Chernikeeff and Civil Aviation Safety Authority (Practice and procedure)
[2025] ARTA 1449
•20 August 2025
Chernikeeff and Civil Aviation Safety Authority (Practice and procedure) [2025] ARTA 1449 (20 August 2025)
Applicant/s: Paul Chernikeeff
Respondent: Civil Aviation Safety Authority
Tribunal Number: 2025/3293
Tribunal:Senior Member M. Harrowell
Place:Sydney
Date:20 August 2025
Decision:The application is dismissed pursuant to s 97 of the Administrative Review Tribunal Act 2024 as there is no reviewable decision.
....................[SGD]....................................................
Senior Member M. Harrowell
Catchwords
ADMINISTRATIVE LAW – Administrative Tribunal Act 2024 – Reviewable decision – meaning of reviewable decision – dismissal under s 97 where decision not a reviewable decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Regulations 1998 (Cth)Cases
Re Lobo and Department of Immigration and Citizenship [2011] AATA 705; (2011) 124 ALD 238
Secondary Materials
Nil
Statement of Reasons
INTRODUCTION
These reasons concern whether the application to the Tribunal dated 23 April 2025 (review application) should be dismissed pursuant to s 97 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) because there is no reviewable decision and therefore the Tribunal has no jurisdiction.
BACKGROUND
On 13 September 2024, the applicant applied to Recreational Aviation Australia Ltd (RAA) for the issue of a Level Two Maintenance Authority and a Level Four Maintenance Authority (authorisation application). RAA is an Approved Self-administering Aviation Organisation registered under Part 149 of the Civil Aviation Safety Regulations 1998 (Cth) (Regulation/reg) with authority to decide the authorisation application.
On 6 March 2025, by email from Mr Smith (Head of Airworthiness and Maintenance), the RAA provided the following response (March Decision):
After reviewing your application against the RAAus Technical Manual (Issue 4.3, 2 December 2024), I provide the following feedback:
Level 4 Maintenance Authority Application
Unfortunately, your application for a Level 4 Maintenance Authority is not successful at this time. As per Section 11.6 of the RAAus Technical Manual, applicants for Level 4 must already hold a current Level 2 Maintenance Authority. Since you do not currently hold a Level 2 authority, you are not eligible for a Level 4 authority at this stage.
You are welcome to reapply for a Level 4 Maintenance Authority once you have successfully obtained a Level 2 Maintenance Authority.
Level 2 Maintenance Authority Application
Your application for a Level 2 Maintenance Authority is currently pending additional evidence. As outlined in Section 11.4 of the RAAus Technical Manual, applicants must demonstrate sufficient maintenance experience through the supply of documentation that is verifiable. While your application refers to an extensive period of experience we require further evidence of hands-on maintenance experience.
To progress your application, please provide:
- A detailed schedule of your maintenance experience, listing the date, specific tasks performed, aircraft worked on (Registration number etc) and the person who supervised/ signed the maintenance logbook for the work.
- Copies of aircraft logbook entries that demonstrate your direct involvement in aircraft maintenance (supervised work). This may also be your own aircraft logbook.
-Evidence of an annual inspection carried out, supervised by a current Level 2 maintenance authority holder. RAAus is only able to issue aircraft categories to applicants that have performed an annual inspection on the type.
Once we receive these additional documents, we will reassess your application for a Level 2 maintenance authority.
On 14 March 2025 the applicant sent to the respondent a document entitled “Formal Complaint – Procedural Misconduct of RAAus in Handling my Level 2 & Level 4 Maintenance Authority Applications” (Complaint). Inter-alia, the applicant said:
I submit this formal complaint regarding serious procedural misconduct, regulatory breaches, and bad faith actions by Recreational Aviation Australia (RAAus) in handling my Level 2 & Level 4 Maintenance Authority applications, originally submitted on 13 September 2024.
…
Given RAAus’ conduct, I request CASA’s immediate regulatory oversight and intervention to:
· Investigate RAAus’ handling of my applications and determine whether their conduct aligns with Part 149 regulatory obligations.
· Overturn the improper rejection of my Level 4 application, which was retroactively denied based on a rule change that did not exist at the time of submission.
