Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nowlan v Medical Board of Australia [2022] NSWCATOD 112 Hearing dates: 19 May 2022 Date of orders: 6 October 2022 Decision date: 06 October 2022 Jurisdiction: Occupational Division Before: The Hon J Stevenson, ADCJ Dr A Reid, Senior Member Dr J Aitken, Senior Member S Lovrovich, General Member Decision: (1) The decision of the Board made on 30 November 2021 is confirmed pursuant to s175(1)(a) of the National Law (2) The Appeal is dismissed pursuant to section 79(2)(b)(i) of the Civil and Administrative Tribunal Act 2013 (3) The Applicant will pay the costs of the Respondent of and incidental to the appeal, as agreed or taxed Catchwords: HEALTH – Professional registration – Application for provisional registration – Applicant unable to fulfil his proposed conditions – Consideration of Chinese Medicine Board of Australia v Lee [2014] QCA 149 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: George v Dental Board of Australia [2022] QCAT 5 Krause v Medical Board of Australia [2013] VCAT 1009 Lee v Chinese Medicine Board of Australia [2013] QCAT 609 Linquist v Nursing and Midwifery Board of Australia [2019] NSWSC 978 McMahon v Midwifery Board of Australia [2013] NSWNMT4 Nowlan v Medical Board of Australia (3) [2020] QCAT 287 Taylor v Medical Board of Australia [2018] NSWCATOD 50 Category: Principal judgment Parties: Christopher Robert Nowlan (Applicant) Medical Board of Australia (Respondent) Representation: Counsel: M. Alllars SC (Respondent) Applicant (Self-represented) Solicitors: Clayton Utz (Respondent) File Number(s): 2022/00014813 Publication restriction: None REASONS FOR DECISION Introduction and Background 1. On 17 February 2021 the Applicant, Christopher Robert Nowlan, lodged with the Australian Health Practitioner Registration Agency (Ahpra) an application for provisional registration as a medical practitioner. On 30 November 2021 the Medical Board of Australia ("the Board") refused this application pursuant to s 82(1)(c)(i)(A) of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The basis for this refusal was that the Applicant is ineligible for registration or provisional registration because he is not qualified for general registration. 2. The Applicant appealed this decision pursuant to s 175(1)(a) of the National Law. This subsection provides for an external appeal to this Tribunal by a person to whom the Board has refused registration. 3. In 2012 the Applicant commenced a program of study for the degree of Bachelor of Medicine/Bachelor of Surgery ("MBBS") at the University of Queensland. In semester 2 of 2017 the University issued to the Applicant a Refusal of Enrolment Notice, on the basis of continued unsatisfactory academic progress. 4. The Applicant commenced an appeal against this exclusion, in accordance with university procedure, and was granted provisional enrolment pending the outcome of that process. During his period of provisional enrolment, the Applicant completed four units of study in the MBBS degree program. Previously he had completed 52 of the 64 units necessary to graduate with the degree of MBBS. The Applicant has never completed the Year 4 Objective Structured Clinical Examination("OSCE"), which is a requirement of the University of Queensland for the MBBS degree. 5. In September 2018 the University of Queensland dismissed the Applicant's appeal against refusal of enrolment. He was awarded the degree of Bachelor of Medical Studies, which is not recognised as a qualification for general registration as a medical practitioner. The University of Queensland has never awarded to the Applicant the degree of MBBS. 6. On 9 August 2018 the Applicant applied to Ahpra for provisional registration as a medical practitioner. On 6 November 2018 the Board refused this application and the Applicant appealed to the Queensland Civil and Administrative Tribunal ("QCAT"). On 11 August 2020 QCAT dismissed this appeal. The Applicant did not appeal to the Supreme Court of Queensland. 7. In a letter dated 17 August 2021 to the Board, the Applicant stated inter alia: "I seek provisional registration on the conditions that I undertake and pass the AMC exams." In his written submissions filed in the present proceedings, the Applicant set out the orders which he now seeks as follows: "a The Decision of the Respondent be set aside, "b A new decision that the Respondent request either: i. The University of Queensland permit the Applicant to undertake the Year 4 OSCE, or ii. the Australian Medical Council permit the Applicant to undertake the exam for foreign medical graduates, or iii. any other accredited examination or assessment as the Tribunal thinks fit. c Provisional registration be granted on condition that order (b) is satisfied . d. Leave to make submissions on any costs after judgment." The Case of the Applicant 1. The Applicant contended that: "satisfaction of section 62(1)(a) is not a pre-condition to the operation of Section 62(2)". He submitted that he has completed all sixty-four units required for the degree of MBBS, thus he is eligible for provisional registration by way of imposition of conditions that he complete an additional examination. The Applicant submitted that the removal of twelve of the sixty-four mandatory units by the University of Queensland is relevant only to his entitlement to the degree of MBBS but irrelevant to the issue of the adequacy of his training. 