Nagid Fadlalla and Civil Aviation Safety Authority
[2015] AATA 331
•15 May 2015
[2015] AATA 331
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3255
Re
Nagid Fadlalla
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Mr Egon Fice, Senior Member
Mr Warren Evans, MemberDate 15 May 2015 Place Perth The decision under review is set aside. The Applicant’s Private Pilot (Aeroplane) Licence and Student Pilot Licence remain valid and must be treated as never having been cancelled.
.....................[sgd]...................................................
Egon Fice, Senior Member
Catchwords
AVIATION – Regulation of air navigation – Pilots – Cancellation of licence – Breach of regulations – Applicant held Private Pilot (Aeroplane) Licence and Student Pilot Licence – Licences cancelled – Whether applicant failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft – Whether applicant a fit and proper person to hold licences – Decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43
Civil Aviation Order 40.1.0 — Aircraft Endorsements – Aeroplanes 2004 (Cth) cl 8.1
Civil Aviation Regulations 1988 (Cth) regs 5.09, 5.13, 5.22–3, 5.79, 5.82, 174C, 269
Civil Aviation Legislation Amendment (Flight Crew Licensing Suite) Regulation 2013 (Cth) sch 1 pt 1
Civil Aviation Legislation Amendment Regulation 2013 (No. 1) (Cth) reg 2, sch 2
Civil Aviation Order (Flight Crew Licensing) Repeal and Amendment Instrument 2014 (No. 1) (Cth) reg 30, sch 27 pt 1Civil Aviation Safety Regulations 1998 (Cth) pt 61, reg 141.280
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Repacholi and Civil Aviation Safety Authority [2003] AATA 573 (18 June 2003)
REASONS FOR DECISION
Mr Egon Fice, Senior Member
Mr Warren Evans, Member15 May 2015
Mr Fadlalla, an Australian Citizen born in Khartoum, Sudan in September 1994, was granted a Student Pilot Licence on 9 March 2012 (SPL). He passed the General Flying Progress Test on 29 May 2012. Mr Fadlalla was granted a Private Pilot (Aeroplane) Licence (PPL) and a Flight Radiotelephone Operator Licence on 31 July 2013.
On 19 February 2014 Mr Fadlalla conducted a Visual Flight Rules (VFR) flight from Jandakot to Geraldton and return, arriving at Jandakot on return after last light. He did not hold a night VFR rating. Following that incident, on 14 April 2014 the Civil Aviation Safety Authority (CASA) issued Mr Fadlalla with a notice of proposed action to vary, suspend or cancel his PPL and SPL (the Show Cause Notice).
After taking into account Mr Fadlalla’s response to the Show Cause Notice, in a notice dated 16 June 2014, CASA informed him it had cancelled his PPL and SPL. CASA did so on the grounds set out in Reg 269(1)(c) and (d) of the Civil Aviation Regulations 1988 (the CAR).
On 24 June 2014 Mr Fadlalla lodged an application with the Tribunal seeking a review of CASA’s decision to cancel his PPL and SPL.
The power to vary, suspend or cancel a flight crew licence under CAR 269 involves a discretionary decision. Relevantly, it provides (emphasis in original):
(1) Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:
(a)…
(b)…
(c)that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d)that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation; or
(e)….
We should also briefly mention that at the time Mr Fadlalla’s PPL and SPL were cancelled in June 2014 the new provisions dealing with flight crew licensing now found in Part 61 of the Civil Aviation Safety Regulations 1998 (CASR) had not come into effect. The Civil Aviation Legislation Amendment Regulation 2013 (No.1) removed the flight crew licensing provisions from Part 5 of the CAR (sch. 2) and was to commence on 4 December 2013 (Reg 2). However, that Regulation was itself amended by the Civil Aviation Legislation Amendment (Flight Crew Licensing Suite) Regulation 2013 by omitting 4 December 2013 as the start date and substituting 1 September 2014 (sch. 1 pt. 1). That new commencement date was also the date on which the Civil Aviation Order (CAO) 40.1.0 was repealed (Civil Aviation Order (Flight Crew Licensing) Repeal and Amendment Instrument 2014 (No. 1) reg 30, sch 27 pt 1). Because the matters before us concern events which took place in the first half of 2014, Part 5 of the CAR dealing with qualifications of flight crew and CAO 40.1.0 dealing with the issue of special design feature endorsements are the relevant legislative provisions.
THE LAST LIGHT INCIDENT
Events and circumstances leading to the flight on 19 February 2014
It is of some significance to set out briefly the circumstances in which this particular flight took place. That will, we trust, assist in understanding the underlying reasons why we have concerns about the way in which this matter was investigated and dealt with.
Mr Fadlalla commenced his flying training with the Royal Aero Club of Western Australia (RACWA) at Jandakot airport, which is south of Perth city. He was enrolled in a 150 hour commercial pilot training course conducted by Western Australia Aviation College (WAAC). The course involved ground training as well as flying training. His flying training appears to have been principally conducted in a Cessna 172 aircraft which is an aircraft with a maximum take-off weight (MTOW) of less than 5,700 kg. It has a fixed pitch propeller and a fixed undercarriage. His flight test for the PPL was conducted on this type of aircraft.
The holder of a PPL is not authorised to fly an aeroplane as pilot in command unless he or she also holds, if the aeroplane has a special design feature, a special design feature endorsement authorising the holder to fly the aeroplane in that capacity (Reg 5.79 (1)). The PPL holder must also hold a type endorsement or class endorsement for the aircraft in question.
In January 2014 Mr Fadlalla commenced endorsement training on a Mooney 201 (M20J) aircraft (MTOW less than 5,700 kg) which is equipped with a variable pitch propeller and a retractable undercarriage. Those two features of the aircraft are regarded as special design features for the purposes of CAR 5.22(1). Therefore, in accordance with that Regulation, CASA may give directions in CAOs prescribing the aircraft endorsements which must be held by the holder of a flight crew licence before the holder is permitted to carry out duties authorised by the licence in a particular aircraft that has a special design feature. Additionally, Reg 5.23(1) provides that CASA may give directions in CAOs setting out requirements for the issue of aircraft endorsements.
The CAO in force at the relevant time was 40.1.0. Clause 8.1 provided:
8.1 For the purposes of subregulation 5.23 (1), the requirements for the issue of a special design feature endorsement are:
(a)the person seeking the endorsement must:
(i) hold a student pilot licence, an aeroplane pilot licence, or a certificate of validation that has effect as if it were such a licence; and
(ii) undertake flying training, or training in an approved synthetic flight trainer, in the operating limitations, procedures and systems of an aeroplane fitted with the special design feature for which the endorsement is sought; and
(iii) satisfy the person who conducted the training mentioned in sub-paragraph (ii) that the first-mentioned person can safely fly an aeroplane fitted with the special design feature; or…
Reg 5.23(2) provides (emphasis added):
Subject to subregulation (3), CASA must issue an aircraft endorsement to the holder of a flight crew licence, a special pilot licence or a certificate of validation by entering the endorsement in the holder’s personal log book if, and only if, the holder satisfies the requirements for the issue of the endorsement.
Although not applicable to Mr Fadlalla, for the sake of completeness, Reg 5.23(3) provides:
CASA must not issue an aircraft endorsement to a person if the person:
(a)has knowingly or recklessly made a false or misleading statement in relation to the person’s application for an endorsement; or
(b)does not satisfy the requirements of subregulation (2).
