Grima and Civil Aviation Safety Authority
[2018] AATA 3737
•8 October 2018
Grima and Civil Aviation Safety Authority [2018] AATA 3737 (8 October 2018)
Division: GENERAL DIVISION
File Number(s): 2017/0130
Re:Martin Grima
APPLICANT
AndCivil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:8 October 2018
Place:Sydney
The decision under review is set aside, and in substitution a decision is made in the following terms:
1. The applicant’s multi-engine aeroplane class rating is cancelled pursuant to sub-regulations 269(1)(b) and (d) of the Civil Aviation Regulations 1998 (Cth).
2. The applicant’s private pilot licence - aeroplane category (PPL-A) is suspended until such time as:
a)The applicant undertakes 15 hours of remedial flying training at a Flight Training School acceptable to CASA including a minimum of:
i.cross-country navigation exercises planned at close to minimum reserves, requiring careful pre-flight planning and in-flight monitoring (including calculation of actual ground speed and fuel flow);
ii.unplanned diversions during cross-country navigation exercises given to the pilot whilst airborne, requiring flight to an unfamiliar destination;
iii.in-flight practice emergency sequences with emphasis not only on accurate flying, but also on sensible decision-making with regard to:
I.assessment of the emergency;
II.continuation/termination flight;
III.chosen flight path;
IV.type of approach;
V.preparedness for deterioration of the situation;
VI.distress calls and passenger handling consideration; and
b)CASA receives a written report from the Flight Training School on the standard of the applicant’s conduct as a pilot during the training period including whether his performance met the competency standards specified in the Part 61 Manual of Standards. The report must include all training records and competency standards achieved, and a final recommendation that the applicant is considered ready to undergo a flight test for a PPL-A; and
c)The applicant undertakes and passes the PPL-A flight test under the supervision of a CASA officer, or an examiner approved by CASA in writing; and
d)The applicant undertakes psychological evaluation by a psychologist acceptable to CASA and provides a psychological evaluation report addressing the applicant’s insight into the conduct which led to the making of the reviewable decision and the likelihood of their being a repeat of such conduct.
.......................[sgd].............................................
Senior Member A Poljak
CATCHWORDS
CIVIL AVIATION – cancellation of pilot licence – whether applicant fit and proper person – attempted solo flight in multi-engine aircraft – multi-engine aircraft endorsement – veracity of applicant’s records – whether adequate flight time – airworthiness of aircraft – whether appropriate level of planning – flight carrying persons later identified as wanted by police – whether applicant pilot in command – whether applicant’s involvement in the flight bears upon his fitness and propriety – meaning of ‘fit and proper person’ – need to take account of the responsibilities, functions and duties of the licence holder – Tribunal not able to be reasonably satisfied on a number of issues – applicant displayed lack of judgment and overconfidence in flying ability – consequences of decision considered – intention to pursue flying as a livelihood – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)
Civil Aviation Act 1988 (Cth) ss 3A, 9(1), 9A
Civil Aviation Regulations 1988 (Cth) reg 269(1)(c) and (d)
CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Broadbent and Civil Aviation Safety Authority [1999] AATA 972
Cole and Civil Aviation Safety Authority [2004] AATA 1092
Hughes and Vale v NSW (No 2) (1955) 93 CLR 127
Mulligan and Civil Aviation Safety Authority [2006] AATA 652
Pantovic and Civil Aviation Safety Authority [2015] AATA 992
Quadrio and Civil Aviation Safety Authority [2011] AATA 709
Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554
Re Taylor and Department of Transport (1978) 1 ALD 312Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
REASONS FOR DECISION
Senior Member A Poljak
8 October 2018
Mr Grima, the applicant, is a young and enthusiastic aviator who has studied and trained at Air Combat Australia Pty Ltd, Camden, of which Mr Reha (Ray) Ekinci was the chief flying instructor. It has been the applicant’s ambition for years to be a commercial pilot.
The applicant was the holder of an Australian Private Pilot License (Aeroplane category) (“PPL”) ARN 798911, issued on 22 July 2014 (“the Australian Pilot License”). By a decision dated 21 December 2016, a delegate of the Civil Aviation Safety Authority (“CASA”) determined that the applicant was not a fit and proper person to hold an Australian Pilot License and cancelled the applicant’s license pursuant to sub-regulations 269(1)(c) and (d) of the Civil Aviation Regulations 1988 (Cth) (“CAR”)(“the reviewable decision”). This is the decision under review in these proceedings.
The two significant incidents/circumstances relevant to these proceedings, and which resulted in the finding that the applicant was not a fit and proper person to hold a pilot licence, are a flight conducted by the applicant to Norfolk Island on 9 September 2015; and a flight allegedly conducted by the applicant to Maryborough, Queensland on 21-22 September 2015.
I am satisfied that the applicant is not a fit and proper person to hold a pilot’s license however I did not consider that the cancellation of the applicant’s Australian Pilot’s License is appropriate. I instead set aside the decision and find that he is required to undertake remedial flight training, provide a report from a Flight Training School addressing the standard of the applicant’s conduct as a pilot during training, complete a PPL-A flight test and undergo a psychological evaluation before regaining his Australian Pilot’s License. I explain my findings and reasons below.
Relevant Legislative Provisions
Section 3A of the Civil Aviation Act 1988 (Cth) (“the Act”) provides that “the main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents”.
The function of CASA is the administration of the safety regime in accordance with the Act and CAR, including, inter alia, developing and promulgating appropriate, clear and concise aviation safety standards; developing effective enforcement strategies to secure compliance with aviation safety standards; and the issuing of certificates, licenses, registrations and permits; section 9(1) of the Act.
By section 9A of the Act, CASA and therefore this Tribunal, is required to regard the safety of air navigation as the most important consideration in the exercise of its powers under the Act.
