Drake v Minister for Immigration and Ethnic Affairs

"requiring persons performing specified functions in relation to the operation or maintenance of aircraft ... to be the holders of licences, permits or certificates of specified kinds, and providing for the grant, issue, cancellation, suspension or variation of such licences, permits and certificates" (s98(3)(c))

"empowering CASA, or an officer authorized by CASA, to give or issue directions or instructions to all or any of the persons holding licences, permits or certificates under this Act or the regulations, being directions or instructions with respect to matters affecting the safe navigation and operation, or the maintenance, of aircraft, and providing for the manner in which such directions and instructions are to be notified." (s98(3)(h))

The Civil Aviation Regulations ("the Regulations") have been made pursuant to s98 of the CAA Act. All references to regulations in these reasons are references to the Regulations.

Regulation 31 makes provision for the licensing of aircraft maintenance engineers. So far as is here relevant, it provides - "31 (1) A qualified person may apply to the Authority for the issue of an aircraft maintenance engineer licence in one or more of the following categories:

(a) airframes; (b) engines; (c) radio systems; (d) electrical systems; (e) instruments

(1A)The Authority may issue to the person a licence in the category specified in the application.

(1B)When issuing a licence, the Authority must endorse it with the category in which the licence is issued.

(2) The Authority may, when issuing an aircraft maintenance engineer licence or at any time while such a licence is in force, enter an endorsement on the licence specifying the limits of the work to which the licence relates.

(2A)A person must not carry out work that exceeds the limits of the work specified in an endorsement on his or her licence

Regulation 282 provides, so far as is here relevant, as follows - "282(1) A person shall not, unless specially permitted by or under these Regulations, perform any duty or exercise any function or do any act for which:

(a) a licence; (b) a certificate; or (c) a rating or other endorsement on a licence or certificate;

is required under these Regulations, without holding:

(d) the appropriate licence or certificate; or (c) a licence or certificate containing the appropriate rating or other endorsement.

(2) Where a licence or certificate is suspended, or a rating or other endorsement on a licence or certificate is suspended or cancelled, under these Regulations, the person to whom the licence or certificate was granted shall not, for the purposes of subregulation (1) be deemed to be the holder of the licence or certificate or a licence or certificate containing the rating or other endorsement, as the case may be, during the period of suspension or cancellation."

The authority of CASA to require the holder of an aircraft maintenance engineer licence to undergo an examination derives from reg 33(1). That regulation is in broad terms. It provides as follows: - "33 (1) The Authority may, at any time, require the holder of an aircraft maintenance engineer licence to undergo an examination designed to test his or her competency as such a holder."

Regulation 33 does not provide that a holder of an aircraft maintenance licence who refuses, or without reasonable excuse, fails to undertake an examination required pursuant to the regulation, contravenes the regulations or is to be subject to a penalty (cf reg. 5.38 which is concerned with flight crew licences etc).

Regulation 265 gives the CASA a discretion to suspend a licence where the holder of that licence is required to undergo an examination. For present purposes, the relevant provisions of reg 265 are as follows - "265(1) If:

(a) the Authority requires the holder of a licence to undergo an examination under regulation 33 ...;

the Authority may suspend the licence by giving the holder of the licence written notice of the suspension.

(2) Where the result of the examination does not show any ground on which the licence may be suspended or cancelled, the Authority shall forthwith terminate the suspension of the licence and, by notice in writing served on the holder of the licence, notify the holder that the suspension has been so terminated.

(3) Where the Authority, upon the result of the examination becoming known, does not terminate the suspension in accordance with subregulation (2) but gives to the holder of the licence a notice under subregulation 269(3), the licence shall remain suspended during the time specified by the Authority in that notice as the time within which the holder of the licence may show cause why the licence should not be varied, suspended or cancelled under regulation 269."

The terms of regs 33 and 265 are to be contrasted with those of reg 268 which make provision with respect to circumstances in which CASA has reason to believe that there may exist facts or circumstances that would justify the variation, suspension or cancellation of a licence on a ground specified in reg 269 (set out below). Regulation 268 provides as follows - "268(1) Where the Authority has reason to believe:

(a) that there may exist facts or circumstances that would justify the variation, suspension or cancellation of a licence or certificate on a ground specified in regulation 269; and

(b) that there may be serious risk to air safety if the licence or certificate were not suspended;

the Authority may, by notice in writing served on the holder of the licence or certificate, suspend the licence or certificate.

