These are the Tribunal’s reasons for refusing to grant the stay, with a couple of omissions noted and comments by me in square brackets:
1. This decision is about whether a decision by the Civil Aviation Safety Authority (CASA), the respondent, suspending the Class 2 medical certificate held by Mr Clinton McKenzie, the applicant, should be stayed. CASA suspended the medical certificate in a reviewable decision dated 16 October 2018. Mr McKenzie applied for review of the decision on 17 October 2018. On 21 October 2018 Mr McKenzie sought a stay order. The suspension decision prevents Mr McKenzie from flying; the effect of a stay, if granted, would be to allow him to fly pending his review being heard and determined.
2. The tribunal held a hearing on 9 November 2018. Mr McKenzie, who is legally trained, appeared in person; Mr Anthony Carter appeared in person representing the respondent. He was accompanied by Dr Sanjiv Sharma, a Senior Medical Officer with CASA. Dr Sharma gave evidence to assist the tribunal to assess some of the medical evidence.
[The hearing was about an hour and a quarter long.]
3. The tribunal had available to it the documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (these are known as the “T- documents”); various emails and letters between applicant and respondent; medical reports; a statement by Dr Sharma with an attachment summarising medical literature; a statutory declaration by Mr McKenzie, with attachments; and submissions by both parties.
ISSUE
4. The only issue before the tribunal is whether the stay sought by Mr McKenzie should be granted.
LEGISLATIVE FRAMEWORK
5. Section 41 of the AAT Act deals with the operation of a decision that is the subject of an application for review by the tribunal. Subsection 41(1) provides that, subject to the provisions that follow, an application for review does not affect the operation of the decision for which review is sought. Subsequent subsections allow departure from that outcome. Subsection 41(2) allows the making of an order staying or otherwise affecting the operation of the decision to be reviewed, in the following terms:
“(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
6. Subsequent subsections provide for the variation or revocation of a stay order and for interested parties to be given an opportunity to make submissions.
7. Section 31 of the Civil Aviation Act 1988 (the CA Act) provides for certain decisions under the Act or the regulations to be reviewed by this tribunal. Such decisions include suspensions of certificates, permissions, permits or licences issued under the Act or regulations and the imposition or variation of conditions, or the cancellation, suspension or variation of an authorisation contained in such instruments. Section 31A provides for automatic stay of certain decisions, where a “show cause notice” is issued under the Act or Regulations. The operation of show cause notices is limited to airworthiness matters and it is accepted that the decision under review was not subject to a show cause notice.
8. Section 98 of the CA Act provides for the making of regulations for a wide range of purposes under that Act. The Civil Aviation Safety Regulations 1998 (the Regulations) provide the main body of rules governing civil aviation operations in Australia. Part 67 of the Regulations provides for the issue and control of medical certificates. Part 67B provides for the appointment of designated aviation medical examiners (DAMEs) and designated aviation ophthalmologists. Regulations 67.150, 67.155 and 67.160 set out the requirements for three medical standards, standards 1, 2 and 3 respectively. Regulation 67.230 allows CASA to direct the holder of a medical certificate to submit to a medical examination or undergo other tests or to authorise the disclosure of information if it is necessary, in the interests of the safety of air navigation. Where CASA issues a direction for a medical examination under regulation 67.230, subregulation 67.240(1) allows CASA to suspend the person’s medical certificate pending the examination. Subregulations 67.240(4) and (5) read as follows: [omitted by me]
9. Regulation 201.004 sets out decisions under the regulations that are reviewable by this tribunal; the provision includes any decision under the Regulations suspending an authorisation otherwise than on the application of the authorisation-holder. Regulation 11.015 states that “authorisation” includes a certificate capable of being granted to a person under the Regulations.
THE FACTUAL CONTEXT
10. Mr McKenzie holds a Class 2 medical certificate issued on 4 April 2017, expiring on 30 January 2019 (a Class 2 medical certificate means that the holder meets standard 2 set in regulation 67.155 of the Regulations). Mr McKenzie also holds a private pilot licence and must hold a Class 2 medical certificate in order to be able to fly. Mr McKenzie said that he flies for pleasure and greatly values the privilege of being able to fly.