2. The Applicant took issue with the following conclusion of the Board, in its Notice of Refusal Decision dated 17 December 2021: "Imposing conditions on your registration cannot satisfy the mandatory requirements for you to hold a qualification under s 53 of the National Law to be granted provisional registration to complete your internship." 1. The Applicant contended that he "could comply with s 52 as a whole if the Medical Board were to make a decision, as has been requested from the beginning pursuant to s 54 National Law. This path was followed by the QCAT in Lee's case and restated in Nowlan's case and adopted by the NCAT in Linquist." 2. The Applicant submitted that "s 52(1)(a) and s 53(b) can be satisfied or alternately s53(c) because of s54 which permits the National Board to require the applicant undertake an examination or assessment." The Applicant contended that the Respondent "has applied the incorrect sections of the National Law for provisional registration." 3. The Applicant referred to section 54 of the National Law, which provides as follows: "For the purposes of section 52(1)(b)(ii), if a National Board requires an individual to undertake an examination or assessment, the examination or assessment must be conduced by an accreditation authority for the health profession unless the Board decides otherwise." 1. The Applicant contended that the relevant parts of section 53 provide as follows: "An individual is qualified for general registration in a health profession if – … (b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies to an approved qualification: or (c) the individual holds a qualification, not referred to in paragraph (a) or (b), relevant to the health profession and has successfully completed an examination or other assessment required by the National Board for the purpose of general registration in the health profession; or …" 1. The Applicant submitted that QCAT has "made a finding that he has completed all required units for the MBBS degree at the University of Queensland, which is an accredited qualification". The Applicant noted that QCAT found that he did not complete the final practical examination. He submitted that "this can be an examination or assessment for the purposes of s 54 National Law". 2. The Applicant contended that he is eligible for provisional registration, in that he is able to comply with s 62(1)(a) by way of the imposition of conditions under s 62(2) of the National Law. Section 62(2) provides as follows: "Without limiting subsection (1), The National Board established for the health profession may decide the individual is eligible for provisional registration in the health profession by imposing conditions on the registration under section 83." 1. The Applicant referred to the power of the Board to grant limited registration in accordance with s 65, which provides as follows: "(1) An individual is eligible for limited registration in a health profession if- (a) the individual is not qualified for general registration in the profession or specialist registration in a recognised speciality in the profession: and (b) the individual is qualified under this Division for limited registration: and (c) the individual is a suitable person to hold limited registration in the profession: and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered in the health profession: and (e)the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (1A) Subsection (1B) applies if--- (a) an individual is registered in a health profession for which divisions are included in the National Register kept for the profession: and (b) the individual holds general or limited registration in a division. (1B) Despite subsection (1)(a) and (b), the individual is eligible for limited registration in another division of the profession if the individual--- (a) is not qualified for general registration under the other division: and (b) is qualified under this Division for limited registration under the other division." 1. The Applicant referred to the opinion of Deputy President Horneman-Wren SC in the QCAT decision of Lee v Chinese Medicine Board of Australia [2013] QCAT 609, as follows: "In my view, s 52(2) cannot be used as a means of avoiding compliance with the requirements of s 52(1). However, s 52(2) provides a means of establishing compliance with s 52(1). That is, that the Board may decide an individual is eligible for registration by imposing conditions on the registration under s83." 1. The Applicant relied upon the decision of the Court of Appeal of the Supreme Court of Queensland ('the Queensland Court of Appeal') in Chinese Medicine Board of Australia v Lee [2014] QCA 149 (Lee). The Applicant did not identify in his written submissions the particular passages in Lee which were said to support his position. 2. The Applicant asserted that this Tribunal has available "fresh evidence", which was not adduced in the QCAT proceedings. This "fresh evidence" was adduced by summons from two members of the academic staff of the University of Queensland "who were unable or unwilling" to attend the hearing at QCAT. The written submissions indicated that these witnesses "are expected to give evidence as to the Applicant's competence in their respective fields of medicine". 