Saraya, Alaa v Civil Aviation Authority
[1997] FCA 364
•1 MAY 1997
CATCHWORDS
Civil Aviation - application for Australian Aircraft Maintenance Engineer licence - specification of pre-requisites by Civil Aviation Authority.
Administrative Law - appeal from decision of Administrative Appeals Tribunal whereby decision under review was affirmed - whether Tribunal had jurisdiction - whether "reviewable decision" ever made.
Legislation
Civil Aviation Act 1988 (Cth) - ss. 31(1), (2)
Civil Aviation Regulations 1988 (Cth) - rr. 31(1), (4), (5), (6); 264.
Cases
Gramophone Company Limited v Magazine Holder Company (1911) 28 RPC 221
VG845/95 ALAA SARAYA V. CIVIL AVIATION AUTHORITY
MERKEL J.
MELBOURNE
1 MAY 1996
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 845\95
BETWEEN
ALAA SARAYA
Applicant
- and -
CIVIL AVIATION SAFETY AUTHORITY
Respondent
COURT:Merkel J
DATE:1 May 1997
PLACE:Melbourne
EX TEMPORE REASONS FOR JUDGMENT
HIS HONOUR: In September 1994, the applicant applied for an Australian Aircraft Maintenance Engineer Licence, ("AME licence"), in the categories of air frames and engines under regulation 31(1) of the Civil Aviation Regulations. He had previously been the holder of an equivalent licence issued by the Republic of Egypt.
In order to be entitled to the issue of an AME licence, the applicant was required to be a qualified person, as defined in the regulations. Regulations 31(4), (5) and (6) provide:
(4)In this regulation, "qualified person" means a person who:
(a) has attained the age of 21 years; and
(b)satisfies the Authority that he or she possesses such knowledge as the Authority requires of:
(i) the principles of flight of aircraft;
(ii)the assembly, functioning and principles of construction of, and the methods and procedures for the maintenance of, those parts of an aircraft that the Authority considers relevant having regard to the licence sought; and
(iii)these Regulations and the Civil Aviation Orders; and
(c)satisfies the Authority that he or she has had such practical experience of the duties performed by a holder of the licence sought as the Authority requires and directs in Civil Aviation Orders; and
(d)satisfies the Authority that he or she is not suffering from any disability likely to affect his technical skill or judgment; and
(da)satisfies the Authority that he or she possesses sufficient knowledge of the English language to carry out safely the duties required to be performed by a holder of the licence; and
(e)has passed such examinations as the Authority requires to be passed by an applicant for the licence sought.
(5) Any requirement formulated by the Authority for the purposes of sub-regulation (4) shall not be less than the corresponding minimum requirement adopted in pursuance of the Convention.
(6)Where a person satisfies the authority that the person:
(a)is the holder of a licence equivalent to the licence sought issued by a competent authority in, and in force in accordance with the law of, a country other than Australia;
(b)has complied with the minimum conditions required under the Convention and with such other requirements as the Authority specifies; and
(c)does not suffer from any disability likely to affect his or her technical skill or judgment;
the Authority may, for the purposes of this regulation, treat the person as if he or she were a qualified person.
Regulation 264(1) provides:
Subject to subregulation 89C(3), the Authority shall not refuse to grant a licence or certificate except on one or more of the following grounds, namely:
(a)that the applicant has failed to satisfy a requirement prescribed by or specified under these regulations in relation to the grant of the licence or certificate;
(b)that the applicant has made in, or in connection with, the application a statement that was false or misleading in a material particular; or
(ba)that a court has made an order under section 30A of the Act in relation to the applicant; or
(c)in relation to the initial issue of a licence or certificate:
(i)that the applicant was the holder of a licence or certificate that was previously cancelled; or
(ii)that the applicant is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence or certificate for which the application was made.
