Aviation Briefs

In Re Tusch and Secretary, Department of Aviation (1987) 7 Administrative Appeals Reports 57, the Applicant sought a review by the AAT of a decision refusing to grant him a Search and Rescue Mission Co-ordinator’s rating on his air traffic controller licence under ANR 97B (f). ANR 97C (c) required him to have “passed such examinations . . . as the Secretary requires and notifies in Air Navigation Orders”. He had participated in a simulated hypothetical exercise requiring him to organise and supervise a search and rescue operation for a missing glider, after which the four assessors had recommended against the grant of the rating.

During the course of the hearing before the AAT, it was conceded by the Respondent that the Applicant had provided the necessary evidence of practical experience required and that he had demonstrated proficiency in the duties authorised to be performed by the holder of the rating. The sole question was whether or not the applicant had passed the necessary examination.

As an adjunct to its decision, the AAT ruled that its jurisdiction was limited to the specific decision conferred in the statute (ie. the ANR’s) and did not extend to include the decision maker’s powers and discretions as a primary administrator at large. The Tribunal noted that it is well established by previous court rulings that its role is to decide for itself the right and preferable decision on the information placed before it: the review conducted by the Tribunal is a review “on the merits” and the Tribunal is not concerned per se with the reasons of the decision maker, no mat ter how reasonable or informative they may be. Further, the Tribunal held that it is not restricted to the information which was before the decision maker and it may consider additional or new material or arguments presented at the hearing. Within those parameters, however, the Tribunal may exercise the powers and discretions of the decision maker and give the correct and preferable decision on the merits as disclosed by all the evidence. But whilst it held that it did not have power to critically consider the content, appropriateness or adequacy of the examination in considering whether or not that examination had been passed, the Tribunal nevertheless came to the view that neither the Secretary nor the Tribunal was bound to follow assessments given by examiners; the Tribunal considered that “no doubt the view of the examiners as to whether an applicant has passed an examination would be a most important consideration in assessing the applicant, it should not be a substitute for the discretion which is to be exercised by the Secretary (or his statutory delegate) and also by this Tribunal”.

On the evidence placed before it the Tribunal found that there were a number of major inconsistencies between the assessors under the main headings used by them in assessing the Applicant and the members of the Tribunal were not satisfied that the various criticisms made by the examiners of the Applicant were sufficient to indicate that he should fail, particularly given that the Tribunal had the benefit at the hearing of the Applicant’s explanations for certain actions which the Tribunal accepted as being truthful. Those explanations were not made known to the assessors when the assessment was made, nor to the Secretary’s delegate when he made the decision refusing to grant the rating. The Tribunal found that those explanations may have been sufficient to render the Applicant’s actions during the course of the simulated exercise acceptable in the circumstances. The Applicant had never been asked at any stage during or immediately following the exercise to comment on criticisms of his actions or, alternatively, inaction during the exercise. Furthermore, there was no point score system enabling assessors to allocate a specific number of points for each item of consideration. In addition, there was no weighting given to the various headings of test such that some would be perceived as more important than others. In the Tribunal’s opinion a search and rescue operation by its very nature must contain many possibilities and variables as to the preferable and best actions to take in a crisis, much of which is subjective individual judgment, as indicated by the various views expressed by the assessors in evidence. All the more reason, so the Tribunal held, for establishing essential agreed criteria of evaluation and assessment by expert practitioners taking into account explanations of activity, or non-activity, given by the person being assessed. It was also established in evidence that the four assessors had applied differing criteria in assessing the applicant and indeed the Tribunal questioned whether the simulated exercise was one which accorded with reality. Upon all of the information presented to it in evidence, most of which was not available to the delegate of the Secretary and bearing in mind also the conflicting views of the assessors on matters of importance, in conjunction with a process of assessment whicli did not sufficiently overcome the problems associated with subjective and individual evaluation as well as the failure to take into account the Applicant’s explanations, the Tribunal was not satisfied that the Applicant should be assessed as having failed the examination.

Accordingly, the AAT ruled that the decision of the delegate of the Secretary to the Department of Aviation should be set aside and in lieu thereof the matter was remitted back to the delegate with a direction that the Applicant be given a further opportunity to be assessed at an examination to be set by the Department.

For the private pilot also he may, depending of course like all Court cases on their particular circumstances, obtain relief from a decision to cancel his licence. Legibus Mundi Adstrictus Sed lnstar Avis Subvolo