3. The first of these two witnesses was Associate Professor Alka Kothere, who indicated that she "is responsible for all students in obstetrics and gynaecology at the University of Queensland". She said that the Applicant attended an eight-week rotation at Redcliffe Hospital and that she "marked" him "satisfactory". She said of the Applicant "all I can say is that you completed your eight-week rotation. Full stop." She said also: "I cannot say that you are competent to perform as an intern in obstetrics and gynaecology. I do not have your results." 4. The second witness was Associate Professor Mark Coulthard, who indicated that he heads a Paediatric Intensive Care Unit and has a role in the paediatric rotation for the University of Queensland. He said that the Applicant failed in 2017 but successfully completed this unit in 2018. He said: "I think you would be a bit rusty with paediatrics now." 5. It seemed that the Applicant attempted to elicit information and/or opinions from both of these witnesses as to his dispute with the University of Queensland. Both Associate Professors Kothere and Coulthard indicated that they had no role in the management of those issues. Associate Professor Coulthard described the Applicant as a "challenged and challenging student." 6. In his oral submissions the Applicant said "I have done everything my classmates did". He then agreed with Dr Reid, however, that "it is not true that I did everything that all the other medical students did". He said that he was "excluded" from the OSCE unit but that he was "willing" to complete that component of the MBBS degree course. 7. The Applicant contended that any conditions "are a matter for the Tribunal". He said that "if the Board requires the exam for international students, the Board should make that request to the AMC". 8. The Applicant referred to a decision of NCAT in Taylor v Medical Board of Australia [2018] NSWCATOD 50 and directed attention to paragraph 53 thereof. The Tribunal there considered an application by a medical practitioner for a stay of conditions imposed on her registration by the Board. It would seem that the Applicant relied upon the following statement of Boland ADCJ: "5. Finally, in the circumstances of this case, adopting the interpretation of s52 of Morrison JA in Chinese Medicine Board v Lee, I accept that it is by the imposition of conditions that the practitioner is eligible for general registration. If the conditions were stayed, the practitioner would not be eligible for general registration." The Case of the Respondent 1. The submissions of the Respondent first drew attention to the provisions of Section 62 of the National Law, which deals with "eligibility for provisional registration" and noted that Section 62(1)(a) requires that an individual be eligible for general registration. The Respondent then noted that the term "approved qualification" is defined in section 5 of the National Law as "(a) for a health profession, means a qualification obtained by completing an approved programme of study for the profession; and (b) for endorsement of registration in a health profession, means a qualification obtained by completing an approved programme of study relevant to the endorsement". 2. The Respondent noted that "an approved program of study" for a health profession means "an accredited program of study: (a) approved under section 49(1) by the National Board established for the relevant health profession and (b) included in the list published by Ahpra under section 49(5)", as provided in Section 5 of the National Law. An "accredited program of study" is defined as "a program of study accredited under Section 48 by an accreditation authority as provided in section 5 of the National Law". 3. The written submissions of the Respondent then summarised its position as follows: (1) The Applicant is not qualified for general registration within Section 52(1)(a) in combination with Section 53, consequently he does not satisfy the eligibility criterion for provisional registration for the purposes of Section 62(1)(a). (2) Where an applicant fails to satisfy one of the eligibility criteria for provisional registration in Section 62(1)(a to d) the Board does not have power to grant provisional registration or provisional registration subject to conditions. If an applicant is not qualified for registration, the Board must refuse to grant the Application pursuant to Section 82(1)(c)(i)(A) of the National Law. (3). In the alternative, if the Board has power to grant provisional registration with conditions notwithstanding nonsatisfaction of the eligibility criterion in Section 62(1)(a), there is no condition available to the Applicant which would remedy the 'the significant defect in his qualification for registration as a medical practitioner or that would be consistent with the paramount guiding objective of the National Law, in Section 3A, of protecting the health and safety of the public. 1. The Applicant's Non-Qualification for General Registration and Consequent Inability to Satisfy Section 62 1(a) 1. The Respondent contended that the Applicant has not completed the MBBS or the MD degrees at the University of Queensland or otherwise "completed an approved program of study" for the medical profession. Accordingly, he has not "obtained" and does not "hold" an "approved qualification" as defined in the National Law and his circumstances do not fall within any of sub-paragraphs 53 (b) to (d) inclusive. 