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Ekinci and Civil Aviation Safety Authority [2005] AATA 789
(18 August 2005)
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Ekinci and Civil Aviation Safety Authority [2005] AATA 789
(18 August 2005)
Last Updated: 24 August 2005
2005_78900.jpg
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 789
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1368
GENERAL ADMINISTRATIVE DIVISION
Re
)
Reha
Ekinci
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Applicant
And
Civil Aviation Safety Authority
Respondent
DECISION
Tribunal
Professor GD Walker, Deputy President
Date 18 August 2005
Place Sydney
Decision
The decision under review must be affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
CIVIL AVIATION SAFETY AUTHORITY – refusal of aircraft maintenance engineer’s licence –
applicant failed to pass the necessary examinations and meet the experience requirements specified in
the CAO – examination of the applicant’s Schedule of Experience and associated documentation –
examination of the requirements of the Civil Aviation Orders – examination of the issue of bias by
CASA officials – comparison of the hours of experience requirements and the hours which can be
demonstrated by the applicant – examination of whether the applicant made a false and misleading
statement to CASA in respect of the verification of his work – whether the applicant is a fit and proper
person to perform the functions and duties of a licence holder – found that there was sufficient
evidence to establish four of the ten categories required but insufficient evidence to establish that he
had accumulated the required experience in the other six out of ten categories – found insufficient
evidence to establish he had the necessary experience in group 1 engines – held that there was
insufficient evidence to prove he was not a fit and proper person to hold a licence – decision under
review is affirmed.
Civil Aviation Act 1988 s 20AB
Civil Aviation Regulations 1988 s 31
Civil Aviation Orders Part 100 ss 100.90, 100.92
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
REASONS FOR DECISION
18 August 2005
Professor GD Walker, Deputy President
Summary
1. Mr Reha
Ekinci , who is aged 41, applied for the issue of an aircraft
maintenance engineers licence ("AME licence"), in the engine category and a group 1
rating, under the Civil Aviation Orders.
2. A delegate of the respondent, the Civil Aviation Safety Authority ("CASA") refused
Ekinci ’s application on the basis that the applicant did not meet the
Mr
necessary experience requirements specified in paragraph 65.31 of s 100.92 of the
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Civil Aviation Orders. That is the decision to be reviewed by the tribunal.
Background
3. The applicant, Mr Ekinci , was born on 19 April 1964 and is aged 41. He is chief
pilot and maintenance training officer for Air Combat Australia Pty Ltd situated at
Narellan, New South Wales. He has been flying since 1982 and has owned 17 aircraft.
4. On 1 June 2004, Mr
Ekinci
applied for the issue of an aircraft maintenance
engineers licence ("AME licence") in the engine category and group 1 rating (T p21),
piston engines and associated systems other than those in groups 3 and 21. He also
lodged with his application a schedule of experience ("SoE") (T pp24-73). On 20 July
2004, the acting section head, maintenance personnel standards section of CASA,
advised Mr
Ekinci
that he had assessed his SoE and that due to the lack of
certainty of the verification of the tasks recorded in his SoE, he was required to
provide further information as to the completion of tasks listed by the acting section
head (T pp74-86).
5. On 30 July 2004, Mr Ekinci
telephoned the acting section head, maintenance
personnel standards, and was advised that he would receive no guidance in respect of
the results of his assessments until he had provided the written information sought (T
supplied the information as requested by
p87). On 17 August 2004, Mr Ekinci
CASA (T p88). On 28 September 2004, he telephoned the acting section head,
maintenance personnel standards, and was informed that a number of irregularities
had been identified in his application and that the matter was being referred to the
Office of Legal Counsel, CASA, for review (T p108).
6. On 13 October 2004, the section head, maintenance personnel standards, CASA,
informed Mr Ekinci
that his application for a LAME licence, engine category,
group 1 rating, was refused on the grounds that he failed to satisfy CASA that he had
(a) adequate appropriately verified experience in the maintenance of aircraft engines
covered by a engines group 1 rating; (b) four years of general aircraft maintenance
experience; and (c) two years of engine maintenance experience. He was informed
that CASA had concerns that (T p5):
The generic descriptions, imprecise/grouped dates, grouping of tasks, contradicted
entries and unsubstantiated entries in the record in your SoE and the incorrect
statements made on other occasions cause CASA to doubt the veracity of these entries
and to be concerned whether you are a fit & proper person to hold an AME Licence.
7. On 20 October 2004, Mr Ekinci
lodged an application for a review of that
decision by the tribunal.
8. At the hearing, Mr Ekinci
appeared in person and the respondent was
represented by Farid Assaf, of counsel, instructed by Garth Cartledge, legal advocate,
CASA. The evidence before the tribunal comprised the documents produced pursuant
to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"),
consisting of two volumes taken collectively into evidence as Exhibit R1, together
with evidence presented by the parties at the hearing. For the applicant, oral evidence
was given in person by Mr Ray
Ekinci , Mr David Dent, Mr Trevor Merton and
Mr Eric Edwards. A further witness also gave oral evidence for the applicant, his
identity being protected from publication by an order made under s 35(2) of the
Administrative Appeals Tribunal Act 1975. He is referred to in this decision as "CD"
(not his real initials). For the respondent, Mr Keith Johnston and Mr Derek
Hoffmeister gave oral evidence in person.
Relevant Law and Policy
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9. Section 20AB of the Civil Aviation Act 1988 ("the Act") prescribes that a person must
not carry out maintenance on an Australian aircraft if the person is not permitted by or
under the regulations to carry out that maintenance. At the date of the decision, the
licensing procedure was set out in regulation 31 of the Civil Aviation Regulations
1988, which provides that a qualified person may apply to CASA for the issue of an
aircraft maintenance engineer licence. Regulation 31(4) states:
(4) In this regulation, qualified person means a person who:
(a) has attained the age of 21 years; and
(b) satisfies CASA that he or she possesses such knowledge as CASA 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 CASA considers relevant having regard to the licence sought; and
(iii) these regulations and the Civil Aviation Orders; and
(c) satisfies CASA that he or she has had such practical experience of the
duties performed by a holder of the licence sought as CASA requires and
directs in Civil Aviation Orders; and
(d) satisfies CASA that he or she is not suffering from any disability likely to
affect his technical skill or judgment; and
(da) satisfies CASA 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 CASA requires to be passed by an
applicant for the licence sought.
10. The relevant provisions in the Civil Aviation Orders (CAO) are part 100, s 100.90
Administration and Procedure – Aircraft Maintenance Engineer Licences – General
Requirements, which provides that "Except where otherwise approved or directed by
the Authority, this Section of Civil Aviation Orders specifies the requirements under
regulation 31 of the Civil Aviation Regulations for the grant or renewal of aircraft
maintenance engineer licences" and s 100.92 Administration and Procedure –
Aircraft Maintenance Engineer Licences – Category Engines, which provides that
"Except where otherwise approved or directed by the Authority, this Section of
CAOs applies to the requirements for the grant of an aircraft maintenance engineer
licence in category engines and for the grant of additional ratings to a licence in this
category".
