(Emphasis added).
59 The parties agreed that the text of this instrument was defective in two respects. First, they agreed that the headings to the three columns which appear two-thirds of the way down in that extract were inadvertently included in the text and should be ignored. Secondly, they agreed that the text in sub-paragraphs (1) and (2) of paragraph 2 in that text applies not only to the paragraph numbered 2, but also to the paragraph numbered 1 immediately above it.
60 Taking these matters into account, we consider that the effect of the transitional provisions was as Mr Marriott described below, i.e. a licensee in Mr Ekinci's position can perform electrical, instrument and radio maintenance and inspections which was permitted by their previous CAR 31 licence. In the case of a Category B1 licence, such as that held by Mr Ekinci, privileges can be exercised only in relation to piston engine aeroplanes. The transitional provisions do not authorise Mr Ekinci to perform and certify for electrical, instrument and radio maintenance and inspections on aircraft other than piston engine aeroplanes.
61 The L-39 is a former military jet. Under the previous CAR 31 licensing regime, to perform maintenance on that aircraft's airframe, a licensee required privileges in Groups 1 (airframe), 5 (hydraulics), 6 (air conditioning) and 10 (pressurisation), as the L-39 was not listed in Airworthiness Advisory Circular (AAC) 9-91 (airframes) and therefore was not a Group 20 airframe. To perform maintenance on that aircraft's engine, a maintenance authority issued by the CASA was required, as the L-39 engine was not listed in AAC 9-92 (engines) and could not be classified as within any of the relevant engine groups.
62 Under the CAR 31 licensing provisions, Mr Ekinci did not hold a licence within the groups required for the L-39 airframe, and neither Mr Ekinci nor his two companies ever held a maintenance authority in relation to the L-39 engine, or in relation to that aircraft generally, so as to permit Mr Ekinci to perform maintenance upon it or certify it for that maintenance. Mr Ekinci previously held a maintenance authority in relation to an MIG 15 aircraft, which was not renewed, and he applied for a maintenance authority in relation to the L-39 aircraft, which was not granted. As the AAT found at [22] of its decision, Mr Ekinci plainly understood that it was necessary for him to have a maintenance authority in relation to the L-39 aircraft as is reflected in the fact that he applied for such an authorisation. Moreover, under Part 66 of CASR, it was necessary that Mr Ekinci held a Category B1 licence, which he did not hold.
63 Mr Ekinci also contended that [66.A.20] of the MOS transitional arrangements authorised him to undertake maintenance in the electrical, instrument and radio categories on the L-39 aircraft and that the AAT erred in taking a different view of the proper construction of that provision. We disagree. The transitional arrangement under that provision includes a reference to Appendix II, which includes a condition set out in the table relating to a Category A licence and is expressed in the following terms:
Provided that the old licence and its ratings applied to the maintenance, or would have applied to the maintenance but for Part 66 of CASR 1998.
64 Mr Ekinci also drew attention to [66A.45] of the MOS in support of his contention that he was entitled to undertake maintenance upon the L-39 because it was not listed in Appendix IX to CAO 104 as a type rated aircraft. CAO 104 deals with certificates of approval, including applications, grant and conditions. CAO 104.0 contains specific requirements for the authorisation of persons to perform maintenance on Warbird, Historic or Replica (WHR) aircraft. CAO 104 (2) defines a "WHR employee" as a person who is an employee of a certificate of approval holder and who is either the holder of a B1 licence in a subcategory that is applicable to the WHR or a Category B2 licence holder. The L-39 is a turbine-powered aeroplane. CASR 66.010 defines a "B1.1 licence" as applicable to a turbine-engined fixed-wing aeroplane. Mr Ekinci holds a Part 66 licence endorsed with the sub-category B1.2. CASR 66.010 defines a "B1.2 licence" as applicable to a piston-engined fixed wing aeroplane. Accordingly, Mr Ekinci's B1.2 licence did not afford any privileges for him to perform or certify for maintenance on turbine powered aeroplanes, including L-39 aircraft, and the AAT did not misconstrue the relevant provisions.
