Australian Corporate Jet Centres Pty Ltd and Civil Aviation Safety Authority

[2017] AATA 403

Australian Corporate Jet Centres Pty Ltd and Civil Aviation Safety Authority [2017] AATA 403 (31 March 2017)

Division:GENERAL DIVISION

File Number:           2017/1499

Re:Australian Corporate Jet Centres Pty Ltd  

APPLICANT

Civil Aviation Safety AuthorityAnd  

RESPONDENT

DECISION

Tribunal:Egon Fice, Senior Member

Date:31 March 2017

Place:Melbourne

The Tribunal decides that it has no jurisdiction to review the decision for which the Applicant had lodged an application for review

.........................[sgd]...............................................

Egon Fice, Senior Member

PRACTICE AND PROCEDURE – JURISDICTION – application for review of decision to amend Australian Civil Aircraft Register to show that applicant was Registered Operator of aircraft – applicant concedes that there is no jurisdiction to review decision as expressed in application for review – application for review of earlier refusal to register applicant as Registered Operator raised at jurisdiction hearing – whether a ‘reviewable decision’ within the definition in the Civil Aviation Act – refusal to amend Register cannot be regarded as refusal to grant or issue certificate – refusal to process application and amend Register does not constitute a variation of an authorisation – matter dismissed for want of jurisdiction

Legislation

Administrative Appeals Tribunal Act 1975; s 25

Civil Aviation Act 1988; ss 3, 20AA, 31

Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998; regs 11.015, 11.018, 47.010, 47.015, 47.020, 47.025, 47.060, 47.065, 47.100, 47.131A, 201.004

REASONS FOR DECISION

1. On 16 March 2017 Australian Corporate Jet Centres Pty Ltd (ACJC) lodged an application with the Tribunal seeking review of a decision made by the Civil Aviation Safety Authority (CASA) on 16 February 2017 which it claimed it received on 22 February 2017.  CASA’s decision was to amend the Australian Civil Aircraft Register (the Register) to show that ACJC was the Registered Operator of a Raytheon Aircraft Company B 200 (King Air) aircraft registration VH-ZCR.  That aircraft was destroyed in an accident at Essendon airport on 21 February 2017 at about 9 a.m.

2. In its application, ACJC claimed that it had no involvement in the operation of the flight on 21 February 2017.  The charter was not booked through ACJC; it was not conducted under ACJC’s Air Operator Certificate (AOC); and ACJC did not provide the flight crew or prepare the aircraft for flight.  Furthermore, ACJC claimed that at no stage prior to the accident did CASA advise ACJC that it was considering reversing a prior refusal to register ACJC as the Registered Operator.

3. There being a question about the jurisdiction of the Tribunal to review either the decision made by CASA on 16 February 2017 or earlier decisions made by CASA following the lodgement of a Notice of Appointment/Cancellation of Registered Operator by the then current Registration Holder, BB1544 Pty Ltd, I need to briefly set out the events leading to that decision.

   EVENTS LEADING TO THE REQUEST TO CHANGE THE REGISTERED OPERATOR

4. I had in evidence a statement made on 27 March 2017 by Mr Jurgen Schob, the Registrar employed by CASA responsible for the Register.  Attached to that statement were documents which support what Mr Schob claimed were the relevant dates and events.

5. On 15 December 2016 CASA received a Form 032 (Notice of Appointment/Cancellation of Registered Operator) for aircraft VH-ZCR by email from the Registration Holder, BB 1544 Pty Ltd, stating that the appointment of MyJet Aviation Pty Ltd, the then Registered Operator, was cancelled with effect from 6 December 2016.  That form also indicated that the Registration Holder (Mr Chris Richards) was cancelling the appointment of the current Registered Operator effective from 15 December 2016.  The second part of that form, which deals with the appointment of a Registered Operator, was completed and signed by Mr Sam Iliades who described himself as the CEO of ACJC.  The application was to appoint ACJC as the Registered Operator of VH-ZCR.  The appointment application was also signed by Mr Richards in his capacity as the then Registration Holder.  It is also dated 15 December 2016.  The final page of Form 032 deals with Application Fees.  The fee in this case amounted to $65 and Mr Richards provided credit card details to affect that payment.