11. Section 100.90 subsection 6 of CAO 100 states:
6.1 – A licence may be granted to a person who complies with the following
requirements:
(c) has passed the examinations and met the experience
requirements specified in CAO Sections 100.91 to 100.95 as
applicable;
12. Section 100.90 subsection 3 of CAO 100 sets out the parts of an aircraft which
constitute the engine category and the privileges of the category in relation to engine
running, maintenance, certification of electrical maintenance, instruments, radio and
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certification of maintenance on the airframe (T pp110, 113-114).
13. Section 100.92 subsection 3 of the CAO provides that a Group 1 rating refers to:
Piston engines and associated engine systems in aeroplanes and airships, other than
those classified in Group 3 and Group 21.
14. Subsection 5 of s 100.92 of CAO Part 100 sets out the experience requirements for
examinations, grant of a licence or endorsement of a rating. Subsection 5.3 states:
5.3 - The minimum experience required for the grant of a licence is four years aircraft
maintenance or aircraft component maintenance including:
(a) two years aircraft maintenance experience in category engines; and
(b) 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.
15. The instructions for the relevant Schedule of Experience for category engines group
1 requires an applicant to provide evidence of work performed in 10 different areas
of maintenance practice. It is the responsibility of the applicant to have each entry
verified by (a) a licensed aircraft maintenance engineer (LAME) who has certified
for the maintenance, or (b) a person appointed by a certificate of approval holder
who has certified and supervised the work. This is to ensure that the applicant has
satisfactorily completed the task, together with others completed the task, observed
the task or carried out/received maintenance simulator training on the task (T
pp125-127).
The issues
16. The issue for decision is whether the applicant has satisfied the statutory
requirements for the grant of an aircraft maintenance engineer’s licence. The
evidence and submissions relevant to that issue fell broadly into three parts:
(i) the question of alleged CASA bias and its effect on the licence application
(ii) the schedule of experience and
(iii) the other grounds for rejecting the licence application.
The hearing – particular aspects
17. At the hearing Mr Ekinci
appeared in person. Any applicant has a perfect right
to present his or her own case, and the tribunal is bound in that event to make some
concessions to the fact that most applicants are unaware of tribunal practice and
Ekinci ’s extensive
procedure. It might seem a little strange that a man with Mr
business interests, both in Australia and overseas, could not arrange for a lawyer to
represent him in an application that he considered important, but that was the
situation and it had certain consequences.
18. First, Mr
Ekinci
maintained from beginning to end that the case was
essentially about the bias that he claimed CASA displayed towards him, and much of
his evidence related to that issue. The tribunal, however, has no jurisdiction to review
administrative decisions for bias or on other judicial review grounds. Nevertheless,
such questions can sometimes become tangentially relevant. In this case the evidence
of alleged bias was admitted, over the respondent’s objection, because it had a
bearing on the accuracy of some of the evidence of verification, notably that given
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by the witness CD.
19. Next, much of the applicant’s other evidence amounted to a general attack on
CASA’s evaluation of his SoE for having allowed insufficient hours for the tasks he
said he had performed or for disregarding his supplementary, mostly general,
evidence of verification. He pointed to some specific examples of what he said were
insufficient allowances or other matters, but made no comprehensive attempt to
relate the evidence he adduced to the full range of the particular tasks he claimed to
have performed.
20. Again, Mr Ekinci
disregarded a specific direction at the hearing on 13 April
2005 to file and serve a witness statement in time for the resumed hearing on 20
June. He is an articulate man and is currently, he states, studying for a master’s
degree in aviation administration. Drafting such a statement is well within his
capabilities. At the resumed hearing he simply explained that the pressure of other
business had prevented him from complying with the direction. That default
contributed to the overall difficulty of ascertaining exactly what were the task hours
and overall experience totals that he was claiming.
21. Because of the detail involved in the evaluation of SoE and the complexity that it
entailed, I suggested to the parties at the hearing on 22 June that they might wish to
prepare, in the four weeks available before the adjourned hearing date on which
submissions would be presented, a written summary of their contentions, perhaps
incorporating some form of tabulation showing how the evidence related to the
individual disputed items in the SoE. The respondent accepted that invitation and
lodged a summary of its contentions on 18 July. The applicant, however, did not and
his submissions consisted largely of a reiteration of his claims of bias, of
underestimation of hours and disregard of verification evidence. But, again, he
offered no breakdown of precisely how the hours should, in his view, be calculated.
He seemed to expect the tribunal to prepare a reconstructed SoE for him, which
appeared to be the approach he had taken with CASA.
22. In that connection I asked the applicant if he had ever considered lodging an
amended SoE setting out the hours and experience claimed in light of later inquiries,
or whether he would now consider doing so. He replied only that he could not have
lodged an amended SoE because CASA had it. As I pointed out at the time, it seemed
odd that a man in his position would lodge an important application without keeping
a copy of it. In any event his answer was incorrect – CASA had returned the
applicant’s SoE to him under cover of its letter of 23 July 2004 (T p77).
23. Finally, the hearing was punctuated by outbursts of shouting and personal abuse (not
all initiated by the applicant), despite my frequent admonitions to refrain from such
behaviour. On one occasion it proved necessary to adjourn the proceedings
temporarily in order to restore some measure of calm and order. One would think it
should be possible to debate entries on a printed form in an objective and
dispassionate manner, but in this case the maintenance of order was a continuing
preoccupation that was not helpful to the clarification of the factual issues.
The bias issue
24. Mr
Ekinci
stated that CASA officials, and in particular those based at the
CASA office at Bankstown, New South Wales, had dealt with his application in a
biased manner because of certain allegations made against him by a CASA officer at
Bankstown, who will be referred to as AB (not his real initials). Because of the
nature of the allegations against this person, the respondent applied for a s 35
confidentiality order to prohibit disclosure of his name. That order was made, and
was expressed to include a witness in these proceedings, to be referred to as CD, who
had allegedly been threatened by AB and asked for the protection of a s 35 order.
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25. Mr
Ekinci
believed that AB harboured a vindictive attitude towards him, and
had influenced other CASA officers to adopt a similar attitude, as a result of certain
confrontations between Mr Ekinci
and AB.
26. The first of these episodes occurred when AB was chief engineer of an aviation
service company at Bankstown. At that time the company had been offering 100
Ekinci
took his maintenance work
hourly inspections at a fixed price, and Mr
to them. On two occasions AB had offered to sign off 100 hourly inspections without
performing more than a perfunctory and superficial examination. Mr Ekinci
had declined the offer on both occasions. Nevertheless, he became aware that AB
had conducted shortened 100 hourly inspections of aircraft owned or operated by Mr
Ekinci .