NORFOLK ISLAND FLIGHT
On 9 September 2015, the applicant was the pilot in command of a US registered aircraft N154DD, a Piper Aerostar 600 twin-engine aeroplane (“the Aerostar”), which was flown from Camden, New South Wales to Norfolk Island (“the Norfolk Island Flight”). The applicant intended to fly from Norfolk Island to the USA to sell the Aerostar to Dodson International however, the Aerostar was detained by Police and CASA upon landing on Norfolk Island.
In a witness statement dated 23 June 2017, Mr Lawlor, a CASA Flying Operations Instructor, raises many concerns about the way in which the flight to Norfolk Island took place and the ability and competence of the applicant to undertake such a flight. He detailed the following matters and said they must be taken into account:
a)The applicant only held a Private Pilot License, for operations under the Visual Flight Rules (VFR). This license is almost at the bottom of the hierarchy of licenses.
b)According to the applicant’s logbook, at the time of the flight he had slightly less than 200 hours of total aeronautical experience, of which approximately 80.0 hours was flight time as the pilot in command (PIC) of single engine aeroplanes.
c)The applicant has never held an instrument rating or any relevant experience operating in aircraft under instrument flight rules or at night. The only instrument flying experience that has been recorded in his logbook is basic instrument flying training, accrued during the training for his Private Pilot License and annotated in his logbook as “BIF” - from the copies of his logbook available to CASA, this amounts to approximately 2.6 hours of logbook time in an aircraft - the time actually practising instrument flying in the air would be somewhat less.
d)The applicant had not personally flown this route before, or similar type of routes.
e)There is no evidence in the applicant’s logbook that he has any experience flying over remote areas, featureless terrain or long stretches of open water.
f)The proposed flight would have involved long overwater stretches with very few potential landing sites should there have been any in-flight emergencies requiring an immediate landing.
g)The aircraft flown to Norfolk Island possesses the registration of another state, the United States of America (the U.S.).
h)The applicant did not hold a flight crew license of the aircraft’s state of registry. Under the provisions of the U.S. Federal Aviation Regulations (FARs) he was eligible to fly the aircraft in Australian airspace on the basis of his Australian license, but this would not assist him when he was outside Australian airspace.
i)According to the applicant’s logbook:
(i)he had no experience as a PIC for operating a complex twin-engine aeroplane;
(ii)he had no experience in operating a complex multi-engine aircraft equipped with an auxiliary fuel system (required for the ferry flight);
(iii)it appears that he had no experience in operating an aircraft equipped with HF radio equipment, that itself was not installed correctly;
(iv)the time between when he received initial training on the PA-60 type on the flight to Norfolk Island was approximately 21 months;
(v)he had no other experience apart from the 4.8 hours Dual instructional time logged in December 2013 as part of his initial training for the PA-60 type. This additional experience could include follow-up or consolidation type training in the period of time just after his initial training, recent experience just prior to his flight to Norfolk Island.
CASA submits that there are several matters of concern in relation to the applicant’s flight to Norfolk Island which “indicate dangerous over-confidence, lack of judgement and a willingness to mislead CASA officers”. Matters of concern raised by CASA relevantly include alleged defects with the Aerostar; the veracity of the applicant’s records; and the level of planning undertaken by the applicant for the journey. CASA submits that combined, the concerns raised demonstrate that the applicant is dangerously overconfident, displays a lack of judgement and demonstrates that the undertaking of the flight by the applicant was “foolhardy”. Each matter is dealt with in turn below.
The Applicant’s Pilots Licence and PA-60 Endorsement
The Australian Pilot Licence held by the applicant had a single engine aircraft endorsement; and a design feature endorsement for manual propeller pitch control. It has never held an instrument rating or a night visual flight rules (“NVFR”) rating.
Contrary to the applicant’s evidence, CASA advised that it has no internal records of the applicant having his Australian Pilot License endorsed with a multi-engine aircraft rating authorising him to operate a multi-engine aircraft.
The applicant has not at any time held a United States (“US”) pilots license.
The applicant claims to have undergone twin-engine aircraft conversion training with Mr Ray Ekinci at Air Combat Australia and obtained an endorsement on the Twin Engine PA-60 aircraft type on 29th of December 2013. The applicant relies on copies of his Pilot’s Logbook (“logbook”) and a Certificate of Endorsement for the PA-60 type. The logbook records less than 200 hours flight time. It records that the applicant flew a multi-engine PA-60 on 2 days in December and received his PA-60 endorsement on the second day. At hearing, the applicant said that he wasn’t surprised to get his endorsement so quickly, even though, at that stage he still hadn’t got the hours up for his private pilot’s licence.
There are 2 main issues raised by CASA in regards to the applicant’s PA-60 endorsement namely, the veracity of the applicant’s records and the adequacy of the applicant’s flight time to warrant the endorsement.
Mr Lawlor says in his witness statement dated 23 June 2017, that training on multi-engine aircraft is a ‘very serious matter’. In regards to the amount of flight time undertaken by the applicant to warrant his PA-60 endorsement, Mr Lawlor states at [41](d):
“In my opinion, 4.8 hours of training for an inexperienced pilot (and not yet fully licensed) transitioning from a single to a twin-engine aircraft is not adequate to ensure full competency in the proper operation of a twin-engine aircraft which has significantly different performance and handling characteristics to a single engine aircraft. This is emphasised in the applicant’s case by the fact that, at the time of the issue of the PA-60 endorsement, the applicant had only recorded 6.4 hours as pilot in command time, all on single engine aircraft and only 80 hours of total aeronautical experience. I do not consider it appropriate or safe for any Flight Training Organisation (FTO) to sanction the issue of an initial twin-engine endorsement at all in those circumstances and I hold considerable doubts as to the applicant’s ability to safely operate the PA-60 aircraft type, or any other twin-engine aircraft.” [Emphasis added]
At hearing, Mr Ekinci was questioned about the sufficiency of the applicant’s flight time of 4.8 hours to warrant his PA-60 endorsement. Mr Ekinci stated that he didn’t think it was exceptionally fast as he only needed 4.8 hours before he was satisfied that the applicant was proficient; this is despite the applicant taking 24.5 hours of solo flying to obtain his pilot’s licence.