An extract from Mr Fadlalla’s personal log book as well as Flight Performance Records (which are documents approved by the Chief Flying Instructor of RACWA) disclose that he commenced flying training on the M20J on 22 January 2014. The first flight was a general handling exercise with a flight time of 1.3 hours. Mr Fadlalla then had two flights on 24 January 2014 (one of the records incorrectly recording the flight in 2013) which involved flying circuits for 1.1 and .8 hours. He then conducted a further circuit training exercise on 29 January 2014 for 1 hour. On 30 January 2014 he conducted a navigation exercise which took 2.2 hours. Then, on 31 January 2014, he was given a Check Flight by a Grade 1 Flying Instructor (Mr James Sturrock) which lasted 1.1 hours. Prior to the check flight, his endorsement training had been conducted by Mr Ben Jackson. His total flying time in the M20J was then 7.5 hours. Mr Sturrock made the following comments on his Flight Performance Record:
ALL TO REQ STD
NO PROBLEMS FOR SOLO CONSOLIDATION
We should also point out that the Flight Performance Record which described the sequence as M20J Check Flight contained the following notation:
NOTE: The Instructor signing the student off for Mooney Endorsement must as a minimum assess that the student meets the Required Standard in the Elements shown in bold. All other Elements may have been assessed to the Required Standard on a previous occasion and the assessment may be made by a different Instructor.
Mr Fadlalla was assessed as having met the required standard in each of the elements set out on the Flight Performance Record. The reasonable inference to be drawn from the Check Flight which was signed off by Mr Sturrock on 31 January 2014 is that Mr Fadlalla met the requirements for a Mooney Endorsement and that the endorsement would be entered in his personal log book and on his PPL.
Unfortunately, we had no evidence from Mr Sturrock nor did CASA produce any of the documents which related to Mr Fadlalla’s endorsement training and Check Flight. In fact, despite Mr Fadlalla stating in his response to the Show Cause Notice that he believed he was endorsed to fly the M20J aircraft having completed a check with a Grade 1 senior instructor, in its notice of cancellation CASA simply noted that he flew the M20J aircraft, which had the special design features of the manual propeller pitch control and retractable undercarriage, without being appropriately endorsed. There was no evidence that CASA had attempted to ascertain or to obtain documents from RACWA to the effect we have described above.
What we find most disturbing about the investigation of this incident is an email from Mr David Currey, the General Manager of RACWA, dated 10 June 2014, to Mr Cason Moss of CASA regarding requests made by Mr Fadlalla to obtain statements (which he described as letters of support) from instructors at RACWA. Relevantly, that email states:
I was informed that other instructors had been requested to write letters of support. I told them that they were not to write anything, as the Club had a clear stance on his flying skills. Jim Sturrock, a G1 experienced instructor told me that Nagid had asked for a letter of support as both I and Trevor Jones had written a letter supporting the return of his licence. Jim checked with me regarding this and was very annoyed at the blatant lie that Trevor Jones had written a letter. He used my email in a devious way – something he has done a number of times during his training. For the record, I have a number of written warnings on file and records on meetings with his father regarding his behaviour.
With respect to Mr Currey, it appears to us that it was his duty to inform those officers from CASA who were investigating this matter of Mr Fadlalla’s endorsement training and, if requested, to allow those instructors to provide statements of evidence as, undoubtedly, they would be relevant.
It became obvious to us in the course of hearing this matter and reviewing the documents provided by Mr Fadlalla that he had not taken legal advice to assist him in preparing for his application for review. Accordingly, the language he used and the way in which he sought to have his licence reinstated was not focused on his legal rights and obligations. Hence, although he plainly sought an explanation from Mr Sturrock regarding his endorsement training on the M20J aircraft, he described it as a letter of support. We also suspect that the expressions used by Mr Fadlalla, as evidenced throughout the course of the hearing, were culturally based and therefore easily misunderstood by those not alive to that issue. The concern we have is that the statement from Mr Currey that other instructors were not to provide any evidence indicates that RACWA had already formed a view, which no doubt included expelling Mr Fadlalla from the Club.
Although we had no evidence from CASA or any person from RACWA/WAAC, including Mr Sturrock, as to what consequences flow from a satisfactory check flight following endorsement training, it appears to us that this flight was intended to and did conclude Mr Fadlalla’s endorsement training. He plainly appears to have met all of the requirements in clause 8.1(a) of the CAO 41.1.0. In other words, Mr Fadlalla satisfied the requirements for a special design endorsement and was able lawfully to fly the M20J as pilot in command. CASA was required to make the endorsement in his personal log book. Mr Fadlalla had no control over that. No other restrictions or conditions appear to apply.
The fact that no documents evidencing Mr Fadlalla’s endorsement training on the M20J aircraft were put into evidence by CASA causes us considerable concern about the investigation of this matter. In fact, in its Statement of Facts and Contentions, CASA said that at no time was Mr Fadlalla authorised to operate the M20J aircraft. That was because he did not hold any special design feature endorsements. It was then stated:
Although the applicant has claimed that prior to 19 February 2014 he undertook the training necessary to be endorsed upon the M20J and to operate the special design features of that aircraft type, there is no evidence presented in support of that contention.
Just why the endorsement training conducted by Mr Fadlalla on the M20J aircraft was not brought to CASA’s attention either through its own enquiries or by RACWA/WAAC is of serious concern. Records of his training were plainly available from the Aero Club and Mr Fadlalla, at the hearing of the matter, was able to provide photocopies of those documents. It also appears that CASA did not question the flying instructors involved in the endorsement training and flight check. Those deficiencies in the investigation of this matter are of grave concern to us. In our opinion, they require further investigation by CASA.
According to CASA, it had information from RACWA that Mr Fadlalla had been scheduled by his flying instructor (although not named, we presume Mr B Jackson) to conduct a solo flight on 18 February 2014 from Jandakot in a Cessna 172 aircraft. Further compounding the issue is CASA’s claim that Mr Fadlalla was not authorised by his flight instructor to fly an aircraft other than a Cessna 172. It is unclear to us why his flying instructor would have authorised a flight in a Cessna 172 when Mr Fadlalla had completed the endorsement training on the M20J and had been cleared to fly that aircraft as pilot in command. We had no evidence whatsoever from any of the flying instructors involved in instructing Mr Fadlalla. Nevertheless, in its Show Cause letter of 14 April 2014, CASA stated that on 18 February 2014 Mr Fadlalla’s flight instructor authorised him to fly as pilot in command of a Cessna 172 aeroplane in the local training area and then to Murray Field to conduct circuits and for general handling training. Mr Fadlalla said in cross-examination that he decided to cancel the flight a couple of days before the date and attempted to notify Mr Jackson but, when he was unable to contact him, reported the cancellation to the flight desk.
In its Statement of Facts and Contentions CASA contended that it would be open for the Tribunal to conclude that Mr Fadlalla’s cancelling what was supposed to be a solo flight in a Cessna 172 on 18 February 2014 and instead conducting the flight in the M20J aircraft on 19 February 2014 with his three friends was simply a social event and to show off. In his opening statement, Mr Fadlalla denied that was the case. He asked, rhetorically, why would he pay $5000 per month to show off to his friends?
CAR 5.82 deals with recent experience requirements for the holder of a PPL intending to carry passengers. In so far as it is relevant for flying during daylight, it provides:
(1) A private (aeroplane) pilot must not fly an aeroplane as pilot in command if the aeroplane is carrying any other person and the pilot has not satisfied whichever of the following requirements is applicable;
(a)if the flight is undertaken in daylight – the pilot has, within the period of 90 days immediately before the day of the proposed flight, carried out at least 3 take-offs and 3 landings while flying an aeroplane as pilot in command or as pilot acting in command under supervision, or in dual flying;…
As we have set out above (at [14]), Mr Fadlalla carried out his endorsement training on the M20J aircraft between 22 and 31 January 2014. The controversial flight in question took place on 19 February 2014. Given the nature of that endorsement training, including three flights involving only circuits, there can be no doubt that Mr Fadlalla satisfied the requirement for carrying passengers set out in CAR 5.82.
