Roostam Sadri and Civil Aviation Safety Authority
[2012] AATA 656
•28 September 2012
[2012] AATA 656
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2010/3868 and 2011/2435
Re
Roostam Sadri
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis and
Senior Member E FiceDate 28 September 2012 Place Adelaide The decisions under review are affirmed.
...... [Signed] ......
Deputy President D G Jarvis
CATCHWORDS
CIVIL AVIATION - Cancellation of pilot licences - failure on applicant's duty re safe operation of aircraft - whether applicant a fit and proper person to hold licences - decisions under review affirmed.
LEGISLATION
Civil Aviation Regulations 1988 (Cth), r 269(1)(c) and (d)
CASES
Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Bushell v Repatriation Commission (1992) 175 CLR 408
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Re Johanson and Civil Aviation Safety Authority (2012) 127 ALD 195
Re Lavery and Registrar, Supreme Court (Qld) [No. 2] (1996) 23 AAR 52
Re Taylor and Department of Transport (1978) 1 ALD 312
Repatriation Commission v Smith (1987) 15 FCR 327Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Deputy President D G Jarvis and
Senior Member E Fice28 September 2012
The applicant, Roostam Sadri, previously held a private pilot (aeroplane) licence (PPL) and a student pilot (aeroplane) licence (SPL). The respondent, the Civil Aviation Safety Authority (CASA) suspended Mr Sadri’s licences by notice dated 20 May 2008, and required him to undertake an examination to demonstrate that he continued to possess the aeronautical skills and knowledge appropriate to the holder of a PPL. On 27 August 2010 a delegate of CASA made a decision (the first reviewable decision) to revoke the suspension of Mr Sadri’s licences, and vary his PPL by imposing a condition requiring in effect that he be required to pass a PPL flight test conducted by a CASA officer every 12 months from 1 September 2010, and if such a test were not held or passed in that timeframe, the PPL did not authorise any flight until such a test was passed.[1] Mr Sadri has applied to this tribunal, in matter number 2010/3868, for review of the first reviewable decision.
[1] Exhibit R1, T3, page 3.
Subsequently, a delegate of CASA decided on 14 June 2011 (the second reviewable decision) to cancel Mr Sadri’s SPL and PPL on the grounds referred to in reg 269(1) of the Civil Aviation Regulations 1988 (Cth) (CAR).[2] Mr Sadri has applied for review of that decision in matter number 2011/2435. The two matters were heard together.
[2] Exhibit R2, T3, page 10.
ISSUE BEFORE THE TRIBUNAL
At the hearing of the proceedings, counsel for Mr Sadri, Mr J Anderson, acknowledged that a ground existed under CAR 269(1) for CASA to suspend or cancel Mr Sadri’s licences, but proposed that the reviewable decision should be set aside, and this tribunal should decide instead that: (a) Mr Sadri should retain his SPL; (b) he should undertake further training with an approved flying training school as outlined by two witnesses called in support of his case; and (c) that following such training and on the recommendation of the chief flying officer of the flying school involved, Mr Sadri should present himself for a further PPL licence test in a single engine aircraft.[3]
[3] See Exhibit A7.
CASA opposed the proposal referred to in the preceding paragraph, and maintained that the second reviewable decision to cancel Mr Sadri’s licences should be affirmed. In the alternative, if the tribunal decided that Mr Sadri could retain his SPL, CASA suggested the imposition of more stringent conditions, to which we will refer below.
There is accordingly no issue between the parties that Mr Sadri’s PPL should be cancelled, and the only issue before the Tribunal is whether his SPL should be varied, suspended or cancelled, they being the alternative discretions referred to in CAR 269(1).
BACKGROUND
The following background facts are not in contention, and are based on the evidence of Mr Sadri and documentary material before us.
Mr Sadri is 67 years of age. He was born in the Xinjiang region of China, and migrated to Australia in 1976 at the age of 30. He attained a Bachelor of Arts from the University of Adelaide in three years, and then gained an Honours degree. After that, he completed a two-year MBA course at the Australian Graduate School of Management. Between 1982 and 1995, he worked in Germany, Saudi Arabia and then Russia, having in the meantime spent a year in Australia in 1986.
He returned to Australia in 1995, and late in the following year purchased the assets of the South Australian Meat Corporation. He ran this business until the year 2000, and subsequently redeveloped the site of the Corporation as a shopping centre. He has also developed a ski resort at Mt Hotham, and acquired a development near Hobart, which will entail developing a site of some 32 hectares for housing, a hotel and a shopping centre.
In 2007 Mr Sadri was issued with a SPL, and began learning to fly as a step towards fulfilling a long-held dream to purchase an aircraft and fly as a convenient way of travelling. He purchased a twin engine Diamond Twin Star DA42 aircraft in September 2007, and spent time training for that aircraft in Austria, where the aircraft was manufactured, using a flight simulator. He was issued with a PPL on 21 December 2007. He obtained an endorsement on 6 March 2008 authorising him to fly his multi-engine aircraft with retractable landing gear.
Mr Sadri’s PPL training had been conducted by Bruce Hartwig Flying School on a single engine, fixed undercarriage, aircraft. Shortly after being granted a PPL, Mr Sadri asked Mr Norris of that flying school to conduct his training on the DA42. Mr Norris refused on the grounds that he considered that Mr Sadri needed to consolidate his aviation skills and to gain further experience before undertaking multi-engine aircraft training. As a result Mr Sadri went to Adelaide Flight Training for the purpose of obtaining a multi-engine endorsement with retractable undercarriage in a DA42 aircraft.
About two months after being granted a PPL, on 16 May 2008, Mr Sadri was involved in an incident at Parafield Airport on a flight from Mt Hotham which gave rise to Air Services Australia issuing two electronic safety incident reports (ESIRs), one from the tower controller at Parafield and the other from the approach radar controller at Adelaide. The tower controller reported Mr Sadri as flying into the Edinburgh CTR (control zone) without air-traffic control clearance[4], and the radar controller reported that he climbed into the Adelaide CTA (control area) without clearance. [5] At that time Mr Sadri was not permitted to fly into a control area or control zone as pilot in command as he did not have the requisite endorsement on his PPL. He did not hold an instrument rating, and weather conditions at the time of his approach to Parafield indicated that conditions were not suitable for VFR flight, due to low cloud base and visibility in the Adelaide/Parafield area. The Parafield controller also observed him entering into and leaving cloud in the course of this flight.
[4] Exhibit R1, T5, page 38.
[5] Exhibit R3, Attachment DC-1.
Very soon after this incident, on 20 May 2008, Mr Sadri’s licences were suspended pursuant to CAR 265 pending the results of examinations which he was required to undertake, namely a ground theory and flight examination to demonstrate that he had the requisite aeronautical skills and knowledge to act as pilot in command under the visual flight rules.[6]
[6] Exhibit R1, T7, page 46.