The application was considered by Mr R.S. Purdie who at the time was the Manager, Aircraft Maintenance Engineer Personnel Licensing, Aviation Licensing and Medicine Branch of the Civil Aviation Authority.
On 18 November 1994, Mr Purdie wrote to the applicant in the following terms:
Dear Mr Saraya,
With reference to your application for an Aircraft Maintenance Engineer licence. I have discussed your case with our legal counsel and he confirms my interpretations of the regulations, concerning the requirement for recent experience requirement for the issue of an AME licence.
As I explained to you on the telephone, your employment at RMIT as a teacher cannot be considered as practical maintenance experience as specified in CAR 31(4)(c).
At this stage, we are not refusing to grant you a licence, we are however, asking you to complete six months relevant aircraft maintenance experience in Australia to satisfy the experience requirements for the issue of a licence. Should you not
comply with this request, we will have no other choice but to refuse to grant you an AME licence under CAR 264(1)(a).
If you wish to discuss this matter further; please feel free to call me on 06 268 4467.
On 24 November, the applicant responded to the letter of 18 November in the following terms:
Dear Mr Purdie,
With reference to your letter dated 18.11.1994 (Ref: F94/1216) regarding my application for AME Licence, I would like to highlight some points regarding this matter.
I submitted my application under CAR31(6)(a)(b) and (c). I do fulfil all these requirements because:
(A)CAR31(6)(a) is complied with according to the first paragraph of the letter sent to me by the Authority and dated 14.11.1990.
(B)CAR31(6)(b) is complied with according to the following:
(i)Under the Convention ANNEX "E" chapter VI section II and section III(9)(b) which is proved by the (AA) examination.
(ii)Under CAOs 100.90.5.1, 100.90.6.1 & 3, 100.91.5.2 & 3 and 100.92.5.2 & 3 which are summarised in the second paragraph of the same letter mentioned above.
2.I did not ask for my employment at RMIT to be considered as practical maintenance experience. This requirement is under CAR31(4)(c) and states that he or she has had such practical experience .... etc, which I have had (20 years aviation experience & more than 8 years helicopter experience).
3.The Authority has argued that CAO 100.90.7.3(a) is a ground for refusing my application. May I suggest that this Order does not apply to my situation and that the Order which does is CAO 100.90.7.3(c) which is favourable to my application.
According to the above mentioned and the fact that in all the correspondences between the Authority and myself (written and verbal over the phone) nothing has been mentioned about the necessity of a six months practical experience, (otherwise I would have tried to comply with this requirement before setting (sic) the (AA) examination which has an expiry time). I consider that I am qualified to be granted the licence sought under CARs and request that you review my application further.
Thank you very much for your time, patience and consideration.
In an application dated 30 November 1994, and (it appears) lodged on or about 1 December 1994, the applicant applied to the Administrative Appeals Tribunal under section 29 of the Administrative Appeals Tribunal Act ("AAT Act") for the review of the decision of Mr Purdie made on 18 November 1994. The applicant's main ground of complaint was that his application should be considered under regulation 31(6) rather than regulation 31(4) and that he had complied with all the requirements that may be legitimately imposed under regulation 31(6).
However, Mr Purdie continued the correspondence and replied to the letter of 24 November by a letter of 9 December, which read as follows:
Dear Mr Saraya,
I refer to your letter to me (facsimile) of 24 November 1994, regarding your application for an Australian aircraft maintenance engineer (AME) licence.
In your letter, you state that you have submitted your application for an Australian (AME) licence under sub-regulation 31(6) of the Civil Aviation Regulations (CAR).
Eligibility to be treated as a "qualified person" under CAR 31(6) requires that an applicant satisfy the requirements specified in each of the three paragraphs contained in that sub-regulation. The first of these, paragraph (a), provides that the applicant must satisfy the authority that he or she:
is the holder of a licence equivalent to the licence sought issued by a competent authority in, and in force in accordance with the law of, a country other than Australia.