Flight on 19 February 2014
Mr Fadlalla’s account of the flight in the M20J aircraft on 19 February 2014 is taken from his oral evidence, an interview with Mr Trevor Jones, the Chief Pilot/Chief Flying Instructor of RACWA, and interview notes taken in the course of an interview by CASA officers. Mr Fadlalla said he planned the flight from Jandakot to Geraldton and return in the M20J aircraft, and signed a hire authorisation document accepting the Terms and Conditions for the hire of that aircraft from RACWA.
We had in evidence a copy of that document and although some questions were raised about its authenticity because the photocopy does not clearly establish the date, the aircraft callsign is clearly apparent. It was aircraft VH-SPN. As Mr Fadlalla had not previously flown this M20J aircraft in the course of conducting his endorsement training, logically, as it was the aircraft involved in the incident as identified by Airservices Australia (ATC) on its return to Jandakot, and the time of signing the hire authorisation document was 7.50 a.m. on 19 February 2014, we accept that was the document evidencing hire of the aircraft in question. The document is signed by a person purporting to be the Authorising Instructor. The document also indicates that the instructor declared that appropriate documentation had been sighted. According to Mr Fadlalla, the authorising instructor was, he believed, Mr Jonathan Vanzetti (described by CASA as Mr Visconti). We note from the extract from Mr Fadlalla’s pilot logbook that Mr Vanzetti was a flying instructor and he flew with Mr Fadlalla on 7 October 2013 in a Cessna 172 aircraft.
Unfortunately, despite CASA raising some doubt about Mr Fadlalla not being authorised by his flight instructor to fly an aircraft other than a Cessna 172 aircraft and therefore concern being expressed as to how it came that he was authorised to hire the M20J aircraft, no evidence was taken from Mr Vanzetti. As we have already said, Mr Fadlalla does not seem to have focused on the legal aspects of concerns expressed by CASA and that is undoubtedly due to the fact that he was not legally represented. Had the investigation of this matter been properly conducted, we have no doubt that such evidence would have been produced.
Irrespective, Mr Anthony Carter, from the Legal Services Group of CASA, raised a number of issues about the hire authorisation document. In his written submissions, Mr Carter expressed concern about the total VDO (Hobbs Meter) time (4.8 hours) which he said did not correspond with Mr Fadlalla’s previously claimed flight times for the flights. Despite Mr Fadlalla’s evidence to the contrary, Mr Carter also submitted that the circumstances by which the signature of the Authorising Instructor was made upon the document remained unclear. He submitted no other evidence was produced regarding the identity of the person who signed that document, his role with the RACWA and what information was provided to him by the applicant. However, in interview notes which appear to have been prepared by Mr Trevor Jones, it is recorded:
As part of the sign out procedure Nagid covered weight and balance, weather forecasts, NOTAMS etc and seemed well prepared.
Mr Carter was also critical of the fact that Mr Fadlalla’s instructor who conducted the M20J endorsement training, Mr Ben Jackson, did not authorise the flight. Furthermore, the flight type was not noted on the form. While we did not have an explanation from Mr Fadlalla about those matters, it should be apparent that it could properly have been described as a private hire flight. That is of course assuming Mr Fadlalla had completed his endorsement training on the M20J aircraft and was entitled to have his logbook and pilot licence endorsed to that effect. He held a valid private pilot licence and had the recent experience requirements for the carriage of passengers. In light of the statement to which we have referred above by Mr Jones, Mr Carter’s claim that Mr Fadlalla should have produced evidence of a weight and balance check cannot carry much weight. If CASA had properly investigated the matter, it would have sought those documents at the time, not a substantial period after the event took place. We accept of course that the passengers’ names and weights are not listed on that form.
Mr Carter also submitted that Mr Fadlalla could not seek to excuse his behaviour by referring to the hire authorisation document which was signed by an Authorising Instructor because he was not permitted to operate the M20J aircraft for lack of a special design feature endorsement. Furthermore, he did not have his instructor’s (we assume Mr Jackson’s) permission to conduct the flight and was not permitted to carry passengers during his training.
With respect to Mr Carter, it is clear from the documents to which we have referred regarding Mr Fadlalla’s endorsement training and subsequent Check Flight that Mr Fadlalla had concluded his endorsement training. Accordingly, it could not be said that he was under training on the M20J aircraft on 19 February 2014. It could be said that he was consolidating his endorsement training or that he was simply gaining more experience hours but there seems to be no reason why he could not do that in his capacity as a private pilot. The hours he flew on that trip may or may not have counted towards RACWA/WAAC course hours as far as his commercial licence was concerned. Mr Jones said in his interview report that the next phase of flying for students at Mr Fadlalla’s stage was to complete hours building consolidation. In that capacity, there seems to be no reason why he could not carry passengers on a navigation flight, presumably subject to a flying instructor authorising the flight in the context of the hours flown being included as part of his commercial pilot course. The problem in this case is that there was no evidence from the Authorising Instructor indicating the basis upon which authorisation was granted. Nevertheless, it was granted.
Mr Fadlalla’s evidence in cross-examination was that he was properly authorised by the RACWA to hire the aircraft. In the absence of evidence to the contrary, we find that Mr Fadlalla was properly authorised by a flying instructor from RACWA to hire the M20J aircraft on 19 February 2014. Furthermore, we find that CASA was required to enter the special design feature endorsement in respect of the M20J aircraft in Mr Fadlalla’s personal logbook.
The flight from Jandakot to Geraldton was uneventful except for the fact that rather than departing at 10 a.m. as planned, the aircraft departed at about 12.47 p.m. That was due to a flat battery. We had in evidence a statement from Mr M Lawrence, Hangar Administrator, certifying that to be the case.
There was an issue about whether Mr Fadlalla, on either leg of his trip, flew the aircraft from the left or right hand seat. At some point during the flight, one of his passengers had become air-sick and, because no sick-bags were able to be located in the aircraft, the storm window on the left side of the aircraft was opened to enable the passenger to vomit outside of the aircraft. When queried about this incident by Mr Jones, Mr Fadlalla is recorded as having said that a passenger was sitting in the front left hand seat of the aircraft and that he had flown the aircraft as pilot in command from the right-hand front seat. In the course of an interview with CASA officers on 7 March 2014, Mr Cason Moss, in handwritten notes of the interview, wrote that one of the passengers on departure from Jandakot became sick and leaned over from the front right seat to be sick out of the storm window. However when further questioned and being referred to Mr Jones’s report of interview, Mr Fadlalla conceded he was sitting in the right-hand seat on that leg.
In its Statement of Facts and Contentions CASA contended that Mr Fadlalla belatedly accepted that he conducted both flights from the right-hand rather than the left-hand seat. Although we accept that Mr Fadlalla may have become confused at times and given different accounts as to when he flew the aircraft from the right-hand seat, we do not think anything significant arises from that. The fact is he admitted he flew the aircraft from the right-hand seat at some stage during the flight. The criticism levied at him by CASA for doing so was that he flew the aircraft from a control seat from which he was not qualified to fly. We accept there is no doubt about the fact that the pilot in command would normally or ordinarily operate the aircraft from the left-hand control seat.