65 As noted above, Mr Ekinci also relied upon various provisions in the ACPM. CASA accepted that the designated chief engineer can co-ordinate maintenance, but only if that person is appropriately qualified and licensed to perform maintenance in one of the categories of maintenance. CASA emphasised that this was an express requirement of the ACPM (under ss 6.8(2) and (3)).
66 We accept CASA's submission that the ACPM does not state that the chief engineer is required to sign co-ordination and that s 6.7 of the ACPM required certification in accordance with Sch 6 of the CARs. It should also be noted that s 3.4 of the ACPM obliged the chief engineer to appoint a maintenance co-ordinator for the purposes of coordinating scheduled maintenance of aircraft in accordance with the approved system of certification.
67 In our view, Mr Ekinci has failed to establish any appealable error in respect of the AAT's construction of the relevant provisions of these instruments.
68 As noted above, ground 2 of the notice of appeal claimed that the AAT misconstrued Mr Ekinci's entitlements to sign for maintenance carried out in certain categories on VFR aircraft equipped with a single generator. Mr Ekinci also contended that, even if there was no such misconstruction, his conduct was not of a level of egregiousness with which it was viewed by the AAT and that it "ought fairly be excused". We have some difficulty seeing how this alternative contention falls within the ambit of ground 2; however, we would reject it in any event. Mr Ekinci submitted that his conduct in undertaking maintenance on the L-39 aircraft and Elstrom helicopters was not of a kind which demonstrated a flagrant disregard for authority, but rather constituted "an understandable error arising from the complexities of the regulatory regime". A similar argument was raised by him before the AAT (see [25] of the AAT's reasons for decision), but was rejected by it for reasons which are set out at some length in [117] to [127] of its reasons for decision. Those reasons include the AAT's finding that Mr Ekinci and his companies had elected to judge for themselves the particular regulatory requirements with which they would comply and that, in the case of Mr Ekinci, notwithstanding that he entertained doubts as to his entitlement to certify and perform maintenance work on non-piston engine aircraft, he took upon himself to act for several years upon his own subjective views regarding the regulatory requirements, rather than seek clarification. In our view, those findings were plainly open on the evidence and we do not consider that they are illogical or unreasonable in the relevant legal sense (see the discussion below of the grounds of illogicality and unreasonableness). Accordingly, we reject Mr Ekinci's alternative case under ground 2.
69 Ground 4: Ground 4 is directed to the AAT's decision to impose a condition on Air Combat's certificate of approval that it is to employ a suitably qualified LAME, other than Mr Ekinci, and who is acceptable to CASA. Mr Ekinci complained that the combined effect of suspending his LAME for one year, with an absolute prohibition against Air Combat employing him, constituted an "illogical outcome that demonstrates a want of reasoning". In particular, Mr Ekinci contended that it is illogical and unreasonable of CASA to suspend his LAME for one year based on the AAT's finding that he was not fit or proper, yet take no other action to address the question whether that lack of fitness or propriety would cease after his one year's suspension. In effect, he contended that it was arbitrary simply to impose such a finite suspension on the basis of a want of fitness or propriety without taking some accompanying step which is designed to assure his fitness and propriety at the end of the suspension period (unless there was some specific disability which impacted upon his fitness and propriety and which would itself terminate at the end of the suspension period).
70 In support of that contention, Mr Ekinci relied upon the High Court's decisions in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) and House v The King (1936) 55 CLR 499 (House). Li deals with the legal sense of "unreasonableness" as a ground of review for jurisdictional error. It may be accepted, however, that the High Court's discussion of that concept also broadly applies to the concept of unreasonableness in the context of a s 44 AAT Act appeal.
71 The following propositions are established in that case by the joint judgment of Hayne, Kiefel and Bell JJ:
(a) the standard of legal unreasonableness does not involve the court substituting its view as to how a discretion should be exercised for that of the primary decision-maker (at [66]);
(b) the legal standard of reasonableness is the standard indicated by the proper construction of the statute ([67]);
(c) by reference to the scope and purpose of the statute, legal unreasonableness may be established where a decision-maker is shown to have committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally (notwithstanding that, ordinarily, the weight to be accorded to relevant matters is for the decision-maker to determine) (at [72]); and
(d) where the decision-maker provides reasons, the review court may not be able to comprehend how the decision was arrived at. In those circumstances, legal unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification (at [76]).