(2) Where the Authority suspends a licence or certificate in pursuance of subregulation (1), the Authority shall forthwith investigate the matter, and the suspension shall cease upon the completion of the investigation or at the expiration of 28 days from and including the date on which the suspension took effect, whichever is the earlier, but without prejudice to the powers of the Authority under regulation 269.

(a) the Authority, upon the completion of an investigation under this regulation, gives to the holder of a licence or certificate a notice under subregulation 269(3); and

(b) the suspension of the licence or certificate under this regulation had not ceased before the completion of the investigation;

the licence or certificate shall remain suspended during the time specified by the Authority in that notice as the time within which the holder of the licence or certificate may show cause why the licence or certificate should not be varied, suspended or cancelled under regulation 269."

"269(1) Subject to this regulation, the Authority may, by notice in writing served on the holder of a licence or certificate, vary, suspend or cancel the licence or certificate where the Authority is satisfied that one or more of the following grounds exists, namely:

(a) that the holder of the licence or certificate has contravened, a provision of the Act or these Regulations, including these Regulations as in force by virtue of a law of a State;

(b) that the holder of the licence or certificate fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining or holding of such a licence or certificate;

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

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

(e) that the holder of the licence or certificate has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.

(2) A notice under subregulation (1) shall set out the grounds for the decision.

(3) Before taking action under this regulation to vary, suspend or cancel a licence or certificate, the Authority shall:

(a) give notice, in writing, to the holder of the licence or certificate of the facts and circumstances that, in the opinion of the Authority, warrant consideration being given to the variation, suspension or cancellation of the licence or certificate under this regulation; and

(b) allow the holder of the licence or certificate to show cause, within such time as the Authority specifies in that notice, why the licence or certificate should not be varied, suspended or cancelled under this regulation.

(4) The time specified by the Authority in the notice under subregulation (3) as the time within which the holder of the licence or certificate may show cause why the licence or certificate should not be varied, suspended or cancelled under this regulation shall be a time that is reasonable in all of the circumstances of the particular case."

The jurisdiction of the AAT to review a decision of CASA is found in s31 of the CAA Act. The jurisdiction is limited to a "reviewable decision" which is defined as follows - "'reviewable decision' means:

(a) a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or

(b) the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence."

The AAT has no jurisdiction to review a decision of CASA pursuant to reg 33 to require the holder of an aircraft maintenance engineer licence to undergo an examination designed to test his or her competence as such a holder.

FACTUAL BACKGROUND The respondent has been the holder of an aircraft maintenance engineer licence within the meaning of the Regulations since January 1965. However, it appears that he may have become a licensed aircraft maintenance engineer in the United Kingdom in 1951. He is 71 years of age. He has had experience working with wooden framed aircraft over many years.

On 1 January 1994, his licence was renewed with a number of endorsements including an endorsement "Airframe-wooden structures GRP3".

On 22 May 1994, the applicant conducted a "100 hourly inspection" of a wooden framed aircraft with the identification details "VH-DEC". He certified, referring to airworthiness directive AD/CHA/21, that the wing rib/spar attachments were without defects. Almost exactly a year later, an airworthiness report was prepared with respect to the same aircraft by one D.J. Llewellyn of Southdown Engineering Pty Ltd. This report ("the Llewellyn report") referred to cracks in the wing spar of the aircraft. It expressed the following opinion - "In view of the requirement for repeated inspection of these aircraft for loosening of the rib attachment nails (AD/CHA-21), it is surprising that the cracking emanating from the nail holes was not previously detected, the more so in view of the discolouration streak that was visible along the line of the crack."

A letter sent by CASA to the applicant seeking an explanation in respect of that matter raised by the Llewellyn report was returned to CASA undelivered.

On 19 July 1995, CASA caused a letter to be hand-delivered to the applicant. This letter enclosed a copy of the Llewellyn report and made reference to the findings therein and to the expression of opinion therein set out above. The letter concluded as follows - "In view of the above, your full explanation is required in writing within the next 14 days, as to the reason for the certification of AD/CHA/21 and subsequent issue of the aircraft Maintenance Release with evidence in the enclosed report indicating obvious wing spar cracks existed at the time."

No response was received by CASA from the applicant to the letter of 19 July 1995.