27. Some time after that, Mr Ekinci
experienced an engine failure in an Airtourer
inspected by AB, VH-BXD, in which part of a cylinder had broken off. He had no
option but to execute a forced landing, with a student pilot on board, and shortly
afterwards had a violent argument with AB in which he accused AB of nearly getting
him killed and warned him in profane language not to do a "shonky" 100 hourly
inspection on one of Mr Ekinci ’s planes again.
28. Subsequently he had another dispute with AB when he demanded that AB return
some MiG parts that he had been seen removing without permission from an aircraft
owned by a Mr Horace Treloar and which Mr Ekinci
later purchased. The
aircraft type in question is a jet fighter, originally designed in Germany during World
War II (like its western adversary, the F-86 Sabre) and subsequently put into
production in the Soviet Union under the name of Mikoyan Guryevich type 15, or
MiG-15. AB admitted taking the parts and was prevailed upon to return them.
29. Next came a series of acts of alleged official misconduct that Mr Ekinci
said
AB had committed in his position as a CASA officer, after leaving the aviation
industry. This culminated in a written complaint to the Australian Federal Police
("AFP") by Mr Ekinci
alleging abuse of office by AB. The matter apparently
did not proceed because the AFP received legal advice that certain evidence
recorded on tape might be successfully challenged at a hearing because of the
circumstances in which the recording was made (Exhibits A4, A5).
30. This series of confrontations, the applicant said, led to AB and another Bankstown
officer using their positions in an attempt to sabotage his application for a LAME
licence. He tendered a copy of an email from AB to Mr Rick McMaster, then
executive manager of safety at CASA in Canberra (Exhibit A1). The email alleged
that the witness referred to as CD had verified a substantial number of tasks listed on
the applicant’s SoE under duress applied by the applicant and that a number of the
SoE entries were dated before CD’s LAME licence was issued, or were otherwise
incorrect.
31. The applicant called CD, who was a most reluctant witness. He declined to help
prepare a witness statement and after his initial examination-in-chief he repeatedly
refused to return for cross-examination by the respondent. It was not until after the
district registrar of the Administrative Appeals Tribunal had written a formal letter to
him explaining his legal obligation to appear that he did return, on the final day of the
hearing. The applicant questioned CD about the circumstances in which he verified
the original SoE, but later at CASA’s request reconsidered his verifications and
withdrew a substantial number of them. He said he had been hesitant about signing
the verifications in the first instance because many of the tasks had been performed
some years before and he could not accurately recall whether he had supervised
them without seeing the "job packages" for each operation, that is, the various log
entries and job sheets. He denied that the applicant had threatened or intimidated him
into signing the SoE, but did say that he felt under some pressure from him and for
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that reason proceeded to verify the SoE entries without seeing the job packages.
32. Subsequently CD wrote to CASA, to the attention of AB, the letter Exhibit A9
declaring that he had signed the applicant’s SoE under duress and had been scared
and intimidated by him and feared severe repercussions for himself if the applicant
were ever made aware of the letter’s contents. Under cross-examination by Mr
Assaf, he said that he had written the letter because he had "panicked", fearing that
his LAME licence "might go". He had been told that his file had been transferred
from the Bankstown office, where it would normally be kept, to Canberra, and had
feared that this was the prelude to some serious action by CASA. Asked whether the
letter was true, he replied "yes and no" and that it "was true in a way", explaining
that he signed it because he "had everyone on my back" and "didn’t want to lose my
licence". In response to a question from the applicant, he admitted that AB had
telephoned him and "might have discussed the SoE", that he did feel threatened
because "there was pressure coming from everywhere, not just from [AB]".
33. CD did not deny hearing the applicant tell the respondent’s solicitor that CD felt
threatened by AB. The applicant, CD admitted, had also told CD that he would not
risk CD losing his licence. He had added, "Do what you have to do, ... " The
applicant said in his evidence. CD had later given him a copy of the letter Exhibit 9
and had apologised for writing it, saying that he had done it to protect himself.
34. While admitting that he cooperated with Bankstown’s request to review his
verifications partly in order to remain on good terms with CASA, CD maintained
firmly that his revised verifications on the SoE as disclosed in the worksheets shown
to him at the Bankstown office, were correct and that his original verifications had
been "hasty". He did not deny that he might well have supervised more tasks in
addition to those verified in the revised schedule, but said that he could not certify
them without seeing the relevant files.
35. Another aspect of AB’s conduct showing bias against him, Mr
Ekinci
said, was
revealed in a letter from CD to the applicant dated 12 June 2002 (T p89). It is a short
but rather ambiguous letter, the full text of which is as follows:
Dear Ray,
We advise we have transferred the files you seek in accordance with [AB]’s instructions.
I furnish you with the maintenance data, including calibration certification. I can not
release the tooling as there is a dispute over money between you and Phil Onis.
Regards, ...
The applicant construed that letter as showing that AB had induced CD to transfer a number of job
files from CD’s possession to the new company formed after the breakup of his business relationship
with Phil Onis, in order to deny Mr Ekinci
access to them. Those files, he said, recorded at least
250 hours of maintenance work he had performed under Peter Hoad’s supervision.
36. That is a possible interpretation, but it leaves open the question of what is meant by
the words "I furnish you with the maintenance data, including calibration
certification." Was this maintenance data from the transferred files, or some other
body of data? The reference to calibration might mean it related to tools rather than
aircraft. AB was not called as a witness and CD offered no help in clarifying the
letter’s meaning, saying it was a long time ago and he could not remember where the
files were. That was consistent with his general stated inability to recall the details of
his discussions with AB, even when they clearly made a powerful impression on him.
37. The respondent submitted that the letter could only be interpreted as meaning that
Ekinci
(through AskDaily Pty Limited) the worksheets and other
CD gave Mr
information. In the absence of oral evidence from AB or CD that might clarify its
meaning, however, I am unable to give that ambiguous communication any weight on
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either side of the case. The fact that it is dated June 2002, two years before the
application was lodged, would also seem to reduce its relevance to these proceedings.
38. AB was seated at the back of the hearing room when CD was cross-examined and
re-examined. The applicant surmised that he had been brought in by CASA as a form
of implicit intimidation, to remind CD of possible adverse consequences if he were to
reveal anything about the alleged threats made by AB. The applicant in his own
evidence had testified that CD had told him that it was because of a telephoned
threat from AB that he feared loss of his licence and said that he had given CD his
word that he would not raise the question of AB’s threats unless CASA did. Another
possible explanation for AB’s presence at that particular time, however, is that he
knew his name might be mentioned in the course of CD’s testimony and wanted to be
present to hear what was said about himself, a perfectly legitimate motive for
attending (not that anyone needs a legitimate reason for attending a public hearing).
At all events, there is no evidence whatever that CASA has attempted any reprisals
against CD. Quite the contrary in fact – CD was recently granted a PT6A
endorsement to his licence only two weeks after applying for it.