Whether or not your Egyptian licence is a licence equivalent to the Australian AME licence you seek, because that licence has expired:
- it is not "in force in accordance with the law" of the country in which it was issued; and
- you cannot, therefore, properly be regarded as the "holder" of such a licence.
For these reasons it would appear that you do not satisfy the requirements of CAR 31(6)(a) and could not, therefore, be treated as a "qualified person" under CAR 31(6).
Of course, if you were able to secure a re-validation of your Egyptian licence, or if you were otherwise able to secure a licence, equivalent to the Australian licence you seek, issued by a competent authority of some other country, it might then be possible to consider your application under CAR 31(6). In the circumstances, however, I understand that these options may not be available to you.
Alternatively, your application may be processed on the basis of your eligibility to be regarded as a qualified person under CAR 31(4). In the event, it would be necessary for you to satisfy the requirements specified in each of the six paragraphs contained in that sub-regulation. Of those requirements, your particular attention is drawn to paragraph 31(4)(c), which provides that an applicant must:
satisfy the Authority that he or she has had such practical experience of the duties performed by a holder of the licence sought as the Authority requires and directs in Civil Aviation Orders.
In respect of each of the categories in which an Australian AME licence can be issued, the relevant provisions of the applicable Civil Aviation Orders (see sections 100.90 to 100.95) expressly require that, amongst other things, an applicant must demonstrate that he or she has had:
practical experience in the group or type for which a rating is sought, to the scope and depth indicated in the relevant Schedule of Experience issued by the Authority, or other approved documents.
To satisfy this requirement, you would need to produce documentary evidence that your practical experience consists, in fact, of the kind, scope and depth of the experience specified by the Authority in the relevant Schedule of Experience for each rating sought.
In the event you may now wish to have your application reassessed on the basis of your qualifications under sub-regulation 31(4), as opposed to sub-regulation 31(6), please advise me immediately. If you choose to do so, no decision will be made in respect of your application until you have had a reasonable opportunity to secure such evidence as you may be required to submit in support of your qualifications on that basis.
If you still wish to be treated as a "qualified person" under sub-regulation 31(6), your application will be considered on that basis, and you will be notified of the Authority's decision in due course.
The matter proceeded to review before the Administrative Appeals Tribunal on 10 August 1995. The Tribunal handed down its decision on 29 September 1995 and affirmed the decision made by Mr Purdie on 18 November 1994. By the date of the review it appeared that the applicant had a current Egyptian licence but had not met the requirement of six months practical experience.
The Administrative Appeals Tribunal regarded the requirement to be one which was within regulation 31(4)(c) or regulation 31(6)(b). The applicant appeared in person to apply to the Court for the review of the decision of the Tribunal on the ground of error of law under section 43 of the AAT Act.
His main ground was as follows:
(a)his application was required to be dealt with under regulation 31(6);
(b)he was entitled to be a qualified person under that sub-regulation;
(c)the requirement of six months practical experience was not within the power conferred on the Authority of imposing further requirements under regulation 31(6)(b).
As the hearing progressed, it became fairly clear that the Administrative Appeals Tribunal may have lacked jurisdiction to review the decision made on 18 November.
Section 31(1) of the Civil Aviation Act 1988 defines a "reviewable decision" as:
(a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or
(b)the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence.
Section 31(2) provides:
(2)Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.
It seems to me to be fairly clear that under section 31, a reviewable decision, and the only reviewable decision which may be the subject of application to the Administrative Appeals Tribunal, is a decision relating to the refusal to grant or issue, or a cancellation or suspension or variation of, a licence, or the imposition or variation of a condition contained in such a licence. The parties appeared to be content to treat the Civil Aviation Authority, acting through Mr Purdie, as having refused to grant an AME licence to the applicant. It was on that basis that the matter proceeded to review before and by the Administrative Appeals Tribunal.