On 2 June 2008, Mr Sadri failed to pass a theory examination,[7] but did pass it on 26 June 2008. He failed to pass practical flight examinations conducted from Parafield Airport in his Diamond Twin Star DA42 aircraft on 2 July 2008 and 9 September 2008.[8] Mr Sadri then failed a general flying progress test on 22 May 2009, but passed such a test on 25 July 2009.[9] On 9 July 2010 he failed to pass a PPL flight test,[10] but passed a PPL test on 13 August 2010.[11]
[7] Exhibit R1, T11, pages 65-66.
[8] Exhibit R1, T14, page 71, and T3, pages 6-8, paragraphs 17-20 and pages 12-13, paragraphs 26-27.
[9] Exhibit R1, T33, page 155 and T34, page 160, and T3, page 13 at paragraph 29.
[10] Exhibit R1, T44, page 250.
[11] Exhibit R1, T43, page 248.
In the meantime, on 22 September 2008, CASA had sent Mr Sadri a notice pursuant to CAR 269(3) allowing him to show cause why his licences should not be suspended, varied or cancelled on the basis of the facts and circumstances detailed in the notice.[12] The facts referred to included reference to the incident at Parafield on 16 May 2008, the issue of ESIRs as a result of that incident, his failure to pass the theory examination on 2 June 2008 and his failure to pass the practical flight examination on 2 July 2008. It also referred in detail to competencies that he assertedly failed to demonstrate during the flight tests, and also deficiencies identified by a flying school in Victoria which Mr Sadri had attended in August 2008.
[12] Exhibit R1, T22, page 91.
A barrister instructed by Mr Sadri provided a detailed response dated 26 November 2008 to the show cause notice.[13] Mr Sadri also requested a show cause conference, and there is reference in an email dated 15 January 2009 from his barrister to CASA that a conference would be held on 29 January 2009.[14] The T-documents do not include a copy of the minutes of that conference. Further communications between Mr Sadri and CASA ensued, including a supplementary show cause notice dated 19 December 2008 from CASA, and a response dated 23 December 2008, and it appears that a decision by CASA was deferred on Mr Sadri advising that he was prepared to undergo further flight tests as outlined by CASA.[15]
[13] Exhibit R1, T25, page 108.
[14] Exhibit R1, T31, page 153.
[15] Exhibit R1, T31, page 153, and T30, page 151.
After receiving further training, Mr Sadri passed a PPL flight test on 13 August 2010. A delegate of CASA accordingly made the first reviewable decision dated 27 August 2010, which was to revoke the suspension of Mr Sadri’s pilot licences, but vary his PPL by imposing a condition that he be subject to passing a flight test conducted by a CASA officer every 12 months.[16]
[16] Exhibit R1, T3, page 15.
Four months after the first reviewable decision, Mr Sadri was involved in a second incident which resulted in a further ESIR. This occurred on 27 December 2010 at Moorabbin Airport. The ESIR asserted that Mr Sadri misdescribed his position when he called inbound, appeared unsure of arrival procedures, made a steep close approach and touched down two thirds of the way along the runway.[17]
[17] Exhibit R3, Attachment DC-3. The text of the ESIR is set out in paragraph 33 below.
On 22 January 2011 there was a third incident at Moorabbin Airport that resulted in a further ESIR being issued by Air Services Australia. This ESIR asserted in effect that Mr Sadri failed to comply with ERSA requirements for entry into Moorabbin Airport, in that he was instructed to enter a controlled zone, but did so at an altitude of 1500 feet instead of 1000 feet as required by ERSA.[18]
[18] Exhibit R3, Attachment DC-4. See further, paragraph 34 below.
CASA sent Mr Sadri a further show cause notice dated 23 February 2011,[19] and he responded by letter dated 22 March 2011,[20] and through his solicitor by submissions dated 4 and 18 April 2011.[21] In the second reviewable decision, which is dated 14 June 2011, a delegate of CASA decided to cancel Mr Sadri’s licences. Mr Sadri applied for a stay of this decision, and was granted a stay by this tribunal insofar as it related to his SPL, to allow him an opportunity to undertake a practical flight test. The stay was granted on the condition that the first flight was to be conducted with a flying instructor on board, and any subsequent flights undertaken by Mr Sadri would only be conducted with the prior permission of a flight instructor.
[19] Exhibit R2, T5, page 23.
[20] Exhibit A1.
[21] Exhibit R2, T9, pages 51-54 and Exhibit A10.
A fourth incident, which also gave rise to the issue of an ESIR, occurred on 27 June 2011, when Mr Sadri conducted a flight as pilot in command of his aircraft from Parafield to Tamworth.[22] The incident resulted from a claimed failure of the transmit function of the radio in his aircraft, which prevented him from communicating with air traffic control at Tamworth. CASA asserts that in the circumstances he was required to divert to one of two other airports, but instead entered the control airspace at Tamworth and landed there.
[22] Exhibit R4, Attachment SG-1. See further, paragraph 43 below.
CASA investigated certain other earlier events, and in October 2011 issued three infringement notices in respect of these events. The first infringement notice asserted that between 28 September 2010 and 28 June 2011 Mr Sadri had commenced flights with his aircraft when maintenance that was required to be carried out for the commencement of the flights had not been certified in accordance with relevant regulations, in that certain backup batteries were “due” on 28 September 2010. The second infringement notice asserted that between 19 November 2010 and 28 June 2011 Mr Sadri commenced flights in his aircraft when maintenance that was required to be carried out before commencing a flight, namely a six-month a/c battery was “due” on 19 November 2010, had not been certified as having been carried out. The third infringement notice asserted that between 29 May and 28 June 2011, Mr Sadri commenced flights in his aircraft when maintenance that was required to be carried out before the commencement of the flights, namely the 100-hourly maintenance inspection, had not been certified as required[23]. Mr Sadri paid the fines required by the infringement notices on 15 November 2011. They entailed in each case a penalty of $550 and three demerit points in accordance with the Demerits Points Scheme provided for in Division 3D of Part III of the Civil Aviation Action Act 1988 (Cth) (CA Act).
[23] Exhibit R6, Statement of Shaun Barry Bennetts, Annexure SB-2.
On 5 December 2011 a practical flight test was conducted by Flight Trainee Examiner Francis (Frank) Page.[24] The delay in conducting this examination apparently occurred because maintenance had been required on the aircraft. Mr Sadri failed this examination. He then undertook further training with the witness David Baddams in February 2012 for approximately eight hours, and also spent a further 30 hours approximately with him reviewing regulations, techniques and procedures.
[24] Exhibit R4, Witness Statement of Stephen Bruce Guerin, Attachment SG-5.
Contentious matters
We have given a brief, largely chronological outline above of matters that are potentially relevant to the exercise of our discretion under CAR 269(1). The various matters are referred to in the respondent’s Statement of Facts, Issues and Contentions, and are relied upon by CASA in support of its reviewable decisions. We will now refer in further detail to the four specific incidents which gave rise to ESIRs, and to other matters relied upon by CASA.
Incident on 16 May 2008: Counsel for Mr Sadri, Mr Anderson, conceded in his opening that on approaching Parafield on a flight on 16 May 2008 from Mt Hotham, Mr Sadri flew into instrument meteorological conditions, and proceeded to land in conditions that were below minima for VFR. It was further conceded that he had made a number of mistakes which were cumulative, and he accepts that the mistakes were serious. It was asserted on his behalf that he has learnt from his mistakes, and would not make the same mistakes again.