On 4 August 1995, CASA caused a further letter dated 4 August 1995 to be hand-delivered to the applicant. This letter notified the applicant that its author, David Klein, Senior Airworthiness Inspector, Bankstown District Office, considered it necessary in the interests of safety of air navigation, for the applicant to undertake a "Group 3 Wooden Airframe Structures examination". The letter advised that the examination was to take place within 28 days of the date of the letter. The letter further advised of the immediate suspension of the applicant's aircraft maintenance engineer licence.

The letter of 4 August 1995 set out the reasons which led the author of the letter to the decision to require the applicant to undertake the examination. Such reasons are expressed in the letter as follows - "1. You are now, and at all times mentioned in this notice were, the holder of AME licence No.6378.

2. On 22 May 1994 you certified in the VH-DEC airframe log book for the completion of Civil Aviation Authority Airworthiness Directive AD/CHA/21 specifying nil defects, during a 100 hourly inspection of the aircraft.

3. On the 24 May 1995 an airworthiness report was raised by a aeronautical engineer David LLewellen, in liaison with the aircraft owner and our Archerfield District office, revealing numerous cracks were evident in VH-DEC wing spars, which impacted on the structural integrity of the aircraft wings. The report indicated concern that certain cracks emanating from nail holes were not detected on the previous AD/CHA/21 inspection, with clear evidence of discolouration streaks visible along the line of the cracks."

4. On 19 July 1995 you were presented with letter, enclosing a copy of the inspection report and the above log book entry, requesting a full explanation within 14 days, of the circumstances surrounding the AD/CHA/21 inspection and certification, to which we have received no reply."

On the same day that he received the above letter, namely 4 August 1995, the applicant met with officers of CASA and requested additional time to respond to the letter of 19 July 1995. He was advised that the suspension of his licence would be effected as of 11 August 1995 pending review of his response.

By letter dated 7 August 1995, the applicant gave to CASA what he described as his "initial reply" to the letter of 19 July 1995. He stressed in the letter that he would not have certified for his inspection of the aircraft on 22 May 1995 had he not been satisfied with its condition at the time. He pointed out that the aircraft had been in service for 12 months from the date of his inspection and that it "is possible to ruin an aircraft in far less time than has already expired". He commented upon the unsatisfactory method of construction of the wing rib/spar attachments of the aircraft.

On 12 August 1995, a further airworthiness report with respect to the aircraft was prepared, this time by one W.M. Edwards of Multitech Aircraft Services Pty Ltd ("the Edwards Report"). The Edwards report reported "numerous cracked wing ribs on both the lower and upper leading edge attach points at the front spar". It expressed the opinion that "[i]t is ... concerning that the spar cracks were not detected during compliance with Airworthiness Directive AD/CHA/21 at the last periodic", although it went on to mention the possibility that environmental problems might provide the explanation. It is not clear when the applicant first saw this report. It is an annexure to an affidavit sworn by him on 24 August 1995.

On 14 August 1995, the applicant made an application to the AAT for review of a decision of David Klein said to have been made on 11 August 1995. The applicant's solicitors later confirmed that the decision of which the applicant sought review was the decision to suspend the applicant's licence as referred to in the letter of 4 August 1995.

On 24 August 1995, the AAT made the following order by consent - "Pursuant to s41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders the stay of the relevant decision except to the extent that the decision operates to suspend the endorsement on the applicant's licence described as 'Airframe-Wooden structures GRP3' pending the decision of the Tribunal on the ultimate hearing or pending further order by the Tribunal."

The applicant has at all relevant times refused, and continues to refuse, to undertake the examination referred to in the letter of 4 August 1995.

By letter dated 4 September 1995, R.A. Costin, District Airworthiness Manager, Bankstown South, exercising delegated powers of CASA, gave the applicant notice under reg 269 (3) of facts and circumstances which, in his opinion, warranted consideration being given to the variation of the applicant's aircraft maintenance engineer licence by cancellation of the airframe endorsement as to wooden structures. The letter set out the following facts and circumstances - "FACTS AND CIRCUMSTANCES

You are now, and at all times mentioned in this notice were, the holder of AME licence No. 6378.

On the 22 May 1994 you certified in the VH-DEC airframe log book for the completion of Civil Aviation Authority Airworthiness Directive AD/CHA/21 specifying nil defects, during a 100 hourly inspection of the aircraft.