It is true to say, as does Mr Carter, that in flying from the right-hand rather than the left-hand seat, Mr Fadlalla was doing so in a manner that was different to that by which he had been trained. However, it may be a step too far to say that Mr Fadlalla was not qualified to fly from the right-hand seat of the aeroplane. No CASA officer has pointed to a qualification being required to fly from the right-hand control seat of the M20J aircraft. Our research has not uncovered any regulatory material which mandates that a pilot in command must fly from the left-hand control seat. Plainly, in large two pilot aircraft operations where the aircraft is equipped with nose-wheel steering, that control is usually located on the left-hand side of the aircraft. That is a good reason for flying in command from the left-hand seat. However, the M20J aircraft nose-wheel steering is operated by the rudder pedals, on either side of the cockpit. In any event, in larger aircraft where two-pilot operations are the norm, the captain and the first officer usually fly leg for leg. The first officer usually occupies the right-hand seat and flies the aircraft from that position without any qualification or training to do so. It is also not uncommon where both pilots have a command rating for the pilot in the right-hand seat to fly the aircraft when it is his turn to do so.
Mr Mark Richardson, a Flying Operations Inspector with CASA provided what was described as a witness statement dated 16 March 2015. While we allowed that statement to go into evidence, strictly speaking Mr Richardson was not a witness to any of the events which are the subject of this matter. He did explain that he had no previous dealings or meetings with the applicant and was not involved in the initial CASA interview or investigations concerning these proceedings.
Another difficulty we have with Mr Richardson giving evidence in this matter is that he was employed by RACWA as a flying instructor between 1991 and 1997, and in 2005. Mr Richardson said he also managed and supervised flying operations for cadets from the Australian Defence Force Cadets and under that arrangement, was maintained by RACWA as a flying instructor and supervisor of flying operations involving 250 hours of flying and supervision yearly. In that sense, he cannot give expert evidence because he lacks independence. Despite that, he does have experience on the M20J aircraft.
The only statement which Mr Richardson made which is relevant to flying from the right-hand seat was that the seating and ergonomics of the cockpit were particular to that type of aircraft and take some time to get used to. With respect to Mr Richardson, that is true of every different aircraft type. He did not make a statement supporting CASA’s claim that a pilot had to be qualified to fly from the right-hand seat. He simply offered the opinion that Mr Fadlalla would have invalidated what limited experience he did have by operating the aircraft from the right-hand seat instead of the seating where he had conducted his training flight.
While we do not for one moment endorse Mr Fadlalla’s decision to fly the M20J aircraft from the right-hand seat on at least one of the legs of the flight on 19 February 2014, given that this was intended to be a VFR flight, the risks involved in doing so are not as significant as CASA has indicated. That is particularly so given that he had completed the endorsement training on that aircraft type and passed the check flight.
The return flight from Geraldton to Jandakot is the principal cause of CASA’s concern that Mr Fadlalla’s PPL and SPL should be cancelled. A report prepared by the Australian Transport Safety Bureau (ATSB) records Mr Fadlalla stating that the aircraft departed Geraldton at approximately 5.15 p.m. for Jandakot. Official last light on that day for YPPH (Perth airport) was 7.30 p.m. Western Standard Time. That allowed Mr Fadlalla 2 hours and 15 minutes or 135 minutes for the return flight in order to arrive at Jandakot before last light. The cruise speed for the M20J aircraft is 170 kts indicated airspeed. We are not certain about the altitude at which Mr Fadlalla flew on the return leg although in his response to the Show Cause Notice, Mr Fadlalla said that he was required to remain at 1,500 feet due to a Fokker aircraft flying over the top. He did not say when he was allowed to subsequently climb, or whether he in fact did so. Mr Fadlalla did say that his planned flight time on the return leg was 91 minutes. The distance between Geraldton and Jandakot direct is 244 nm. However the visual route from Geraldton to Jandakot is not a direct route but rather along the coast which would probably add about 10 nm to the total distance. Mr Fadlalla also said that he had a headwind on the way home which slowed him down significantly, adding some 5 – 10 minutes to his estimate at each of the checkpoints. Considering that the return flight was longer than planned by some 44 minutes, it is likely that he flew the entire journey at 1,500 feet. Regardless, for reasons which are not clear, he did not arrive prior to last light. It is not desirable or necessary for us to speculate why that may have been the case.
We had in evidence a visual terminal chart for the Perth and Jandakot area. According to ATC at Jandakot, aircraft SPN reported at POWR (Powerhouse), an inbound reporting point for visual approaches to Jandakot from the west, 2 minutes prior to last light. However ATC noted that SPN was in fact two nautical miles north of POWR. By our calculation, Mr Fadlalla had about 7 nm to run to get to Jandakot. Quite plainly, he could not make his destination prior to last light. ATC issued him with a clearance to track direct to Jandakot at 1,500 feet. The controller asked him if he required a clearance at 1,700 feet which was the lowest safe altitude (LSALT) in Class C airspace. However Mr Fadlalla did not respond. ATC recorded SPN tracking due east at 800 feet, passing to the north of Jandakot. When asked if he had Jandakot in sight, Mr Fadlalla said he did not. ATC then advised SPN that the aerodrome beacon was on. SPN then turned towards Jandakot which was visually acquired.
According to the ATSB report, Mr Fadlalla said that when ATC said they had turned on the aerodrome beacon, he tracked towards it. He said he could not see the runway and thought he was doing a normal circuit until ATC called and said he was not sighted. He said at that time he decided to go around and followed ATC directions, completing a circuit and making a normal landing. However, the ATC report is a little more graphic.
It states that SPN reported on base and was issued with a landing clearance although no-one in the tower could visually acquire the aircraft. SPN was asked to turn some lights on to help with identification. It still could not be spotted. SPN then appeared on 1nm final climbing over some trees. ATC issued a safety alert because of the proximity of terrain. According to the report, SPN went around and was instructed to remain in a left-hand circuit. However, on upwind, SPN commenced a right turn and was instructed to turn left for a left circuit, climbing to 1,000 feet. Although SPN appeared to climb to 1,500 feet, ATC took no action as it did not affect operations. 1,500 feet is the upper level of the Jandakot control zone. When on short final, SPN asked ATC if it was lined up for the correct runway. ATC advised it was and then instructed SPN to check its wheels. ATC recorded that SPN made a good landing and taxied to the southern apron.
The first approach made into Jandakot by Mr Fadlalla was observed by Mr Jackson who was at a holding point in another aircraft awaiting take-off clearance for night VFR circuits. Mr Jackson completed an incident report form which was in evidence. He said on the first approach, he observed SPN approaching runway 24R on a very low (estimated at 100 feet) base/finals turn. He heard ATC issue a terrain warning when the aircraft was on base/finals. Mr Jackson also noted that he had what he described as a quick debrief with Mr Fadlalla on the phone following that incident. However, we had no information regarding the contents of that debrief as Mr Jackson was not called to give evidence in this matter.
We also had in evidence a handwritten statement made by Mr D Cochrane, a flying instructor who was also waiting at the holding point. He said that at approximately 7.30 p.m. while at the holding point he heard ATC request that an aircraft turn on its lights so that it could be seen by the controller. He said the next call he heard from the tower was a terrain warning issued to SPN. He said initially when looking in the direction where the aircraft should have been, he could not see it until it appeared from behind a hangar, very low and well off the centre-line to the runway. He estimated its altitude to be 100 – 150 feet. He observed the aircraft going around following the warning given by the tower. He heard the tower instruct SPN to climb and enter a left-hand circuit. He said he was not sure if the aircraft started to turn right but the tower repeated the left turn instruction. He said he observed the aircraft on left base commencing a turn on to final and again said the aircraft appeared very low turning onto final at approximately 300 feet. He heard SPN ask the tower whether the aircraft was on the correct runway and following an affirmation from the tower, the tower also told the aircraft to check wheels. The aircraft was then cleared to land. He also recorded that the aircraft appeared to land long (that is a long distance from the approach threshold to the runway) and that the landing appeared to be reasonably safe. Mr Cochrane also recorded that on the following day, on examining SPN, he found that the transmit button on the right hand side was missing, the oil level was less than 6 L, there was sand in the elevators and stuck to the side of the fuselage, the cockpit was full of garbage and only one landing at Jandakot was recorded on the VDO.