It was put to Mr Lawlor in cross examination that Mr Ekinci was the best person to comment on the applicant’s flying ability to which he responded, “I think when you factor in the experience of Mr Grima, his qualifications, lack of them in essential areas, I think Mr Ekinci’s faith in Mr Grima was not warranted”; “it was too early to take the training wheels off”. In Mr Lawlor’s view, the minimum period of time that someone ought to be flying before taking a flight such as the Norfolk Island Flight, is “something like 500 hours with a certain mix of experience on different types of aircraft, and on the particular type of aircraft concerned”. He did not believe that 10 hours of experience was sufficient to let a pilot go solo for the first time as “you can’t cover all the contingencies and the manoeuvres and competencies required, to safely send someone solo, in 10 hours”. Mr Lawlor explained that the minimum time required to be a commercial pilot was 150 hours in relation to one sort of course, or 200 hours in relation to another. When asked to reconcile this position with his view that you need at least 500 hours to undertake a flight of the kind that was proposed here (the Norfolk Island Flight), he stated, when someone comes out of a commercial license course, “they’re not really qualified to do much at all”. He described that a pilot who completes a commercial license course typically then undertakes simple activities such as joy flights and scenic flights to build up flying time or will get a job, all of which are very tightly controlled and the pilot does the same thing each day. In comparison, the applicant, according to his logbook, “has not done anything like that before, and then all of a sudden just launches off over the ocean”. Mr Lawlor states that “with 500 hours you’d have a little bit more of an opportunity to have experienced more of what aviation has to offer. It’s not a be-all and end-all, it’s just an approximate point, and other qualifications, I think, would adjust that amount up or down. But at 200 hours or 150 hours, you’re really not qualified to do much at all”.
In regards to the veracity of the applicant’s records, Mr Lawlor claims that the way in which the applicant was issued the PA-60 endorsement was concerning as “the qualification was issued by means of placing a “sticky label” into the applicant’s logbook, which was the approved way of issuing certain aviation qualifications prior to the introduction of Part 61 of the CASR”. He says that all “sticky labels” have a numerical control number and was concerned with the number of the labels entered into the applicant’s logbook. Particularly, that the label issued more than 2 years ago, before the label for the PA-60, had a higher number, in the circumstances it would be reasonable to expect that the sticky label issued on the earlier date would have the lowest number. Mr Lawlor also gave evidence that CASA had not received any paperwork concerning the issue of the PA-60 endorsement at the time when it was allegedly issued to the applicant. He said that this was “unusual since instructors and testing officers who were authorised to issue such endorsements by placing sticky labels in pilot logbooks were required to remit paperwork to CASA relating to those activities so that the newly issued qualifications could be recorded by CASA in the relevant pilot’s flight crew records”. In summary, Mr Lawlor opined in his statement:
“A possible explanation for the discrepancies outlined above is that the training did not take place on the dates recorded in the applicant’s logbook and may not have taken place in the way claimed by the applicant and the applicant’s instructor, or at all. However, as noted above, even if the training did take place, I am not satisfied that it would have led to the applicant achieving an adequate level of competency in the operation of the PA-60 aircraft.” [Emphasis added]
In response to questions about the veracity of the applicant’s records and issues with the numbering of the sticky labels in the applicant’s logbook, Mr Ekinci offered the explanation that he had simply missed a page of labels and went back to it, consequently putting the numbers out of sequence.
On the last day of hearing, the applicant provided records of the alleged training he undertook on a multi-engine aircraft on 28 and 29 December 2013. I find it very odd that the applicant provided these documents at such a late stage, particularly since CASA has plainly questioned the applicant’s endorsement to fly the Aerostar in these proceedings. The issue about whether or not the applicant had the endorsement for the Aerostar was considered in the reviewable decision and the applicant sought to confirm the endorsement in his affidavit sworn 10 February 2017. When the applicant was questioned about why he didn’t put the documents forward until now, the applicant said that he didn’t realise it was so important because they were just his training files. This explanation is implausible and raises serious concern about the reliability of the documents.
Alarmingly, the applicant submits in his supplementary witness statement dated 4 August 2017, that if he was as incompetent as Mr Lawlor would have the Tribunal believe, he would not have safely made it to Norfolk Island. At hearing, the applicant confirmed the sentiment. This statement highlights the applicant’s lack of judgement and overconfidence, and in my mind, is a dangerous attitude for a pilot to display.
Airworthiness of the Aerostar
A periodic inspection was undertaken of the Aerostar by an FAA authorised “A&P” aircraft mechanic, Mr Hoffman, on 1 September 2015, who certified the Aerostar to be in airworthy condition and certified it for release back into service.
Mr Horsley, a CASA Airworthiness Inspector, accepted at hearing that the Aerostar had a 100 hourly periodic inspection on 1 September 2015. He accepted that it was a serious inspection and somewhat of a ‘milestone’, which he expected would address any issues that the person conducting the 100 hourly finds and recognises. He agreed that it was a comprehensive examination.
The applicant was entitled to rely upon the certification that in all respects the Aerostar was airworthy as at 1 September 2015. The applicant claims that the maintenance status of the Aerostar was current at the time of the Norfolk Island Flight.
On 10 September 2015, Norfolk Island Police issued a notice detaining the Aerostar for inspection. As a result of the inspection, a Detention of Aircraft notice was issued by CASA, dated 17 September 2015 (“the Notice”). The Notice recorded that the pilot in command and apparent owner of the Aerostar, the applicant, could not produce an American or Australian flight crew licence when he landed on Norfolk Island on 9 September 2015. The Notice also identified a number of defects with the Aerostar. In summary, the alleged defects were as follows:
no rear seats stops installed on pilots seat;
unsecured installation of a HF radio;
the presence of an identified tube in the right rubber pedal;
Cabin Trim panels not fitted to structure;
no fire extinguisher;
no Emergency Locater Transmitter (ELT);
worn left-hand main wheel tyre; and
Internal bladder fuel tank- maybe an unapproved installation.