39. Mr Eric Edwards, principal inspector of maintenance personnel at CASA in
Canberra, was called by the applicant, on summons, to give evidence. The applicant’s
examination of Mr Edwards was plainly designed in part to elicit responses tending to
show that the Canberra office had colluded with AB and one or more other persons
at the Bankstown office in a plan to ensure that the applicant did not receive a
LAME licence because he was seen as a whistleblower and a trouble-maker. It was
clear that Mr Edwards was aware of the tensions between AB, and possibly other
Bankstown officers, and the applicant, but nothing in his evidence suggested any bias
or animus towards the applicant that might have influenced his handling of the
application. Indeed, Mr Edwards had endeavoured to help the applicant to overcome
the problem that some of his verifiers were deceased or overseas, advising him on
alternative methods of attesting, such as statutory declarations, which can be
acceptable in some circumstances.
40. The applicant’s cross-examination of Mr Keith Johnston, an airworthiness inspector
at CASA central office in Canberra, also endeavoured to establish, among other
things, the existence of a bias against the applicant that was manifested in Mr
Johnston’s disregard of the statutory declarations and other alternative methods of
verification when assessing the applicant’s SoE. The applicant’s aggressive
questioning of Mr Johnston elicited no such evidence. The witness explained that the
original SoE had been returned because there were doubts about some of the
verifications, because many entries did not specify the aircraft type or date of the
work and described the tasks only in general and unhelpful terms. CD had been
asked to reconsider verifications because some of the entries he had originally
verified bore dates earlier than the date on which CD had received his LAME
licence. When the SoE had been returned to the department, Mr Johnston said that
he had reassessed it over a period of several days, giving it a full review and taking
into account the statutory declarations and other statements, as well as accepting
some entries even if not verified at all. All items that were confirmed were accepted,
and those not verified were for the most part rejected.
41. AB gave no evidence, and no explanation for his failure to do so was offered. He was
clearly available, as he was seated in the hearing room while CD was under crossexamination on the fifth day and for some time afterwards. Applying the principle in
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, I infer that the respondent
considered that his evidence would not have been helpful to its case.
42. On the preponderance of probabilities it seems likely that AB did telephone CD
about the applicant’s SoE, and that AB did threaten CD with loss of his LAME
licence if he persisted in supporting Mr Ekinci ’s application. One or more
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other CASA officers based at Bankstown may have also been privy to that conduct. I
find no evidence, however, to support the proposition that CASA’s evaluation of Mr
Ekinci ’s application, and specifically his SoE, was in any way influenced or
affected by any bias against the applicant.
43. The main relevance of the bias evidence was to the question of whether, as a result
of that bias, CD had been pressured into withdrawing his verification for tasks that he
had in fact supervised. I think it likely that AB’s threat was the main reason why CD
reconsidered his verifications on the applicant’s SoE and withdrew those for which
he was not shown a job sheet or other documentary corroboration. It is probable that
some of those entries related to tasks that CD had in fact supervised and would have
been prepared to verify if he had sighted the appropriate written records, but could
not confidently certify otherwise. In that sense CD’s revised verifications are true
and complete. Mr Ekinci
did not challenge the revised verifications except to
ask CD if the other claimed tasks were in fact performed and supervised. CD did not
deny that, but said he could not certify tasks without seeing the documentary
records.
The schedule of experience
44. As Mr Johnston, a CASA airworthiness inspector based in Canberra, explained in his
affidavit (Exhibit R6), in normal cases an applicant for an AME licence is a person
who has been an apprentice or other employee in a full-time position in a
maintenance organisation who is performing maintenance under the provision of a
licensed aircraft maintenance engineer (LAME). Many of those people concurrently
follow a course of theoretical study culminating in various theory examinations
prescribed by CASA. Such a person also usually completes an SoE and has it verified
by a LAME after completing each maintenance task. An SoE completed in that way
is a contemporaneous record of the maintenance that the unlicensed person has
performed under supervision.
45. Mr
Ekinci
did not follow that approach. As Mr Trevor Merton explained in his
statutory declaration (Exhibit A2), the applicant has always had a policy of
conducting as much maintenance as possible on his fleet of aeroplanes himself, under
the supervision of qualified LAMEs, who have included Roy Coburn, Peter Hoad,
Anthony Death and Tim O’Connor. He currently operates a fleet comprising two
Airtrainers, two Yakolev 52s (with radial engines), one Piper Aerostar, one Ted
Machen Superstar 700, one Enstrom F28 helicopter, one Learjet 24 XDR and two
MiG-15 fighters.
46. Mr
Ekinci
lodged his application for a LAME licence, accompanied by what
was claimed to be a statutory declaration by himself (T p23), explaining that Roy
Coburn, with whom he had worked on VH-ALN, was deceased, and that Anthony
Death was working in Saudi Arabia and unable to sign for the work he supervised,
and that Peter Hoad, who supervised the tasks on VH-FWZ, AMX and BXD, was
unwilling to assist with the application because of certain personal differences
between them. That document (T p23) is not actually a statutory declaration, not
having been properly witnessed. Mr Ekinci
also attached a letter (T p91) from
LAME Stan Ral describing particular tasks performed by Mr
Ekinci
under his
supervision between 28 September 1992 and 26 June 1993 on VH-BXD, but without
specifying the hours taken. He also stated that Mr Ekinci
performed "several
cylinder changes" and "several 100 hourly inspections on BXD under [his]
supervision" but did not stipulate how many or the hours taken. Mr Ral also stated
conducted two 100 hourly inspections
that between 1991 and 1994 Mr Ekinci
on VH-FWZ under his supervision, as well as other work on VH-FWZ, ALN and
AMX, but with no hours or specific dates.
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47. Mr Johnston assessed the application and SoE, but concluded that many of the SoE
entries did not provide a clear description of the task performed, were not verified
properly or at all, in some instances were verified by the applicant himself, were
verified by persons who did not hold an AME licence, were not substantiated by
evidence or claimed excessive hours for task. CASA therefore wrote to the applicant
on 20 July 2004 a letter (T pp74-77) indicating that verification from the LAMEs
Death, Hoad and Hobson was required. It also required the applicant to "supply a
correctly completed Statutory Declaration covering the statements you have made
concerning verification of the SoE entries" (T p76).
48. Mr Johnston interpreted that passage being a request for a statutory declaration
concerning the entries that the applicant had verified himself and the reasons he had
done so, noting that "In any event, if such a statutory declaration were provided, it
would not have been a substitute for proper verification of entries by the supervising
LAME". I do not construe that sentence in that way. To me it seems to be a reference
to the purported statutory declaration on T p23, mentioned above, describing the
problems Mr Ekinci
faced in obtaining verification from Messrs Death, Hoad
and Coburn.
49. Mr Johnston commented that "Mr Ekinci
appears to have construed the letter
in terms that enabled him to provide statutory declarations from other persons as a
substitute to verification of individual entries in the SoE". That may be so, but it is
also true that in his oral evidence Mr Eric Edwards, of the CASA Canberra office,
Ekinci
on alternative methods of attesting where
said he had advised Mr
certain verifiers were deceased or overseas, including the lodgement of statutory
declarations, which were acceptable in some circumstances, although use of the
printed forms was preferred for the sake of uniformity of treatment and evaluation.