However, that does not appear to have been the case. In fact the correspondence makes it quite clear that as at 1 December 1994, the date on which the application appears to have been lodged with the Tribunal, Mr Purdie had done no more than to decide to ask the applicant to complete six months relevant aircraft maintenance experience in Australia to satisfy the experience requirements for the issue of a licence.
Mr Purdie also indicated that should the applicant refuse to comply with that request, he would have no choice other than to refuse to grant the licence under regulation 264(1)(a).
The situation in respect of regulation 31(6) was described by Mr Purdie, in his letter of 9 December, in the following terms:
Whether or not your Egyptian licence is a licence equivalent to the Australian AME licence you seek, because that licence has expired:
- it is not "in force in accordance with the law" of the country in which it was issued; and
- you cannot, therefore, properly be regarded as the "holder" of such a licence.
For these reasons, it would appear that you do not satisfy the requirements of CAR 31(6)(a), and could not therefore be treated as a "qualified person" under CAR 31(6).
Of course, if you were able to secure a re-validation of your Egyptian licence, or if you were otherwise able to secure a licence, equivalent to the Australian licence you seek, issued by a competent authority of some other country, it might then be possible to consider your application under CAR 31(6). In the circumstances, however, I understand that these options may not be available to you.
That letter concluded in relation to 31(6) as follows:
In the event you may now wish to have your application reassessed on the basis of your qualifications under sub-regulation 31(4) as opposed to sub-regulation 31(6), please advise me immediately. If you choose to do so, no decision will be made in respect of your application until you have had a reasonable opportunity to secure such evidence as you may be required to submit in support of your qualifications on that basis.
If you still wish to be treated as a "qualified person" under sub-regulation 31(6), your application will be considered on that basis, and you will be notified of the Authority's decision in due course.
As I have already said, the matter rested there until the hearing before the Administrative Appeals Tribunal. It seems to me that two misconceptions have occurred in the present case. The first is that there has been a reviewable decision. As the evidence fairly clearly demonstrates, there has been no refusal of a licence under regulation 31 of the CAR. The requirement for a reviewable decision under section 31 has not therefore been met.
The second misconception appears to have been that the six months requirement of practical experience was a requirement imposed under regulation 36(1)(b), yet that matter was expressly left open by Mr Purdie, and has not as yet been the subject of any decision by him.
In Gramophone Company Limited v Magazine Holder Company (1911) 28 RPC 221 at 225, Lord Loreburn, LC, said:
It is the duty of a Court to decide cases according to the truth and fact, not according to any assumed or artificial state of facts which the parties may find it convenient to present. No doubt Courts of Law allow and indeed encourage parties to simplify litigation by making admissions and to a certain extent by waiving their rights, because, when there is a real controversy depending on real facts, everyone ought to facilitate its authoritative settlement. But that is a very different thing from allowing people to obtain an adjudication upon the footing that something exists or has happened which in truth does not exist, or has never happened....A Court of Justice can never be bound to accept as true any fact merely because it is admitted between the parties.
I would add that when it comes to facts founding jurisdiction in a Tribunal, or to a review of that Tribunal's decision in a court it is axiomatic that jurisdictional facts must be established to the satisfaction of the Court. In the present case the parties, albeit unintentionally, have requested the Administrative Appeals Tribunal and now the Court to decide this matter, not according to truth and fact, but according to assumed or artificial facts. This the Court will not do.
It seems to me that in those circumstances the application for review must be dismissed, and I so order. In all the circumstances it is appropriate that no order be made as to costs, but I will hear the parties on that issue.
....
I order that the application for review be dismissed, and I make no order as to costs.
I certify that this and the preceding 10 pages are a true copy of the revised Reasons for Judgment of the Honourable Justice Merkel
Associate:
Date:
Appearances: The applicant Mr A Saraya appeared in person
Miss R Henderson instructed by the Australian Government Solicitor appeared on behalf of the respondent
Heard:1 May 1997
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