The applicant raises issues with the detention of the Aerostar on Norfolk Island and claims that CASA authorised an “unlicensed and inexperienced person to dismantle his aeroplane”, resulting in damage to his aircraft.
On 29 December 2015, the Aerostar underwent an annual inspection by an FAA authorised “A&P” aircraft mechanic, Mr Vercoe. The Aerostar was determined to be in a airworthy condition. The Airframe Log entry noted, inter alia:
1.Annual inspection carried out.
2.Temporary ferry tank and HF system installed, refer 337 for details.
3.Additional Seat stop installed on pilots seat track.
4.ELT located and re-fitted s/n 57678.
5.Fire extinguisher located and re-fitted.
6.Instrument tubing re-secured… [Emphasis added]
In documents headed ‘Major Repair and Alteration’ (FAA Form 337) dated 30 December 2015, Mr Vercoe details that the Aerostar was fitted with a temporary HF system and ferry fuel tank.
On 1 March 2017, Mr Vercoe, confirmed that the following was carried out on the Aerostar during the inspection on 29 December 2015:
1.Confirming inspection of the below items.
2.L/H Tyre inspected and found satisfactory within AMM limits.
3.ELT found present in aircraft.
4.Fire extinguisher found present in aircraft.
5.No major repairs or maintenance required during 100hr/Annual Inspection. [Emphasis added]
Planning undertaken for the Norfolk Island Flight
The applicant claims that he planned the Norfolk Island Flight with Mr Ekinci and gave Mr Ekinci his SARWATCH time and carefully checked the aircraft before departure. He claims that he undertook a 2.5 hour currency flight check with Mr Ekinci prior to undertaking the Norfolk Island Flight. Mr Ekinci’s evidence is consistent in that he claims he conducted a flight of 2.5 hours duration with the applicant in the PA-60 aircraft on 7 September 2015 for the purpose of preparing him for the flight which he commenced on 9 September 2015. However, no such flight is recorded in the applicant’s logbook. A navigation flight of 2.5 hour duration in the PA-60 is recorded in the applicant’s logbook on 8 September 2015. The applicant is recorded as the pilot in command. At hearing, the applicant stated that he should have also recorded “check flight” against the flight on 8 September 2015, however, when questioned about the flight he could not recall exactly what it involved.
Mr Lawlor opines that even if the check flight took place, it was not adequate to have equipped the applicant to safely undertake his intended flight. He states that the fact that the applicant was prepared to undertake a solo flight of this nature indicates that the applicant was either overconfident in his own abilities or he had a fundamental lack of appreciation of the challenges inherent in such a flight and had “no concept of the risks involved and the amount of preparation required to mitigate those risks to an acceptable level”.
Further, the applicant claims that he had a flight plan and made appropriate enquiries with Australian Customs and Border Protection (“Australian Customs”) prior to leaving Camden, New South Wales. He claims he spoke to someone called ‘Jason’ who told him that he did not need to clear customs out of Australia before flying to Norfolk Island. At hearing, the applicant resiled from his evidence that Australian Customs advised him he did not need to clear customs prior to flying to Norfolk Island and instead claimed that it was someone from a “private company” who he had called by mistake.
It does not appear on the evidence that a flight plan was ever filed for the Norfolk Island Flight nor any other leg of the applicant’s intended trip. Australian Customs were not informed of the applicant’s intention to fly to the US.
William (Yarm) Menzies, a Norfolk Island Police officer, says in his witness statement dated 9 October 2015, that he arrived at the Norfolk Island airport just as the Aerostar was taxying to the airport parking bay. The applicant was the only occupant of the aircraft and identified himself as the pilot. Mr Menzies said that he questioned the applicant about whether or not he filed a flight plan to which the applicant said he did. Mr Menzies states that Auckland Oceanic told him that there was no fight plan filed prior to departure. He states that the applicant indicated his intention was to stay overnight at Norfolk Island and depart to Nadi, Fiji the next morning and then on to Hawaii via Christmas Island/Kiribati/Kiritimati, located in the Pacific Ocean, and then on to Santa Maria, North America. Mr Menzies notes that the applicant could not say what actual airports he would be landing at in Hawaii or in North America. The evidence of a Customs Examining Officer, Mr Kevin Randall, is consistent with the evidence of Mr Menzies. Mr Randall says in his statement that he checked the numbers dialled on the applicant’s mobile phone and called the number that the applicant said he had last called when he spoke to Australian Customs. Mr Randall’s evidence is that he spoke to a Customs Agent named ‘Jason’ who advised him that he had explained to the applicant that he needed to contact Australian Customs before his departure.
Senior Constable Daniel Pyle, an Australian Federal Police officer, states in a statement dated 29 September 2015, that the applicant advised him he was flying to the US via Fiji and Hawaii. Senior Constable Pyle states that the applicant said he did not file a flight plan for his trip but was intending to file a flight for each leg of the trip as he went and records in his statement that the applicant advised him that he did not tell Australian Customs about his intention to leave Australia.
The applicant did not produce any flight plans or documents detailing the planning undertaken for the flight until the last day of the hearing in these proceedings. The documents he produced included a set of course notes from Air Combat Australia with some handwritten notations and a four page undated checklist with some handwritten notations (“checklist”). The checklist covers aspects such as pilot safety, environment, ferry tank and fuel considerations, safety equipment, radio failure procedures, legal issues, planning, et cetera. Similarly to the late provision of the training records, I find it very odd that the applicant provided these documents at such a late stage, particularly since CASA has plainly questioned the level of planning undertaken by the applicant in these proceedings. I have serious concerns about the reliability of the documents particularly in light of the applicant’s oral evidence given at hearing on the day before he provided the documents. He was specifically asked in cross examination about whether he had made a flight plan to the islands and to Santa Maria to which he responded that he knew “roughly the legs to take” and that he “knew where he was going”. He was pressed about the actual documents he had prepared to which the applicant only referred to navigation systems on his iPad and that he had written things down on the actual procedures to take on the runway and check flights. Documents he had prepared were described as things such as “how much fuel I need, who to contact, as in the radio, the towers, the weather, had to know about Customs”.