11. Mr McKenzie was troubled by sensorineural hearing loss in his right ear and in November 2017 he had an MRI to help identify a cause. No results were found relating to the hearing loss, but the neurosurgeon, Dr Peter Mews, discovered a vascular anomaly in the left frontal part of the brain (report of Dr Mews, 2 November 2017, T1 folio 8). Dr Mews noted that Mr McKenzie had no previous symptoms or history and suggested that the most likely diagnosis was a dural arteriovenous fistula (DAVF) with some other possibilities (arteriovenous malformations) also considered. He explained to Mr McKenzie that the potential diagnosis carried a risk of haemorrhage, seizure or ischaemic neurologic deficit. He recommended a cerebral angiogram as the best way to “clarify the pattern of flow and the nature of the anatomical lesion”.
12. Mr McKenzie underwent the cerebral angiogram, and a report by Dr Mews (26 April 2018, T1 folio 10) confirms an arteriovenous fistula “Cognard type IV” (I gather the Cognard name comes from a system for classifying this type of fistula). Dr Mews also suggested that this type of fistula “is associated with a malignant behaviour risk (haemorrhage, ischaemic neurologic deficit, or seizure) approaching 40% per year”. He recommended treatment, which carried with it an element of risk. A report dated 12 July 2018 (T1 folio 12) reports on a further consultation with Dr Mews. The preferred treatment modality was endovascular obliteration with liquid embolic material, although the risks of the procedure are significant.
13. A report of Dr Shivendra Lalloo, dated 24 August 2018 records the procedure, which was carried out by catheterisation and introduction of embolic fluid identified as “Onyx 18”. I gather that Dr Lalloo (described by Dr Mews in an earlier report as “the senior neuro interventional practitioner in Canberra”) carried out the procedure, assisted by Dr Mews. The procedure was regarded by the doctors as having been successful.
14. Drawing on the evidence given briefly by Dr Sharma at the hearing (for which I am grateful), it may be helpful to explain Mr McKenzie’s condition and the procedure used to treat it. The DAVF involves an anomalous connection - the fistula - between the arterial blood vessels and the venous blood vessels in the brain, with the possibility of blood from one part of the circulatory system making its way into the other. The treatment involves filling the fistula with copolymer material delivered through a very fine catheter; the copolymer material sets or hardens, closing off the connection between the two sets of blood vessels.
[My comment: As noted earlier in this thread, the advice to me is that the anomalous connection was in the cranial blood flow, not in the blood flow in the brain. Dr Sharma is not a specialist in this area.]
15. On 26 August 2018 Mr McKenzie wrote to CASA advising that he had undergone the above procedure, explaining how the diagnosis came to be made, and suggesting that the procedure had reduced his risk by treating his arteriovenous fistula (T16). He noted that he had not flown since the condition was diagnosed and said he would not fly again until he received specialist advice that he was medically fit to do so. He suggested that his medical certificate did not need to be suspended but recognised that CASA might take a different view. By letter of 28 August 2018 (T17) Dr Sharma reminded Mr McKenzie of his obligation not to fly while his capacity was impaired, and sought a report from his treating doctor.
16. Mr McKenzie’s general practitioner, Dr Hayden Henry wrote to CASA on 31 August 2018 (T19) stating that the procedure undergone by Mr McKenzie had been a success and that he was “unimpaired and symptom free” neurologically, although he had not undertaken a full neurological examination.
17. In a letter to Mr McKenzie dated 12 October 2018 (T26) CASA provided an update about an application for a medical certificate, stating that the matter had been referred to complex case management (CCM), a process CASA uses to assess more difficult medical certification issues (at this time Mr McKenzie still held a medical certificate, so it appears that the letter misstated the reasons for the assessment; in practice it related to Mr McKenzie’s fitness to retain his certificate rather than whether or not to issue a certificate). The CCM report (T27) concluded that reports should be gathered from the relevant specialists addressing questions such as the risks of recurrence of the fistula, ongoing monitoring requirements, the percentage risk of incapacitation and the long -term prognosis, and appears to have considered two options: allowing Mr McKenzie to retain his class 2 certificate with a neurological report after 12 months; and suspending his medical certificate in order to establish whether he is fit to fly through neurological assessments over the next 12 months.