· Ensure that my Level 2 application is assessed fairly and without arbitrary additional requirements that have not been imposed on other applicants.
· Investigate RAAus’ broader administrative failures, including their pattern of selective enforcement and procedural inconsistencies.
I request a formal response from CASA within 14 days outlining the actions that will be taken.
Communications ensued between the parties including in relation to whether the authorisation application was complete and whether it was appropriate for RAA to apply Technical Manual Version 4.3 (issued to December 2024) in determining applications lodged prior to its publication.
On 10 April 2025, the applicant sent an email to the respondent recounting some of the above events and said:
I again reiterate my expectation:
CASA must direct RAAus to issue my Level 2 and Level 4 maintenance authorities without further delay and without imposition of retrospective requirements.
Should CASA failed to act appropriately, the matter will be escalated to the AAT (sic). I will call witnesses and present detailed evidence regarding RAAus’ conduct and procedural inconsistencies. Costs will be sought.
…
Please treat this as a formal request for your full and unambiguous response by close, 18 April 2025.
As noted above, the review application was filed with the Tribunal on 23 April 2025. The application was accompanied by a document entitled Statement of Facts and Contentions also dated 23 April 2025.
On 26 April 2025, following a request from the Tribunal seeking clarification of the decision for which review was sought, the applicant replied:
I refer to your letter dated 26 April 2025 requesting clarification of the decision under review.
The decision I seek to have reviewed is the failure by the Civil Aviation Safety Authority (CASA) to make a decision in response to my formal complaint lodged on 14 March 2025. That complaint requested CASA to investigate and address serious procedural irregularities, administrative misconduct, and retrospective enforcement by Recreational Aviation Australia Ltd (RAAus) in relation to my Level 2 and Level 4 maintenance authority applications.
CASA was given until close of business on 18 April 2025 to respond. Despite this, CASA failed to make any formal determination, initiate regulatory action, or otherwise properly exercise its oversight responsibilities under CASR Part 149.
Accordingly, pursuant to Part 4 of the Administrative Review Tribunal Act 2024 (reflecting the principle in section 25(5) of the Administrative Appeals Tribunal Act 1975), CASA’s failure to act constitutes a reviewable decision arising from a refusal or failure to make a decision under an enactment.
Subsequently, the Tribunal made directions for the filing and service of evidence and submissions concerning whether the review application should be dismissed under s 97 of the Act. The parties filed and served evidence and submissions in support of their positions.
In his submissions dated 11 August 2025 under the heading “2. Date of the Decision” the applicant said:
The reviewable decision is CASA’s constructive refusal, communicated on 30 May 2025 via email from Mr Stephen Fickling, CASA’s Manager Sport Aviation (Annexure B). Mr Fickling stated: “CASA has no jurisdiction to do the things you seek and therefore declined to do them. In relation to your application to the Administrative Review Tribunal, CASA has informed the Tribunal it has not made any decision concerning yourself that is reviewable by it.” This confirmed CASA’s refusal to exercise the decision-making functions regarding the Applicant’s applications.
The applicant then said under the heading “for. Legislative Provision Under Which the Decision Was Made”:
CASA’s refusal to act, despite its powers under CASR 149.245 to oversee RAAas’ decisions, constitute a “decision” within the meaning of s 3 of the AAT Act.
I note the applicant clarified at the hearing before the Tribunal that the reference in this submission should have been to reg 149.495.
CONSIDERATION
Section 97 of the ART Act provides:
97 Tribunal must dismiss application if decision is not reviewable decision
The Tribunal must dismiss an application if:
(a) the application is made for review of a decision; and
(b) the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
The question of whether the proceedings should be dismissed under s 97 involves identifying the decision for which review is sought and whether the Tribunal is authorised to review the decision in question.
The hearing
The Tribunal hearing occurred by telephone on 18 August 2025. The applicant appeared for himself. The respondent was represented by Mr Carter, solicitor.
The parties made oral submissions. These submissions included the applicant reading from further written submissions entitled “Final Oral Submission – Interlocutory Hearing (Jurisdiction) (Final Oral Submissions)”. The Tribunal requested a copy of the written document which was subsequently provided.