50. At all events, the applicant proceeded to obtain statutory declarations from Kenneth
Mogus (T p103) and Timothy O’Connor (T p105). Mr Mogus declared that he had
supervised Mr
Ekinci
carrying out 100 hourly inspections and other
maintenance and rectification work on FWZ, BXD, AMX and HJU between 30 June
1994 and 30 June 2002. As that maintenance was all in the instrument and electrical
categories, it was not relevant to the requirement for 250 hours of scheduled
maintenance on group 1 piston engines. Mr Mogus also declared that he also
"observed Reha
Ekinci
being supervised by various licensed aircraft engineers
while carrying out maintenance in the engine & airframe categories on the above
mentioned aircraft". Mr O’Connor’s statutory declaration stated that the applicant
had assisted him in performing a 100 hourly inspection of VH-AMX on 10 July 1996.
51. Mr
Ekinci
delivered the above statutory declarations and letters to Mr
Edwards at the Canberra CASA office on 19 August 2004, together with a large
number of job sheets, six years of MiG maintenance schedules for VH-EKI and
VH-REH, and copies of log book pages for AMX, JEN, WGK, RNV and CAU (T
pp107, 310-373). Mr Johnston said that he took all that material into account when
conducting his re-evaluation of the SoE. If that material confirmed a specific task
listed in the SoE, the item was allowed, but if it did not, the item was not allowed.
52. Nor had he allowed work done on the MiG fighters in the electrical and instrument
section, explaining that CASA looked for experience of work on a range of group 1
aircraft, and the MiG was not in group 1. He conceded that the work of performing
magnetic compass swings and inspecting electrical cabling on a MiG would be similar
to that required on other aircraft, but said that those categories were too narrow.
Evaluators would usually reject a SoE if the work done was only on one aircraft type,
or else they would limit certification to that type. Besides, the instrument systems on
turbine aircraft were often materially different from those in machines with
reciprocating engines.
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53. Following his review of the SoE with the new evidence, Mr Johnston again reached
the conclusion that the evidence produced was insufficient to justify the issue of a
license. The applicant had not established that he had accumulated four years’
experience in aircraft maintenance and two years on engines, and had still not
sufficient experience on group 1 engines. Mr Ekinci ’s SoE had been
particularly difficult to assess because the form requires information about aircraft
type, job number, date of completion and description of the work done. In many
instances the applicant had not supplied that information.
54. Despite the fact that the applicant held an LIS-2 maintenance authority covering
historic and ex-military aircraft, he was not authorised to verify his own work on
those types or on any others, Mr Johnston said. Mr Ekinci
disputed that
proposition. He stated, and this part of his evidence was unchallenged, that he is a
recognized expert on the MiG-15 and conducts a course on east European jet
aircraft. He was appointed by CASA to be its expert witness at an inquest into a MiG
accident. He has flown, and still flies, the MiGs that he owns and maintains, without
any maintenance-related incident to date. In his view he should be able to verify his
own work on the MiGs at least. CASA contends, however, that the legislation does
not permit self-verification in any circumstances. I will return to that legal
proposition later.
55. Mr Johnston was adamant that wherever the new material confirmed a specific job
listed in the SoE, he allowed it. There seemed to be some exceptions to that,
however. The scheduled inspection on VH-AMX on 10 July 1996 (Exhibit R6 p21)
was not allowed any time on the ground that it was not verified, but in fact it does
appear to be verified by Mr O’Connor (T p105). A scheduled inspection on the same
aircraft on 16 August 1998 appears to have been verified by Anthony Death, as is the
scheduled maintenance on Airtourer VH-RNV on 14 August 1998. Mr Death’s letter
also appears to verify the scheduled maintenance performed on AMX on 9 June
1999. I will return to those exceptions later.
56. Mr Derek Hoffmeister, chief engineer of Vee H Aviation Pty Limited in Canberra,
agreed that the SoE lacked the kind of detail needed to enable it to be accurately
assessed. It did not, for example, indicate whether a "scheduled inspection" was a
100 hourly or a 50 hourly (as with VH-FWZ), in some instances only the registration
letters were given, not the aircraft type, and some gave neither registration nor type.
The description of some work performed on VH-ALN as "fuel system and fuel tank
and pressure systems" left it uncertain exactly what kind of work was performed on
the fuel system, and the entry recording the cleaning of the fuel system on VH-WGK
(job 37) did not make it clear whether the fuel system had been completely
disassembled. If it had, there would have been a large increase in the number of
hours needed. Mr Hoffmeister confirmed that the checking of instruments and
electrical systems on a turbine aircraft would be helpful but insufficient because
there are differences between those systems in jet aircraft as against those with piston
engines. In piston-engined aircraft the starter and alternator are separate, but in a jet
they are one. In a piston-engined aircraft, gyro suction can be generated by a pump,
but in a jet the vacuum is taken off the engine.
57. The respondent also took issue with the times the applicant claimed for various
classes of work. In relation to scheduled maintenance, Mr Johnson estimated that it
would take no more than four to five hours to perform the 100 hourly periodical
inspection of a group 1 piston engine (the rectification of defects is recorded
separately). The applicant had claimed up to 17 hours for a periodic inspection of an
engine. Mr Johnston considered that excessive, but allowed six hours for each engine
of any type inspected at a periodic inspection. The respondent’s other witness,
however, Mr Derek Hoffmeister, estimated eight hours each for a wide variety of
engine types.
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58. Mr David Dent, chief engineer of Dent Aviation at Camden Airport, stated that a
basic four-cylinder engine could take between eight and 10 hours to inspect as part of
a scheduled inspection. That assumed a carburettor fuel system and normal
aspiration. An hour would have to be added if it were fuel injected and an extra hour
and a half to two hours for an inverted oil system. A four-cylinder engine could thus
take up to 12 hours to inspect, depending also on the ease of access of the installation
in the particular aeroplane. A non-complex six-cylinder engine would take between
12 and 14 hours, but added complexities such as supercharging, turbo-charging,
gearing or pressure carburettors would all add time to that basic time allowance. The
type of installation on the particular aeroplane can also require extra time.
59. An Aero Commander 560E, a PA60 Aerostar or a Ted Machan Superstar 602P/700
all fall into the complex engine category requiring 15 hours for inspection, as would
the powerplants of the Yak 52 and Piper PA23-250 Aztec. Mr Dent’s statement
(Exhibit A2) attached a copy of the Pacific Aviation Periodic Schedule for New
Aircraft. Until recently Pacific Aviation was the Piper agent in the Asia-Pacific
region. The engine inspection schedule quoted for a normally aspirated PA60
Aerostar, including electrical checks, is 30 hours. It would therefore not be
unreasonable, Mr Dent said, to expect 17 to 18 hours for an inspection on a used or
ageing Superstar or Aero Commander engine. Mr Dent pointed out that the chart
relates to new aircraft, but today most aircraft serviced are old. (It is well known that
light or general aviation aircraft manufacturing was almost annihilated in the 1970s
and 1980s by product liability litigation and legislation: see Walker, The Rule of Law:
Foundation of Constitutional Democracy (1988), pp 376, 459. Consequently, most
general aviation aircraft in service today are quite old.) CASA itself states in its
Ageing Aircraft Program materials that the inspection of older engines takes longer.