We referred above to the ESIRs in respect of this incident. The Parafield tower controller issued an ESIR in the following terms.
Exec Summary:
DSR arrived Parafield in conditions considerably less than VMC infringing controlled airspace, both the Adelaide and Edinburgh CTR’s
Description:
0235 Adelaide APP E called advising of an unidentified Radar return just N of Birdwood at A025 apparently inbound to PF not replying to Adelaide or Melbourne transmissions. 0240 ACFT appears on TSAT inbound to SUB at A030 unverified
0248 Acft overflew SUB into Edinburgh CTR, did not squawk ident when requested. 0250 Established one way comms with Acft, carrier wave only in reply. 0251 Acft pointed toward Parafield letting down + VIS approx 2,000 Metres Cloud SCT 600’, BKN 1,000’ 0252 Advice issued to acft about his position relative to the airfield, told the wind and advised that any runway was avbl. 0253 Acft spotted W of the field in and out of cloud. Then flew to S then E of the field down to 600’ The terrain in that position would be 2-250’ and the area is built up. The acft was warned about continuing NE due high terrain and subsequently turned left base 21L. 0256 Acft spotted over the aerodrome boundary fence on final 21L. 0257 Acft landed 21L and identified as DA42 DSR. 0302 After parking acft captain established two way comms with Parafield Ground stating that he had a U/S headset.[25]
[25] Exhibit R3, Attachment DC-1.
The approach radar controller at Adelaide also issued an ESIR in respect of this incident, in the following terms.
Exec Summary:
A VFR flight 15 nm north east of Adelaide climbed into terminal controlled airspace without an airways clearance. The aircraft was not in communition [sic] with ATC. Weather observations indicated that conditions were not suitable for VFR flight.
Description:
The Adelaide Approach Radar Controller observed a VFR return 45 nm east of Adelaide at 1500 feet tracking in a westerly direction. Due to the forecast and reported low cloud base and visibility in the Adelaide/Parafield area attempts to contact the aircraft via all possible VHF frequencies were made without success. The progress of the aircraft was monitored and was observed tracking towards high terrain in the general direction of Parafield. The mode c altitude data fluctuated between 1500 ft and 2500 ft (outside controlled airspace). The cloud base at Parafield was 800 ft and 600 feet at Adelaide. The visibility was reduced to 4000m or less m in rain. The Radar Terrain Clearance Chart indicated a minimum safe altitude of 3000 feet in the vicinity of the aircrafts flight path. When the aircraft was 8nm east of Parafield the mode c indicated a climb to 3000 ft. The base of CTA is 2500 ft. The aircraft maintained straight and level flight at 3000 feet and tracked directly to overhead Edinburgh. It then turned left tracking direct to Parafield and let down from 3000 feet to approaximately [sic] 700 feet entering the circuit at Parafield on a left downwind leg for runway21 and subsequently landed safely.[26]
[26] Exhibit R1, T5, page 38.
This incident involved Mr Sadri not only flying in instrument meteorological conditions (IMC) while not instrument rated, but apparently also entering into cloud and relying on the autopilot to control the aircraft. As mentioned above, he entered Edinburgh CTR without clearance and without an endorsement on his licence to fly in controlled airspace. In addition, this was done without two-way radio communications with any ground station. He did not “squawk ident” despite being requested to do so by an air traffic controller, and the evidence indicates he was able to receive communications from the ground. By squawking ident on his transponder, Mr Sadri would have enabled the ground station to positively identify his aircraft on radar and its position. This would have at least given the air traffic controller some certainty about diverting other traffic to avoid collision. He also penetrated Adelaide CTA without clearance and without authority to do so as a private pilot without an instrument rating. The mode c data from his transponder indicated flight at below minimum safe altitude for IFR flight. This provides the radar controller with a continuous read-out of the aircraft's altitude. Much of the latter part of this flight was conducted in IMC with the aircraft seen entering and leaving cloud. It is very fortunate that he avoided collision with the ground in populated areas.
In his evidence, Mr Sadri gave the following account of the circumstances in which the incident occurred. At the time, he had only had a total of 26 hours flying time as pilot in command on 10 flights. He checked the weather at 6:00 am before leaving Mt Hotham, and there was insufficient evidence for him to cancel his flight to Parafield. However, he encountered head winds that were much stronger than he had anticipated, and this led to higher fuel consumption. As he approached the Adelaide Hills he saw that the cloud cover was worsening, but the hills were still visible. He then encountered cloudy weather and quite strong turbulence over the hills, which he had not previously experienced. He arrived in instrument meteorological conditions. He concentrated on the instruments in his aircraft, did a full circuit and landed at Parafield. After he landed, he realised that his radio was not transmitting. He said that with the benefit of hindsight he would not have pressed on to Parafield, but would have diverted to Murray Bridge, and he admitted in cross-examination that there was nothing to prevent him diverting to Murray Bridge after the weather deteriorated.
In cross-examination Mr Sadri was also asked about whether he obtained a weather report when planning his flight. He said he did and when asked how, he said that he obtained it from a program on his computer. He could not recall the weather conditions which were forecast at the time he planned his flight. CASA obtained the area forecast and terminal area forecast (TAF) for the time of Mr Sadri's arrival at Parafield.[27] That forecast indicated that the Adelaide Hills would have been enveloped in cloud and VFR flight across those hills would not be possible. According to the area forecast, broken stratus clouds between 1500 feet and 2500 feet above mean sea level with rain, thunderstorms and base down to 1000 feet above mean sea level near the ranges was predicted. The TAF for Parafield indicated scattered cloud at 1800 feet above ground level with broken cloud at 3000 feet above ground level. However, there was also a TEMPO (temporary deterioration) recorded for the time of his expected arrival at Parafield. Where a TEMPO is recorded on the TAF, the aircraft is required to carry sufficient fuel to allow for 60 minutes of holding.
[27] Exhibit R1, T 26, page 132.
Mr William Riceman, a CASA officer, obtained weather information at Arkaroola for a flight on 16 May 2008 to Parafield.[28] It contains a TAF for Parafield which was relevant for 16 May 2008 for a period immediately preceding Mr Sadri’s planned arrival at Parafield. Of significance on that TAF is the fact that at 02:09 hours the forecast recorded was INTER with visibility at 3000 m in rain and broken cloud at 1000 feet.[29] Moderate turbulence had also been forecast below 2000 feet until 02:00 hours. In fact, a pilot operating under the VFR (visual flight rules) must plan for a suitable alternate aerodrome when there is forecast more than scattered cloud below a ceiling of 1000 feet or the visibility is less than 3000 m. Clearly, the weather forecast indicated that Parafield terminal area weather was marginal for VFR flight. In cross-examination Mr Sadri said that he elected to proceed despite the worsening weather. He clearly did not plan for a diversion aerodrome, and when asked if he took a significant risk, Mr Sadri said yes.[30]
[28] Exhibit R1, T8, pages 50-59.