At hearing, Mr Ekinci was asked about the level of planning and preparation he undertook with the applicant. He said he prepared a pilot checklist, an environmental checklist, an aircraft checklist, a legalities checklist and an emergency checklist. In regards to a flight plan, Mr Ekinci said he helped the applicant measure the flight plan and helped him look at “diversions, alternates, ditching”; he said it was a “standard flight plan”, a “standard route” being “Norfolk, Pago Pago, Christmas Island, Hilo or Honolulu, depending on Customs and then Santa Maria” with Fiji as an alternative to Samoa. Mr Ekinci said he warned the applicant about weather risks in crossing the Pacific but did not warn him that the weather could change in a matter of hours. He was asked if he discussed with the applicant what should be done in the event that there was weather preventing him from landing when he got to Norfolk Island, and Mr Ekinci’s response was “yes, don’t take off’. It appears that the reason for this response was because the applicant checked the weather, checked with Norfolk and checked the forecast; it assumes that there is no risk of the weather turning sour. Based on the evidence, it appears that the applicant only planned for stable weather. There is no evidence demonstrating that the applicant was prepared for unexpected adverse weather conditions. The checklist states “trip across the ocean, weather trends should be stable all day stable all day”.
MARYBOROUGH FLIGHT
During the evening of 21 September 2015 and early morning on 22 September 2015, an Australian registered aircraft VH-DUI, a PA30 Piper twin-engine aeroplane (“the Piper”) was flown at night from Camden, New South Wales to Maryborough, Queensland (the Maryborough Flight”). On-board the Piper at the time of arrival in Maryborough QLD was the applicant, Michael Salma, and Messrs Ziad Jneid and Rabih Jneid (“the Jneid brothers”). At the time, the Jneid brothers were wanted by the police in Western Australia for skipping bail. The Jneid brothers are currently serving lengthy prison sentences for drug related crimes.
The two questions which arise for determination in regards to the Maryborough Flight are firstly, whether the applicant was the pilot in command and secondly, whether the applicant’s involvement in the flight bears upon his fitness and propriety to hold a pilot’s licence; even if he was a passenger.
Was the Applicant the pilot in command?
The applicant denies that he was the pilot in command of the Maryborough Flight and claims that Mr Salma was the pilot in command and occupied the pilot seat of the Piper, while he occupied the right hand passenger seat. The evidence available is inconsistent on this issue and is not definitive.
After landing in Maryborough on 22 September 2015, the applicant, Mr Salma and the Jneid brothers went to the Carriers Arms Hotel. The Police arrived shortly after. The conversation that ensued between the applicant, Mr Salma, the Jneid brothers and police officers was recorded, transcribed and is in evidence before me. Significant sections of the transcript are detailed below:
(pages 3 - 5)
SR SGT WATKINS: We’ve just got some in- ah, some inquiries. You gentleman flew up here this morning; is that correct?
MR SALMA: Yeah, that’s correct, yeah.
SR SGT WATKINS: And how did you fly up here?
MR SALMA: In a - in an aircraft.
SR SGT WATKINS: In an aircraft? And who flew the aircraft?
MR SALMA: Umm, the young bloke’s flying, and I’m the instructor.
SR SGT WATKINS: Okay. So you’ve got your - got your licenses there?
MR SALMA: No, I don’t, actually.
SR SGT WATKINS: You don’t. Why’s that?
MR SALMA: Because it was a last-minute thing.
SR SGT WATKINS: That’s not very good, is it? Are you required to carry your license on you when you’re flying a plane?
MR SALMA: Yeah, but I - I was - I was just going for a joy flight.
SR SGT WATKINS: Hang on. The question is aren’t you required to carry your license on you, your - your accreditation, when you’re flying a plane?
MR SALMA: (Indistinct).
SR SGT WATKINS: Yeah, okay, and you’re required to produce that?
MR SALMA: Yes, that’s correct.
SR SGT WATKINS: Yeah, okay. So you’re not able to do that?
MR SALMA: No.
MR SGT WATKINS: Do you have some identification there at all? Something with a photo on it?
MR SALMA: No, nothing.
SR SGT WATKINS: Nothing at all? Why’s that?
MR SALMA: Dude, I - I - I didn’t think I was coming up here. I was just flying.
SR SGT WATKINS: Just flying?
MR SALMA: I’m - yeah, just passenger.
SR SGT WATKINS: Okay. So you’re the instructor; you’re --
MR SALMA: No, no, I’m not an instructor.
SR SGT WATKINS: Okay.
MR SALMA: I’m just helping the young fella navigate.
SR SGT WATKINS: So who’s got the pilot’s license?
MR SALMA: The - the young fella here is - is the - is the pilot.
SR SGT WATKINS: You got your pilot license?
MR GRIMA: Nah, nah, not on me, no.
SR SGT WATKINS: Where is it?
MR GRIMA: Ah, at home.
SR SGT WATKINS: At home? So you’re - properly licensed pilot, are you?
MR GRIMA: Yep.
SR SGT WATKINS: Okay. Have you got some identification there?
MR GRIMA: Ah, yeah, up there.
…
(pages 6 - 7)
SR SGT WATKINS: Well, you’ve apparent - well, the plane you flew, in whose plane is it? Whose plane is it?
MR SALMA: Nah, seriously--
SR SGT WATKINS: You flew it?
