FAROOK BADAM and CIVIL AVIATION SAFETY AUTHORITY

[2005] AATA 1084

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1084

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/859

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FAROOK BADAM

Applicant

And CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal Senior Member Robin Hunt

Date1 November 2005

Place Sydney

Decision The Tribunal affirms the decision under review.

..............................................

Ms R Hunt
  Senior Member

CATCHWORDS

CIVIL AVIATION SAFETY AUTHORITY – Refusal to renew aircraft maintenance engineer’s licence – Jurisdiction – Reviewable decision - Applicant did not claim exercise of privileges of licence for not less than 6 months in past 24 months – Claim that prior work was comparable work – Significant past experience - Did not satisfy requirements  – Not “comparable work” - Applicant did not have the necessary experience during the previous 24 months – Decision under review affirmed.

LEGISLATION

Civil Aviation Act 1988 sec. 31, 98(5)

Civil Aviation Regulations 1988 reg. 2A, 5, 31, 32, 32A, 32B, 297A

Civil Aviation Orders Part 100.90 paras. 7.3(a) and (b)

Annex 1, Convention on International Civil Aviation, paragraph 4.2.2.2(c)

CASES

Civil Aviation Safety Authority v Coburn  (1996) 24 AAR 389

Saraya and Civil Aviation Safety Authority (1996) 45 ALD 600

Foster and Civil Aviation Safety Authority (1997) 46 ALD 699

Stokes and Civil Aviation Safety Authority [2001] AATA 877

Cole v Civil Aviation Safety Authority [2004] AATA 1092

Baker and Civil Aviation Safety Authority (2004) 84 ALD 694

Ekinci and Civil Aviation Safety Authority [2005] AATA 789

REASONS FOR DECISION

1 November 2005	Senior Member Robin Hunt
SUMMARY

1.        Mr Farook Badam, the applicant, sought review of a decision of the Civil Aviation Safety Authority (CASA). A delegate of CASA refused to renew Mr Badam’s aircraft maintenance engineer licence (AME licence). Mr Badam submitted an application form, CASA 608, and an application fee of $120 for the renewal of his licence on 15 May 2005. He had held an AME licence for many years and held a current licence at the time he applied for renewal. The Tribunal has found that Mr Badam has not met the requirements for renewal as he had not, for the requisite time before his application,.engaged in work that was comparable with the duties and privileges of a licence. The Tribunal has decided that it must affirm the decision under review that Mr Badam’s licence not be renewed. This means Mr Badam has not succeeded.

ISSUES

2.        There are 3 questions before the Tribunal. These are the Tribunal’s jurisdiction to review the refusal decision, as well as review of the actual decision, and the application fee, as follows:

(a) The preliminary issue for the Tribunal is whether it has jurisdiction to review the non-renewal of licence decision. CASA submitted that the AAT does not have jurisdiction to review such a decision as it is not a decision to refuse to grant or issue a licence.

(b)  If the Tribunal has jurisdiction to review CASA’s decision refusing to renew Mr Badam’s licence, the Tribunal must then determine whether Mr Badam’s licence should be renewed. Mr Badam accepts that he has not met the requirement that he has exercised his licence privileges for not less than 6 months of the previous 24 months. He claims that he meets the alternative requirement that he has been engaged in work that is comparable with the duties and privileges pertaining to his licence.

(c) In addition, Mr Badam seeks the refund of his licence application fee should the review be unsuccessful.

analysis

The Tribunal’s jurisdiction concerning the licence refusal

3.        The Tribunal has jurisdiction to review a “reviewable decision” under subsection 31(2) of the Act. Subsection 31 of the Act defines a “reviewable decision” to mean certain types of action or decision. Subsection 31(1)(a) includes as a reviewable decision a refusal to grant or issue a licence. As well, regulation 297A of the Civil Aviation Regulations 1988 (the Regulations) defines the meaning of “reviewable decision”. Under subregulation 297A(1), the term “reviewable decision” is defined to mean a series of refusals and decisions by reference to the particular regulations under which they are made. The matters listed under subregulation 297A(1) do not include a refusal to renew an AME licence.