18. On 16 October 2018 CASA took the decision currently before the tribunal (T3): the decision issues a direction under regulation 67.230 requiring Mr McKenzie to undergo a medical examination; and suspending his medical certificate under regulation 67.240. The reasons for the decision identified several elements of the class 2 medical standard in regulation 67.155 which CASA was not satisfied that Mr McKenzie met, as follows:
“Abnormalities, disabilities and functional capacity
2.1 Has no safety-relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
a) an abnormality
b) a disability or disease
c) an injury
d) a sequela of an accident or a surgical operation
2.2 Has no physical conditions or limitations that are safety-relevant
Nervous system
2.7 Has no established medical history or clinical diagnosis of:
a) a safety-relevant disease of the nervous system; or
b) epilepsy; or
c) a disturbance of consciousness for which there is no satisfactory medical
explanation and which may recur
2.8 Is not suffering from safety-relevant effects of a head injury or neurosurgical procedure
19. The reasons also identify possible risks as including haemorrhage, venous congestion/hypertension and oedema, ischaemic neurological deficit, seizure , and procedure related risks (permanent neurologic morbidity and failure of the procedure requiring re-treatment).”
20. The direction to submit to a medical examination includes the following in bold type: “Please be advised, CASA is unable to make a risk assessment for your fitness to return to flying until 12 months has elapsed following your embolisation procedure”.
21. On 19 October 2018 Dr Mews emailed CASA (T32) asking for guidance on what CASA might need with regard to establishing that a person who had undergone DAVF treatment by endovascular techniques was now fit to hold (or retain) a class 2 medical certificate. He noted that he himself held a class 2 certificate and a private pilot licence. He said “I have advised the patient not to fly and notify his DAME to work towards medical clearance to resume his pilot privileges”. He noted that the patient (who was unnamed in the email) had no neurological symptoms and no adverse effects from the procedure. CASA’s response (also at T32), dated 22 October 2018, encouraged Dr Mews to submit all available medical information, noting that CASA might need to seek further information from the applicant.
22. On 19 October 2018 Dr Mews also wrote to Mr McKenzie (T29). In that letter he said that
a) CASA’s approach (as relayed by Mr McKenzie) “would seem a little heavy- handed”.
b) His professional opinion was that he did not consider Mr McKenzie a risk of incapacitation following the treatment of his DAVF. “I would consider you safe to fly for daytime VFR PPL flying. I would not consider you fit for a class 1 medical professional flying for a longer period, however.”
c) He had written to CASA (this is plainly a reference to the email at T32), and after receiving a response, would write a report stating his conclusion that Mr McKenzie was not at risk of incapacitation. He thought that Dr Lalloo held the same view, but both thought that CASA would require something further, such as a cerebral angiogram demonstrating no residual flow post treatment.
23. Mr McKenzie undertook further consultation with Drs Mews and Lalloo. Shortly before the hearing he provided a statutory declaration which included as an annex a report by Dr Lalloo of a CT scan (including both “limited CTB” and “dynamic CTA”), taken on 6 November 2018. In the report Dr Lalloo notes that “Limited CTB does not demonstrate any ICH [intracranial haemorrhage], left frontal infarction or hydrocephalus” and “Dynamic CTA demonstrates no evidence of residual AV shunt in the anterior cranial fossa.” The conclusion was “High quality dynamic CTA suggests no residual dural fistula”. I understand that “dynamic CTA” offers higher resolution and much more information than other forms of CT.