[29] The term INTER means that an intermittent deterioration in weather is expected and while an alternate aerodrome need not be planned, 30 minutes of holding fuel must be carried (AIP ENR 1.1).
[30] Transcript, 3 July 2012, page 4, lines 20-33.
CASA contends that in this incident, Mr Sadri failed in his duty as a pilot because he flew the aircraft in instrument meteorological conditions when he was not appropriately trained or qualified to do so; he flew the aircraft in controlled airspace without the necessary air traffic control clearances; his licence was not endorsed for flight into controlled airspace; and he flew the aircraft in IMC at a time when he did not hold an instrument rating. CASA asserts that as a result of those infringements, he put himself, other airspace users and persons and property on the ground at increased risk of injury and damage due to collision.
Mr Anderson asked us to take into account Mr Sadri’s relative inexperience as a pilot at the time of the incident on 16 May 2008, and also the explanation he has given as to his conduct at the time of this incident. However, we find that Mr Sadri simply ignored all of the basic rules regarding VFR flight, in the following respects. His planning was inadequate; he failed to understand the significance of the weather forecast, particularly the TAF for Parafield; he ignored the prohibition on a VFR pilot regarding flight in IMC, relying on his autopilot to maintain control of the aircraft and the Garmin 1000 system for navigation; and he failed to divert to a suitable alternate aerodrome when he could not maintain visual flight. He totally disregarded not only his own safety, but the safety of others both airborne and on the ground. Unauthorised flight into a control area or control zone in IMC conditions is extremely hazardous We accept CASA’s assessment of the gravity of this incident, and are satisfied that his approach to Parafield Airport constituted a failure in his duty with respect to matters affecting the safe navigation or operation of his aircraft within the meaning of CAR 269(1)(c).
Second incident, at Moorabbin Airport, on 27 December 2010: The ESIR in respect to this incident reads as follows:
DSR (being Mr Sadri’s aircraft) called inbound 6 miles east but was actually over ACE, 6 NNE. Appeared unsure of arrival procedures. Reported 3nm at 2300. Circuit altitude at MB is 1000. DSR was given descent, he then made a steep close approach touching down two thirds along the runway. When on ground frequency he was queried as to whether he was aware of the circuit height at MB which he replied in the affirmative.[31]
[31] Exhibit R3, Attachment DC-3.
CASA asserts that Mr Sadri’s actions constituted a risk to himself and other airspace users because: (a) he notified air traffic control that he was east of Moorabbin when he was in fact north north-east, and this could have caused other pilots in close proximity to relax their visual scan and vigilance to see and avoid his aircraft; (b) in not understanding or complying with the circuit entry altitude to Moorabbin, contrary to CAR 99 AA(7), he may have come in conflict with other aircraft departing on climb from Moorabbin to the north east; and (c) in touching down two thirds along the runway, he risked over running the end of the runway and so causing damage to the aircraft and injury to himself and others.
Mr Sadri’s evidence-in-chief as to this incident was as follows. On 27 December 2010, he was the pilot in command on a flight from Mt Hotham to Parafield, with a stopover at Moorabbin. As he approached Moorabbin, he made an inbound radio call at Cardinia Reservoir and was told by the air traffic controller at Moorabbin to call again from Academy. He then tracked to Academy, using the Garmin 1000 instrumentation in his aircraft. He reported again from Academy and was cleared to land on runway 17L. He descended from about 2300 feet, and as he was passing 1500 feet a Cessna aircraft, which was undertaking a touch and go training exercise, got blown by the wind into his flight path as it was turning from base on to final approach. The traffic alert and collision avoidance system in his aircraft issued an audio warning. He decided to turn to his left and go up and observe the Cessna. It then promptly corrected its mistake and resumed its landing approach to 17R. He then decided to continue his landing approach, and landed on runway 17L.
A pilot questionnaire form was issued to Mr Sadri as a result of this incident,[32] to which he responded on 14 February 2011. In a subsequent letter dated 22 March 2011, Mr Sadri also referred to the Cessna. He admitted that he touched down past the halfway mark, but said there was no danger because the runway “is 1335 metres long”, and his aircraft required “only 300 meters [sic] for landing without even applying the brakes”. He also said that there were no other aircraft in the air at the time, apart from the Cessna.[33] In evidence he said that he did a steep ascent, and that he went up to observe the Cessna. In a handwritten response included on the questionnaire form, he said he “swerved the aircraft to the left and down to ensure adequate separation” (emphasis added).[34] A letter dated 18 April 2011 from his lawyers to CASA states that following a warning from his traffic collision avoidance system (TCAS) Mr Sadri took immediate action by “raising the nose, applying power and turning to the right to avoid a collision.”[35] He was not cross-examined about these discrepancies.
[32] Exhibit A2.
[33] Exhibit A1.
[34] Exhibit A2, page 3.
[35] Exhibit A10.
In cross-examination he admitted that there is no reference in the ESIR to another aircraft straying into his flight path. He said that he could hear the conversation between the Cessna and the tower. His cross-examination continued as follows.
After this aircraft strayed into your approach path, did you hear any radio calls between it and the tower about that fact? --- The pilot was silent. The tower made the comment, I believe.
What do you say the tower said, sir? --- It was written in my response to ERSA that was sent to me. If you pick up that letter I think that’s where the response is. [36]
However, his letter in response does not include any reference to a comment by the pilot of the Cessna. It does refer to an alleged remark by the controller, namely “What is this bloody Russian doing?”, but according to the letter, this remark was directed at Mr Sadri, and not to the pilot of the Cessna. Mr Sadri acknowledged in evidence that he was supposed to descend to 1000 feet, and that after going up and observing the Cessna he could perhaps have aborted his landing, but he decided to proceed. He added that he landed on runway 17L and brought the aircraft to a stop without using the brakes.
[36] Transcript, 3 July 2012, page 7, lines 6-11.
Third incident, at Moorabbin Airport, on 22 January 2011: The ESIR in respect of this incident is as follows.
DSR was instructed to enter MB CTR on downwind. ERSA Specifies entry at 1000 feet. DSR was observed/reported at 1500 on downwind.[37]
[37] Exhibit R3, Attachment DC-4.
A pilot questionnaire form was also sent to Mr Sadri regarding this incident,[38] and he responded on 23 February 2011. In the above letter to CASA of 22 March 2011,[39] to which we referred above, he indicated as follows. As far as he knew, there was no incident on this date. He made an inbound radio call to the Moorabbin tower from Carrum, but there was no response, and the air traffic controller “was obviously having his lunch”.[40] He repeated the call again. He then received a response, and recognised the voice as being that of the person who had communicated to him at the time of the incident on 27 December 2010. He was told that the circuit height at Moorabbin was 1000 feet “implying permission to join the circuit for landing on runway 17R as broadcast on ATIS at Carrum”.[41] He said that these events occurred at lunchtime and there were no other aircraft in the circuit, and he landed safely on runway 17R.
[38] Exhibit A3.
[39] Exhibit A1.