2. In the Respondent's submission, the Applicant's non-qualification for general registration within section 53 means that he is unable to satisfy the requirements of section 52(1)(a). Consequently, he is ineligible for general and/or provisional registration in the medical profession. 2. The Board's Lack of Power to Grant Provisional Registration Subject to Condition 1. The Respondent contended that the Applicant's non-satisfaction of section 62 (1)(a) means that the Board lacks power to grant provisional registration with or without conditions. The Respondent submitted that "the Board's power under Section 62(2) and Section 83 to impose conditions does not offer a window for exempting an applicant from the requirement to satisfy each of the threshold eligibility criteria set out in Section 62(1)(a) to (d)". 2. The submissions of the Respondent considered the decision in Lee and noted that "the Court's reasoning needs to be carefully dissected, and this requires reference to Section 303 of the National Law". The Respondent contended that Section 303 "is not of immediate relevance in the present case but the ratio in Lee is the construction and application of Section 303". 3. Section 303 of the National Law provides as follows: "Qualifications for general registration in relevant profession. (1). For the purposes of Section 5(1)(a), an individual who applies for registration in a relevant health profession before 1 July 2015 is qualified for general registration in the profession if the individual – (a) holds the qualification or has completed training in the profession, whether in a participating jurisdiction or elsewhere, that the National Board established for the profession considers is adequate for the purposes of practising the profession; or (b) holds a qualification or has completed training in the profession, whether in a participating jurisdiction or elsewhere, and has completed any further study, training or supervised practice in the profession required by the Board for the purposes of this section; or (c) has practised the profession at any time between 1 July 2002 and 30 June 2012 for a consecutive period of five years or for any periods which together amount to five years. (2). This Section applies despite Section 53." 1. The Respondent observed that s 303 is a transitional provision by which a person who held qualifications and competency, prior to the commencement of the National Law, could obtain registration by making application prior to 1 July 2015. The Applicant in Lee relied on s 303(1)(b) to establish that he was qualified for general registration. 2. In the submission of the Respondent, the Queensland Court of Appeal held that Section 303(1)(b) contains two limbs which are connected by the word "or" and that satisfaction of either limb is sufficient to achieve registration. The first limb is whether the Applicant "holds a qualification in the profession". The second limb is whether the Applicant "has completed training in the profession". The Court of Appeal held that QCAT had fallen into error by failing to address the second limb, as the Applicant in that case gave evidence that he had completed 500 hours of training in the profession. 3. The Respondent drew attention to the nature of this discretion to grant registration, which was described by the Queensland Court of Appeal as "not unconstrained" and "is to be exercised by reference to relevant, and not irrelevant, considerations, and within the framework of the National Law and its objects". The Respondent submitted that "it is implicit in Lee that where an eligibility criterion is not satisfied, if registration is to be granted the condition must compensate for the non-satisfaction of the eligibility criterion or work as a substitute". 4. The Respondent referred to the QCAT decision of Nowlan v Medical Board of Australia (3) [2020] QCAT 287 and noted that the Tribunal considered itself to be bound by the decision of The Queensland Court of Appeal in Lee. The Tribunal took the view that it has "a discretion under Section 52(2), which is to be exercised subject to the constraints to which the Queensland Court of Appeal referred to in Lee". The Tribunal exercised the discretion against the Applicant, and declined his application for provisional registration. 5. The submissions of the Respondent then made reference to the QCAT decision in George v Dental Board of Australia [2022] QCAT 5, in which a dentist sought specialist registration as an orthodontist pursuant to Section 58 of the National Law. The Tribunal accepted that it was bound by the Court of Appeal decision in Lee, thus it had a discretion to grant registration subject to the constraints set out therein. The Tribunal there exercised its discretion in favour of a grant of registration. 6. The Respondent's submissions referred to New South Wales proceedings in Linquist v Nursing and Midwifery Board of Australia [2019] NSW SC 978. NCAT there proposed to follow the Lee decision in an application by a nurse that she be granted provisional registration, under Section 62 with conditions. NCAT had made no final decision, however, when the Supreme Court found that the Tribunal had been constituted improperly. Accordingly, the Linquist proceedings may be disregarded for present purposes. 