During the course of the hearing, the Tribunal noted that it had not been provided with a copy of the authorisation application nor was it provided with a document dated 6 March 2025 from Mr Smith, the representative of the respondent, by which the respondent purported to deal with the authorisation application, or at least part thereof. Again, the Tribunal requested these documents which were provided after the hearing.
Submissions
In his written submissions dated 11 August 2025, the applicant referred to the Tribunal’s jurisdiction under s 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and to the Administrative Appeals Tribunal (AAT). The applicant submitted the Tribunal had jurisdiction “to review a constructive refusal by the [respondent] to decide the applicant’s Level 2 and Level 4 Maintenance Authority applications, lodged on 13 September 2024”.
I note that the AAT Act was repealed on 14 October 2024 and, from this date, this Tribunal became authorised to determine any review application made under the Regulation, not the AAT. The present review application was made after 14 October 2024 under the ART Act. However, nothing turns on the incorrect reference to the AAT or to s 25(2) of the AAT Act, an equivalent provision being found in s 16 of the ART Act.
During oral submissions, there were discussions concerning the legislative regime for seeking review of a decision made by RAA concerning an application for an authorisation. In this regard, the Regulation provides for the following review applications to be made:
(a)an internal review by RAA of an original decision which RAA might make concerning an application for an authorisation (reg 149.605). The powers on internal review and the time for their exercise is found in reg 149.605(3) and (4). The decision made on internal review is called an “internal review decision”[1];
(b)a review of an internal review decision by the respondent (reg 149.610). The powers on review are found in reg 149.630. I will refer to a decision made by the respondent under this provision as a “decision of CASA”; and
(c)a review of a decision of CASA by the Tribunal (reg 201.004). The powers on review are found in s 105 of the ART Act.
[1] Reg 149.605(5)
In addition, there was discussion about regulation 149.495 found in Subpart 149.H—Authorisations and enforcement of the Regulation.
It was in respect of a decision under reg 149.495 that the constructive refusal alleged by the applicant was said to arise. The applicant’s argument can be stated briefly.
The applicant says that reg 149.495 gives the respondent power to do the things specified therein. The failure to do so on request by the applicant is a decision that is reviewable by the Tribunal. The contention is that reg 149.495 applies broadly to the application process for an authorisation, even if the authorisation is not or has not been issued. In this regard, the applicant says there is a general power in reg 149.495(1) to permit the respondent to regulate the conduct of RAA in dealing with applications and a duty to exercise this power.
In making this submission, the applicant said he was not seeking review by the Tribunal of a decision made by CASA under reg 149.630 as permitted by reg 201.004 of the Regulation and Item 29 of Table 201.004 Reviewable decisions.
This position was also made clear in the Final Oral Submissions, where, referring to the respondent’s submissions, the applicant said:
CASA argues I didn’t follow CASR 149.605 to 149.630, requiring an RAAus internal review and Form 149 (paragraphs 15-20), and claims they didn’t receive my document (paragraph 21). I counter, that Annexure A with email receipts, proves CASA receive my complaint, and A-R-T Act section THREE’s fairness supports my intent in Annexure’s E, G and I. CASA claims my application sites 18 April 2025 decision with no evidence. The 18 April 2025 date in my application reflects the deadline I said in my 10 April 2025 email for CASA to respond, expired without action, but my reviews seeks CASA’s collective failure to act – from Annexure A’s 14 March 2025 complaint to Annexure B’s 30 May 2025 refusal – reviewable under A-R-T Act sections 12 and 17 per [re Lobo] [2011] AATA 705./ CASA’s oversight powers under CASA’s 149.495 and 11.260, and duties under Civil Aviation Act 1988 section 9, oblige them to act. Their silence violates their model litigant duties.
That is, the applicant submitted that the respondent’s “oversight powers” under reg 149.495 coupled with its functions found in s 9 of the Civil Aviation Act 1988 (Cth) required it to act and its failure to do so constituted a reviewable decision for the purpose of the ART Act.
I note in passing that reg 11.260 relates gives power of the Director of CASA to delegate certain of his powers to others. Regulation 11.260 does not appear relevant to the question of whether there has been a failure of a type identified by the applicant in connection with reg 149.495 or whether there is a reviewable decision made by the respondent.