60. The respondent criticised Mr Dent’s evidence on the ground that neither he nor the
applicant defined what is meant by a "basic four-cylinder engine" or a "non-complex
six-cylinder engine" or a "more complex six-cylinder engine". It is reasonably clear
from the evidence, however, that by a basic four-cylinder engine Mr Dent intended a
normally aspirated engine with carburettor, no inverted oil system and a reasonably
straightforward installation. The respondent also pointed out that the applicant had
not established the types of aircraft listed in the SoE, but that is not a substantial
issue when one considers that Mr Johnston on behalf of CASA estimated an average
of six hours for all engines inspected at a periodic inspection.
61. The applicant also relied on the evidence of Trevor Merton, who until July 2000 was
the fleet senior check captain for the Qantas Airways Boeing 747 fleet. He is a
qualified marine and aeronautical engineer and a qualified test pilot, having
undertaken a test pilot course at the National Test Pilot school in Mojave, California.
He is also senior vice president of Precision Aero Engineering, a company
manufacturing aircraft engines. He does not hold an AME licence but is qualified to
design aircraft engines. At the hearing he said that in his opinion the times the
applicant had given for periodic inspections were overestimated by about 10 per
cent, but he had considerably underestimated the time taken for his rectification
work.
62. In his view, the times specified and accepted by CASA in relation to Mr Ekinci
’s application were not realistic. A minimum of eight hours per engine would be
required, and complex piston engines such as the ones fitted to the Superstar would
take two men approximately 12 hours each (ie 24 hours in total) to inspect. The Aero
Commander would take approximately the same amount of time. The Piper Aztec
takes approximately four man hours merely to remove and refit the engine cowlings
before inspecting the engines, and the cowlings count as part of the inspection.
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63. The respondent stressed that Mr Merton is not a LAME. He has, however inspected
about 12 different piston aircraft types and performed about 25 to 30 inspections
over the last 10 years. His role in such cases was to assist, not to take primary
responsibility for the inspection. In the early 1970s he had worked for a Melbourne
company using Commanders on ambulance and survey work. In that capacity he had
gained field experience on 100 hourly and 50 hourly inspections. He had spent
hundreds of hours assisting Mr
Ekinci
to conduct both scheduled and
unscheduled maintenance. He had assisted and observed him conduct at least 21
inspections, which he estimated would have taken well over 800 hours for Mr
Ekinci
to complete, on piston-engined aircraft. While he was not present the
whole time when the applicant was inspecting such aircraft, he was usually
somewhere else in the same hangar or workshop and knew Mr Ekinci
was
working full-time on the engine.
64. Mr Merton concluded by saying that the ultimate test of maintenance is satisfactory
operation. He had never experienced a significant problem with any aircraft he had
flown that had been maintained by Mr Ekinci , except where a particular
component, such as an alternator, had failed. He had been flying aircraft maintained
by the applicant for approximately 14 years.
65. Witness CD gave evidence that inspecting a four-cylinder Lycoming would usually
take eight hours. He said he could do a six-cylinder engine in a day. A geared turbo
Lycoming would need 20 hours for the inspection alone. The respondent did not
challenge CD’s time estimates.
66. The evidence establishes, in my view, that on average a minimum of eight hours are
required to inspect almost any piston engine in service today, and that up to 17 or 18
hours for a complex six-cylinder engine is not excessive, depending on the
convenience of the installation.
67. Mr Johnston concluded that the applicant had only demonstrated 114 hours (the
respondent conceded that this should actually read 180 hours) of the required 250
hours for scheduled maintenance. That was based on his method of not allowing time
for entries that were not verified and for allowing six hours for an engine inspection
where there was satisfactory verification.
68. The applicant disputed Mr Johnston’s approach to verification and said his allowance
of six hours per engine was inadequate. He did not, however, suggest a total figure
for the hours that would be allowed if a correct approach were adopted.
69. The respondent contended that even if Mr Johnston was wrong (which it denied) and
the tribunal were to accept eight hours as a reasonable time to perform a scheduled
100 hourly inspection (CASA submitted that would be the maximum allowable for all
engine types), the applicant would still not achieve the required minimum of 250
hours because CASA had allowed 30 engine inspections, which would total 240
hours at eight hours each.
70. Witness CD did not deny that the applicant had performed other work under his
supervision that he was not prepared to verify, but took the justifiable position that he
would not verify any work without seeing the appropriate records.
71. There remain the four scheduled inspections verified by O’Connor and Death
referred to above. The respondent contends that Mr O’Connor’s statutory declaration
assisted me" in
deserves no weight because it states that "Mr Ekinci
performing the inspection, rather than saying that Mr Ekinci
did any
maintenance which Mr O’Connor supervised. In light of the other evidence from Mr
Merton, Mr Mogus, and Mr Ral about the scope and extent of the inspection and
maintenance work carried out by the applicant, I think Mr O’Connor’s particular
choice of words is not significant and that he can be taken to have supervised Mr
Ekinci
on that occasion.
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72. Of Mr Death’s letter stating that he supervised the applicant performing the work
signed out by him in the log books for VH-RHV and AMX, the respondent states that
it is unacceptable, because no further detail about that work has been provided or
identified by the applicant. If one reads that statement in the context of the statement
earlier in the same letter that Mr Death was AskDaily’s chief engineer between 1998
and 2000, it can reasonably be concluded that the periodic inspections claimed by Mr
Ekinci
were supervised by Mr Death. Taking into account those four
inspections at eight hours each would give the applicant a total of 272 hours of
scheduled maintenance work, even on the rather conservative assumption of eight
hours per engine of any type.
73. The SoE for the category engines group 1 sets out the "scope and depth" of the
experience required by CASA. It lists 10 areas of practical experience required to be
demonstrated by an applicant for an AME licence (T pp29-30), namely:
Area
Scheduled maintenance
Engine installation
Fuel metering and control
(carburettor system)
Fuel metering and control
(injection system)
Ignition and starting systems
Propeller and propeller control
Electrical systems
Instrument systems
Engine run/adjustment
Mechanical maintenance
Requirement
250 hours
40 hours
50 hours
50 hours
45 hours
30 hours
25 hours
25 hours, including a minimum of 4 compass
calibrations
15 engine runs
75 hours
74. Scheduled maintenance has been dealt with. Of the nine remaining areas of practical
experience required to be demonstrated by an applicant for an AME licence, the
respondent is satisfied that the applicant has met the requirements for three of them:
engine installation, fuel metering and control (carburettor system) and mechanical
maintenance.