72 There is nothing in Li which contradicts the view previously expressed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] that it is not the Court's function to substitute its own decision for that of the primary decision-maker:
… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
73 Applying those principles here, we do not consider that this aspect of the AAT's decision is illogical or unreasonable in the appropriate legal sense. First, insofar as the decision to suspend Mr Ekinci's LAME for one year is concerned, the AAT (stepping into the shoes of CASA), was empowered by CAR 269(1)(d) (subject to the terms of that regulation) to vary, suspend or cancel such an authorisation if it was satisfied, inter alia, "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". In our view, having attained the relevant satisfaction that a holder of an authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties associated with such an authorisation, CASA (and the AAT on review) is entitled to suspend the authorisation for such a period it considers to be appropriate and without necessarily having to take some additional step which is designed to ensure that the person will be fit and proper in the relevant sense at the expiration of a suspension period. If it transpires that, at the end of the suspension period, the person's authorisation is revived but the relevant person is still not fit and proper to CASA's satisfaction, it will be a matter for CASA at that time to determine what regulatory action should be taken in those circumstances.
74 Secondly, we do not consider that it is illogical or unreasonable in the relevant legal sense to impose a finite period of suspension on Mr Ekinci's LAME, while effectively imposing an absolute prohibition on Air Combat from employing him at any stage as a person holding a LAME, even when his LAME revives at the end of his suspension. The source of the power to impose such a condition on Air Combat's certificate of approval is to be found in CAR 30(3), which provides:
30(3) CASA may, for the purpose of ensuring the safety of air navigation, including a certificate of approval granted under this regulation an endorsement that the certificate is granted subject to a condition set out in the endorsement, in a document issued with the certificate of approval or in a specified Part or Section of Civil Aviation Orders.
75 The power to impose a condition under this provision is expressly limited by the requirement that it must be for the purpose of ensuring the safety of air navigation. Having regard to the serious findings made by the AAT concerning Mr Ekinci's fitness and propriety and his actions and conduct over a substantial period of time which created such serious difficulties in his relationship with CASA, coupled with the particular and important responsibilities of a chief engineer, we do not consider that the relevant condition is illogical or unreasonable in the relevant sense. We accept CASA's submission that, having regard to the evidence which was before the AAT concerning Mr Ekinci's fitness and propriety to perform relevant duties and discharge relevant responsibilities and the relationship between those matters and the primacy of the safety of air navigation, a logical and rational person could reach the same conclusions and impose the same condition as did the AAT, including the requirement that the person holding the LAME be acceptable to CASA.
76 Grounds 5 and 6: Ground 5 relates to the AAT's order that neither Air Combat or Cloud Nine employ Mr Ekinci in the position of chief executive officer for the purposes of satisfying s 28(1)(a) of the CA Act. Mr Ekinci contended that the issues presented by this ground involve "a consideration of the hierarchical requirements with regard to the chief executive officer and the chief pilot" and raise similar considerations to ground 6. It is convenient, therefore, to deal with this ground together with ground 6.
77 Ground 6 relates to the AAT's decision to cancel Mr Ekinci's chief pilot approvals and chief flying instructor appointments, which he contended was evidence of Wednesbury unreasonableness, citing Li and House. Mr Ekinci contended that there is an irreconcilable difference between the AAT's decision to suspend his LAME, yet cancel his chief flying instructor approvals and chief pilot appointments. He contended that there was no evidence or intelligible justification for that difference. We have rejected a similar submission made by Mr Ekinci in relation to the AAT's decision to suspend his LAME and amend Air Combat's certificate of approval.
