as he fails to meet the medical colour perception standards specified by ICAO."

As contained in the copy of the licence that was tendered at the hearing, the restriction was expressed as follows:

"The holder of this Licence is not permitted to pilot aircraft under any of the following conditions:

(i)

By night;

(ii)

In international air navigation;

(iii)

Within control zones or within five miles of any other aerodrome at which aerodrome control is established unless the aircraft being flown is fitted with radio apparatus such that he may maintain two way communication on appropriate frequencies."

The applicant has made a number of applications to the Department of Transport seeking removal of this restriction. Currently relevant is the application made by him by letter dated 25 July 1978, in fact addressed to the Director of Aviation Medicine, in which he referred to previous correspondence and said that "in view of the experience I have gained since then, I am writing to you to ask if you would review my situation and grant me a waiver on my night restriction." In a reply dated 24 October 1978 the delegate of the Secretary of the Department of Transport stated, inter alia and so far as relevant, as follows:

"I understand from your letter that you seek the grant of an unrestricted commercial pilot licence notwithstanding that you fail to meet the medical standards prescribed for the holding of such a licence."

Having regard to the medical standards in question, and to the tests which the applicant had undergone, the writer stated that he was "unable to grant a licence without the limitation currently applicable to your licence, that you are not authorised to pilot an aircraft at night".

In the same letter the applicant was referred to the provisions of the Administrative Appeals Tribunal Act 1975. These were said to "supersede the right of appeal granted by Regulation 259 to a person aggrieved by a decision of the Secretary to refuse to grant a licence".

In response to further correspondence from the applicant, the delegate wrote to the solicitor for the applicant on 30 November 1978 and in the course of that letter he referred to "the decision not to grant your client an unrestricted commercial pilot licence".

The application for review stated that the decision to be reviewed was "the refusal by the Department of Transport to grant to the applicant an unrestricted commercial pilot's licence".

Before the Tribunal Mr Sully, who appeared for the respondent to submit that the Tribunal had no jurisdiction to entertain the application, first referred to Regulations 50 and 51 of the Air Navigation Regulations. By the operation of these regulations there may be a licence not endorsed with a rating of any kind, a licence with a proficiency rating endorsed upon it (Reg 50(1)(b)), a licence with a proficiency rating and a restriction endorsed upon it (Reg 50(3)) or a licence simply with a restriction endorsed upon it. He then proceeded to refer to Regulation 57 which prescribes that medical standards must be satisfied by an applicant for a licence. Reg 57(2) provides that where an applicant fails to meet medical standards as prescribed, the Director-General may grant the licence subject to:

"(a) the condition that the holder of the licence is not authorised to engage in international air navigation; and

(b) such other limitations (if any) as the Director-General considers necessary in the interests of the safety of air navigation but having regard to the applicant's experience and ability and to the nature and extent of his failure to meet the medical standards referred to in paragraph (a) of the last preceding sub-regulation."

Regulation 50(3) provides that "any conditions or limitations subject to which a licence is granted under the last preceding sub-regulation shall be specified in the licence".

It was then submitted that limitations specified in terms of Reg. 50(3) are different in character from the "endorsements" provided for by Reg 50 and are rather to be seen as an integral part of the licence in the original form in which it issues. Conditions endorsed under Reg 50(3) are conditions not related to failure to meet medical standards.

Reference was then made to Regulation 259(1) of the Air Navigation Regulations which provides as follows:

(a)

a refusal of the Director-General to grant a licence or certificate; or

(b)

the variation or cancellation of a licence or certificate, or the suspension of a licence or certificate otherwise than under regulation 256 or 257 of these Regulations,

(c)

to have the matter submitted for review to a board of review; or

(d)

to appeal to a specified court against the decision of the Director-General."

