[Peetwo]

"..M'lord this is a clear case of attempted embuggerance.." - Fadlalla v CASA AATA 331 (15 May 2015) 

From the above decision by Egon Fice , Senior Member of the AAT, it is becoming apparent that the jig is up when it comes to CASA attempting to persecute individuals that have genuinely made an honest mistake/contravention of the regs. This case is also a classic for it shows how CASA manipulates a situation to suit it's own purpose with a dodgy investigation, with little to no factual evidence (sounds familiar hey?? ) and by using underhanded, morally corrupt tactics in an attempt to discredit the applicant.

SM E Fice at paragraph 101..

"..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..." 

This matter is also interesting because CASA LSD tried unsuccessfully to make this the first case of pilot embuggerance under the new Part61 - fortunately for the applicant, Senior Member Fice would not have a bar of it...

6. 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.

   
{Reference: Read paragraph 105 below}
 
Phew..imagine the many, many more means of persecution at CASA LSD's disposal  if they had of been able to use Part61, mate the poor bugger would be hung, strung & quartered and on the next flight home to the Sudan by tea time at the cricket...

Anyway the following is the conclusion to the Fice decision - but I suggest the full decision is worthy of a read...

CONCLUSIONS

93.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.
    

94. 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:

1. • © 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.
     

95.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.

96.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.

97. 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.

98. 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.

99. 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.

100. 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.

101. 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.

102. 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.

103.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.

104. 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.

105. 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.

106. 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.

107. 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.

 My estimation of Senior Member Fice is heading for the stratosphere...

Just Culture within CASA - Yeah right Skates and pigs fly!

MTF...P2