78 For the following reasons, we consider that grounds 5 and 6 should also be rejected. First, we do not consider that the AAT misconstrued s 28(1) of the CA Act. It is desirable to set out the relevant parts of s 28:
28. CASA must issue AOC if satisfied about certain matters
(1) If a person applies to CASA for an AOC, CASA must issue the AOC if, and only if:
(a) CASA is satisfied that the applicant has complied with, or is capable of complying with, the safety rules; and
(b) CASA is satisfied about the following matters in relation to the applicant's organisation;
(i) the organisation is suitable to ensure that the AOC operations can be conducted or carried out safely, having regard to the nature of the AOC operation;
(ii) the organisation's chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely;
(iii) the organisation has a sufficient number of suitably qualified and competent employees to conduct or carry out the AOC operations safely;
(iv) key personnel in the organisation have appropriate experience in air operations to conduct or to carry out the AOC operations safely;
…
79 It is also relevant to take into account the effects of ss 28BA and 28BB in relation to CASA's powers to impose conditions on an AOC. Section 28BA(1)(c) provides that an AOC has effect subject to any conditions imposed by CASA under s 28BB.
80 Sub-section 28BB(1) confers a power on CASA to impose conditions on an AOC either at the time of issuing the AOC or, at any time thereafter, to impose further conditions by giving the AOC holder a written notice.
81 For completeness, it might be noted that there are some express limits imposed by s 28BC on CASA's powers in relation to the suspension or cancellation of an AOC or the imposition of conditions, none of which is relevant here.
82 In our view, the combined effect of ss 28(1)(a) and (b)(ii), (iii) and (iv) required CASA (and the AAT) to be satisfied that the chain of command of both Air Combat and Cloud Nine was appropriate to ensure that their operations would be carried out safely and that the employees and "key personnel" (which is defined in s 28(3) to include a person who carries out the duties of a chief executive office) have the appropriate experience safely to conduct those operations under the AOC before CASA can lawfully issue an AOC. That construction is reinforced by the terms of s 28BF of the CA Act, which requires the holder of an AOC to maintain an appropriate organisation and management structure, a requirement which applies as a general condition of the AOC by operation of s 28BA(1)(a).
83 It is evident that the AAT concluded that, for purposes of ss 28(1)(a) and (b) of the CA Act, Air Combat and Cloud Nine could only hold AOCs if those responsible for compliance with aviation legislation would not be under Mr Ekinci's influence. Accordingly, it imposed conditions on the relevant AOCs which had the effect of excluding Mr Ekinci from occupying what the AAT described as a "supernumerary position" with the companies. We are not persuaded that the AAT acted illogically or unreasonably in the relevant legal sense in imposing those conditions. Having regard to the evidence and the AAT's findings regarding Mr Ekinci's conduct and lack of fitness and propriety, it was plainly open to the AAT to conclude that Mr Ekinci was not an appropriate person to be involved in the senior management of the two companies in order to satisfy the requirements of ss 28(1)(a) and (b) of the CA Act.
84 Ground 7: Ground 7(a) concerned the allegation that the AAT denied Mr Ekinci procedural fairness by using the evidence adduced before it as to the alleged breaches of rules and procedures in an entirely unexpected way and without giving him an opportunity to address the AAT's concerns. Mr Ekinci submitted that he was denied procedural fairness as he was not given an opportunity to address the AAT's findings concerning his poor historical relationship with CASA and the related finding that his dealings with CASA demonstrated a lack of respect for civil aviation regulations and those who have a professional responsibility for enforcing those regulations.
85 Ground 7(b) concerned the claim that Mr Ekinci was given no prior notice of the AAT's intention to make an order which had the effect of permanently precluding him from acting as chief executive officer in his own companies. He contended that, had the issue been raised, he could have called evidence and made submissions to address any concerns which the AAT had that he might meddle in or interfere with the performance of the duties of the chief pilot or chief flying instructor, assuming that someone else was performing those roles.
86 The relevant requirements of procedural fairness are reflected in [28] to [30] of the Full Court's decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 which, despite their length, should be set out in full:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material - Dixon v. Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffman-La Roche and Co. A.G. v. Secretary of State for Trade and Industry (1975) AC 295 at 369:
"...the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished."
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J).
