective pilot who had qualified for night flight in New Zealand, but who was prohibited by the CAA from night flight in Australia. To quote Dr Pape, whose interest in these issues has never wavered:

“Again, the appeal succeeded and the ban on night flight was overturned for all colour defective pilots in Australia. To this date, the Denison appeal is still the most comprehensive examination of aviation colour vision standards that has ever been conducted in the entire world. The hearings lasted for over 30 days and called witnesses including experienced pilots and air traffic controllers, optometrists and visual perception psychologists to name just a few. As a direct result of the appeal’s success, many such pilots found doors opening to career opportunities that were previously denied to them”.

This AAT hearing resulted in an order that:

The decision under review is set aside and, in substitution for it, it is decided that the applicant is to be granted, under regulation 63 of the Civil Aviation Regulations, a commercial pilot licence to fly fixed wing aircraft and rotary wing aircraft, the said licence to be subject to only the following two conditions:-

(1)That he is not permitted to pilot an aircraft in international air navigation except with the permission of the appropriate authority of the country concerned;

(2) That he is not permitted to pilot aircraft within control zones unless the aircraft being flown is fitted with radio apparatus such that he can maintain two-way communication on appropriate frequencies.

In a detailed analysis of its decision, the Tribunal explained that it was running a “test case” and it also explained why: “We understand that there are a considerable number of other pilots with defective colour vision who have requested the granting of licences which do not contain a condition prohibiting their piloting aircraft at night. For that reason the respondent [CASA] indicated that it wished to conduct this case as a test case. “Mr Rose [Appearing for CASA], therefore, informed the Tribunal that the respondent intended to present its case in a manner which would encompass not only the applicant’s situation but also broader issues relating generally to defective colour vision. At the request of the respondent [CASA] the Attorney-General granted legal aid to the applicant to ensure that he was not disadvantaged by the respondent presenting his case in that manner. “The matters which we have to consider in these proceedings have consequently been extended well beyond those which the applicant [Mr Denison] originally sought to raise, that is to say whether his defective colour vision made it unsafe for him personally to pilot an aircraft at night. Costs to the various parties in the Denison case have not been identified, but the AAT discussed in great detail the whole procedure it had adopted, all of the issue-related questions asked and answered, the witnesses, areas in which there was broad agreement, types of CVD, the technologies used in assessing it, and its safety relevance in flight operations at all levels. The decision document also contains detailed analysis of every related issue discussed by witnesses and laid the foundations for about 15 years of relative truce. The ruling was accepted by all parties and has been the basis under which CVD pilots have been operating successfully until CASA resumed hostilities. The last two paragraphs of the AAT decision are relevant to Mr O’Brien’s case:.

78. We recommend that suitable practical tests should be devised so that a protan [Mr O’Brien’s condition] can be tested individually, if he wishes, at his own expense to ascertain the extent of the loss of his ability to perceive the intensity of red lights. If his distant visual acuity is such that, when allowance is made for the loss of ability to perceive the intensity of red lights, he is able to see red lights at the furthest distance that they can be seen by persons who have normal colour vision and the distant acuity required by ANO or ANO, as appropriate to the type of licence sought, a licence should be granted to him under regulation 63 subject to only the two conditions referred to above. If a change in his visual acuity is detected thereafter in the course of any routine medical examination, he should be required to undergo the practical test again. Otherwise a licence granted to a protan under regulation 63 should be subject to the additional condition that the pilot does not fly an aircraft at night.

79. Finally, while recognising that the Tribunal has no power to review decisions of the Authority to set medical standards under regulation 62, we suggest that protanomals ought not to be totally prevented, as they are at present, from meeting the colour vision standard. It appears from Dr Samuel’s evidence that some persons with mild protanomaly are able to perceive the existence of red lights at a distance which is as great as, or greater than, the furthest distance at which a person with normal colour vision and distant visual acuity of 6/6 can do so. We suggest that the colour vision standard be altered so as to permit such mild protanomals to take the Farnsworth Lantern test and, if they pass it, to meet the standard and so be qualified, so far as colour vision is concerned, for the grant of an unconditional licence.

Those two paragraphs go to the heart of Mr O’Brien’s situation and that of many others who are now threatened despite thousands of hours of uneventful flight. It is completely untruthful to assert as CASA has, that there is anything in Dr Watson’s paper to suggest that individuals’ CVD pilot issues “may be more significant than they were initially considered to be.” The only thing that has changed on the CVD scene since the AAT delivered its comprehensive analysis, findings and recommendations, has been the accumulation of several million more flying hours by CVD pilots without a CVD related accident. The person or persons responsible for this attempt to wind back the clock needs to be held accountable for their actions. If CASA’s recruiting consultancy identifies a CEO candidate who meets all the key qualities it is seeking in terms of experience, critical competencies for success and other attributes, the newcomer will easily see this campaign for what it is. A return to reality on CVD issues might then be one of the many early outcomes sought by the 269 contributors to the ASRR. An important footnote We would point out that there has in fact been one case where CVD got a mention in an accident investigation; however its CV relevance is widely disputed. On July 26, 2002, a Boeing 727-238F freighter collided with trees on short final and crashed short of the runway at Tallahassee, Florida. The NTSB report said: The National Transportation Safety Board determined that the probable cause of the accident was the captain’s and first officer’s failure to establish and maintain a proper glidepath during the night visual approach to landing. “Contributing to the accident was a combination of the captain’s and first officer’s fatigue, the captain’s and first officer’s failure to adhere to company flight procedures, the captain’s and flight engineer’s failure to monitor the approach, and the first officer’s colour vision deficiency.” However the text of the NTSB report contained no supporting discussion of CVD or its role in the accident, and did not explain why both the captain and the flight engineer (who was also a pilot,) reported seeing the same displays on the PAPI as the co-pilot did.

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