It was submitted that the original scheme prior to the enactment of Part III of the Schedule of the Administrative Appeals Tribunal Act 1975 was that a person aggrieved by a refusal of the Director-General to grant a licence or certificate had certain rights of election in the matter of review and appeal and that a person who was aggrieved by the variation or cancellation of a licence or certificate, or by the suspension of a licence or certificate otherwise than under regulation 256 or 257, had a similar right of election to have the matter submitted for review to a board of review or to appeal to a specified court. The various situations in which a person who was disappointed by the result of his application could have sought a review or appeal were then pointed to as follows: A person who, having applied for a licence, found that his application was refused would have had a right to review or to appeal under Regulation 259. Next, where a licence was granted but where the terms of the licence were subsequently varied, cancelled or suspended in the manner contemplated by Regulation 258, there would again have been a right to a review or to appeal. It was submitted, however, that there were no further rights of review or appeal beyond the situations thus described. In the remaining situations, namely of the grant of a licence subject to conditions endorsed upon the licence pursuant to Regulation 50(3), and of the grant of a licence not so endorsed but subject to conditions or limitations arising from the provisions of Reg. 57 relating to medical standards and specified in the licence as required by Reg. 57(3), no further rights of review or appeal were said to have subsisted.

On this basis there was nothing that could in the present circumstances have been the subject of a review or an appeal because there had not been a refusal to. grant a licence nor had there been a grant of a licence with a subsequent attempt to vary, cancel or suspend it within the meaning of Reg 258 In a case such as the present, where a licence from its inception has specified in it, in terms of Reg 57, conditions relating to medical standards, it was submitted that there was no right under Reg 259 to a review or to appeal to a Court.

It is necessary now to turn to Part III of the Schedule to the Administrative Appeals Tribunal Act 1975, which provides as follows:

3. (1) Applications may be made to the Tribunal for review of decisions by the Secretary to the Department of Transport -

(a)

refusing to grant a licence or certificate referred to in regulation 254 of the Air Navigation Regulations; or

(b)

varying or cancelling such a licence or certificate or suspending such a licence or certificate otherwise than under regulation 256 or 257 of those Regulations.

(a)

have a matter to which a decision relates submitted for review to a board of review; or

(b)

appeal against a decision, in accordance with regulation 259 of the Air Navigation Regulations if an application may be made to the Tribunal in respect of the decision by virtue of sub-clause (1)."

It was not submitted by Mr Sully, as we understood the submission, that there has been any failure to vest in the Administrative Appeals Tribunal the whole of the jurisdiction to review that was formerly vested in a board of review and the whole of the jurisdiction upon appeal that was formerly vested in a specified court. What he did say was, as already stated,

that there never was any right of review or appeal in relation to the specification in a licence by the terms of Regulation 57(3) of conditions relating to medical standards. The provisions of the Administrative Appeals Tribunal Act, it was submitted, were intended to confer upon the Tribunal the same powers of review as those previously existing. The language of variation, cancellation and suspension in Part III of the Schedule to the Administrative Appeals Tribunal Act aptly reflected the provisions of Regulation 259. There was no grant of power, it was said, in Regulation 259, nor was there in Part III of the Schedule to the Administrative Appeals Tribunal Act, to review a decision to grant a licence subject to conditions imposed pursuant to Regulation 50(3) and/or Regulation 57(2)(a) or so to review the grant of a licence subject to "other limitations" proposed pursuant to Regulation 57(2)(b).

Finally, it was contended that while there had been correspondence previously referred to directed to having the conditions that had been originally imposed under Regulation 57(2)(b) lifted, the refusal communicated in the course of that correspondence was neither the refusal of an application for the grant of a licence nor the variation of a licence previously granted. It was therefore not within the scope of the matters in respect of which a right to review by the Tribunal has been granted.

Mr Herrald, who appeared for the applicant, claimed that in interpreting Part III of the Schedule to the Administrative Appeals Tribunal Act regard must be had to Regulation 254 of the Air Navigation Regulations. This is of course a debatable point in its own right. The jurisdiction conferred upon the Administrative Appeals Tribunal is a statutory one, the terms of which must be found within the four corners of the Administrative Appeals Tribunal Act. We shall, however, leave this problem on one side. Mr Herrald went on to refer to Regulation 254(3) which provides as follows:

"(3). A reference in this part to variation of a licence shall be read as including a reference to the inclusion, deletion or alteration of an endorsement on a licence".