6. In an email dated 16 December 2016 sent to MyJet Charter, Mr Shay Bonfini, a Client Service Centre Officer with CASA referred to the appointment/cancellation of the Registered Operator for aircraft VH-ZCR stating that the credit card payment was unable to be processed due to an error, said to be ‘Card expired’.  Mr Bonfini attached a new payment page (page 6 of 6 on Form 032) requesting correct credit card details and that the person dealing with the email attach a scanned copy of the payment page when completed along with the correct details.  Mr Bonfini also stated that the email was required by no later than mid-day on 20 December 2016, otherwise:

   If I haven’t received the payment page or still can’t process the payment by noon Tuesday, 20^th of December 2016, your application will not be accepted and will be returned to you.

7. In his statement Mr Schob said that CASA attempted to contact BB 1544 Pty Ltd on a landline and mobile number in an attempt to contact Mr Richards.  Those attempts were not successful.

8. When no response was received from BB 1544 Pty Ltd, on 21 December 2016 Mr Bonfini sent another email to MyJet Charter attaching a refusal letter regarding the appointment or cancellation of the Registered Operator for aircraft VH-ZCR.  This letter was not sent to ACJC.

9. Relevantly, that letter referred to Form 032 and stated:

   …The notification has been assessed against the requirements, within the limitations of the documentation submitted.  This assessment has found that the notification failed to meet the regulatory requirements and notification has been refused.  Details of the problems can be found below.

   Please note that you will need to lodge a new notification and included new payment before this matter can be considered further.  CASA is required to recover costs for providing regulatory services and the fees charged are for processing and consideration of the notification, not for a successful outcome.

   Problems with notification

   ·     Payment has not been received.

   On 16 December 2016 you were sent an email requesting that an amended payment page be submitted by 12pm 20th of December 2016.

   Unfortunately CASA did not receive an amended payment page within the given timeframe, as a result your application has been closed and the assessment has not been conducted.

   Please re-submit the application in full and include a new payment page.

10. Mr Iliades sent an email to CASA, Aircraft Registration, on 30 January 2017 seeking an update on the status of the registered operator for B200 VH-ZCR to Australian Corporate Jet Centres.  That email was copied to a Mr Andrew Gibb.

    
    

11. CASA (Mr Karl Kumar) responded to Mr Iliades in an email dated 30 January 2017 stating:

    I didn’t get what you meant by the below email.  Have you put in an application for change of operator?

12. Mr Iliades responded on the same day confirming that he had, referring to ACJC.  That statement was of course incorrect, the application form having been lodged by the Registration Holder.  Mr Kumar responded to that email again on 30 January 2017 stating:

    The only application I see was in December 2016, which was unsuccessful and sent back.  The attached letter was emailed to ‘[email protected]’ on 21/12/2016.

13. On 31 January 2017 Mr Iliades sent an email to Aircraft Registration, stating the following:

    Please see the attached application for change of operator for VH-ZCR as well as response from aircraft registrations, it looks like you have lost it somewhere in your system.  Can we now please expedite this application.

14. That email also referred to the Notice of Appointment/Cancellation of Registered Operator which was emailed to CASA on 15 December 2016 asking whether anything needed to be changed.  It also stated that a confirmation email from CASA regarding that application had been received.  That confirmation letter had in fact been sent to Ms Clare Banfield of MyJet Aviation Pty Ltd.  On 6 February 2017 CASA received the correct credit card details over the telephone from Ms Banfield and processed the application form.

15. On 16 February 2017 CASA amended the Register recording that ACJC was now the Registered Operator of aircraft VH-ZCR.  On that day, CASA also sent letters to BB 1544 Pty Ltd and ACJC informing both the Registration Holder and the new Registered Operator that the Register had been amended in accordance with their request.  That letter reminded the new Registered Operator, ACJC, of its obligations regarding the display of nationality and registration marks and aircraft registration and identification plates.  It also stated:

    The registered operator is responsible for the airworthiness and maintenance control of the aircraft.  Essentially, this means that the registered operator is required to:

    ·     Ensure that the aircraft is maintained in an airworthy and serviceable condition so that when it is operated, it is done safely.  These responsibilities include making sure all the equipment needed for the flight is serviceable, that the aircraft has been inspected by the correct people and that the required maintenance has been completed and signed for.