While a PPL holder is permitted to fly at night (after official last light) under the VFR, a pilot wishing to conduct such a flight must hold a licence on which a night VFR rating has been endorsed except where the pilot is permitted under Part 5 of the CAR to fly an aircraft in a traffic pattern (that is, circuit training) (CAR 174C). The holder of a flight crew licence may apply to CASA for the issue of a night VFR rating for an aeroplane (CAR 5.13 (h)). There was no issue about the fact that Mr Fadlalla did not hold a night VFR rating. Therefore, even though only the last part of the return flight from Geraldton occurred shortly after official last light, it nevertheless resulted in a breach of CAR 174C.
In response to the Show Cause Notice Mr Fadlalla said he realised that last light was approaching when entering Lancelin airspace and particularly when he was close to Mullaloo Point. However, he said he really became worried when approaching the reporting point Powerhouse (POWR) when it became, as he described it, really dark. Mr Fadlalla accepted that he should have diverted on his return flight so that he could land before last light. He accepted that he had breached regulations. He also said that on return, he approached one of the flying instructors at RACWA and asked for help to make sure that such an event never happened again. Although Mr Fadlalla did not name that instructor in his response to the Show Cause Notice, a subsequent email from Mr Currey to Mr Fadlalla dated 7 April 2015 indicated he had spoken to a flying instructor, Ms Carrie Munro, about the incident.
The problem with what was said by Mr Currey in that email is it is plainly hearsay and we had no evidence from Ms Munro for the purposes of this hearing. While this Tribunal is not bound by the rules of evidence (Administrative Appeals Tribunal Act 1975 s. 33(1)(c) (the AAT Act)), because of the problems we have referred to above regarding the lack of relevant direct evidence, we should treat what is said by Mr Currey with some caution. In fact, what prompted Mr Currey to write the 7 April 2015 email was a request from Mr Fadlalla in an email to him dated 2 April 2015. While the expressions used in that email reflect Mr Fadlalla’s cultural background and incomplete command of the English language, it is our view that Mr Currey should have understood that he was requesting a statement from Ms Munro about their discussion when he returned from the flight in question. Mr Fadlalla in that email also asked if the information could be sent to CASA. However, Mr Currey’s responding email does not appear to have been copied to CASA. Furthermore, we had no evidence from any of the CASA officers who investigated the incident indicating that they had spoken to Ms Munro.
We have no doubt whatsoever that Mr Fadlalla’s landing after last light at Jandakot was a serious incident and it was extremely fortunate that nobody was killed or injured. However, it is our view that the causes of this incident are multiple and should not be solely attributed to Mr Fadlalla. It should also be viewed in the context of a relatively inexperienced pilot who, not having considered the possibility that his return flight from Geraldton might result in him being confronted with the problem of arriving after official last light, nevertheless was able to achieve a safe landing, albeit with some assistance from ATC.
Summary
Despite the statements made by various CASA officers who investigated this matter, it is clear from the evidence that Mr Fadlalla had completed endorsement training on the M20J aircraft on 31 January 2014. We should have had a statement of evidence from Mr Sturrock who completed his Check Flight but did not. Nevertheless, we had Flight Performance Records for each of his endorsement training flights, all of which disclosed that Mr Fadlalla progressed satisfactorily; culminating in the Check Flight conducted by a Grade 1 Qualified Flying Instructor (QFI) who recorded that every element required to be met was met at the required standard. Having satisfied the requirements for the issue of an endorsement for an aircraft with special design features, CASA was required to issue that endorsement by entering it in Mr Fadlalla’s personal log book. The fact that CASA had not done so by 19 February 2014 does not indicate any wrongdoing by Mr Fadlalla.
Mr Sturrock also noted that Mr Fadlalla was safe to fly the M20J aircraft solo. While the expression solo is not defined in the CAR (although it has now been defined in Part 61 of the CASR), it clearly means that Mr Fadlalla had been cleared to fly as pilot in command of that aircraft. Because Mr Fadlalla was a holder of a PPL and he satisfied the recent experience requirements for the purpose of carrying passengers, it cannot be said that he was not permitted to do so. The only problem is that it may not have been RACWA’s intention that its students could accumulate consolidation flying hours while carrying passengers. If that was the case, it plainly was not made clear to Mr Fadlalla. That should have been addressed by RACWA. There was no evidence that it was.
On 19 February 2014 Mr Fadlalla along with three passengers attended RACWA where he signed a hire authorisation document for the hire of an M20J aircraft, callsign SPN. That day was a Wednesday when it might be expected that there would have been a number of people present at the flying club. The hire of an aircraft from RACWA requires authorisation from an Authorising Instructor. The form also provides for the entry of a syllabus flight number by that QFI. The QFI is also required to declare that appropriate documentation had been sighted. No doubt that would involve ensuring that the hirer of the aircraft was properly prepared to conduct the proposed flight and was qualified to do so. It should have been established whether the flight was part of Mr Fadlalla’s training syllabus or whether it was simply a private hire. That part of the authorisation document was not completed. The passengers’ names were not entered on the form although no reason has been given for that omission. Had we had evidence from the Authorising Instructor, we may have had a much clearer picture of the basis on which this flight was allowed to proceed.
As for Mr Fadlalla flying the M20J from the right-hand seat, while we do not see that as a significant safety issue or a breach of any regulation with which we are familiar, Mr Fadlalla’s evidence was that he was not aware that under any circumstances he was not permitted to fly from the right-hand seat. While many aviators who have had reasonable experience in the industry simply accept that the command seat is the left-hand control seat where there are two control seats in the aircraft, it would not be unusual for an inexperienced pilot to not be aware of that. There was no evidence that this was made clear to Mr Fadlalla at any stage during his training. In any event, it was not a contributing cause to the landing after last light incident.
While it is not clear to us how many position reports Mr Fadlalla made on the return flight from Geraldton, there would have undoubtedly been some. That is because Mr Fadlalla said in his response to the Show Cause Notice that he was arriving 5 – 10 minutes later than estimated at all of his checkpoints (reporting points). He described making a radio call approaching Lancelin airspace and, presumably, at some point he must have given an estimated time of arrival (ETA) for Jandakot. It is surprising that ATC did not query whether he intended landing before last light, given that he lodged a VFR flight plan. If that did happen, we did not have any such evidence before us. Had such an enquiry been made by ATC, and Mr Fadlalla had been alerted to the fact that he may not make Jandakot prior to last light, ATC may have assisted him in diverting to a suitable airfield. In our experience, that would not be an uncommon practice.
CASA was critical of the fact that Mr Fadlalla, when reporting position at POWR (actual position being 2nm north of POWR), tracked direct to Jandakot from that position. In its closing submissions, CASA stated that Mr Fadlalla had used the outbound track rather than the inbound track when returning to Jandakot thereby increasing the risk of collision with outbound aircraft. The problem with that submission is the clearance he was given when making that request on reporting at POWR. ATC expressly stated: after being issued with a clearance DCT JT at A 015…. For the uninitiated, SPN was given a clearance to track direct to Jandakot at 1,500 feet. That clearance would not have been provided had there been conflicting traffic. Furthermore, ATC was aware that last light was two minutes away when that clearance was given. Plainly, it appreciated the urgency needed to get the aircraft on the ground safely.