4.        Although refusal of renewal of an AME licence is not specified in the list of reviewable decisions under regulation 279A, I consider that the refusal in this case is still a reviewable decision. This is because such a refusal comes within the definition in subsection 31(1)(a) of the Act. Section 31(1) of the Act is the primary definition of “reviewable decision”. The section is not qualified in any way under the Act. Section 31 might have been expressed so as to introduce a power to make regulations for the purposes of section 31. However, it makes no reference to any limitation or extension or further definition under regulations for the purposes of this section. While it is difficult to reconcile section 31 and regulation 297A, subsection 31(1)(a) readily allows an interpretation that a refusal to renew a licence comes under the description of “a refusal to grant or issue a licence under the Act or regulations”. This phrase is broad enough to take in a refusal to renew an existing licence.

5.        Further, subsections 31(1) (b) and (c) set out some additional kinds of decision that are reviewable. Subsections 31(1) (d) and (e) go on to set out what decisions are not reviewable. Decisions not reviewable are certain suspensions and cancellations. As exclusions from “reviewable decision” are specified, it is clear that a refusal to renew a licence is not excluded from being a reviewable decision. Also see also the broad approach taken to interpretation of section 31 by Deputy President Hotop and Member Fice in Cole v Civil Aviation Safety Authority [2004] AATA 1092. I find, therefore, that the decision not to issue Mr Badam with a current licence, albeit on his renewal application, is a reviewable decision.

6.        I also bear in mind the goal of consistency in Tribunal decisions. I can see no strong reason in this case not to follow previous practice. For example, in the case of Stokes and CASA [2001] AATA 877, the Tribunal reviewed a refusal to renew an aircraft maintenance engineer licence on the basis that the applicant had not engaged in comparable work. Mr Stokes had been engaged in drawing and designing a proposed new aircraft over the previous two year period preceding his renewal application. The Tribunal noted no licence was required to draw and design new aircraft and that the duties of a licensed aircraft maintenance engineer involved modification, repair and maintenance of aircraft registered in Australia. The Tribunal did not consider Mr Stokes’ work in the two years preceding his application was comparable to the duties and privileges of the AME licence. The reasons for decision are silent as to any issue of the Tribunal’s jurisdiction to hear the application and no such question is raised.

7.        Also see Baker and CASA (2004) 84 ALD 694, which concerned review of a renewal refusal by the Tribunal. In Baker, Member Fice affirmed a CASA decision to renew Mr Baker’s licence with a restriction. No discussion of doubts about jurisdiction to consider this question forms part of the reasons for decision. Member Fice in Baker had “no hesitation” in making his decision on the review although he was of the opinion that the CASA policy in adopting the words of paragraph 7.3 of the Order in its form at that time was beyond power. I note, on the question of policy set out in paragraph 7.3, that the present Order has force under section 98(5) of the Act and regulation 5. Since Baker, paragraph 7.3 has been amended to reflect that paragraphs (a) and (b) are alternatives. The Order no longer contains paragraph 7.3(c). As well, regulation 32B has been amended to clarify the requirements for the licence to be renewed. See Civil Aviation Amendment Order (R 86) that came into effect on gazettal on 12 December 2004, after the Tribunal’s decision handed down on 28 October 2004. I therefore find that the Tribunal has jurisdiction to consider the refusal decision before it.

comparable work

8.        A further question then arises as to whether the Tribunal is empowered to consider the question of “comparable work”. The review of a decision on the issue or grant of a licence is confined to the refusal only and not preliminary matters. In the case of Foster and CASA (1997) 46 ALD 699, Deputy President McDonald distinguished a decision on an examination from a decision on the refusal to grant or issue a licence. The Tribunal is not entitled to review a decision on whether an applicant should have been granted a pass on an examination to qualify for a licence. See CASA v Coburn (1996) 24 AAR 389 where Branson J held that the Tribunal had no jurisdiction to embark on a review of the decision to require an applicant to undergo an examination. Also see the judgment of Merkel J in Saraya v CASA (1996) 45 ALD 800. While it is not appropriate for the Tribunal to review a preliminary step in the guise of reviewing the reviewable decision, the comparable work test has been treated as part of the refusal decision in the Stokes and Baker cases above. On this basis, I have decided to review the decision to refuse the issue of a new licence to Mr Badam.