    ·     Have the aircraft maintained in accordance with a set of procedures and requirements commonly referred to as the Aircraft Maintenance Program (AMP) and to keep records of the work associated with these procedures and requirements.  In addition, the registered operator should review the AMP regularly to make sure it is still effective for the aircraft and reflects any changes that have been made to the aircraft, the way the aircraft is operated or even where the aircraft is located.  The registered operator can perform these functions or contract someone else to do so on their behalf.

16. On 20 February 2017 Mr Iliades sent an email to CASA, Aircraft Registration in which he stated:

    Can you please tell me the status of the registered operator application for

    
    

    VH-ZCR.  I understand the wrong expiry date was provided which was rectified over the phone but I have [not] heard of anything since??

17. CASA responded by email on 21 February 2017 at 12:01 stating:

    Your application was actioned on 16/02/2017.  It should be on its way in the mail.

18. By that time of course, VH-ZCR had been destroyed in an accident at around 9 a.m.  Mr Iliades sent a responding email at 1:27 PM to CASA stating:

    Unfortunately this aircraft was destroyed in an accident today which you may have seen in the media, the plane was flown by Max Quatermaine [sic] under his AOC – Corporate and Leisure Travel and had nothing to do with our company.  Sad news all round but we won’t be requiring the certificate.

    TRIBUNAL’S JURISDICTION TO REVIEW CERTAIN DECISIONS

19. The Administrative Appeals Tribunal Act 1975 (the AAT Act) at s. 25 makes the following provision for review of decisions:

    (1)  An enactment may provide that applications may be made to the Tribunal:

    (a)for review of decisions made in the exercise of powers conferred by that enactment; or

    (b)for review of the decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

20. The enactment referred to in the AAT Act as far as decisions made by CASA are concerned is the Civil Aviation Act 1988 (the Civil Aviation Act). Section 31 of the Civil Aviation Act makes the following relevant provisions for review of decisions:

    (1)  In this section:

    decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

    reviewable decision means:

    (a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or license 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; or

    (c)a decision under subsection 30EF(3) (about reinstating a civil aviation authorisation that has been suspended or cancelled under Division 3D);

    but does not include:

    (d)a suspension of the civil aviation authorisation under section 30DC (suspension for contravening the serious and imminent risk prohibition); or

    (e)a suspension or cancellation of the civil aviation authorisation under Division 3D (the demerit points scheme).

    (2)  Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.

21. Plainly, to enliven the Tribunal’s jurisdiction, an applicant’s claim must be one relating to a decision made by CASA regarding the matters set out in s. 31(1) of the Civil Aviation Act. If it does not, the tribunal does not have jurisdiction.

22. To add to the complexity, Mr Malcolm Macleod, a solicitor who appeared on behalf of ACJC at the hearing, conceded that the decision made by CASA on 16 February 2017, which resulted in ACJC being placed on the Register as the Registered Operator, was not reviewable by the Tribunal.  However, as best I could understand Mr Macleod’s submission, CASA’s decision with which ACJC is concerned is the refusal to enter ACJC on the Register as the Registered Operator on 21 December 2016 and the subsequent confusion which arose regarding whether ACJC should be regarded as the Registered Operator given that, apparently, it believed it was after signing the Notice of Appointment/Cancellation of Registered operator and, apparently, undertook duties accordingly.  That is because the refusal letter was only sent to MyJet Aviation Pty Ltd, and not to ACJC.

23. Decisions relating to refusal must be of the nature of those set out in s. 31(1) of the Civil Aviation Act. It must be a decision to refuse to grant or issue a certificate, permission, permit or licence granted or issued under the Civil Aviation Act or the Civil Aviation Regulations 1988 (CAR) or the Civil Aviation Safety Regulations 1998 (CASR).

24. At the outset, I need to establish the precise nature of CASA’s decision made on 21 December 2016.  It is, in my opinion, important to distinguish aircraft registration from registration of the individual or corporate body that is to operate the aircraft. 