MR SALMA: -- said, it’s not my aeroplane, so--
SR SGT WATKINS: You - you flew the plane. Whose plane is it? Look at me. Whose plane is it?
MR GRIMA: Not too sure.
SR SGT WATKINS: “Not too sure”. Is it stolen?
MR SALMA: No.
SR SGT WATKINS: Well, how can this - hang on, I’m asking him. He flew it.
MR SALMA: Oh.
SR SGT WATKINS: He’s saying he doesn’t know whose plane it is, so it might be stolen.
MR SALMA: I’m not in the business of breaking any rules or regulations.
SR SGT WATKINS: You didn’t fly up here. He flew the plane.
MR SALMA: Yeah, I know, but I was helping him--
SR SGT WATKINS: Yeah.
MR SALMA: -- to navigate.
…
SR SGT WATKINS: Whose plane is it?
MR SALMA: I’ve got no idea whose plane it is.
SR SGT WATKINS: And it could be stolen. That’s a fair assumption. You’re both telling me you don’t know whose plane it is, you’ve got no idea.
MR SALMA: Dude--
SR SGT WATKINS: The plane’s got no registration details on it. No markings at all to indicate what - what plane it is, with no--
MR SALMA: No, no, no, we took off - it did have rego.
SR SGT WATKINS: It did have rego?
MR SALMA: Yeah. It’s India Delta Uniform. What’s (indistinct) rego.
SR SGT WATKINS: Where’s - where’s the numbers on the plane. Look, there’s no numbers on the plane.
…
(page 10)
SR SGT WATKINS: And whose plane is it?
MR SALMA: It’s - it’s - was it hired?
MR GRIMA: Yeah, I believe so.
MR SALMA: Yeah--
SR SGT WATKINS: “Believe so”- you just couldn’t tell me whose plane it was before, now you’re telling me it’s hired. So you - you’re making this up as you go along. That’s the issue that I have. His telling me - you say you don’t know whose plane it is. He said he doesn’t know, saying, “Oh, it was hired, wasn’t it?” So is it a high plane or not?
MR SALMA: Of course it’s a hired aeroplane. We don’t steal know aeroplane.
SR SGT WATKINS: where is your documentation for hiring the plane?
MR SALMA: Dude, I don’t have anything. The - I didn’t hire the aeroplane. I came with the young fella, trying to navigate with him.
SR SGT WATKINS: Where’s the documentation for the hire of the plane?
MR GRIMA: There is none.
SR SGT WATKINS: There is none? Well, how do you prove you’ve hired the plane? How do we know it’s not stolen?
MR GRIMA: Is there a stolen report?
…
(pages 13 - 14)
SR SGT WATKINS: So, are you a pilot?
MR GRIMA: Yes.
SR SGT WATKINS: You are a pilot?
UNIDENTIFIED OFFICER: Oh, look at all this.
MR GRIMA: Yes.
SR SGT WATKINS: You’ve got an Australian pilot’s license
MR GRIMA: Yeah, yeah.
[emphasis added]
The bulk of the above sections of transcript were put to the applicant in cross examination. He accepted that Mr Salma was conveying to the Police that the applicant was the pilot of the Piper, however, instead of correcting Mr Salma and advising the police that he was not the pilot, as he alleges; the applicant said nothing. At hearing, he put this down to fear of the Jneid brothers, Mr Salma and the police officers. He also said that he was on medication so was “not thinking 100% straight”. When questioned about his answers in regards to the ownership of the Piper, the applicant accepted that he lied to the Police by saying that it was hired. He claimed that he lied because he was scared of Mr Salma, however the evidence shows, and the applicant agreed, that he was not just going along with Mr Salma but was positively assisting him in misleading the police. Again, he said “out of fear”. Surprisingly, once it came time for everyone to leave Maryborough, the applicant willingly stayed with Mr Salma and the Jneid brothers and shared a taxi to Brisbane airport.
Mr Salma gave evidence at hearing. He claims that Mr Ray Ekinci offered him work “regarding a safety position just sitting in the right seat of an aeroplane”, which he accepted. He said that when he got to Taree Airport, Mr Ekinci was there and the aeroplane “was already on the ground” and it “was a bit of a hurry”. Mr Ekinci drove Mr Salma’s car home. Mr Salma said he got into the right seat of the aeroplane and it pretty much took off from there; the applicant was in the left seat and the “two fellows in the back”. The left seat being the pilot’s seat. He says he requested the applicant land at the nearest airport, being Maryborough, because he felt a “bit uncomfortable” when he saw a lot of fuel drums in the aircraft.
Mr Ekinci claims that he was not in the Aerostar with the applicant and was not at Taree Airport as suggested by Mr Salma. He said at hearing that he only found out about the incident in Maryborough a couple of days after it happened when the applicant called him and said he had got himself “into some shit”. Mr Ekinci said that the applicant told him that Mr Salma asked him if he wanted to go for a fly and said that during the flight his nose started bleeding and he was sleepy. He claims the applicant said he didn’t know what he had gotten himself into and explained how Mr Salma paid $800 for a taxi to Brisbane, told the applicant to shut up and then proceeded to buy the applicant a ticket back to Sydney.
CASA accepts that Mr Salma is not a man of truth and accepts that no weight should be given to his evidence. As such, I am satisfied that no weight should be given to Mr Salma’s evidence about the circumstances of the Maryborough Flight or the applicant’s involvement.
Does the Applicant’s involvement in the Maryborough Flight, even as a passenger, bear upon his fitness and propriety to hold a pilot’s licence?
The Applicant’s evidence about the purpose of the Maryborough flight and how he came to be involved is, to say the least, very odd.