The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi (supra) at 108-109:
1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).
2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (unreported, Full Court Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.
His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases. As Gummow J there said (at 359):
"... in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or material provided by the third party, but what is seen to be the conduct of the applicant in question."
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).
87 We do not consider that Mr Ekinci was denied procedural fairness in respect of the AAT's findings and related orders concerning his poor relationship with CASA. That topic was canvassed at the AAT hearing in evidence, in exchanges with the Tribunal's members during the hearing and in closing submissions. Mr Ekinci was cross-examined on the matter and it was taken up by his counsel in re-examination. It was also addressed in his written submissions, as well as in those of CASA. It is evident that Mr Ekinci was content to conduct his case below on the basis that the personal difficulties between himself, his associated companies and CASA were capable of resolution and that they would be able to co-operate in the interests of aviation safety in the future, but the AAT concluded otherwise. There was no procedural unfairness in relation to this topic or issue.
88 In our view, however, the position is different in respect of ground 7(b) of the amended notice of appeal. it raised a claim of procedural unfairness in respect of the AAT's decision to set aside the delegate's decision to cancel Air Combat's certificate of authority and the AOCs of both Air Combat and Cloud Nine and, instead, to substitute a decision to impose a condition on both those companies' AOCs which had the effect of allowing them to continue to operate, but only on condition that Mr Ekinci not be the chief executive officer and that an alternative person occupying that position had to be acceptable to CASA. CASA acknowledged before us that the possibility of such a condition being imposed was not raised by it during the course of the AAT hearing and that the AAT itself never indicated that it was contemplating imposing such a condition. It is plain that all the parties to the AAT proceeding were caught by surprise when the AAT imposed such a condition.
89 In our view, procedural fairness required the AAT to put Mr Ekinci on notice that it was contemplating making such an order and to provide him with an opportunity to respond, by calling evidence as to the effect of such a condition and by making submissions. The same could be said in respect of Air Combat and Cloud Nine, whose interests were also plainly affected by the condition, but that matter need not be taken any further because neither company appealed the AAT's decision. It is unnecessary for us to determine whether CASA was also denied procedural fairness on this issue.
90 The circumstances here are broadly similar to those in Fletcher v Commissioner of Taxation (1988) 19 FCR 442 (Fletcher). In that case, the AAT affirmed the Commissioner's disallowance of the taxpayer's objection to the Commissioner's decision rejecting certain deductions. In affirming the Commissioner's disallowance of the taxpayer's objections the AAT purported to exercise the discretion conferred upon the Commissioner by s 177F(1) of the Income Tax Assessment Act 1936 (Cth) (i.e. the discretion to cancel a tax benefit obtained by a taxpayer in connection with a scheme to which Pt IVA of that Act applied). The Commissioner conceded that at no time had he made a determination against the taxpayer under s 177F(1) and that no submission was made to the AAT in connection with Pt IVA.
91 The Full Court held that, in making a determination under s 177F(1), the AAT denied the taxpayer procedural fairness. The Full Court said at 456-457:
As we have already mentioned, in the present case it is conceded that at no time prior to, or during, the hearing before the Tribunal was any reference made to Pt IVA of the Act. Although the objections to the various assessments submitted by Mr McGrath on behalf of the applicants had included, as one of 18 grounds of objection, an assertion that Pt IVA of the Act did not apply to the transaction, the Commissioner at no time indicated any intention to rely upon this path. Nor did the members of the Tribunal give any indication to the applicants that the Tribunal might determine the appeal by reference to that Part; as they were entitled to do notwithstanding that the Commissioner himself had not raised Pt IVA.
It is not clear to us that the applicants would have adduced additional evidence in order to resist a case made under Pt IVA. Indeed it is not easy to see what additional evidence could usefully have been led. But, because the matter was not raised, the applicants and their advisers had no opportunity to consider this question. We are not in a position to conclude that there was no possibility that material evidence could have been led. Moreover as both Stead (supra) and Lewis (supra) demonstrate, the question whether procedural fairness has been denied does not depend upon the question whether material evidence has been lost. The opportunity of making relevant submissions is an important ingredient of a fair trial. This statement is true in all cases, notwithstanding that there may be cases in which the grant of a new trial is unnecessary or futile.