25. Flying an unregistered aircraft within Australian territory is illegal. Section 20AA of the Civil Aviation Act relevantly provides:

    (1)  A person must not fly an aircraft within Australian territory if:

    (a)the aircraft is not registered under the regulations; and

    (b)the aircraft is, under this Act or those regulations, required to be registered under those regulations.

    Penalty: Imprisonment for 2 years.

26. Part 47 of the CASR deals with the registration of aircraft and related matters.  Regulation 47.015 provides that an aircraft is required to be registered unless it falls within an aircraft listed under subregulation (1).  The exclusions do not apply to VH-ZCR. 

27. Subpart 47.B of the CASR deals with the Australian Civil Aircraft Register.  Regulation 47.025 provides that CASA must keep a register or ensure that it is kept in accordance with Subpart 47.B.  An application to register an Australian aircraft may be made by the owner of the aircraft or a person acting on behalf of, and at the direction or request of, the owner (Reg 47.060).  Where there is more than one owner of an aircraft, one person is appointed to act on behalf the owners and that person’s name is then entered on the Register (Reg 47.020).  The word, owner, is defined in Reg 47.010 to include a part-owner who is appointed under regulation 47.020.  The Note under the definition of the word owner, states:

    The owner of an aircraft who becomes its registration holder must, if he or she is not eligible to be its registered operator, appoint an eligible person as the registered operator: see regulation 47.100.

28. The expression, eligible person, is also defined in Reg 47.010 and, relevantly for these purposes, it means a resident of Australia who is 18 years of age or older and an Australian citizen; or a corporation incorporated under the Corporations Act 2001.

29. The registration certificate for an Australian registered aircraft contains information derived from the Register.  In addition to identifying the aircraft and its registration mark, the Registration Holder and Registered Operator are recorded on that certificate as is the effective date.  Attached to Mr Schob’s statement was an extract from the Register which, in its text, describes it as a certificate.  However, that is not to say that it is a certificate granted to a Registered Operator.  The name of the Registered Operator is only placed on that certificate where the owner does not intend to be the operator of the aircraft (Reg 47.065).

30. The fact that this is so is highlighted by the Notice of Appointment/Cancellation of Registered Operator.  Section 2 of that Form is required to be completed where the Registration Holder is cancelling the appointment of the current Registered Operator.  Where the Registration Holder cancels the appointment of a Registered Operator, and the Registration Holder is not an eligible person as defined in Reg 47.010 of the CASR, then CASA must suspend the registration of the aircraft (Reg 47.131A).  If the Registration Holder is an eligible person, that person becomes the Registered Operator.

31. The first Form 032 lodged with CASA on 15 December 2016 also contained a completed section 3 dealing with the appointment of a new Registered Operator. The proposed new Registered Operator was ACJC. There was no question about ACJC being an eligible person. There is a mandatory declaration at section 3.3 of Form 032 to be completed by the proposed new Registered Operator. It contains a clause which expressly states that the proposed new Registered Operator, as an eligible person, accepts that position. In other words, it is simply a consent signed by on behalf of the proposed new Registered Operator. It also contains a declaration certifying that the relevant sections of the Guidelines have been read understood and accepted. That Section was signed by Mr Iliades on behalf of ACJC.

32. Given the nature of the Registration Certificate issued to the Registration Holder, who is the owner or part owner of the aircraft in question; the fact that the Registered Operator is simply providing consent to be so identified on a Registration Certificate; and that the Registration Certificate is issued based on information held by CASA on the Register, the application lodged by BB 1544 Pty Ltd was an application to amend the Register and not an application to issue a Registration Certificate.  Therefore, I find that CASA’s refusal to amend the Register in accordance with the application cannot be regarded as a refusal to grant or issue a certificate.

33. A further possibility is that CASA’s decision to refuse to process the application and hence amend the Register to incorporate ACJC as the Registered Operator, may constitute a variation of an authorisation contained in a permission, permit or licence.

34. The expression civil aviation authorisation is defined in s. 3 of the Civil Aviation Act in the following way:

    civil aviation authorisation means an authorisation under this Act or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name).