On the 24 May an airworthiness report was raised by an aeronautical engineer David Llewellen, in liaison with the aircraft owner and our Archerfield District Office, revealing numerous cracks were evident in VH-DEC wing spars, which impacted on the structural integrity of the aircraft wings. The report indicated, concern that certain cracks emanating from nail holes were not detected on the previous AD/CHA/21 inspection, with clear evidence of discolouration streaks visible along the line of the cracks.

On 4 August 1995 you were served a notice of licence suspension under subregulation 265(1) and requirement to undertake a Group 3 Wooden Airframe Structures examination in accordance with subregulation 33(1) of the Civil Aviation Regulations. The examination was required to take place with [sic] 28 days.

On 24 August 1995 the AAT made the following order by consent of yourself and the Civil Aviation Safety Authority:

'Pursuant to s.41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders the stay of the relevant decision except to the extent that the decision operates to suspend the endorsement on the applicant's licence described as "Airframe-Wooden structures GRP3" pending the decision of the Tribunal on the ultimate hearing or pending further order by the Tribunal.'"

The letter gave the following as the grounds for variation -

You have failed to satisfy a requirement prescribed under subregulation 33(1) of the Civil Aviation Regulations, by not sitting for an examination in the required period, to validate your competency to hold an endorsement in Airframe Group 3 Wooden Structures.

This ground is specified in paragraph 269(1)(b) of the Civil Aviation Regulations."

"This notice does not terminate the suspension of the Airframe endorsement Group 3 Wooden Structures under subregulation 265(1) of the Civil Aviation Regulations. It is intended that the initial suspension decision relating to your licence would cease on the variation taking effect."

The applicant responded to the above letter by, amongst other things, referring to the AAT hearing scheduled for 25 October 1995. He made no attempt to address on the merits the issue of whether or not his licence should be varied as foreshadowed by the letter of 4 September 1995.

At the AAT hearing on 25 October 1995, apparently by consent, the decision treated as being the decision under review by the AAT, was the decision of the respondent to vary the applicant's aircraft maintenance engineer licence by removing the endorsement relating to entitlement to service wooden structures.

REASONS FOR DECISION OF THE AAT The AAT identified the decision before it for review as the decision of the delegate of CASA to vary the applicant's aircraft maintenance engineer licence by removing the endorsement relating to entitlement to service wooden frames. It rightly observed that it had no jurisdiction to review the decision, made in reliance on reg 33, to require the applicant to undertake an examination.

The AAT noted, however, that the decision to vary the applicant's aircraft maintenance engineer licence in the manner complained of, was made in reliance on reg 269(1), which is set out above, and in particular in reliance on par (b) thereof. It further noted that the requirement prescribed by or specified under the Regulations which the applicant had failed to satisfy was the requirement imposed under reg 33 that he undergo a specified examination. The reasons of the AAT disclose that it saw the task before it in the following way -

"... this Tribunal would not have had jurisdiction to review the decision to require the applicant to undertake the examination. It does have jurisdiction, however, to review the decision taken as a consequence of his refusal to take that examination. In considering the reviewable decision, it will therefore be necessary to consider the decision under Regulation 33 to require the applicant to undergo the examination. If that power was not properly exercised, then the consequence of the failure to comply with the requirement will be flawed. The real issue in this application therefore, is whether the respondent's decision to require the applicant to undergo an examination was the correct or preferable decision in the circumstances, having regard to the inherent limitations on the exercise of any administrative discretion. Was the decision made a valid exercise of power, having regard to the object and purposes of the legislation and the regulation?" (emphasis added)

The above reference to a "valid exercise of power" is somewhat curious. No suggestion was, it seems, made to the AAT, and none was made to me, that the decision of the respondent to require the applicant to undergo an examination was beyond its power or otherwise an invalid exercise of its power under reg 33. The reference to "object and purposes of the legislation and the regulations" suggests that the reference to validity should be somewhat loosely understood, and that the final sentence in the passage set out above should be read as an attempt to rephrase the penultimate sentence.

In determining that the real issue before it was that of whether the respondent's decision to require the applicant to undergo an examination was "the correct or preferable decision in the circumstances", the AAT in fact determined to embark on the identical exercise that it would have embarked on had the decision to require the applicant to undertake the examination been a reviewable decision and the subject of review before it (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419).