75. As regards fuel metering and control (injection system), one entry that was validly
certified by CD as LAME was rejected because no details of the aircraft registration,
aircraft type, date or nature of the inspection were given. In relation to another entry
correctly verified by CD, the respondent allowed only 30 per cent of the total time
claimed because a substantial part of the work involved airframe tasks connected
with removing the system. In relation to the other entries, CD withdrew his
verification. Job 70 on VH-HJU was also verified by another LAME, but the
respondent rejected that entry because no explanation for the existence of two
verifications was given, and the entry was not dated. Even if the 15 hours claimed for
this task were allowed, when added to the 30 hours accepted, it would still produce a
total short of the 50 hours required.
76. The respondent rejected the whole of the 82 hours claimed in relation to ignition and
starting systems because witness CD withdrew his verification, and there were no
dates and no supporting maintenance documents.
77. In relation to propeller and propeller controls, the respondent allowed 22 hours, as
against the 30 hours required, because CD withdrew his verification of some entries
and the applicant verified some of his own work on other tasks. Whatever room for
Ekinci
himself verifying
debate there may be about the appropriateness of Mr
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tasks carried out on the MiGs, there can be no such doubt in relation to work on the
propeller systems in piston-engined aircraft.
78. Again, the respondent disallowed most of the hours claimed in relation to electrical
systems, because CD withdrew his verifications for 120 hours of tasks and the
applicant verified his own work for most of the remaining hours claimed. The
evidence showed that some of the electrical work Mr
Ekinci
performed on the
MiGs could be regarded as relevant to the application, but only to a limited extent, as
there are differences in the electrical systems of jets and piston engined aircraft, and
in any event, the respondent expects applicants to show experience across a range of
aircraft types. The applicant needed only a further 13 hours to satisfy this category
and it is possible that relevant work on the MiGs might have been sufficient, but the
information supplied provides no basis for determining what the relevant work on the
MiGs might have been. Further, it is unacceptable for the applicant to verify his own
work on piston-engined aircraft.
79. The applicant said in evidence that a CASA officer based at Bankstown, Mr Gary
Arnold, had told him that he could verify the electrical systems work himself. Mr
Arnold was not called to give evidence for the respondent and no explanation was
offered for his absence. Under the principle in Jones v Dunkel (supra), I conclude
that it is likely that Mr Arnold did say that the applicant could certify the electrical
work himself, or at least those parts of it performed on MiGs. Even so, that opinion
could not bind CASA and, subject to what I have said about the work performed on
the MiGs, I think Mr Johnston was justified in not accepting the applicant’s own
verifications.
80. The respondent also rejected most of the hours claimed in the instrument systems
category because in most cases no aircraft or dates were specified, witness CD
withdrew one of his verifications and in relation to the others the applicant had
verified his own work. That included 11 hours in respect of the two MiGs, VH-EKI
and REH. They consisted of 11 inspections, all entailing compass swings. No
supporting maintenance documents were submitted. Even if those hours were
allowed, and were taken to include the required minimum of four compass swings
(calibrations), the applicant would still be well short of the 25 hours required. The
applicant repeatedly said that the six hours claimed on T p154 had not been credited
to him, although the tasks had been verified by Mr Ral. That is not correct. Those
hours were allowed in full, even though no dates or aircraft types had been specified.
81. Under the engine run/adjustment category, applicants are required to demonstrate
that they have carried out at least 15 runs. The respondent allowed the runs
supervised by Messrs Ral and Hobson, but not those purportedly verified by the
applicant himself or the withdrawn verifications of CD. None of the rejected runs
were performed on MiGs.
82. In his reply to CASA’s submissions about his failure to demonstrate the required
experience in the six remaining categories, the applicant contended that all six
formed part of the scheduled maintenance process. He also reiterated the difficulties
he faced in obtaining access to the recovery records when one of the verifying
LAMEs was deceased and two were out of business. Neither of those points
advances his case. The hours required in those categories are plainly intended to be
additional to the hours required in scheduled maintenance. The problems the
applicant faces in securing the records of his work are no doubt real, but the fact
remains that the onus is on a person seeking a licence to produce the required
evidence.
83. As was noted above, the applicant was also required to demonstrate a minimum of
four years’ aircraft maintenance experience, including two years on engines and
practical experience in the group or type for which a rating is sought.
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84. The applicant gave evidence that he has met those requirements, indeed that he has
worked in aircraft maintenance for 17 years, and has accumulated two and a half
years’ experience in piston engines. He did not, however, attempt a detailed
breakdown to show how his experience in fact equals or exceeds the required totals.
Mr Merton said he observed the applicant perform 21 aircraft (not simply engine)
inspections, totalling 800 hours. As the respondent points out, two years at seven
hours per day equals 728 hours.
85. The respondent contended that Mr Ekinci ’s extensive experience as a pilot
and his substantial business interests in Australia and overseas meant that he was
unable to devote a substantial amount of time to the required types of aircraft
maintenance. Mr Ekinci
said that his other business interests were managed by
others, and took very little of his own time. Even apart from that, I think there is a
real possibility that the applicant has indeed accumulated or exceeded the levels of
total experience that applicants are to demonstrate, but his evidence on that point is
too general to allow the tribunal to make a finding to that effect when it is disputed
by the respondent. Without some identification of the actual periods during which the
applicant attests that he was engaged in piston engine maintenance full time, or for a
stated proportion of his time, there is no proper foundation for a finding of fact in his
favour.
The other grounds for rejecting the application
86. The respondent argued that even if it had erred in finding that the applicant had not
demonstrated the requisite experience (which it denies), an alternative basis on
which CASA or the tribunal should refuse to grant the applicant a licence is that the
applicant made, in or in connection with an application, a statement that was false or
misleading in a material particular (see CAR 264).
87. The respondent referred to CD’s letter to AB of 7 July 2004 (Exhibit A9) stating that
the applicant had pressured CD to signing the SoE despite CD’s expressed wish to
see the worksheets and other records before endorsing the applicant’s various claims.
That letter led to the CASA office of legal counsel writing to CD its letter dated 25
January 2005 asking CD to verify the SoE in light of the worksheets relating to
various maintenance tasks CD had previously certified (Exhibit R6 Annexure A). CD
returned the SoE to CASA, having made notations that some tasks he had previously
verified were supervised, some were not supervised by him and of some he had no
recollection or knowledge. The respondent contends that as CD now states that he
Ekinci
for some of the items, Mr
Ekinci
must have
did not supervise Mr
submitted to CASA an SoE that was false or misleading in a material particular.
88. The applicant replied in his evidence that he did not ask CD to sign entries for tasks
he had not in fact supervised. He only wanted CD’s verification for the work he had
actually supervised, and CD had made a mistake by initialling the other entries.
Further, CD had said that AB had threatened him with loss of his LAME licence if he
assisted the applicant any more. CD had told him that he had written the letter
Exhibit A9 because he had said his bread and butter were on the line and he had no
choice but to cooperate with AB. The applicant had said to him "Do what you have
to do ...". CD had later given him a copy of the letter and had apologised for writing
it, but said that he did it to protect himself.