35. I should also refer to the meaning of authorisation as defined in Reg 11.015 of the CASR.  It provides:

    authorisation means:

    (a)a civil aviation authorisation other than:

    (i)     an AOC; or

    (ii)    a delegation; or

    (iii)    the appointment of an authorised person; or

    (b)an approval or qualification of a document or thing under these Regulations, other than a material, part, process or appliance to which regulation 21.305A applies; or

    (c)a certificate capable of being granted to a person under these Regulations.

1. I was also referred to Reg 201.004 of the CASR which deals with review of decisions.  It provides that an application may be made to the Administrative Appeals Tribunal for the review of a decision of CASA mentioned in table 201.004.  The only relevant decision under that table may be:

   Under a provision of the CASR:

   (a)refusing to grant or issue an authorisation; or

   (b)refusing to vary an authorisation.

2. The problem in this case is the nature of an application made by Form 032.  It is simply a notice given to CASA to amend the Register in accordance with the wishes of the Registration Holder.  While the form clearly needs to exhibit the consent of the proposed new Registered Operator, the only concern CASA may have is whether the form has been correctly and fully completed and the relevant declarations signed.  It is also possible that CASA may question whether the proposed new Registered Operator is an eligible person.

3. I have no doubt that the consent of the proposed new Registered Operator is required because, being appointed to that position by the Registration Holder, carries with it statutory obligations regarding the maintenance and continuing airworthiness of the aircraft.  However, appointment of a Registered Operator does not authorise that person or corporate entity to conduct maintenance on the aircraft.  The obligations of a Registered Operator are set out in the letters CASA wrote on 16 February 2017 and are as I have set out above.  While a Registered Operator can perform functions regarding maintenance and continuing airworthiness, persons who wish to carry out maintenance are required to be authorised to do so under the CASR and/or the CAR.  Being responsible for airworthiness and maintenance control of the aircraft does not amount to an authorisation to conduct any maintenance work.

4. It follows I must find that CASA’s decision to refuse to amend the Register by including ACJC as the Registered Operator of VH-ZCR is not a refusal to vary an authorisation.  It is not a decision which is reviewable by this Tribunal.

5. While not strictly necessary for the purposes of determining the Tribunal’s jurisdiction to hear the application lodged by ACJC, I should mention what is set out in Reg 11.018 of the CASR dealing with approval of forms.  Relevantly, it provides:

   (1)  If another provision of these Regulations provides for a document, other than an application for an authorisation, to be in an approved form, CASA may, in writing, approve a form for that document.

   (2)  If, under subregulation (1), CASA has approved a form for a document, the document is not taken to have been completed unless it:

   (a)is in the approved form; and

   (b)includes all of the information required by the form.

6. The problem identified by CASA with the Form 032 lodged on 15 December 2016 is that Page 6 of the form, which is the Payment Authorisation, did not include all of the information required by the form.  That is because some of the information was incorrect, which prevented CASA from obtaining the fee required for CASA to record a change in the aircraft’s Registered Operator.  For CASA to be compelled to amend the Register for aircraft VH-ZCR, the notice must comply with the Reg 47.100 of the CASR (sub Reg (8)).  It did not comply and therefore CASA was not compelled to amend the Register to show the name and address of the new Registered Operator. 

7. CASA attempted to notify the Registration Holder of the problem but that information was not conveyed to ACJC.  If ACJC had concerns about whether its appointment as the Registered Operator was recorded on the Register, the Register, being a public document, was accessible by it.  Alternatively, it could have queried the position with the Registration Holder.  In fact, before taking on any responsibilities for the maintenance and continuing airworthiness of the aircraft, it would have been prudent for ACJC to have confirmed that it was now recorded as the Registered Operator on the Register.

8. It necessarily follows that the application lodged by ACJC with the Tribunal on 16 March 2017 must be dismissed for want of jurisdiction.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

..........................[sgd]..............................................

Associate

Dated:   31 March 2017

Date(s) of hearing:	28 March 2017
Advocate for the Applicant:	Mr Malcolm Macleod
Solicitors for the Applicant:	Switch Legal
Advocate for the Respondent:	Mr Anthony Carter
Solicitors for the Respondent:	Civil Aviation Safety Authority, Litigation & Enforcement Branch