7. The Respondent contended that power to impose conditions pursuant to Section 83 is not unconfined, whether in respect of general registration or provisional registration. The Respondent submitted that "it does not follow that the power under Section 83 to impose conditions is intended to operate as a power [to] make exceptions in individual cases to allow avoidance of the need to satisfy the requirements for general registration under Section 52 or for provisional registration under Section 62(1)". 8. The Respondent contended that these propositions are supported by eight aspects of the proper construction of Sections 52, 62, 83 and 303(1)(b) of the National Law. In the submission of the Respondent these aspects of proper construction are as follows: (i) Use of present tense in ss52(1) and 62(1) The criteria expressed both in Section 52(1) and Section 62(1) are expressed in the present tense. Accordingly, a person must meet eligibility criteria at the time of the application. The Respondent contended that "later satisfaction of the condition cannot retrospectively secure compliance with the eligibility criterion at the time when registration is granted". The Respondent distinguished a situation wherein "eligibility criteria are met but a condition is imposed on registration (whether at the time of granting registration or later), to deal with a different matter, such as practising with an impairment." The Respondent submitted that "such a condition is intended to be met on a continuing basis as a restriction upon practice, rather than to rectify retrospectively a failure to meet threshold eligibility criterion." (ii) The Purpose of Provisional Registration. The Respondent contended that the power to grant provisional registration has a single purpose, which is stated in Section 62(1) as follows: "to enable the individual to a completed period of supervised practice that the individual requires to be eligible for general registration in the health professions". The Respondent submitted that a person who has completed an approved course of study and is thus "qualified" within Section 52(1)(a) requires some form of entitlement to practise in order to complete the supervision period referred to in Section 52(1)(b)(i), so as to achieve eligibility for general registration. Section 52(1)(b)(i) provides an alternative to a period of supervised practice, that being an examination or assessment required by an approved registration standard. The Respondent contended that "the entire point of provisional registration is to enable the person to undertake that supervised practice". The Respondent submitted that the purpose of provisional registration is reinforced by Section 64 of the National Law, which makes it clear that "it is temporary, ordinarily for a period of twelve months". 45 The Respondent submitted that this construction is consistent with the objective of the national registration scheme in Section 3(2)(a) of the National Law, which is to protect the public by ensuring that only health practitioners who are "suitably trained and qualified to practice in a competent and ethical manner are registered". The Respondent contended that there is "no intention to allow a person who is not qualified for general registration to be provisionally registered". (iii) The Purpose of the Power to Impose Conditions in Section 83. The Respondent pointed out that Section 83(1) expresses the power to impose conditions as arising "if the Board decides to register a person". That being so the power to impose conditions is applicable only where the Board has determined that the eligibility criteria are met, whether under Section 52(1) or 62(1). Otherwise, conditions may be imposed at a time upon other than initial registration or upon renewal. (iv) The Meaning and Effect of the Phrase "Without Limiting Subsection 1 in Sections 52(2) and 62(2). The Respondent submitted that the opening phrase in Section 52(2) "indicates the relationship between the power to impose conditions in Section 83 and the criteria in Section 52(1)". The Respondent referred to the VCAT decision in Krause v Medical Board of Australia [2013] VCAT 1009 at 71, where the Tribunal observed that: "…the regime for registration of health practitioners prescribed under Part VII of the National Law does not provide for any residual discretion in the Board, or in turn the Tribunal, to impose conditions upon registration, in lieu of an applicant meeting eligibility criteria. The preamble to Subsection 52(1) 'without limiting Subsection (1)'…makes this purpose and intent clear enough. The circumstances which may give rise to appropriate conditions attaching to registration, of the kind outlined above, do not relate to a deficiency in prescribed eligibility." 1. The submissions of the Respondent on this point then turned to the decision in Lee, where the Queensland Court of Appeal held that, in relation to the introductory phrase in Section 52(2) "different words should be read in namely 'without limiting Subsection 303(1) and Section 52(1)(b) to (e)". The Respondent submitted that "this holding was not made generally but was directed only to the particular case of a transitional application where Section 303(1) happens to give meaning to Section 52(1)(a)". The Respondent contended that there was no basis for reading in these words. 