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:
CIVIL AVIATION REGULATIONS 1988 – REG 269
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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