[40] Exhibit A1, page 2.
[41] Exhibit A1, page 2, ATIS is an acronym for automatic terminal information service.
In evidence, he did not dispute the ESIR, and said that he was still at 1500 feet when he received the communication from the tower, because at that stage he had not been cleared to land. He also marked on exhibit A4 (being a visual terminal chart of the area) his position at the time when he received the second communication from the tower. In cross-examination, he said that he believed that he was approaching the CTR (the controlled zone for Moorabbin Airport) at that point, but then said he could not recall whether he was within or outside the CTR at that point. He also said that he was flying a procedure prescribed in the ERSA because of a communications failure, that this required him to remain at 1500 feet until cleared, and that at the time of the second communication he anticipated clearance to descend downwind to 1000 feet, and this is what occurred.
The evidence before us in relation to the incidents at Moorabbin Airport is unsatisfactory. The ESIR of the first incident makes no reference to any other aircraft straying into Mr Sadri’s flight path, and there are also some inconsistencies in Mr Sadri’s account of the incident. The fact that an ESIR was issued in respect of the second incident suggests that Mr Sadri had entered the circuit, within CTR, at 1500 feet instead of 1000 feet. The ESIR does not mention a communications failure, and it would be surprising if the tower did not hear the first communication. Counsel for CASA, Mr B Shields, said at the outset of the hearing that he had not understood that there was any dispute about the circumstances that gave rise to the issue of the ESIRs in respect of the two incidents. In reply, Mr Anderson said that it should have been apparent to CASA from Mr Sadri’s responses to the pilot questionnaires that he either disputed that incidents entailing contraventions had occurred, or asserted mitigating circumstances. We also refer in this regard to Mr Sadri’s letter of 22 March 2011[42] and a letter dated 18 April 2011 from his solicitors to CASA.[43] We note that the pilot questionnaire forms and their responses and these two letters were not included in the T-documents. In the event, Mr Shields elected not to request an adjournment, and the hearing proceeded. Neither party called the air traffic controller who was on duty at the time of the incidents and no radar, audio or visual recordings of the two incidents were tendered. We understand that no such records are now available.
[42] Exhibit A1.
[43] See Exhibit A10, being letter dated 18 April 2011 from Mr Sadri’s solicitors to CASA, Exhibit R2, T10, page 55.
On this state of the evidence, we are reasonably satisfied that in each incident, Mr Sadri was in breach of the obligation to join the circuit at Moorabbin at 1000 feet, and that on his own evidence, he should have aborted his landing and flown over the airport before joining the circuit to land at the correct altitude of 1000 feet. His conduct on each occasion could have caused an accident, and compromised the safety of air navigation.
Fourth incident, at Tamworth, on 27 June 2011: The ESIR in respect to this incident reads as follows.
At time 0203 the Sandon/Newell Sector controller began receiving a number of intermittent ‘open mike’ type occurrences on his frequencies. At time 0215 an SSR radio fail alarm was displayed on an unknown aircraft at A095 approximately 30nm south west of Tamworth and tracking towards Tamworth. A series of transmissions and checks were made and it was established that the aircraft could receive ATC and acknowledge receipt of instruction using the SPI (ident) function of the aircraft’s transponder but could not transmit. Coordination was carried out by the Sandon/Newell controller with Tamworth Tower to facilitate the aircraft’s diversion there. Tamworth continued to broadcast instructions to the aircraft and a successful landing on runway 30L was made at 0227. The pilot rang the Tower after arrival to advise that he was also runing [sic] low on fuel.[44]
[44] Exhibit R4, Attachment SG-1.
CASA asserts that after the communications failure, Mr Sadri should have followed certain emergency procedures that apply when an aircraft is being flown in VFR in class G Airspace. These procedures required him, in particular, to remain in the VFR in class G Airspace and to land at the nearest aerodrome, namely either Quirindi or Gunnedah, and to remain outside controlled airspace, so as to avoid the danger of collision with other aircraft using controlled airspace.[45] Mr Sadri was cross-examined about his obligations in the event of a communications failure. We are satisfied that he had an appropriate understanding of the relevant emergency procedures. However, he maintained that he did not divert to either of the alternative airports, but proceeded to land at Tamworth, because he was directed by the tower at Tamworth to do so. He added that the tower had identified that it was an emergency, and if they had directed him to divert to some other aerodrome, he would have done so.
[45] ERSA Emergency Procedures for Communication Failure 1.5.3, issued by CASA pursuant to CAR 159A.
CASA acknowledged that he had been cleared to land at Tamworth, but said that the air traffic controller had no choice other than to provide this clearance, because Mr Sadri had continued his approach to Tamworth instead of diverting to another airport. CASA maintained that when the communications failure occurred, Mr Sadri was about 30 nautical miles from Tamworth and was not within the control zone, and that he should then have diverted to another airport. Mr Sadri disputed this, and claimed that he had not entered the control zone before he was given instructions to land at Tamworth.
Mr Sadri’s version of events is inconsistent with contemporaneous records of the event, and we do not accept it. CASA tendered a transcript of a telephone conversation between Mr Sadri and one Anthony Reid, the Tower Manager at Tamworth Airport, which took place via Mr Sadri’s mobile phone immediately after he had landed.[46] In response to a comment from Mr Reid as to what was required in the event of a communications failure, the following exchange occurred:
MR SADRI: Yes. I was sort of slightly getting short on fuel and couldn’t see any other aerodrome on the map, so probably it’s my fault that - and I could hear intermittent transmission clearing 4530 left, so I thought I will just proceed instead of turning back.
MR REID: Yes. That was once you were getting inside controlled air space Sector Sawyer Radio Failed Squawk, but you should have been able to determine you were outside controlled air space and gone to either Quirindi or Gunnedah from where you were.
MR SADRI: Yes.
MR REID: Because they were closer than Tamworth was.
MR SADRI: Yes.
We note that Mr Sadri did not assert, in this conversation with Mr Reid, that he was outside controlled airspace when he received a clearance to land.
[46] Exhibit R4, Attachment SG-4.
At our request, following the conclusion of the hearing, CASA provided a transcript of the communications between Air Traffic Control at Tamworth and Mr Sadri and other aircraft in the vicinity that occurred before Mr Sadri landed.[47] It appears clear from this transcript that when communications failure had occurred his aircraft was in excess of 32 miles from Tamworth, to the knowledge of Mr Sadri. This appears from the following transmission:
Tamworth Tower calling the VFR aircraft squawking seven six zero zero at approximately three two miles to the south west of Tamworth, unverified niner thousand five hundred, if you’re reading this transmission, squawk ident.[48]
At that distance from Tamworth, Mr Sadri’s aircraft was outside controlled airspace, and in accordance with the emergency procedures, he should have diverted to Quirindi or Gunnedah. It further appears from the transcript that there was no further communication from the tower until he received the clearance to land at Tamworth; this occurred when his aircraft was only 11 miles south west of Tamworth, and so he had entered controlled airspace without receiving a clearance to do so.[49] The transcript also indicates that there were up to six other aircraft in the vicinity as Mr Sadri’s aircraft approached Tamworth Airport, either making approaches, in circuit or taxiing on the ground for take-off, and there were two other aircraft that were taxiing back to parking areas.