2. The Respondent then observed that the Court of Appeal held that "the opening phrase has the effect of making Section 52(2) [apply] to all parts of Section 52(1)". The Court of Appeal held that Section 52(2) applies to Section 303(1). In the submission of the Respondent, this conclusion 'gives no effect to the idea of not limiting Section52(1)". Given the identical wording, these submissions of the Respondent would apply equally to Section 62. 3. (v) The Duty of the Board under Section 82 The Respondent noted that Section 82 sets out the range of decisions available to the Board, after consideration of an application for registration. The Board "must" either (a) decide to grant the application for registration of the applicant if the applicant is eligible for the type of registration; or (b) grant the applicant a different type of registration other than that applied for, for which the applicant is eligible; or (c) decide to refuse to grant the applicant registration. 1. In the present case the Board refused to grant registration pursuant to Sections 82(1)(c)(i)(A), because the Applicant lacked the necessary qualifications. This subsection mandates a refusal if the applicant is ineligible by reason that he is not qualified for registration. Accordingly, the Board had a duty to refuse provisional registration to the Applicant. 2. (v() The Objects of the National Law The Respondent submitted that "a construction of Section 62 is to be preferred that would best achieve the purposes or objects of the National Law". A construction of the power to impose conditions under Section 62(2) and 83 which does not enable provisional registration of a person who is unqualified for general registration within Section 52(1), 53 and 62(1)(a) is consistent with the objects of the National Law. A construction which enables the grant of provisional registration with conditions, so as to avoid the requirement of qualification for general registration, is inconsistent with the objects of the National Law. 1. The Respondent contended that Section 3(2)(a) of the National Law provides that an objective of the national registration scheme is the protection of the public by ensuring that only health practitioners who are "suitably trained and qualified to practise in a competent and ethical manner are registered". Registrations of persons who are not qualified would subvert that objective. 2. (vii) Absurd Consequences The Respondent contended that "a serious consequence of the Court of Appeal's obiter opinion is that Sections 52(2) and 83 can be used to create exceptions to satisfy Section 303(1)(b) where it is a substitute for Section 52(1)(a)". 1. The Respondent submitted that this construction would allow for the possibility of provisional registration of persons who do not satisfy the qualification criterion and would leave the Board to devise requirements for qualification on a case-by-case basis. This construction would allow the Board to grant provisional registration to a person who lacks appropriate qualifications, by the exercise of some unconfined power which may not require the individual to obtain appropriate qualifications at some time in the future. It was submitted that this proposition is entirely inconsistent with the purposes of the National Law. 2. (viii) Lee is Not an Authority on Power to Grant Provisional Registration with Conditions Absent Satisfaction of Section 62(1)(a). The Respondent summarised its submissions on this point as follows: "Lee is of no assistance to the Applicant, because the ratio and operative holding of the Queensland Court of Appeal in Lee: (i) was not concerned with the application of Section 52 in its terms (although the application was made under Section 52), but was concerned with error in the application of Section 303(1)(b) of the National Law, which was a criterion as to qualification for general registration in the case of transitional applications, with Sections 53 being inapplicable; (ii) was not concerned with the exercise of power to grant a provisional registration under Section 62, but was concerned with power to grant general registration; (iii) was not concerned with the source and scope of the Board's power to impose conditions on general or provisional registration; (iv) was reached without reference to Section 62; (v) did not depend on the construction of Section 52, although the Court referred to that Section in obiter." Accordingly, the Respondent contended that the dicta in Lee described above are not binding on the Tribunal in the determination of the present appeal. No Appropriate Condition in the Circumstances of this Case 1. The Respondent next submitted that, assuming the Board has the discretionary power for which the Applicant contended, there is no appropriate condition which could be imposed in the present circumstances. The Respondent contended that the imposition of the conditions proposed by the Applicant would not be an appropriate exercise of any such discretion. The Respondent indicated that the examination conducted by the AMC falls within the operation of Section 53(3) and observed that this section generally concerns qualifications from international medical schools. 