CASA was also critical of the fact that Mr Fadlalla appeared to give contradictory evidence throughout the investigation of this incident. Examples given were whether he occupied the right-hand control seat on the flight up to Geraldton or on its return and whether he was able to turn on cockpit lighting. As we have already indicated, Mr Fadlalla admitted he did fly the aircraft from the right-hand control seat on at least one of the legs. As for the cockpit lighting, it is correct that Mr Jones noted following his interview with Mr Fadlalla that Mr Fadlalla did not know the location of instrument light switches and also did not have a torch (one might properly query why this was stated, given that a night flight was not planned). At the hearing, Mr Fadlalla said that the interior lights, by which we understood was a reference to cockpit lighting, were on. In his written submissions, Mr Carter pointed out that in the course of the hearing Mr Fadlalla indicated that the cockpit lighting was accessed via a switch on the console of the M20J aircraft when in fact the switch for that function is located on the control column stalk. Putting aside the fact that we did not have evidence about the location of light switches generally, our notes taken in the course of the hearing indicate that immediately prior to the question regarding interior lights, Mr Fadlalla agreed that he had no outside lights on. In fact, that was the main issue with ATC which could not identify the aircraft because it had no navigation or landing lights illuminated. It is easy to see that Mr Fadlalla may have been confused between the two sets of lights which, plainly, are independently operated.
Having considered in some detail the evidence which was available to us at the hearing, and mindful of the fact that significant evidence which may have assisted Mr Fadlalla, who was not legally represented, was not presented presumably for the reason that Mr Currey told instructors at RACWA/WAAC that they were not to provide any written statements, we find that responsibility for the incident in question should be shared by RACWA/WAAC and Mr Fadlalla. We are not satisfied that the investigation conducted by CASA was sufficiently thorough to allow it to come to the conclusion that it did. The only breach of regulations which we find occurred was that Mr Fadlalla flew an aircraft at night under the VFR while not holding a night VFR rating. He was plainly in breach of Reg 174C of the CAR. It follows that we find Mr Fadlalla failed in his duty with respect to the safe navigation or operation of an aircraft and hence the ground in Reg 269(1)(c) of the CAR is satisfied. While that ground alone enlivens CASA’s discretion to cancel Mr Fadlalla’s PPL and SPL, in the circumstances we have described above, we find it is not the preferable decision in this case.
It is our view that Mr Fadlalla’s inexperience led to him finding himself in a position where landing after last light became inevitable. While we have no doubt that this was a very serious breach of Regulations and could easily have had a disastrous conclusion, we have formed the view that Mr Fadlalla has well and truly learned a lesson from this experience.
FIT AND PROPER PERSON TO HOLD A PILOT LICENCE
The second basis upon which CASA relies for the cancellation of Mr Fadlalla’s PPL and SPL is that found in CAR 269(1)(d).
While the incident we have examined in detail above is the primary reason why CASA formed the view that Mr Fadlalla was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of a PPL and SPL, there are a number of additional matters to which we should refer which CASA also considered were significant. Prior to doing so, we should explain briefly what this means in a legal sense in the circumstances.
The meaning of the expression fit and proper person was explained by the High Court of Australia in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Toohey and Gaudron JJ said, 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. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In determining whether Mr Fadlalla is a fit and proper person to hold a PPL and SPL, we should also have regard to CAR 5.09(3). That regulation deals with the issue of flight crew licences and provides that in deciding whether an applicant for a licence is a fit and proper person to hold the licence, CASA must only take into account:
(a)any action taken by CASA, or a responsible organisation, in relation to any authority to perform duties essential to the operation of an aircraft during flight time that was given to the applicant by CASA, or the organisation; and
(b)any other matter that relates to the safety of their navigation.
In Repacholi and Civil Aviation Safety Authority [2003] AATA 573 (18 June 2003), the Tribunal held at [86]–[89] that in deciding whether a person is fit and proper for the purposes of CAR 269(1)(d), the matters which the Tribunal should take into account in determining that question may be wider than those matters which appear in CAR 5.09(3). With respect, we cannot agree. There are several reasons for this.
The first is that CAR 269(1)(d) refers to a person not being a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of an authorisation. In other words, the context in which Mr Fadlalla must be assessed to determine if he is a fit and proper person is in exercising and performing his functions and duties as a PPL and SPL holder.
The two matters set out in CAR 5.09(3) also direct attention to the operation of an aircraft during flight and other matters that relate to the safety of air navigation. In other words, CAR 269(1)(d) is consistent with what is set out in CAR 5.09(3). Therefore, taking into consideration matters which fall outside CAR 5.09(3) in the course of making a decision under CAR 269(1)(d) would have unintended consequences. For example, if CASA were to take into account matters of character which have nothing to do with the safety of air navigation, and cancel a person's flight crew licence under CAR 269(1)(d) on that basis, then there would be no reason why the holder of that licence could not immediately seek reissue of the licence under CAR 5.09(3). On doing so, CASA must disregard the very matter upon which the previous licence was cancelled and reissue the licence.
In its Show Cause Notice and its Notice of Cancellation of his PPL and SPL, CASA referred to Mr Fadlalla having stolen an iPad from WAAC. In its Statement of Facts and Contentions, CASA said that in a letter dated 20 April 2012 Mr Fadlalla was warned about the theft and later return of an iPad. We had a copy of that letter in evidence. After setting out the basis for dismissal from WAAC, it said:
I consider theft to be a severe breach of contract and any person found guilty of such an offence will be instantly dismissed from the College.
The issue of the disappearance of the iPad and its subsequent return is now in the past.
Mr Fadlalla has strenuously denied that claim, both at the time when he was accused of the theft and in the course of the hearing before us. While plainly, in our view, even if it were the case that he had stolen the iPad, it is not a matter which goes to determining whether he is a fit and proper person for the purposes of CAR 269. However, the accusation is indicative of the relationship which he had with WAAC/RACWA. It is also indicative of how the investigation was conducted by CASA. Both organisations said that Mr Fadlalla had stolen the iPad. However, it is plain from the material before us that no such theft was ever reported to police, nor was a theft established let alone that Mr Fadlalla was responsible for it. Mr Fadlalla’s evidence was that he was not a thief and did not steal the iPad. He said senior instructors from WAAC searched all of his belongings without locating it. He said he also allowed and insisted that they take it further and search his car and house. However that was declined. In his oral evidence Mr Fadlalla said that the iPad was found at 8 a.m. one day following the investigation and yet he did not go to the College until 12 p.m. on that day. That evidence was not disputed by CASA.
The fact that CASA treated the information regarding the theft of the iPad given to it by WAAC as if it were true without making any further enquiries is deeply disturbing. In fact it appears in its Statement of Facts and Contentions as if that had been established as a fact. It causes us concern about the relationship that the investigating officers from CASA have with RACWA/WAAC. No such relationship has been disclosed in any of the evidentiary material.
We had in evidence an email dated 26 February 2014 from Mr Jones to CASA (Mr Richard Green) where Mr Jones said that the reports about the incident on 19 February 2014, as well as the file notes from Mr Fadlalla’s personal file (attached to the email), led him to seriously question Mr Fadlalla’s ability to recognise and manage threats. He then said: Inclusion of these files will also give you an impression of [sic] student. We have no doubt that this material, in addition to the incident which occurred on 19 February 2014, forms the basis for CASA’s decision to cancel Mr Fadlalla’s licences on the ground that he is not a fit and proper person for the purposes of CAR 269. There are serious questions about its relevance.