[47] Exhibit R8.
[48] Exhibit R8, page 4, lines 13-15.
[49] See Exhibit R8, page 6, lines 37-42, where the following transmission is recorded “Tamworth Tower calling the VFR aircraft squawk and radio failure who is leaving unverified 7500 at one one miles to the south west of Tamworth. If you read this transmission, call me now. I wasn’t hearing anything before. Tamworth Tower calling the aircraft inbound to the south west with no radio, cleared visual approach, join a left base for runway three zero left.”
We accordingly find that Mr Sadri’s conduct at the time of this incident contravened the relevant emergency procedures, at a time when there were a number of other aircraft using Tamworth Airport.
Evidence concerning flight tests
We referred in paragraphs 13 and 22 above to the flight tests which Mr Sadri failed. In summary, after the first incident on 16 May 2008, he failed successive flight tests in July[50] and September[51] 2008, and he failed a general flying progress test in May 2009, but passed such a test in July 2009.[52] In July 2010[53] he failed a PPL flight test, but passed the test in August 2010.[54] After the incidents at Moorabbin and Tamworth, he failed a PPL flight test on 5 December 2011.[55]
[50] See report by testing officer Exhibit R1, T13, page 68 and letter to Mr Sadri advising result of examination, Exhibit R1, T14, page 71.
[51] Exhibit R1, T21, page 88 report from Tristar Aviation relating to training conducted with Mr Sadri in August 2008 indicated significant deficiencies in navigating a flight without using GPS tracking software, and in the correct use of radio communications.
[52] Exhibit R1, T33, page 155.
[53] Exhibit R1, T44, page 250.
[54] Exhibit R1, T43, page 248.
[55] Exhibit R4, Attachment SG-5.
The 2 July 2008 test was terminated prematurely due to unsatisfactory performance by Mr Sadri. This was a standard PPL test. The areas which were not of the required standard included:
·inability to provide evidence that the aircraft was correctly loaded within limits
·lack of knowledge of the aircraft systems
·inability to properly use the radio
·inability to navigate correctly under the VFR without resorting to his GPS
·inability to handle simulated engine failure
·poor situational awareness.
The 9 September 2008 flight test was also a PPL standard test. The testing officer reported that he was “definitely not anywhere near PP(A)L standard”. He described Mr Sadri as having “no visual navigation skills” and that his heading and height control was very untidy with no other standard safety procedures adopted. This flight test was also terminated prematurely because Mr Sadri had not demonstrated the levels of competence required by the day VFR syllabus to attain a pass.
Mr Sadri passed the GFPT test on 25 July 2009 and the testing officer reported that Mr Sadri had made an incredible change in his approach to flying. He also reported that whilst some areas could have been better, all were performed to an acceptable standard. He suggested that nerves played a large part in holding Mr Sadri back.
Mr Sadri again failed a PPL flight test on 9 July 2010. This was essentially due to his inability to navigate visually as he failed to correctly identify relevant navigational features on the ground. He was not permitted to use his GPS.
Mr Sadri passed the PPL flight test on 13 August 2010 that included visual navigation and, according to the report, some practice asymmetric procedures in various phases of flight.
The report of the last flight test conducted by Mr Page, on 5 December 2011, to which we referred above, indicates unsatisfactory skills in a number of criteria under the headings “Flight” and “Airmanship”. The skills assessed as unsatisfactory were operating the aircraft radio, managing the flight, threat and error management, taking off in cross-wind, landing the aeroplane, executing advanced manoeuvres and procedures, failing to maintain situation awareness and look out and traffic separation, making operational decisions promptly and correctly, and recognising potentially unsafe situations. Mr Page also referred to Mr Sadri having held the topographical chart upside down. The pre-flight briefing indicated that there would be at least two simulated engine failures in the course of the test.[56] The testing officer reported that a simulated failure of the left engine of the aircraft after take-off had not been handled well having regard to the rapid decrease in airspeed and insufficient rudder input.[57]
[56] Exhibit R4, attachment SG 5.
[57] Exhibit R4, page 23.
Mr Sadri gave evidence that he understood that he failed the test mainly because he failed the asymmetric testing, which involved a simulated engine failure. He said that he believed that this test was dangerous, and contrary to advice from the manufacturer of his aircraft. However, he conceded that the engine of the aircraft had not been shut down at the time of the asymmetric testing. He admitted that he had not read the flight test report, and his answers in cross-examination about this aspect of the test indicated that he could not recall details of his actions during the test. In answer to questions regarding other aspects of the flight test, he said that he had been told at Renmark that he had failed the asymmetric test, and that when he returned to Parafield Mr Page was the pilot in command, and he was simply too upset to fly the aircraft on his own, and followed Mr Page’s instructions. Mr Page was not called to give evidence, but in view of other evidence before us relating to Mr Sadri’s various flight tests and his unsatisfactory flying skills, we accept the assessments made by Mr Page, as outlined in his test report.
Mr Sadri called two flying instructors in support of his case. One was Gregory Raymond Norris, the Chief Executive Officer of the Bruce Hartwig Flying School, where Mr Sadri was trained as a private pilot and obtained his PPL in December 2007. Mr Norris gave evidence that shortly after the PPL was issued, Mr Sadri asked him to plan a course of training to operate a multi-engine aircraft, because he intended to purchase a Diamond DA42 aircraft. Based on his experience, qualifications and knowledge of Mr Sadri’s training until then, Mr Norris refused the request, and advised Mr Sadri that he needed further experience before undertaking the more advanced training that would be required to operate the DA42. He was aware that Mr Sadri had nevertheless obtained training from another flying school, and that he had been issued with a multi-engine endorsement and a retractable undercarriage endorsement in March 2008.
Mr Norris was aware of three of the four incidents which gave rise to ESIRs, and of the failed flight test on 5 December 2011. He proceeded to speak generally of Mr Sadri’s flying skills, and said he had last flown with him in October last year. He considered that Mr Sadri had not maintained the standards which he had attained when he was issued the PPL, and had become complacent through reliance on the electronic systems available in the DA42, and now needed to be trained again in basic piloting skills. He said that he was prepared to provide that training. Mr Norris considered that there would be no danger to air safety if Mr Sadri flew as a student with an instructor on board, and said, in effect, that he had a “political” view that if someone owns an aeroplane and wants to fly that aeroplane with another qualified pilot in command, they should not be prevented from doing so.[58] However, he also said that he would not authorise Mr Sadri to fly solo at this point, and he thought it was unlikely that Mr Sadri would develop and regain the skills necessary to obtain a solo rating in the near future. He considered that Mr Sadri could successfully be retrained to operate a single engine aircraft such as a Cessna 172, but did not believe he would be able to meet the standard required to operate a twin engine aircraft, and thought that his age would impede the necessary development process. He also said that he had some concerns about Mr Sadri’s attitude to flying and regulatory matters.[59]
[58] Transcript, 4 July 2012, page 13, lines 23-29, and page 32, lines 18-23.