CONSIDERATION
24. CASA has argued that the tribunal’s jurisdiction extends to the suspension decision but not to the direction to Mr McKenzie to submit to a medical examination. That is indeed so: section 31 of the CA Act and regulation 201.004 of the regulations make it clear that the suspension decision is reviewable and the direction is not. Mr McKenzie has pointed out that an element of the decision to require a medical examination is legally somewhat dubious: the statement that CASA will be unable to take a decision until 12 months have elapsed would appear to have the effect that CASA has attempted to bind decision-makers in the future regardless of what evidence might be before them. Further, that appears to be at odds with the wording of subregulations 67.240(4) and (5), which contemplate that a person might bring forward information at any time and by so doing would oblige CASA to assess whether in those circumstances the suspension of a medical certificate should be lifted or maintained. As the direction is not reviewable, however, that is a matter for CASA.
[My comment: The “legally somewhat dubious” issue noted by the Tribunal is what CASA continues to try to paper over. It is, indeed, a “matter for CASA” which CASA has chosen deal with in a way that I consider to be utterly unconscionable. I have written to CASA, again, about this issue.]
25. Applications for a stay take on a different character depending on the legislative context of the decision under review, and even under a single piece of legislation, in the different contexts of each matter. But in the aviation safety context it is well established1 that an application for a stay comes to be considered in the light of three general considerations:
a) the applicant’s prospects of success in the substantive review;
b) any hardship that may result to those affected by the decision in the absence of a stay; and
c) the public interest in air safety.
[Footnote omitted.]
26. The above matters contribute to determining whether or not a stay is “desirable”, as specified in subsection 41(2) of the AAT Act; that subsection also requires that the stay decision is one that the tribunal considers appropriate “for the purpose of securing the effectiveness of the hearing and the determination of the application for review”. Where the denial of a stay would render the review itself nugatory, that would provide a clear basis to consider the grant of a stay.
27. Mr McKenzie argued that the reports and statements from Dr Mews and Dr Lalloo provide the basis for a decision that he is medically fit to fly under his existing class 2 medical certificate. He is therefore likely to be successful in the review process, the suspension is highly likely to be lifted, and there is no reason not to grant a stay. He noted that the condition for which he had been treated was of unknown origin, and he might have been carrying it for some time – perhaps years; thus the procedure to treat it had reduced his risk, not increased it. He accepted that denial of a stay would not cause him significant hardship, as flying is not a major source of income for him; and similarly he accepted that denial would not render the substantive hearing nugatory.
28. CASA argued that Mr McKenzie is yet to demonstrate his medical fitness to resume flying; that Dr Mews’s clearance in his letter of 19 October 2018 is qualified; that a number of the issues raised in the CCM report and in the reviewable decision are yet to be addressed; and that Mr McKenzie has not been in contact with his DAME, which would be the usual pathway to medical clearance. The evidence does not provide any assurance that the current level of risk is within the tolerances required by the class 2 standard. There is no indication that a stay would have any consequences in terms of hardship or the effectiveness of the hearing. Finally, there are significant considerations relating to public safety, including those arising under international agreements by which Australia is bound, such as the Chicago Convention.
Prospects of success
29. It is accepted that an interlocutory hearing is not the time to assess the merits of an applicant’s case in any substantive way, making findings of fact; rather the tribunal’s task in considering a stay application is to make a general assessment of the prospects of the applicant, at their highest. Making such an assessment in this matter was attended with some difficulty because of the late provision of the CT report from Dr Lalloo. This was a somewhat technical document, and I took some evidence from Dr Sharma in order to understand it better (and to understand some other technical elements in the evidence).
[My comment: If the advice given to me about where the fistula was located is correct, Dr Sharma confused rather than assisted in an understanding of that issue.]
30. It certainly seems clear that the procedure undertaken by Drs Mews and Lalloo has been very successful. Their reports make that plain. It remains the case, however, that the reports available at this point do not address all the elements raised by CASA in the CCM report and the reviewable decision; in particular, there is no expert opinion on the possibility of recurrence of the fistula; no comment on Mr McKenzie’s general prognosis beyond Dr Mews’s comment that he is not a risk of incapacity; and no overall assessment of the quantitative level of risk associated with Mr McKenzie’s post-operative condition. No DAME has been involved to this point, and although Mr McKenzie is no doubt right when he says that a decision by a DAME will be essentially guided by the expert opinion of the relevant specialists, it is nevertheless the case that a DAME will be the person who takes an overall perspective and ensures that all relevant considerations have been taken into account. There is no indication, for example, that Dr Mews gave consideration to all the relevant aspects of regulation 67.155 when he provided the assurance that there was no risk of incapacity.