Having regard to this provision, it was said that assuming contrary to Mr Sully's submission that the condition here specified in the licence is an endorsement, the provisions of Regulation 254(3) operate so that "variation" as referred to in Regulation 259(1)(b) includes a reference to inclusion of an endorsement and a person may be duly aggrieved for the purposes of Regulation 259 by the variation of a licence constituted by the continuing inclusion of a condition despite request made for its deletion.

For the purpose of considering the problem before us we are prepared to make a number of assumptions, without in any way indicating our approval of their correctness or otherwise. Firstly, we assume that it is legitimate in considering Part III of the Schedule to treat the word "variation" as therein used as having the same meaning as the word "variation" as used in Regulations 258 and 259. Secondly, we assume that for the purpose of ascertaining the meaning of the word "variation" accordingly, it should be read, even when we are construing Part III of the Schedule, as having the extended meaning provided for by Regulation 254(3). Thirdly, we also assume, contrary to Mr Sully's submission, that the specification of the relevant condition constitutes an endorsement on the licence.

Firstly, we do not think that the word "inclusion" in Regulation 254(3) refers to continuing inclusion in the sense of simply remaining in the licence. It refers, we consider, to an act of inclusion just as the words "deletion" or "alteration" refer to an act of deletion or to an act of alteration.

Secondly, when the provisions of Reg. 254(3) refer to variation of a licence, we consider that they refer to variation not just as an expression standing on its own but to variation "in this Part", and variation in Part XV is a process of variation governed initially by Regulation 258. For the purposes of that process Regulation 254(3) operates so as to provide that when that process has been embarked upon variation may take a form which might not, according to the ordinary use of language, ordinarily be characterised as a "variation", namely the form of inclusion, deletion or alteration of an endorsement on a licence. It has the effect of ensuring that there can be no doubt but that these various methods of effecting changes in a licence shall constitute a variation for the purposes of Part XV. It does not seem to us that Regulation 254(3) can be used to characterise as a variation a process (namely refusal to delete a condition) that is simply not the process of variation envisaged by Regulation 258, a process which in fact assumes the existence of a licence that is then sought, after giving of notice in writing and so on, to be varied upon a ground or upon grounds particularised in the notice.

Mr Herrald made a strong plea that the harsh consequences of a finding in terms of that contended for by the Department should lead to the rejection of an interpretation the consequence of which is to limit review of the imposition of conditions related to failure to meet medical standards. But Mr Sully correctly, in our opinion, observed that if a right of review or appeal is conferred by statute, that right must be ascertainable distinctly as a matter of interpretation and in our view that right simply does not appear from the relevant provisions. The fact is of course that the interpretation which we have adopted leads to a conclusion that the jurisdiction of the Administrative Appeals Tribunal does mirror the jurisdiction which, as we understand the position to have been when the relevant provisions are properly construed, was formerly conferred upon a board of review or upon a specified court.

It is not for us to suppose whether our conclusion is or is not one that was intended by the draftsman of the provision in question. The result of this decision is that in a case such as the present, involving an attempt to have removed, during the currency of a licence, a condition relating to medical standards, an aggrieved person cannot seek administrative review on the merits from the Tribunal. Mr Herrald pointed to an apparent anomaly, which arises from the fact that an applicant who applies for a senior commercial pilot licence and is said to have failed to reach the same medical standards here in question is in fact refused the grant of a licence. The consequence is that he may apply for review and obtain a hearing on the merits in relation to the very same issue of fact which the applicant here wishes to raise. We do not think that this can affect our interpretation of the regulation. It should be made clear that we have to interpret the provisions with which we have here been concerned according to established legal principles. The Tribunal has no power to create a jurisdiction by following a discretionary approach to statutory interpretation.

For the foregoing reasons the decision of the Tribunal should be that the Administrative Appeals Tribunal has no jurisdiction to review the subject decision and that the Administrative Appeals Tribunal will not proceed further with the application.