[59] Transcript, 4 July 2012, page 12, lines 1-8, page 17, lines 28-33, page 30, lines 14-15, and page 32, lines 34 and 35.
Mr Norris also commented that any incident that resulted in an ESIR being issued was a serious matter, but as to the Tamworth incident, he thought that most private pilots who were faced with a communications failure and the circumstances in which Mr Sadri found himself would have proceeded as Mr Sadri had done, although that did not excuse him.[60]
[60] Transcript, 4 July 2012, page 21, lines 4-21, and page 23, lines 5-13.
The other witness whom Mr Sadri called was David Baddams, a highly qualified flying instructor with extensive military and civilian experience. Mr Baddams was previously a senior supervisor for the Royal Navy Fixed Wing Fleet Air Arm, and in that position had been called upon to provide independent assessments of an individual’s capacity to continue in training or to remain an operational fighter pilot, in circumstances where people were having difficulty with their flying training or their ongoing skills. Such people would be sent to him for advice, retraining and assessment and he would make a recommendation, which sometimes included suspension. He said that he had been asked by Mr Sadri’s solicitors to fly with Mr Sadri and assess whether he had retained the necessary skills to hold a PPL. Mr Baddams came to Adelaide and undertook three flying sorties in the DA42, totalling eight hours, and also spent 30 hours with Mr Sadri on the ground reviewing regulations, techniques and procedures. He also discussed Mr Sadri’s flying training with the Bruce Hartwig Flying School, and examined various background documents, including the report of the failed flying test with Mr Page on 5 December 2011.
In his witness statement, Mr Baddams was critical of Mr Sadri’s hand flying skills. He referred to regular errors in altitude of plus or minus 300 feet, and heading variations of up to 30 degrees, and observed that when errors were noticed, an abrupt correction was made, usually followed by an attempt at justifying the error.[61] He also observed as follows:
When it is essential to hand fly, such as in the circuit, without local geographical knowledge, Mr Sadri finds it hard to judge spacing for the upwind, downwind and base legs, and he has no observable standard technique for flying finals. Speed variation during finals on most approaches can be alarming, with several unresponded to events below a safe threshold speed on each approach. Despite this, his touchdowns for landing are surprisingly very good, although they are always in the middle of the left hand side of the runway, and mostly too far down the runway.
[61] Exhibit A8.
Mr Baddams was also critical of Mr Sadri’s use of visual navigation, and said that he made “bold snap decisions”, and that without reverting to the GPS navigation aide in the aircraft, he could quickly become disorientated.
Mr Baddams considered that Mr Sadri had progressed rapidly to a very advanced aircraft, namely the DA42, which required more skill and experience to manage than Mr Sadri had had time to acquire. He said that the DA42 was too complex, and Mr Sadri had become too dependent on the technology available in his aircraft, and this had caused a degradation of his basic flying skills.[62] He considered that Mr Sadri should be required to effectively start his training again from the very beginning. He accepted that there were some people who could not be trained, and would never pass a test under any circumstances. However, he thought that Mr Sadri could learn and be retrained, because he had previously passed the PPL test, and the fact that Mr Sadri had had about 500 hours of flying experience did not mean that he could not be successfully retrained, because much of his flying time had been flying on auto pilot on long interstate flights. He thought that to stop Mr Sadri from flying forever was “incredibly harsh”.[63]
[62] Transcript 3 July 2012, page 12, line 12-14.
[63] Transcript 3 July 2012, page 16, line 39.
Mr Baddams also expressed concern about Mr Sadri’s confrontational attitude. In his witness statement, he said:
Further, through belief in his own ability gained through years of successful business practice, and in applying a business process to the art of flying and the act of aircraft ownership, he has a level of self confidence with regards to aviation far in excess of his true capacity given his very low level of actual aviation experience.
In evidence Mr Baddams said that he believed that Mr Sadri was on the day of the hearing much less confrontational than he had been in February, and that when he is retrained, he should be told that he is obliged to be able to perform to a certain level of competency, and this is a matter that cannot be negotiated.[64]
[64] Transcript 3 July 2012, page 11, lines 18-44, and page 13, lines 35-44.
Mr Baddams also said that he spoke to the tower controller at Tamworth immediately after the communications failure incident, and was told that although correct procedures had not been followed, they brought the aeroplane in and he did not seem particularly phased.
Parties’ contentions
We referred in paragraph 3 above to the position contended for on behalf of Mr Sadri, which involved a concession that his PPL should remain cancelled, but he should retain his SPL conditionally on his undertaking further training, and then later presenting himself for a further PPL licence test, on the basis to which we referred.
Counsel for CASA, Mr Shields, submitted that the grounds referred to in CAR 269(1)(c) and (d) have been made out, and that the second reviewable decision should be affirmed. In the alternative, he submitted that if we were disposed to allow Mr Sadri to retain his SPL, further conditions should be imposed on the SPL in addition to those proposed by Mr Anderson, including: (a) the certification of a chief flying instructor that he was qualified to fly solo, before he could so; (b) the general flying progress test and the PPL flight test should be conducted by a CASA officer, and not by an authorised training officer; (c) the SPL should not authorise Mr Sadri to fly a multi-engine aircraft with retractable undercarriage; and (d) any resulting PPL would be subject to passing flight tests on a regular basis.
CONSIDERATION
In reviewing a reviewable decision made by CASA, this tribunal may exercise all of the powers and discretions that are conferred by the CAR on CASA, and stands in CASA’s shoes.[65] The tribunal must conduct a hearing de novo, that is, hear the matter afresh, and must arrive at the correct or preferable decision on the material before it, and not by reference to the material before CASA.[66] The focus of the review by this tribunal is not the correctness or otherwise of the decision under review, and there is no presumption that that decision is correct. Further, the decision-maker may seek to support the decision on grounds that are different from those upon which it was originally made, and equally an applicant may seek to have the decision set aside on grounds that are different from those originally put to the decision-maker.[67]
[65] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[66] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and Shi.
[67] Re Lavery and Registrar, Supreme Court (Qld) [No.2] (1996) 23 AAR 52 at 56.
In considering the submissions of each party in relation to the matters raised by CASA, we bear in mind that proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus.[68] However, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist, since as a matter of common sense, if there is no such evidence, the finding cannot be made. This proposition was clearly explained by SM Todd in Re Eckersley and Minister for Capital Territory as follows:
I think that this is an instance in which, while no general responsibility of proof rests upon an applicant in an application to the Tribunal for review … yet, when either party to such an application raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge. [69]
[68] Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.
[69] (1979) 2 ALD 303 at [18].
Similarly, in McDonald v Director General of Social Security,[70] Woodward J said:
(The AAT) must act on the material which is before it but, as I have already pointed out, it is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate.
It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn – but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 (Cth) does not.
[70] (1984) 1 FCR 354 at 358.
The power to vary, suspend or cancel licences under CAR 269(1) arises where CASA is “satisfied” that one or more of the relevant grounds exists. Although there is no onus of proof, the requirement for CASA to be “satisfied” indicates that the standard of proof required is the civil standard.[71]
[71] Repatriation Commission v Smith (1987) 15 F CR 327 at 335.