31. If Mr McKenzie can gather all the relevant medical evidence – including presumably detailed reports and records from Drs Mews and Lalloo – it seems possible that he could be successful at a hearing. But on the material currently available to me I cannot conclude that that is the most likely outcome. On the material presently available to me it is my view that Mr McKenzie’s prospects are not nearly as good as he asserts.
Hardship and the effectiveness of the hearing
32. I have no reason to conclude that Mr McKenzie would be caused financial hardship by denial of a stay. He did not make any case in that direction; rather he said that he flew for the joy of it. Denial of a stay might cause him emotional hardship, but nothing beyond that. And he conceded that refusal of a stay would not render a hearing nugatory.
[I am disappointed that so little weight is attributed to the value of an individual’s recreational activities. However, there is not much I can do about that.]
Public safety
33. Mr McKenzie made various arguments about the comparative risks to himself and others of flying his small aircraft and driving a car. Most of these comments are irrelevant for my purpose, which is limited regarding aviation safety matters to the question of whether Mr McKenzie meets the standard set in regulation 67.155; comparisons with other activities have no bearing on that question. The public safety aspect of the stay decision is clearly caught up in the question of medical fitness and therefore with the prospects of success of the application for review. But Mr McKenzie is not flying commercially, although he does take passengers with him and there are the risks to public safety of others on the ground should an accident occur. These risks are not to be lightly dismissed. Managing them is part of CASA’s core role: see section 3A of the CA Act; McPherson v Civil Aviation Authority (1991) 22 ALD 754; Griffiths, Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274.
[Ironically, these public safety risks are never quantified by CASA. As with much of the aviation regulatory system, it’s sadly left to intuition tainted by cognitive bias. I stress I’m not criticising the Tribunal on this point. It’s just a natural human tendency. But that’s precisely my point. ]
34. Mr McKenzie is not the only party to have raised irrelevant arguments in this matter. CASA has pointed out that Dr Mews has said that Mr McKenzie would not meet the standard for a class 1 licence. That is so, but it is not relevant to whether he meets a class 2 standard. It is to be expected that there will be a subset of class 2 licence holders who would not meet the class 1 standard. Mr Carter also dwelt on the 40% annual risk identified by Dr Mews before the procedure was undertaken. That was indeed very high, but it is the risk following completion of the procedure that is determinative in this matter. If the condition recurs, the risk would presumably depend on the particular form and severity it takes.
[And there is no acknowledgement that the original diagnosis might not be an objective truth. It is, after all, just an opinion.]
35. The international agreements governing air safety were given some emphasis by Mr Carter; but the usual course is that such agreements are given effect by incorporation of relevant provisions into municipal law. I have arrived at my decision by following the legislation, the authorities and the facts of the matter. I have not taken separate account of international agreements.
Other considerations
36. Mr McKenzie’s current medical certificate expires on 30 January 2019. The period in which a stay could operate is therefore short, and that limits its utility, which militates against the grant of a stay. At that time Mr McKenzie would need to apply for a new certificate, and the matter would come before CASA for decision once more. Any decision adverse to Mr McKenzie would be open to appeal to this tribunal.
37. The parties have raised the possibility that a stay might be granted with conditions, for example, that Mr McKenzie’s flying might be limited to daylight hours or that he might only fly passengers who have given consent after being informed of his medical history. There was discussion of these matters at the hearing. An outcome along those lines would clearly be second best for Mr McKenzie, but would allow him to keep flying. CASA appeared to put forward such an option only where for other reasons I might be inclined to grant a stay. As I am not so inclined, I have not considered the advantages and disadvantages of those options at any level of detail.
CONCLUSION
38. I regard Mr McKenzie’s prospects of success as uncertain, the refusal of a stay would not cause him hardship or prevent an effective hearing, there are real questions of public safety, and the utility of a stay is limited. Taking all the above matters into consideration, I refuse the application to stay the decision under review.