But nowhere in the AAT decision can I see any hint of a reference that the members scrutinised the CASA process.
That’s because scrutiny of the process followed by CASA is of little-to-no assistance to the AAT in performing its task.
The AAT is concerned with determining the correct and preferable decision, by finding, itself, the applicable legal criteria and the facts relevant to those criteria, then applying, itself, those facts to those criteria, then choosing, itself, the preferable decision if more than one decision is open.
Alleged defects in CASA’s decision making process do not automatically mean the decision was wrong on the merits.
I’ll try to explain.
Let’s assume you apply for a pilot’s licence. If you satisfy specified statutory criteria, you are legally entitled to the licence.
Your application comes to me as CASA delegate. I’m very busy – long lunch to get to - so I decide to toss a coin to determine your application. Heads you get a licence; Tails you don’t.
I toss the coin, it comes up Tails. I decide not to issue your licence. I write you a letter in which I say that I decided to reject your application on the ground that I tossed a coin and it came up Tails.
That process resulted in a decision that was wrong in law (in so, soooo many ways….).
But that doesn’t mean the decision was wrong on the merits. It may be that you don’t satisfy the specified statutory criteria for the licence.
That’s why, when you stand up in front of the AAT and say: “Look at all the mistakes in the process and the defects in that CASA b*st*rd’s decision!”, the AAT will say “Be that as it may and the doubts we share as to the marital status of Mr Creampuff’s parents at the time of his birth, we have to work out whether you are entitled to a pilot’s licence. That means we have to decide whether you do, in fact, satisfy the applicable criteria to be issued that licence. Let’s get on with that.”