2. The Respondent referred to a passage in Krause, where the Tribunal explained the role of the AMC in the conduct of examinations for international medical graduates for the purposes of Section 53(c). The Tribunal said: "28. In addition to advising the Commonwealth Government and the Medical Board of Australia with respect to accreditation and assessment of medical practitioners, the role of the AMC is to: (a) credit basic medical courses and schools in Australia; (b) credit specialist training programmes in Australia; (c) undertake the examination of IMGs for the purpose of general medical registration in Australia; and (d) facilitate the assessment in Australia for the purposes of registration as specialists of overseas trained specialists in conjunction with the specialist colleges, such as the RACS. 29. There are three pathways for an IMG to obtain registration as a medical practitioner in Australia being the: (a) (competent authority pathway) leading to general medical registration; (b) standard pathway (leading to general medical registration); or (c) specialist pathway (leading to specialist medical registration). 30. In the case of (a) and (b) above, the AMC has direct responsibility for administration of these two pathways leading to the award of an AMC certificate, which then enables the individual to apply for general registration." 59 The Respondent referred to advice provided both to the Applicant and the Board from the AMC, to the effect that it administers its examinations only to international medical graduates. In an email dated 12 April 2021 a Senior Operations Manager for the AMC wrote as follows to a Senior Legal Advisor for the Board: "The AMC conducts the assessment process for international medical graduates (IMGs) in the standard pathway (AMC examinations) only; it does not conduct assessments in the competent authority or specialist pathway. The standard pathway is for IMGs seeking general registration with the Medical Board of Australia and involves undertaking the AMC CAT MCQ examination and the AMC clinical examination or workplace-based assessment (WBA) programme. An applicant must hold a primary qualification in medicine and surgery awarded by a training institution recognised by the AMC to be eligible to apply to the AMC for assessment under this pathway. To become eligible IMGs are required to submit their primary qualification (final medical diploma) in medicine and surgery (clinical medicine) for verification, and ensure it was completed and awarded by a training institution recognised by the AMC. This means completion of all examinations and training requirements and be awarded the qualification. The AMC has no role in processing applications for registration or in granting registration, which is the function of the Medical Board of Australia. From the information provided to the AMC regarding Christopher Nowlan's circumstance, the AMC understands that Christopher Nowlan does not meet the required criteria to undertake the AMC examination process (standard pathway) as he does not hold the primary qualification in medicine and surgery awarded by a training institution recognised by the AMC."(emphasis in original). 1. Accordingly, the Respondent contended that the Applicant would be unable to comply with this condition that he undertake the AMC examination. The Respondent submitted further that there was no evidence that the University of Queensland would be prepared to enrol the Applicant in a single unit of its MBBS course, so as to enable him to complete the OSCE course . The Respondent contended that the Board has no power to compel the University of Queensland to permit the Applicant to complete the OSCE unit in its degree program. The respondent submitted lastly that "no condition with any certainty as to is operation could be devised that could ameliorate the non-satisfaction of the qualification criteria". 2. In her oral submissions, counsel for the Respondent drew attention to paragraph 7 of the Board's reasons for refusal of the application for registration, which she described as "a direct response to the submission that [the Applicant] be permitted to practise with conditions". The Board said as follows: "7. In considering your submissions the Board makes the following observations: a You have failed to raise any further evidence in your submissions that would cause the Board to depart from its proposal to refuse registration. b. The Board noted you raised concerns regarding the 'perverse nature' of the Tribunal's reasoning in reaching its decision. Should you wish to challenge that Tribunal's decision and its underpinning reasons the appropriate avenue of dispute is via the appeals process in the relevant jurisdiction. c. It is the role of the University of Queensland as an accredited education provider to determine whether or not a student has met the requirements of the University to be awarded a qualification. The Board advises you that if you wish to dispute the decision of the University of Queensland that avenue of appeal falls within the appeals processes for that institution and not the Medical Board of Australia. d. The AMC examination pathway is designed for overseas applicants who hold an overseas qualification which is not approved by the Board to ensure those applicants are able to demonstrate they are able to meet the rigors of an equivalent Australian qualification. You do not hold an overseas qualification or any qualification for the medical profession and therefore this pathway is not available. e. Imposing conditions on your registration cannot satisfy the mandatory requirement for you to hold a qualification under s53 of the National Law to be granted provision registration to complete your internship." 