Consideration of refusal of licence renewal

9.        Having decided the refusal to renew is reviewable, I will now consider whether the licence should be issued to Mr Badam. There is no argument about Mr Badam’s previous entitlement to a licence. He held a valid licence until its expiry on 30 June 2005. He applied for renewal of the licence in May 2005, before the expiry of his licence in June 2005, as was required. It is common ground that for renewal on his current application, Mr Badam only has to show that he satisfies subregulation 32B(b) as to the requirement he produce the necessary evidence of his practical experience and qualifications. He long ago passed the exam and is not required to re-sit it for a renewal of his licence.

10.      Mr Badam has produced evidence of his practical experience and qualifications as required under regulation 23B. Up to the time of his application for renewal, his practical experience includes many years of work on aircraft until he was made redundant on 5 May 2003, as well as casual work since. In total, Mr Badam’s work in the industry over the last 24 months occurred over a few weeks only.

11.      Mr Badam admits that he did not perform “comparable work” for 6 months out of the 24 months preceding his application. He relies on his past work record up to the time he lost his job on 5 May 2003. He has done some casual work as a licensed maintenance engineer over the 24 months leading up to his application for renewal. He argues that he is better qualified than licence holders who are granted the renewal of their licences on the strength of certificates from their employer, including CASA, when they do not actually perform maintenance work. CASA explained that they do consider some academics and CASA employees qualify for licence renewal on the ground that they perform comparable work. Mr Badam complained that, if his past work record is not taken into account,  the application form is incorrectly worded and misleading.  While there is some merit in Mr Badam’s complaint about the meaning of comparable work and lack of reference to the time period of 6 months in the last 24 months on the application form, I am unable to find in his favour on this basis and must make my decision based on the Act and regulations.

The requirements for renewal of the licence

12.      Requirements for AME licences are set out in Civil Aviation Order 100.90. The Orders are given the force of law under section 98(5) of the Act. Mr Badam’s licence cannot be renewed if he has he failed to satisfy the requirements of Civil Aviation Order 100.90, specifically paragraph 7.3, which states:

“A licence may be renewed if the holder:

(a) in the preceding 24 months has exercised the privileges of the licence for not less than 6 months; or

(b) has been engaged in work which may be considered by CASA as comparable with the duties and privileges pertaining to his or her licence.”

13.      As can be seen, paragraph 7.3(b) is reproduced in the application form and is the reason that Mr Badam believes he is entitled to renewal of his licence. Mr Badam has produced evidence of his recent practical experience after 5 May 2003 and his past experience and qualifications. He has conceded that he does not have comparable experience over the preceding 24 months to that he would have if engaged in actual work as a maintenance engineer for 6 months out of the last 24 months. The fact is that he has been out of work for most of this period. For no fault of his own he was made redundant on 5 May 2003. Up to that date he was employed in a position that satisfied CASA that his licence qualifications were in order.

14.      For paragraph 7.3(b) of the Order to be meaningful, an applicant’s recent experience is the only experience that can be taken into account as comparable work. To interpret comparable work otherwise would make nonsense of paragraph (a) of paragraph 7.3 of the Order. If an applicant has not, for 6 months within the preceding 24 months, exercised the privileges of the licence, the comparable work test must be taken over the last 24 months as well. It is implicit in paragraph (b) of the Order that the comparable work has been done for no less than 6 months out of 24 months before the application, even though this is not stated in paragraph (b) of the Order or set out in the application form.

15.      Mr Badam, in attempting to meet the comparable work requirement, is relying on work that he did as a licensed aircraft maintenance engineer while still the holder of his licence. No doubt has been cast on his having performed appropriate work up to 5 May 2003. As well, Mr Badam’s occasional work since was not challenged by CASA as not being appropriate work for consideration. Unfortunately, Mr Badam has performed insufficient such work for the previous six months out of the preceding 24.  I agree with Member Fice in the Baker case (above) that maintenance work is technically not the same as “comparable work”. Comparable work is something other than the actual work necessary to meet the paragraph 7.3(a) test. Somewhat similarly, in the recent case of Ekinci (supra), Deputy President Walker considered a case involving refusal of an initial AME certificate and decided that the applicant did not have the necessary experience for the licence he sought, although he had done considerable work on aircraft.