In a file note dated 9 November 2012 it is noted that Mr Fadlalla had been absent from his CPL theory lectures for two weeks. Apparently Mr Fadlalla said that he tried to notify the Chief Ground Instructor (CGI) and left a message on the CGI’s voicemail. He was unaware that he should have notified the Student Liaison Coordinator despite being told in previous correspondence that was the procedure. Although Mr Fadlalla said he was ill for a week (although no sick leave note was produced) and he was selling his vehicle, he was apparently told that he displayed a lack of commitment which was essential for a commercial pilot. With respect to the writer of that note, it appears to be a non sequitur. It is simply an expression of irritation having to have Mr Fadlalla repeat CPL (Commercial Pilot Licence) lectures which he missed. It was noted that would delay his completion date.
The 9 November 2012 file note also records that Mr Fadlalla had been counselled regarding the ad hoc booking of flights. It pointed out that he was on the approved 150 hour course and that all flights needed to be approved by his instructor. The file note then said: Mr Fadlalla can exercise the privileges of his GFPT [General Flying Progress Test], but such flights do not form part of his training and are thus not GST exempt and need to be paid on the day. This statement supports what we have said about Mr Fadlalla’s right to hire the M20J aircraft without the need to have instructor approval. Quite plainly, RACWA/WAAC did make aircraft available for general hire outside students’ flight training syllabus.
When asked about his propensity to cancel scheduled flights, Mr Fadlalla agreed that he had cancelled flights on occasions but said it was due to adverse weather or weather reports, or he was not prepared for the flight. It seems to us that Mr Fadlalla had every right to do so even though it plainly caused dissatisfaction at the flying school. It was also apparent that Mr Fadlalla was having some difficulty paying for his flying instruction and amongst his documents we had some accounts which disclose just how expensive that training was.
We note that in an email dated 25 June 2012 Mr Currey wrote to Mr Fadlalla’s father in which he stated:
His [sic] completed his restricted pilot licence (GFPT) with an exceptionally high standard. His testing officer has put his name forward for the Tom Miller Scholarship. Only those students that are in the top 10% qualify for nomination.
In that email Mr Currey also explained that Mr Fadlalla was letting himself down in theory exams. He was required to repeat the PPL theory which he failed in his first attempt.
Mr Currey again wrote to Mr Fadlalla on 7 December 2012 referring to discussions had at a meeting on that day. Mr Currey noted that his attendance at the College had been erratic and he had failed to honour bookings for flights on a number of occasions, resulting in a cancellation fee being charged. He said he had become known as an unreliable student and that instructors did not want to fly with him because of his failure to arrive for a scheduled flight. Mr Currey noted Mr Fadlalla did not study with other students and that he had the ability to do well but his exam results were not indicative of his ability.
In his response to the Show Cause Notice, Mr Fadlalla said that he didn’t have many friends in his class at RACWA and he did not speak or socialise with them because he was there to succeed. He said he could tell that they didn’t like him much and believed that persons in his class entered his name on the iPad which he was claimed to have stolen as a joke.
Despite that, Mr Currey said Mr Fadlalla had good hand/eye coordination and that his flying ability was good. He accused Mr Fadlalla of avoiding work, failing to prepare for a flight and not displaying the work ethic required by pilots. Mr Currey also said that Mr Fadlalla had never observed a flight from the back seat to save costs. He advised Mr Fadlalla to adopt a schedule of goals for passing the PPL flight test and passing each of CASA’s CPL exams.
Mr Currey concluded by saying that unless there was a dramatic improvement in Mr Fadlalla’s performance, the College would have no option other than to terminate his training immediately. He said he did not want to take this drastic step but that having wasted too much of his time, his father’s money, the instructor’s time and the College’s assets, he was not prepared to allow this to continue. The clear impression from this letter is that Mr Currey was concerned about the economic impact on RACWA/WAAC rather than Mr Fadlalla’s sought after pilot career. Despite what Mr Currey said, Mr Fadlalla was granted the PPL on 31 July 2013, having successfully completed the flight test on 12 July 2013.
It appears that this material to which we have referred at [73] was what Mr Jones referred to in his email of 26 February 2014 to CASA. With respect, we do not understand how what have been described as behavioural issues at the RACWA led to serious concerns about Mr Fadlalla’s ability to recognise and manage threats.
The email of 26 February 2014 also informed CASA that RACWA had decided to cease training for Mr Fadlalla and to recognise deficiencies in its internal procedures. While the deficiencies referred to by Mr Jones were not identified, it should be apparent from our findings in respect of the incident on 19 February 2014 that there are a number of matters which need to be addressed by RACWA.
It appears that Mr Fadlalla appealed against his dismissal but in a letter dated 12 March 2014, Mr Currey, who signed as principal of WAAC, said that while his appeal letter was compelling, he could not find justification to reverse the decision. Mr Currey said:
Nagid, your hand-eye coordination is good which allows you to fly an aircraft well. However, your decision making ability lacks the appropriate level required by a commercial pilot. Commercial pilots are required to be constantly aware of many factors to ensure safety is always the highest priority. I do not believe that you have the ability to maintain this level of safety awareness at all times. After significant consultation, it is the belief of the College that you do not possess the skills required to be a safe commercial pilot. Accordingly, all further training at the College and at the Club has been cancelled.
Despite the letter written by Mr Currey on 12 March 2014, it appears that RACWA/WAAC continued with Mr Fadlalla’s training for the CPL for at least one month after the 19 February 2014 incident. Why it did so remains unexplained. In an email sent to Mr Fadlalla by Mr Currey on 28 April 2014, he said:
I confirm that there has been a marked improvement in your attitude to your training in recent months. You have shown the work ethic required to pass your commercial pilot theory exams and this has resulted in you passing these exams.
Furthermore, Mr Currey sent an email to Mr Moss from CASA on 10 June 2014 in which he said:
I attach an email I sent to Mr Fadlalla at his request. He wanted me to state that his flying had improved and that I should recommend that CASA reinstate his licence. I told him that our position remains that he is unable to make the appropriate command decisions whilst in the air. I acknowledged that he had “grown up” during the past couple of months – largely due our instructors taking on a parenting role!
…
I do believe that Nagid has had a long overdue wake-up call and might have learnt from his experience.
The lack of apparent logic in the two emails we have referred to above plainly needed an explanation from Mr Currey. We did not have that. Furthermore, if RACWA/WAAC or any of its instructors had serious concerns about Mr Fadlalla’s decision-making whilst airborne, we would have expected that to have been recorded in flight test reports or training reports. We had no such material citing adverse decision-making in evidence before us. In fact, the few reports which we had in evidence before us suggest the opposite.
Although Mr Fadlalla failed his first flight test for the PPL, that was for the reasons that he failed to navigate the aircraft to the required standard as well as recognise and manage (navigation) errors. Even on that flight, under the heading Airmanship, his ability to assess situations and make decisions and set priorities and manage tasks was said to be satisfactory. He passed the flight test for the PPL on the second attempt and again, all of the matters assessed under Airmanship were said to be satisfactory. We also had in evidence all of his Flight Performance Records for his endorsement training on the M20J aircraft as well as the flight test. All of those reports record that Mr Fadlalla met the required standard when it came to assessing situations and making decisions. There are no adverse comments about his decision-making ability. The inconsistency between what his flying instructors reported and what Mr Currey claimed were his failings are glaringly obvious.