The applicant claims that Mr Salma invited him to accompany him on the flight to Maryborough on 21 September 2015. At hearing, the applicant said that Mr Salma was going up north fishing; he vaguely described a plan of going to Cairns and chartering a boat to catch barramundi. The applicant said he didn’t plan the trip and didn’t have any fishing equipment of his own with him. He then stated he wasn’t actually intending on going fishing. Even more peculiar, is that the applicant said he didn’t learn about the trip until “that evening”, more specifically, 15 to 20 minutes before the plane took off. The applicant said he did not discuss with Mr Salma about how long he was intending to be away for and he did not discuss with Mr Salma the precise destination. He said that Mr Salma picked up the Jneid brothers shortly before take-off, whom Mr Salma claimed were his “cousins”. The Jneid brothers occupied the rear seat of the aircraft. The applicant claimed that he did not think they spoke English because Mr Salma was speaking to them in Arabic.
In cross-examination, the applicant was questioned about the plane containing quite a few fuel tanks to which the applicant said that he believed that they were in the back of the plane but didn’t notice them until the Jneid brothers got into the Piper. He said he didn’t think it was odd to have tanks of water in the aircraft but then agreed that the tanks were likely fuel drums. The applicant was also questioned about the markings on the plane. He claimed to not take any notice of whether the registration numbers were on the Piper’s tail wing before take-off. However, when told that the registration letters were visible in the Camden security photographs taken at Camden Airport at 19:20 on 21 September 2015, he accepted that the Piper took off with the registration numbers in place. He was questioned about whether the Piper landed at any point between Camden and Maryborough, to which he flatly answered no and then explained that he was sleeping on the plane as a result of medication he was taking following an operation he had on his sinuses a day or two beforehand. The applicant also acknowledged that Maryborough wasn’t the intended destination. He stated that Mr Salma was tired and wanted to descend and land. At that stage, the applicant said he didn’t recall the sun being up but said that the sky was starting to “get that pink colour” and recalled that it was first thing in the morning.
As already stated above, when the applicant, the Jneid brothers and Mr Salma were questioned by police in the Carriers Arms Hotel, Maryborough on 22 September 2015, he positively assisted Mr Salma in misleading the police. He was evasive in his answers and lied to the police when questioned about the ownership of the aircraft. The applicant was found to have in his possession a Maltese passport in his name and a sum of Australian and foreign currency in the amount of $10,000. The Jneid brothers were each found to have in their possession their passports and a sum of Australian and foreign currency. After the police interview the applicant remained in the company of the Jneid brothers and Mr Salma. As we now know, the Jneid brothers were wanted by the police in Western Australia for skipping bail at the time and the Jneid brothers are now serving lengthy prison sentences for drug related crimes.
CONSIDERATION
The term “fit and proper person” is not defined in the Civil Aviation Regulations (CAR) or in the Act. As such, the concept is informed by the legislative context in which it is found, taking account of such things as the activities in which the licence holder will be engaged and the ends to be served by those activities: Re Griffiths and Civil Aviation Authority (1994) 34 ALD 554 (Griffiths).
The leading authority on what is encompassed in the phrase ‘fit and proper person’ is the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), where Toohey and Gaudron JJ said in relation to that phrase as used in section 88(2) of the Broadcasting Act 1992 (Cth) at 380:
“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.”
In Griffiths, this Tribunal determined that, in considering the meaning of the term “fit and proper person” in regulation 269(1)(d) of the CAR, it should, conformably with the principles established in Bond, consider the fitness and propriety of a licence holder taking into account the responsibilities, functions and duties of the holder of such a licence. In taking that approach, the Tribunal in Griffiths was also influenced by the following passage from a previous decision of the Tribunal in Re Taylor and Department of Transport (1978) 1 ALD 312 in which it was said in the substantially similar context of the then regulation 258 of the Air Navigation Regulations at 321 that:
“… the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavor to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.”
In Broadbent and Civil Aviation Safety Authority [1999] AATA 972 the Tribunal referred to Hughes and Vale v NSW (No 2) (1955) 93 CLR 127 at 156-7, where the High Court said:
“The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty, knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.”
It appears to be well settled that the passages set out above reflect the correct approach to be taken in determining whether a person is a fit and proper person within the meaning of regulation 269(1)(d) of the CAR: see further, eg, Mulligan and Civil Aviation Safety Authority [2006] AATA 652 at [73]-[74].
As the Tribunal held in Cole and Civil Aviation Safety Authority [2004] AATA 1092 at [152], matters which demonstrate that the applicant, in various circumstances, failed in his duty with respect to matters affecting the safe navigation or operation of an aircraft, also demonstrate that he is not a fit and proper person to have the responsibilities, and perform the functions and duties, of a holder of a relevant licence.
As the Tribunal held in Quadrio and Civil Aviation Safety Authority [2011] AATA 709 the applicant’s conduct subsequent to an incident can give rise to a conclusion that he or she failed in their duty with respect to matters affecting the safe navigation or operation of an aircraft:
“It is, of course, to be remembered that in considering the issue of a fit and proper person it is unwise to attempt to define the matters that may be legitimately enquired into; each case must depend upon its own circumstances: see Hughes and Vale Pty Ltd v New South Wales (No 2). But in the present context it is possible to say that a fit and proper pilot is one who has an appreciation of the statutory responsibilities and one who discharges them: Australian Broadcasting Tribunal v Bond. In Re Taylor and Department of Transport the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it. The Tribunal said,
‘In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In our view, what the regulation requires is a consideration of the applicant's conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.’
That passage has been applied in many subsequent decisions of the Tribunal: see eg Re Griffiths and Civil Aviation Authority. In our view it is appropriate to apply it in the present case.
…
It is undoubtedly the case that pilots will from time to time, fall into error. In our view a pilot who does so and who has a proper appreciation of the importance of air safety will acknowledge the error and reflect upon it in order to prevent a recurrence.”
In Pantovic and Civil Aviation Safety Authority [2015] AATA 992, Senior Member McCabe (as he then was) said at [114], “a person with bad judgment…is not fit to hold a pilot’s licence, no matter how skilful he or she may be”.