Analysis
Section 17(1) of the ART Act provides:
17 Who can apply
(1) A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision.
Note 1: For which decisions are reviewable decisions, see section 12.
A “reviewable decision is defined in s 12(1) of the ART Act as follows:
12 Reviewable decisions
(1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.
Note: To find out whether a decision is a reviewable decision, start by looking at the Act or legislative instrument under which the decision is made.
Regulation 201.004 authorises an application to be made to the Tribunal in respect of decisions made under the Regulation identified in Table 201.004 Reviewable decisions (Table). Relevantly reg 201.004 provides:
201.004 Review of decisions
(1) In this regulation:
authorisation: see regulation 11.015.
Decisions made by CASA
(2) An application may be made to the Administrative Review Tribunal for the review of a decision of CASA mentioned in table 201.004.
Table 201.004 Reviewable decisions
Item
A decision …
1
under a provision of these Regulations:
(a) refusing to grant or issue an authorisation; or
(b) cancelling or suspending an authorisation otherwise than on the application of the authorisation-holder; or
(c) varying an authorisation otherwise than on the application of the authorisation-holder; or
(d) refusing to vary an authorisation
…
28
under regulation 149.495 varying, suspending or cancelling an authorisation issued by an ASAO
29
under regulation 149.630 affirming, varying, setting aside or remitting an internal review decision of an ASAO
Regulation 11.015 defines authorisation as follows:
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 (iv) an authorisation issued by an ASAO; 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 Regulation.
The following matters do not appear to be in dispute:
(a)the authorisation application made on 13 September 2024 was an application for authorisations within the meaning of the Regulation;
(b)the March Decision constituted a refusal to grant the authorisation application;
(c)the refusal was made by RAA as an Approved Self-administering Aviation Organisation (ASAO) registered under Part 149 of the Regulation.
The respondent’s position is that the March decision was a decision to refuse the issue of an authorisation by an ASAO to which Subpart 149.K—Review of ASAO decisions (Subpart 149K) of the Regulation applies. The respondent says no valid application was made by the applicant for internal review as permitted by Part 149. Otherwise, the respondent submits “it has no jurisdiction to do the things the applicant seeks and declines to do them”.[2]
[2] Respondent's submissions dated 14 August 2025 paragraphs 23-25
Finally, the respondent notes the applicant is not precluded from making a further application to RAA “for the maintenance privileges that he seeks”.[3]
[3] Respondent's submissions dated 14 August 2025 paragraph 26
In my opinion, Subpart 149K permits:
(a)an application for internal review of the March Decision by RAA under reg 149.605; and
(b)if the applicant is dissatisfied with the internal review decision, an application for review by the respondent of the internal review decision as permitted by reg 149.610.
Where a valid application for review is made to the respondent under reg 149.610, reg 149.630(2) provides the respondent:
… must make a decision:
(a) affirming the internal review decision; or
(b) varying the internal review decision; or
(c) setting the internal review decision aside and substituting a new decision; or
(d) setting the internal review decision aside and remitting the matter to the ASAO for reconsideration in accordance with any directions or recommendations of CASA.
Where a decision is made under reg 149.630(2), an application for review may be made to the Tribunal as permitted by reg 201.004(2): see item 29 of the Table.
Absent a valid application for internal review by RAA as permitted by Subpart 149.K, there can be no internal review decision under reg 149.605. Consequently, there can be no application for review of an internal review decision by the respondent under reg 149.610 and no decision of the respondent under reg 149.630(2).
Absent a decision of the respondent under reg 149.630(2), there can be no application to the Tribunal of a refusal to issue an authorisation as there is no Reviewable decision for the purpose of item 29 of the Table.
The applicant did not assert he had made an application for internal review as permitted by Subpart 149.K. This seems clear from the terms of the Complaint which relates to the applicant’s dissatisfaction with the March Decision and the date it was made, namely 8 days after the March Decision. There is no evidence an internal review application was otherwise made to RAA prior to the applicant filing his application with the Tribunal on 23 April 2025.
Consequently, I am satisfied there is no Reviewable decision for the purpose of item 29 of the Table.
However, the applicant’s submitted that there was, in effect, a refusal to take action following the Complaint. The applicant submitted that the respondent breached its obligations under reg 149.495 and its failure to respond by 18 April 2025 is a decision not to do what was requested.