In its Show Cause Notice dated 14 April 2014 prior to cancelling Mr Fadlalla’s PPL and SPL, CASA referred to the meeting he attended with CASA officers on 7 March 2014 stating that:
a. you were not truthful and forthcoming about the facts and circumstances surrounding the incident on 19 February 2014 and your qualifications; and
b. you were not truthful about your history as an aviation student at WAAC by stating that you were never involved in any disciplinary actions until CASA officers presented you with evidence to the contrary.
The first obvious problem with the above statements is that they are based on interview notes made by Mr Cason Moss, a CASA Certificate Management Team 1 Team Leader (CMTL1), but Mr Moss was not available for cross examination at the hearing. Although there were other CASA officers present at the meeting (FOI Wayne Tempany and FOI Richard Green), only Mr Tempany provided a witness statement. However, shortly prior to the hearing, we were informed that Mr Tempany was ill and would not be available to participate in the hearing. Belatedly, we had a witness statement from Mr Mark Richardson, also a FOI, who said he had no previous dealings or meetings with Mr Fadlalla and was not present at the initial CASA interview or investigations concerning this matter.
Having examined the evidence with some care, we find that CASA’s decision to cancel Mr Fadlalla’s PPL on the ground that he was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a pilot licence was not the preferable decision. In fact, we find that the evidence does not establish that he is not a fit and proper person to hold a pilot licence.
CONCLUSIONS
CASA exercised its discretion to cancel Mr Fadlalla’s PPL and SPL because it found:
(a)Mr Fadlalla had failed in his duty in a matter affecting the safe operational navigation of an aircraft; and
(b)Mr Fadlalla was not a fit and proper person to be the holder of the relevant licences.
Regarding (a) above, this finding was based on the actions Mr Fadlalla took in the course of a flight on 19 February 2014 in an M20J aircraft. CASA claimed Mr Fadlalla:
(c)was not trained or qualified to fly at night;
(d)was not qualified to fly the M20J aeroplane;
(e)was not qualified to fly from the right-hand seat of the aeroplane;
(f)was not authorised to fly to the aerodrome in Geraldton; and
(g)had three passengers on board the aeroplane whose lives were put at risk.
We have found that Mr Fadlalla was not qualified to fly at night because he did not hold a night VFR rating as required by CAR 174C. He did not deliberately set out to fly at night but did so nonetheless due to delays in departure from Geraldton; an extended flight time which Mr Fadlalla claimed was due to headwinds; and failure to determine prior to embarking on that flight the time when official last light would occur.
We do not agree with CASA that Mr Fadlalla was not qualified to fly the M20J aircraft. He undertook and completed the appropriate flying training for a special design endorsement required for that aircraft. He also satisfied a Grade 1 QFI who conducted an endorsement test flight that he was safe to fly that aeroplane as pilot in command. Although CASA claimed that the endorsement had to be entered in to Mr Fadlalla’s personal log book before he could lawfully operate that aircraft as pilot in command, that action was outside of his control. In fact, having met the flying training requirements and having passed the flight test for the endorsement, CASA was bound to make the endorsement in his personal log book. CASA gave no explanation for the delay in endorsing his log book.
CASA has not explained what qualification is required for a pilot in command to fly an aircraft with dual controls from the right-hand seat. We are unable to locate any such regulatory requirement. While we accept that is the convention and is sometimes necessary in certain aircraft, in an aircraft such as the M20J, operating under the VFR, we do not see that as being significant as far as flight safety is concerned.
We do not agree with CASA that Mr Fadlalla was not authorised to fly to Geraldton. While that flight may not have counted for his flying training with RACWA/WAAC for his CPL, an Authorising Instructor signed the hire authorisation form after checking that Mr Fadlalla had completed and was carrying all appropriate documentation. He held a valid PPL and was authorised to fly the M20J aircraft as pilot in command.
CASA is correct in stating that there were three passengers on board on the flight undertaken by Mr Fadlalla on 19 February 2014 and that their lives were put at risk because Mr Fadlalla appeared not to have taken into account the time when official last light occurred on that day and that caused him significant problems in locating Jandakot airfield and performing a safe landing. He did so with the assistance of ATC. Although he did not inform ATC that he did not hold a night VFR rating, that is understandable in the circumstances and the pressure which Mr Fadlalla must have been under when attempting to land. We also take account of the fact that Mr Fadlalla’s flight experience levels at that time were low.
Nevertheless, we are satisfied that the significance of the danger in which he put himself and his passengers has been absorbed by Mr Fadlalla and that he is not at risk of repeating such a flight. Nor do we find that his actions taken on that flight are indicative of his attitude to the safety of air navigation or his inability to recognise and manage threats. We had no evidence from any of his flying instructors to that effect and the few flight test reports we had in evidence make no mention whatsoever of such inability. In fact, they record a satisfactory performance on those measures.
We were concerned by the use of Mr Fadlalla’s personal files by CASA and RACWA/WAAC to discredit his character. None of those matters have anything to do with flight safety or the operation of an aircraft during flight time. They are concerned with issues that RACWA/WAAC had with a customer in a commercial context. Those matters are simply not relevant in determining whether Mr Fadlalla is a fit and proper person to hold a pilot licence. Furthermore, we should say that we were appalled by the way in which CASA/RACWA/WAAC regarded as a fact that Mr Fadlalla was dishonest and had stolen an iPad. No such theft was proved against Mr Fadlalla and he has, from the outset, strenuously denied having stolen that device. There was no evidence of a police investigation or conviction. Yet CASA, in its Show Cause Notice and in its Notice of Cancellation has treated that as a fact.
We were similarly concerned with allegations that Mr Fadlalla lied to CASA officers in the course of his interview with them on 7 March 2014. It appears that no account was taken of Mr Fadlalla’s ethnicity and background let alone his imperfect command of the English language. To cap it off, CASA was unable or unwilling to make good those allegations by evidence from persons who were present at the meeting. We should also express concern about the lack of evidence from persons directly involved in Mr Fadlalla’s flight training. It disappoints us that CASA did not insist on obtaining such evidence despite Mr Currey being unwilling to allow those persons to give evidence following Mr Fadlalla’s request that they do so. We should not have to remind CASA of its obligations under s. 33(1AA) of the AAT Act.
We find that Mr Fadlalla is a fit and proper person to have the responsibilities and to exercise and perform the functions and duties of a holder of a pilot licence.
It follows that we find CASA’s decision to cancel Mr Fadlalla’s PPL and SPL was not the preferable decision. We set aside that decision. The effect of our decision is that Mr Fadlalla’s PPL and SPL remain valid and must be treated as never having been cancelled.
Although Mr Carter in his closing submissions suggested there would be no utility to set aside the cancellation of Mr Fadlalla’s SPL because of changes made to the regulatory framework by the commencement of Part 61 of the CASR which effectively substituted a recreational pilot licence (RPL) for the SPL, respectfully, we do not agree. That is because s. 43(6) of the AAT Act provides:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
Accordingly, the effect of our decision is that Mr Fadlalla’s aviation record needs to be corrected so that no cancellation of either the PPL or SPL is recorded.
By way of a postscript to our decision, for Mr Fadlalla to complete his flying training for the CPL, he should enrol with an approved flying training organisation other than RACWA/WAAC. His flight training records from RACWA/WAAC should be transferred to the new training organisation in accordance with reg 141.280(2) of the CASR.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member, and Warren Evans, Member ..............................[sgd]..........................................
Associate
Dated 15 May 2015
Date of hearing 26 March 2015 Date final submissions received 8 April 2015 Applicant In person Advocate for the Respondent Mr A Carter Solicitors for the Respondent Civil Aviation Safety Authority
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