…
In our opinion the course taken in the present case involved the denial to the applicants of procedural fairness. Prima facie the matter ought to be remitted to the Tribunal for further consideration at a hearing at which all parties will have a proper opportunity to address the possible application to the case of the provisions of Pt IVA of the Act.
92 The position here is perhaps even stronger than was the case in Fletcher. Mr Ekinci contended that, had he known that the AAT was contemplating imposing such a condition, he would have adduced evidence and made submissions in relation to that possibility. It can be assumed that such evidence might include material which was directed to the implications for him as the sole shareholder of the two companies being precluded from continuing to act as their chief executive officer. Mr Ekinci might also have wished to adduce evidence relating to the personal hardship to him of any such condition (although the AAT stated at [131] that it took into account hardship and difficulty for Mr Ekinci and his companies, it is evident that this was at a high level of generality and did not relate specifically to the implications of the condition on the AOCs regarding the chief executive officer in circumstances where the AAT never indicated that it was contemplating imposing such a condition any evidence before it on hardship would not have been directed to that possibility). He may also have wished to make submissions on the question whether the power to impose a condition included the power to require that the chief executive officer be acceptable to CASA.
93 Although different views have been expressed by some members of the Court on the issue whether denial of procedural fairness by the AAT raises a question of law for the purposes of s 44 of the AAT Act (the relevant authorities were discussed by the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [6]-[7] per Gray ACJ, North and Gyles JJ (Clements)), it is now established that "this Court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of Tribunal on the ground of such a denial raises a question of law" (Clements at [8]).
94 We will consider below the appropriate relief in respect of this successful ground of appeal.
95 Ground 8: Ground 8 was not pressed.
96 Ground 9: Ground 9 raised a claim of Wednesbury unreasonableness in respect of the AAT's findings that there had been a series of significant and important failures to perform relevant functions and comply with relevant aviation safety regulations. It appears that Mr Ekinci may not have pressed this ground of appeal but, for completeness, we would have rejected it in any event for the following reasons.
97 First, the relevant principles relating to unreasonableness are those that are described in Li, which we have discussed above at [70].
98 Secondly, with respect to the AAT's findings at [129] regarding the important role and functions of an aircraft maintenance engineer, chief engineer, chief pilot and chief flying instructor, there can be no doubt that the AAT was correct to view each of those positions as positions of significance and that the proper performance of the functions of persons who occupy those positions is of great significance to air safety. Moreover, we also consider that there was ample evidence to support the AAT's finding that there "had been a series of significant and important failures to perform those functions" and comply with relevant air safety regulations. Having regard to the evidence before the AAT, a logical and rational person could plainly come to the same conclusion as did the AAT and the AAT's reasoning and relevant findings cannot be described as unreasonable in the appropriate legal sense of that concept.
99 Ground 10: Ground 10 is directed to the AAT's decision to cancel Mr Ekinci's ATO delegation CASA 64/06. Mr Ekinci contended that this decision was not before the AAT on review and that, in any event, it was not a reviewable decision.
100 CASA accepted that ground 10 should be upheld. It acknowledged that it was common ground before the AAT that there was no reviewable decision to cancel Mr Ekinci's ATO delegation and the matter was not properly before the AAT. It submitted, however, that this formed a minor and severable part of the AAT's decision, which is capable of being set aside under ss 44(4) and (5) of the AAT Act. CASA further submitted that there is no utility in the Court making an order in relation to this aspect of the AAT's decision because the ATO delegation would have expired at the end of June 2014.
101 In our view, it is appropriate that this aspect of the AAT's decision be set aside even though the relevant delegation has now expired. The AAT did not have jurisdiction in relation to the matter and its decision should be formally set aside. In our view, there is utility in granting such relief because it removes what otherwise would be an adverse regulatory determination which might have prejudicial consequences for Mr Ekinci in terms of his future dealings with aviation regulators, both here and, potentially, overseas.