The AAT did, in fact, embark on a review of the decision to require the applicant to undergo an examination. It examined the Llewellyn report and the Edwards report and evidence from the applicant as to his inspection of the aircraft the subject of those reports. The AAT stated that it was "satisfied that the applicant did carry out the inspection carefully and properly, that he looked for defects, the possibility of which was well known to him, and that he failed to find any". It concluded as follows -

"Having regard to these facts [presumably the finding as to the way in which the applicant carried out the inspection of the aircraft], we consider that the original decision to require the applicant to undertake an examination was not in the circumstances a valid exercise of the administrative discretion conferred by the regulation [presumably reg 33] and that the consequent decision to vary his licence must, therefore, be tainted. If the reviewable decision is not based upon a secure foundation, then the reviewable decision is not the preferable one in the circumstances This is the conclusion to which we have come."

In my view, it was not open to the AAT to embark on a review of a decision which was not a reviewable decision under the guise of reviewing a reviewable decision (Secretary to the Department of Social Security v Riley (1987) 17 FCR 99 per Northrop J at 103). Nor was it open to the AAT under s43 of the Administrative Appeals Tribunal Act 1975 (Cth), or otherwise, to seek to exercise a discretion vested in the respondent at a time earlier than the time of the making of the decision in fact under review before the AAT (Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 452). I conclude that the AAT in this case wrongly undertook one or other or both of the above steps.

OTHER MATTERS The approach adopted by the AAT in this case had the result that it gave little, if any, consideration to the object and purpose of reg 269 or to its place in the scheme of the Regulations.

As is mentioned above, the power given to CASA by reg 33 is a wide one without express limitation. Its exercise is thus limited only by the constraints that it must not be exercised for a purpose other than that for which it exists, that regard must be had to relevant matters and that irrelevant matters must be ignored (Drake v Minister for Immigration and Ethnic Affairs at 419).

Regulation 265 authorises CASA, it if requires the holder of a licence to undergo an examination under, amongst other regulations, reg 33, to suspend the licence. A comparison of the provision of regs 265 and 268 suggests that the power to suspend a licence granted by reg 265 is not intended to be limited to circumstances where CASA has reason to believe that there may be a serious risk to air safety if the licence is not suspended. Regulation 268 provides the authority to suspend in such circumstances. Having regard to the fact that the Regulations provide no other means of compelling a licensed aircraft maintenance engineer to undergo an examination required of him or her under reg 33, short of an exercise of power under reg 269, it seems to me that reg 265 is open to be used by CASA where it faces, or reasonably apprehends, a refusal to undertake an examination lawfully required to be undertaken pursuant to reg 33.

A comparison of regs 268 and 269 similarly suggests, in my view, that the power of CASA to vary, suspend or cancel a licence or certificate pursuant to reg 269 is not intended to be limited to circumstances in which CASA has reason to believe that there may be a serious risk to air safety if the particular licence or certificate is not suspended. If CASA were only entitled to act under reg 269 where it had such a belief, a suspension of the relevant licence or certificate could be expected in every case in which the procedure mandated by reg 269 (3) is initiated. Regulation 268 (1) appears at first glance to give CASA a discretion to suspend or not to suspend a licence or authority where it has reason to believe that there may be a serious risk to air safety if the licence or certificate were not suspended. However, when properly understood, the regulation does not, in my view, have this effect. In my view, the word "may" is used in the penultimate line of reg 268(1) to confer an authority: an authority which must be exercised if the circumstances are such as to call for its exercise (cf Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-3; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 per Windeyer J at 134-5). Any other construction of the regulation would appear to be inconsistent with the pre-eminence given by the Act and Regulations to the safety of civil aviation.

Having regard to the object and purpose of reg 269 and to its place in the scheme of the Regulations, the issue before the AAT was not that identified by it, namely whether the respondent's decision to require the applicant to undergo an examination was the correct and preferable decision in the circumstances. The issue which was before the Tribunal was whether, having regard to the applicant's refusal to undertake such examination, the decision to vary his aircraft maintenance engineer licence was the correct and preferable decision in the circumstances. This issue was not addressed by the AAT.

CONCLUSION The decision of the AAT will be set aside. The case is remitted to the AAT to be heard and determined according to law. I certify that this and the preceding twenty (20) pages are a true copy of the reasons for judgment of the Honourable Justice Branson.

Solicitors for the respondent: Ferrier & Associates