Having regard to the Briginshaw test, I’m conscious of the consequences of this decision as well as the seriousness of the allegations and refer to what was said by the Full Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [16] and [98]-[122]. Logan J said at [16]:
“In resolving justiciable controversies by a final judgement, a Court is constrained to act on admissible evidence. An administrative decision-maker is not so constrained… However, an administrative decision-maker must act reasonably. …What was said in Briginshaw is applicable only by analogy for the reminder it offers about what may be necessary in particular kinds of case to induce reasonable satisfaction in the mind of a decision-maker. It is not necessary for a decision-maker overtly to refer to Briginshaw, only that it be apparent from the reasons given that the decision-maker is aware of that conclusions carrying grave consequences ought not lightly to be made.”
Having regard to all of the available evidence, a significant amount of which is detailed in this decision, I cannot be reasonably satisfied, on balance, on a number of issues. Particularly, I am not reasonably satisfied that the applicant was the pilot in command of the flight to Maryborough. I am not reasonably satisfied about the veracity of the applicant’s records. I am not reasonably satisfied that the Aerostar was subject to unapproved modifications and wasn’t in an airworthy condition at the time of the Norfolk Island Flight. I’m not reasonably satisfied that the applicant was knowingly involved in the Maryborough flight to assist two serious criminals escape the country.
What I am satisfied of is that the applicant has displayed extremely poor judgement and overconfidence. The flight to Norfolk Island was an extremely dangerous one for someone of his experience to undertake. He has never flown across the ocean, never been a pilot in command of a multi-engine aircraft (solo), never flown outside of Australia and has no flights recorded in his logbook of comparable duration or complexity. He did not provide sufficient evidence to satisfy me that the trip to Norfolk Island, and ultimately to the US, was adequately planned. He never lodged a flight plan and he never advised Australian Customs of his intention to leave Australia.
Additionally, the applicant’s role in the Maryborough Flight is concerning and the evidence regarding the circumstances surrounding the Maryborough Flight is inconsistent. There are many aspects of the flight that should have caused the applicant more concern such as the fuel drums in the aircraft, the late arrival of the Jneid brothers, the lack of clarity about the destination and the police involvement. Even if the applicant was not the pilot in command, his involvement shows a significant lack of judgement. I do not believe that the evidence is sufficient to make any other findings about the applicant’s involvement.
Considering all of the above reasons in its entirety, I find that the applicant is not a fit and proper person to hold a pilot’s license.
The question that remains is what is the correct regulatory response?
It is plain from the evidence, and CASA accepts, that the applicant is young, hard-working and has displayed an eagerness to get ahead in life. He clearly has a passion for flying and has invested a large amount of his time and financial resources with the aim of one day pursuing flying as a livelihood. I have no reason to doubt that the applicant has the necessary psychomotor skills to be a pilot and has a significant amount of flying time of approximately 200 hours. I think that it is also plain that the applicant has not been served well by his Flight Training Organisation. Mr Ekinci issued the applicant with his multi-engine PA-60 endorsement, in circumstances where, according to Mr Lawlor, the applicant did not complete a sufficient amount of flying time to warrant such an endorsement. This however cannot be said to be the fault of the applicant. In regards to CASA’s knowledge of the endorsement, it was up to Mr Ekinci to file the necessary paperwork and notify CASA of the applicant’s endorsements. Additionally, I have little doubt that Mr Ekinci was the one who the applicant looked up to, as his mentor and teacher, to advise him on his flying ability and to guide him on his capabilities. This has no doubt added to the applicant’s overconfidence and lack of judgement about his abilities.
Errors that arise out of mistakes or misunderstandings as opposed to intentional misconduct do not necessarily deserve the position of punitive sanctions, but can rather be dealt with by training and/or counselling.
I am satisfied that the applicant’s conduct to date is redeemable and as such I consider a lesser regulatory response is appropriate. I note that the applicant has already completed a significant period of suspension. Accordingly, pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) I set aside the decision under review and substitute a decision in the following terms:
1.The applicant’s multi-engine aeroplane class rating is cancelled pursuant to sub-regulations 269(1)(b) and (d) of the Civil Aviation Regulations 1998 (Cth).
2.The applicant’s private pilot licence - aeroplane category (PPL-A) is suspended until such time as:
a)The applicant undertakes 15 hours of remedial flying training at a Flight Training School acceptable to CASA including a minimum of:
i.cross-country navigation exercises planned at close to minimum reserves, requiring careful pre-flight planning and in-flight monitoring (including calculation of actual ground speed and fuel flow);
ii.unplanned diversions during cross-country navigation exercises given to the pilot whilst airborne, requiring flight to an unfamiliar destination;
iii.in-flight practice emergency sequences with emphasis not only on accurate flying, but also on sensible decision-making with regard to:
I.assessment of the emergency;
II.continuation/termination flight;
III.chosen flight path;
IV.type of approach;
V.preparedness for deterioration of the situation;
VI.distress calls and passenger handling consideration; and
b)CASA receives a written report from the Flight Training School on the standard of the applicant’s conduct as a pilot during the training period including whether his performance met the competency standards specified in the Part 61 Manual of Standards. The report must include all training records and competency standards achieved, and a final recommendation that the applicant is considered ready to undergo a flight test for a PPL-A; and
c)The applicant undertakes and passes the PPL-A flight test under the supervision of a CASA officer, or an examiner approved by CASA in writing; and
d)The applicant undertakes psychological evaluation by a psychologist acceptable to CASA and provides a psychological evaluation report addressing the applicant’s insight into the conduct which led to the making of the reviewable decision and the likelihood of their being a repeat of such conduct.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
.......................[sgd].............................................
Associate
Dated: 8 October 2018
Date(s) of hearing: 4, 6, 7 & 8 September 2017; 31 October 2017 Counsel for the Applicant: P Lithgow Solicitors for the Applicant: J Maitland, Maitland Lawyers Counsel for the Respondent: J Emmett Solicitors for the Respondent: T Canny, Civil Aviation Safety Authority
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