89. The respondent pointed out that CD initially gave evidence-in-chief after he was
called by the applicant. The applicant asked him no questions about the alleged
CASA threats, nor did he attack the reverified SoE. While it was unusual for CD to
refuse to return to the tribunal to be cross-examined by CASA, the respondent said,
no inference could be drawn from a failure to comply with a summons to give
evidence. The applicant, however, explained his failure to question CD about the
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alleged threats by saying he had given his word to CD that he would not raise the
matter of threats unless CASA did so first, as CD was afraid of reprisals from CASA
if he said anything about the matter.
90. As I have said above, nothing in the evidence suggests that CASA has sought to
exact reprisals from CD for any assistance he may have given to the applicant.
Indeed, after his evidence-in-chief, and before the resumed hearing, CD applied for a
PT6A endorsement to his licence and received it only two weeks later, on 27 May
2005. I also do not think that any person at CASA’s Canberra head office made or
authorised any threats against CD. At the same time, however, I have concluded that
AB probably did threaten CD in the manner alleged. It should also be noted that in
cross-examination CD did not deny that he probably had supervised the applicant
performing other maintenance tasks on piston engines in group 1, simply stating that
he had withdrawn his verification from any tasks that were not supported by
documentary evidence.
91. Mr
Ekinci
said in his evidence, as I have also noted above, that he did not ask
CD to verify items that he had not supervised, whether they were performed before
he obtained his licence or for other reasons, and that CD had simply made a mistake
by initialling those entries. The respondent did not invite CD to comment on that part
of the applicant’s evidence. The applicant does concede, however, that he should
have checked all of CD’s original verifications on the SoE. CAR 264 is a provision of
strict liability requiring no proof of intention to mislead or deceive. That ground for
refusing the licence must therefore be taken to be made out.
92. Another basis on which CASA or the tribunal could properly refuse a licence, the
respondent contended, is 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 for which the application was made (see CAR 264(1)(c)(ii)). The first ground
on which the respondent bases that contention is that the applicant does not have the
relevant experience of a LAME with engine rating group 1. That fact, however, is
more properly considered under CAR 264(1)(a). The respondent’s second ground is
that the applicant is not a fit and proper person because he made false and misleading
statements to CASA. While the making of a false or misleading statement in a
material particular is a matter of strict liability under CAR 264(1)(b), I think that
under paragraph (c)(ii) some element of intention or recklessness in making the
misleading statement is required. I also consider that the applicant’s explanation in
relation to that aspect of the case is acceptable.
93. The applicant also states, and the respondent did not dispute, that no aircraft
maintained by him has ever crashed or suffered an in-flight engine failure. The
evidence of Mr Merton, a highly distinguished aviator, supports the view that Mr
Ekinci , whatever the shortcomings in his SoE documentation, is a conscientious
and reliable maintenance engineer.
94. Consequently there is no basis for finding that he is not a fit and proper person within
the meaning of CAR 264(1)(c)(ii).
Application of the Law and Findings of Fact
95. The issue for the tribunal to determine is whether Mr Ekinci
satisfies the
experience requirements specified in paragraph 5.3 of s 100.92 of the Civil Aviation
Orders to enable him to be granted an aircraft maintenance engineer’s licence
(AME). The CAO requires the applicant to satisfy CASA that he has had four years’
full-time experience in aircraft maintenance and two years’ full-time experience
performing maintenance on engines, and that he has had practical experience in 10
areas of maintenance practice.
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96. In its Statement of Facts and Contentions (Exhibit R2), the respondent summarised
CASA’s assessment of the practical experience that the applicant has had:
Task Area
Required Hours
Scheduled maintenance
Engine installation
Fuel Metering and Control
(Carburettor)
Fuel Metering and Control
(Injection)
Ignition and Starting
Propeller and Propeller Control
Electrical Systems
Instrument Systems and at least
4 compass calibrations
Engine Run/Adjustment
Mechanical Maintenance
250
40
50
Hours assessed by CASA as
supervised
180 (incorrectly shown as 114)
64
83
50
32
45
30
25
25
Nil
22
12
6 and no compass calibrations
15 runs
75
7 runs
99
Regulation 264 of the Civil Aviation Regulations 1988 (CAR) sets out the conditions under which the
grant of a licence is to be refused:
264 Refusal to grant licence or certificate
(1) CASA 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 ...
(c) in relation to the initial issue of a licence or certificate:
...
(i) 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.
97. The respondent concedes that the applicant has satisfied the three categories of
engine installation, fuel metering and control (carburettor) and mechanical
maintenance. In addition, for the reasons given above, I find that he has also
satisfied the requirements for scheduled maintenance. As regards the other six
categories, there is insufficient evidence to warrant a finding that the applicant has
accumulated the levels of experience required.
98. As was indicated above, a case can be made for the view that Mr Ekinci ’s
own certification in relation to relevant electrical and instrument performed on the
MiG-15s should be accepted. The respondent contends that the SoE is a statutory
instrument that requires independent verification of all entries. CASA also argues
that allowing an applicant to verify his or her own entries in an SoE is inherently
problematic and, if accepted, would undermine the entire air safety purpose of the
statutory licensing regime. It is undoubtedly true that a general system of
self-supervision of aircraft maintenance would have potentially disastrous air safety
consequences. It is less clear that accepting self-verification for a relatively small
number of hours performed on historical or ex-military aircraft by an LIS-2
maintenance authority holder such as the applicant would be equally imprudent. I
do not read CAO 100.92.5.3, taken in conjunction with paragraphs 3.5, 5.1 and 5.2
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of the SoE, as totally excluding the possibility of accepting some tasks certified in
that way. Mr Edwards’ evidence indicated that, in certain circumstances,
unorthodox methods of certification can be accepted. As allowing the relevant MiG
hours in this case would make no difference to the outcome of the application,
however, it is not necessary to resolve that issue.
99. I also find that there is insufficient evidence before the tribunal to establish the
applicant has demonstrated four years of general aircraft maintenance experience,
including two years aircraft maintenance experience in group 1 engines.
100. As to the other grounds advanced by the respondent for refusing to grant a licence
to the applicant, I find that the applicant made in, or in connection with, the
application a statement that was false or misleading in a material particular within
the meaning of CAR 264(1)(b). On the other hand, I do not think the evidence
supports a finding that the applicant is not a fit and proper person to hold a licence
of the relevant type.
101. The applicant has thus not satisfied the requirements for the grant of an aircraft
maintenance engineer’s licence and the decision under review must be affirmed.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision
herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
Associate
Date/s of Hearing 13 April, 20 June, 21 June, 22 June and 18 July 2005
Date of Decision 18 August 2005
Solicitor for the Applicant Unrepresented applicant
Counsel for the Respondent Mr F Assaf
Solicitor for the Respondent Mr A Anastasi CASA
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