In exercising CASA’s powers under CAR 269(1) in reviewing CASA’s decisions, we bear in mind the provisions of s 9A(1) of the CA Act, which provides that in exercising its powers and in performing its functions, CASA must regard the safety of air navigation as the most important consideration. We also bear in mind s 3A of the CA Act which provides that its main object 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.
As mentioned above, we are satisfied that Mr Sadri has failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft,[72] and so the discretion under CAR 269(1) to vary, suspend or cancel his pilot licences under CAR 269(1) has been enlivened. That regulation provides relevantly as follows:
(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:
…
(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;
[72] This being the ground referred to in CAR 269(1)(c).
We are satisfied that the ground referred to in CAR 269(1)(c), that is failing in the duty with respect to any matter affecting the safe navigation or operation of an aircraft, has been made out. As pointed out in Re Johanson and Civil Aviation Safety Authority[73] the expression “with respect to any matter affecting” are words of wide import, and paragraph (c) would apply wherever a pilot was in breach of a duty of the type referred to (that is, a duty with respect to any matter affecting the safe navigation or operation of an aircraft), even though the conduct in question was not itself unsafe.[74] In the present matter, each of the four incidents which gave rise to ESIRs involved a breach of duty with respect to matters affecting the safe navigation or operation of Mr Sadri’s aircraft. In addition, the first incident at Parafield in May 2008 was a very serious incident, and clearly involved the unsafe navigation and operation of the aircraft. We are accordingly satisfied that the discretion under CAR 269(1) to vary, suspend or cancel Mr Sadri’s pilot licences has been enlivened.
[73] (2012) 127 ALD 195.
[74] (2012) 127 ALD 195 at [139].
It is relevant to the exercise of our discretion to suspend, cancel or vary Mr Sadri’s licences to also consider CAR 269(1)(d), that is the issue of whether we are satisfied that he is a fit and proper person to have the responsibilities and exercise and perform the functions and duties of the holder of an SPL.
The meaning of the expression “fit and proper person” in the context of whether the holder of a commercial broadcasting licence was no longer a fit and proper person to hold the licence was considered in Australian Broadcasting Tribunal v Bond & Ors.[75]Toohey and Gaudron JJ said:
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.[76]
[75] (1990) 170 CLR 321.
[76] (1990) 170 CLR 321, at 380.
The question of whether someone is a “fit and proper person” in the context of entitlement to hold pilot licences was referred to in Re Taylor and Department of Transport.[77] In that case the Tribunal considered the predecessor of CAR 269(1)(d) and said:[78]
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.
[77] (1978) 1 ALD 312.
[78] (1978) 1 ALD 312 at 321
In the present matter, all of the evidence before us indicates that Mr Sadri is not competent to fly an aeroplane. This is clear from the opinions expressed by Mr Norris and Mr Baddams, as well as from the report by Mr Page of the flight test on 5 December 2011. We also refer to the number of occasions when Mr Sadri failed earlier flight tests, to which we have referred above. His lack of competence extends to such basic matters as failing to maintain altitude and direction, his approach to landings, his use of the radio, and his difficulties with navigation.
We have taken into account that Mr Sadri appears to have lost his skills because he has relied upon the technology available in his DA42 aircraft. However, it is clearly important that pilots should not only attain the skills necessary to obtain a PPL, but they should also maintain those skills. Mr Sadri has not done so. We have also taken into account Mr Baddams’ opinion that Mr Sadri could be retrained, and that conditions could be imposed on any future PPL issued to him along the lines suggested by counsel, including a condition that he be restricted to flying a single engine aircraft. That would overcome the difficulty he experienced with asymmetric operation, but would not provide any reassurance that he would maintain the degree of competence that he would need to demonstrate in order to be granted a PPL. Mr Norris was clearly less confident than Mr Baddams of Mr Sadri’s capacity to obtain the appropriate competence with retraining. In summary, we are not satisfied that he could be successfully retrained to attain the necessary competence to obtain a PPL, but if this were achieved, we are satisfied from his record since late 2007 after he obtained a PPL that he would not maintain that competence.
Over the period since he was issued with a PPL, Mr Sadri was involved in four incidents to which we have referred above and also further contraventions which gave rise to the issue of the three infringement notices. We referred above to concerns that have been expressed about Mr Sadri’s attitude to flying and to his regulatory duties and obligations. His reference in relation to the incident of 22 January 2011 to the air traffic controller not responding to his radio communication because the controller was “obviously having his lunch”, to which we referred in paragraph 39 above, can be interpreted as a further illustration of his lack of respect for authority. A full understanding and appreciation of these matters, and of their relevance to ensuring the safety of civil aviation in Australia, is a most important consideration when deciding whether an applicant for a licence is a fit and proper person within the meaning of CAR 269(1)(d). Mr Sadri’s past contraventions and his attitude (in conjunction with his lack of competence and the likelihood that he will not maintain a sufficient degree of competence even if he can be retrained) are of further concern. In all of the circumstances, we are satisfied that he is not a fit and proper person to hold a licence.
For the sake of completeness we add that we do not accept Mr Norris’ “political” view that Mr Sadri should be permitted to hold an SPL to enable him to fly his own aeroplane. Under CAR 5.66(1), an SPL authorises the holder of the licence to fly a “flying training aircraft” as pilot in command. A “flying training aircraft” is defined in CAR 2 to mean an aircraft that is used by a flying school to give flying training. The expression “flying training” is defined to mean any training given during flight time in an aircraft for the purpose of increasing a person’s skill in flying the aircraft. Clearly the purpose of an SPL is to train students progressively and to provide them with the necessary skills and experience to enable them to attain an appropriate licence. It should not be used as a method of enabling persons to enjoy the use of their own aircraft by flying it under the command of a duly licensed pilot.
For the above reasons, we agree that the delegate acted appropriately in making the second reviewable decision to cancel Mr Sadri’s licences.
The first reviewable decision, made on 27 August 2010, in effect reinstated Mr Sadri’s PPL but required him to pass a flight test every 12 months. That decision was rendered nugatory by the cancellation of the licences by the second reviewable decision. However, the first reviewable decision was in our view an appropriate decision on the facts as then known, and we think it appropriate to affirm that decision. It will have no further force or effect after 14 June 2011 because of our decision to affirm the second reviewable decision.
DECISION
The decisions under review are affirmed.
I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis and Senior Member E Fice .... [Signed] ....
Associate
Dated 28 September 2012
Dates of hearing 3, 4 and 5 July 2012 Date last exhibit received 1 August 2012 Counsel for the Applicant Mr J Anderson Solicitors for the Applicant McMahon Broadhurst Glynn Counsel for the Respondent Mr B Shields Solicitors for the Respondent CASA Legal Services Group
Key Legal Topics
Areas of Law
-
Administrative Law
Legal Concepts
-
Jurisdiction
-
Res Judicata
-
Unconscionable Conduct
-
Compensatory Damages
0
8
0