16.      Mr Badam worked as a licensed aircraft maintenance engineer from 30 April 2001 until 5 May 2003 for Qantas (T4-7) and then from the 29 May 2003 to 2 July 2003 for ExecuJet Australia Pty Ltd (T9-31). In Saraya (above),_the Tribunal, comprising Deputy President Forrest, Member Argent and Member Woodward, found the approach of the Civil Aviation Authority (the CAA), which was the CASA equivalent at that time, to insist on practical and recent experience was “manifestly reasonable and consistent with the practical experience requirement” for a qualified person. The Tribunal added that there could be no substitute for day-to-day work. The Members stated at paragraph 35:

“The Tribunal regards the CAA’s insistence of practical and recent experience on Australian registered aircraft as manifestly reasonable and consistent with the practical experience requirement to be found in [Regulation 31(4)(c)] for a “qualified person”…..The aviation industry is constantly changing and the only means of keeping abreast of these changes is to be active in the industry. There can be no substitute for day-to day work such as checks, inspections, replacement of parts, “troubleshooting”, consulting maintenance manuals and airworthiness directives and record keeping on engines and airframes on which lives depend.”

17.      I also have borne in mind Australia’s obligations under the Convention on International Civil Aviation, paragraph 4.2.2.2(c). This provision sets out that the privileges of an aircraft maintenance licence shall be exercised only if the holder had experience of the kind set out in six out of the preceding 24 months or has satisfied the Licensing Authority  that he has met the provision for the issue of a licence.   

18.      While the consequences of the refusal to renew Mr Badam’s licence are disastrous for him and it is most unfortunate that he has been put in a position where he cannot renew his licence, despite his extensive and long-standing experience, I find that paragraph (b) of paragraph 7.3(b) cannot be read in the manner he suggests. To find that his recent work of a few weeks is an acceptable alternative to the paragraph (a) requirement of 6 months exercise of the duties of the licence, makes the meaning of “comparable work” absurd. I have further considered whether his past experience may overcome the shortfall in recent experience but am persuaded by the logic of the Tribunal in the Saraya (supra) case that any comparable work must be recent to be consistent with the practical experience requirement in regulation 31(4)(c). CASA may issue a licence to a “qualified person” as defined. This means a person who possesses the knowledge that CASA considers relevant and who satisfies CASA requirements and directions in the Civil Aviation Orders. Also see regulation 31(1) providing that only a qualified person may apply. Accordingly, I must find that Mr Badam does not satisfy the requirements for renewal of his licence.

The Tribunal’s jurisdiction concerning the fee

19.      Mr Badam also complains that if there was a requirement for an applicant to be engaged in comparable work for 6 months in the preceding 24 months, it should have been expressly stated in the section. If this had been the case, he would have saved the money for his application fee as he would not have submitted his licence for renewal. I have some sympathy for his complaint as he has been left out of pocket as well as losing his licence.

20.      In refusing Mr Badam a refund of the application fee, CASA explained in a letter to him that the fee was consumed in the assessment and processing of the application. CASA argues that the fee is not charged for the issue of the licence but for the processing of the application. While these are good practical reasons why the fee should not be refunded, they do not address the definition of reviewable decision. The Tribunal cannot review the question of non-return of the fee as it is not a reviewable decision under either definition provided under the Act or the regulations. The Tribunal is empowered to review a decision only if it is given that power under an enactment. There has been no such bestowal of power to review a refund decision. It follows that the Tribunal does not jurisdiction over this aspect of the matter.

DECISION

21.      The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 10 October 2005
Date of Decision: 1 November 2005         
Solicitor for the Applicant: Self        
Solicitor for the Respondent: Civil Aviation Safety Authority