The applicant contended this constituted a reviewable decision for the purpose of the ART Act.
As is apparent from s 17 of the ART Act, a “reviewable decision” is a decision that “an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision”. In this case, the Civil Aviation Act and the Regulation are, respectively, the relevant “Act” or “legislative instrument” in which must be found a provision permitting an application to be made to the Tribunal. The Art Act does not otherwise authorise the Tribunal to review any decision that might be made by the respondent.
Regulation 149.495 provides:
149.495 Variation, suspension and cancellation of authorisations issued by ASAOs
(1) CASA may exercise the powers in subregulation (2):
(a) if an ASAO does not comply with a direction under regulation 149.490 within 20 days; or
(b) on written request of an ASAO; or
(c) on CASA’s own initiative;
if CASA is satisfied that it is necessary in the interests of the safety of air navigation to do so.
(2) CASA may, by written notice given to the holder of an authorisation issued by an ASAO, vary, suspend or cancel the authorisation.
(3) Before making a decision under subregulation (2), CASA must:
(a) give the holder of the authorisation a notice setting out the reasons why CASA is considering making the decision; and
(b) allow the holder of the authorisation to show cause, within such reasonable time as CASA specifies in the notice, why CASA should not make the decision.
(4) A variation or suspension has effect for the period specified in the notice, unless earlier revoked by CASA.
(5) A cancellation takes effect on the day specified in the notice.
(6) If CASA varies, suspends or cancels an authorisation issued by an ASAO, CASA must notify the ASAO in writing of the variation, suspension or cancellation as soon as practicable.
(7) The suspension of an authorisation issued by an ASAO under this regulation does not prevent the revocation of the authorisation by the ASAO or by CASA.
A decision made under this regulation by the respondent is a reviewable decision within the meaning of s 17(1) of the ART Act.[4]
[4] Item 28 of the Table,
As stated in the heading, reg 149.495 operates in respect of “authorisations issued by ASAOs”. As provided in re 149.495(1), the exercise of power under reg 149.495 requires the respondent to be “satisfied that it is necessary in the interests of the safety of air navigation to do so”.
The only decision that can be made under reg 149.495 is that permitted by reg 149.495(2), namely to “vary, suspend or cancel the authorisation” given to the holder of that authorisation.
Self-evidently, reg 149.495 is concerned with the continuation (and if so on what terms) of an authorisation that has been issued to a holder.
My view is supported by the reference in reg 149.495(1)(a) to reg 149.490 and the powers of the respondent to take direct action against the holder of an authorisation where an ASAO fails to exercise enforcement powers against the holder when directed to do so.
As such, it is not a regulation concerned with the conduct of the ASAO, in this case the respondent, nor is it a regulation concerned with taking disciplinary action against an ASAO. It does not authorise the making of a decision directing an ASAO to act in a particular manner or to issue an authorisation. To the contrary, by its terms the regulation contemplates that an authorisation has been issued by an ASAO,[5] any decision being directed to the holder of the authorisation whose rights might be affected by reason of any decision to vary, suspend or cancel an authorisation held.
[5] see reg 149.495(2)
Finally, for the purpose of an application to the Tribunal, it is only a decision “varying, suspending or cancelling an authorisation” which is a reviewable decision under item 28 of the Table.
It follows that the Complaint and any decision of the respondent to take action in relation to the Complaint or any failure to take action which itself might be a decision, is not a reviewable decision made under reg 149.495 of the Regulation or to which that regulation applies. Therefore, it is not a reviewable decision for the purpose of item 28 of the Table.
The applicant has not identified any other provision of the Regulation which might apply to the present circumstances and constitute a reviewable decision of a type identified in the Table to reg 201.004.
Therefore, I am satisfied that there is no reviewable decision and the application must be dismissed under s 97 of the ART Act.
DECISION
The application is dismissed pursuant to s 97 of the Administrative Review Tribunal Act 2024 as there is no reviewable decision.
Date(s) of hearing: 18 August 2025 Applicant: Self-represented Counsel for the Respondent: Not applicable Solicitor for the Respondent: Mr A Carter- CASA Litigation Section
0
1
0