1. Counsel for the Respondent pointed out that the Queensland Court of Appeal made no reference in Lee to s82 of the National Law. As noted above, s82 sets out the duties of the Board after consideration of an application for registration. These duties include a mandatory requirement for refusal if the applicant is "ineligible" as defined in s82(1)(c). 2. Counsel for the Respondent submitted that the NCAT decision of Taylor v Medical Board of Australia dealt with provisions of the National Law which have no relevance to the present proceedings. As noted, that decision concerned an application for a stay of conditions imposed by the Board upon the registration of a medical practitioner. 3. Counsel for the Respondent referred to the VCAT decision in Krause. In her written submissions counsel wrote: that 'VCAT held that the power to impose conditions under s83 does not expressly or impliedly abrogate the necessity for an applicant to come within eligibility criteria otherwise prescribed by s52(1), specifically s52(1)(a) coupled with s53. Registration by way of conditions where an applicant does not satisfy the basic eligibility criteria for registration 'would subvert the registration system'". 4. Counsel for the Respondent referred to the NCAT decision of Susan Margaret McMahon v Midwifery Board of Australia [2013] NSWNMT4. In her written submissions counsel for the Respondent stated the Tribunal held that conditions imposed under s83 could not be used as a means to avoid compliance with requirements of registration set out in s52(1). Consideration and Conclusion 1. As noted, the Respondent contended that the observations of the Queensland Court of Appeal in Lee in relation to the scope of the power to impose conditions under section 52(2) are obiter dicta and thus need not be followed in future decisions. The written submissions of the Respondent set out carefully the arguments which were said to support this proposition. 2. The Applicant in Lee had applied for registration pursuant to section 303(1)(b) of the National Law. The Court of Appeal described this pathway to registration as follows: "The Respondent graduated in December 2011, prior to the commencement of the national scheme for Chinese medicine. In December 2011 approval was given to a registration standard called the grandparenting and general registration eligibility standard…with effect from 1 July 2012. The grandparenting standard applied to section 303 of the National Law, providing a limited window of time in which applicants for registration could apply under an alternative pathway to that contained in section 52 of the National Law. Under section 303 of the National Law applications under the alternative pathway were permitted if they were made before 1 July 2015…" 1. The Court allowed the appeal on the basis that QCAT failed to address the second limb of section 303(1)(b), namely that the applicant had completed "training in the profession". The Court observed that 'section 303(1) provides a completely alternative method of establishing that an applicant is qualified for general registration, is apparent in subsection 303(2) it provides that section 303 'applies despite section 303'. When one has regard to section 53 the qualification referred to in that section is one that has been approved by the Board, or which the Board considers to be substantially equivalent to an approved qualification, where the Board has imposed an examination or assessment, or where it was a previously registered qualification. None of those things apply to section 303(1)(b)." 2. The Court of Appeal observed further: 41. Section 303(1) does not, in my view, conflict with section 83 of the National Law which gives power to a Board to impose conditions. Section 303(1) is directed towards providing an alternative form of qualifying for the purposes of section 52(1)(a). It has no further ambit of operation than to provide the alternative qualification avenue, limited to those who apply before 1 July 2015." 1. It may be that the Respondent is correct in the submission that the observations of the Queensland Court of Appeal in relation to the construction of sections 52 and 83 are "not material as to its conclusion as to error of law or in the application of section 303(1)(b) and were obiter dicta". Additionally, there would appear to be force in the submissions of the Respondent as to the proper construction to be given to sections 52, 62, 83 and 303(1)(b). 2. In particular, it would appear that there is merit in the submissions of the Respondent as to the purpose of provisional registration and the absurd consequences which would flow from a construction of the statutory provisions which was contended by the Applicant in these proceedings. Section 61(1) sets out the purpose of provisional registration as follows: "1. An individual is eligible for provisional registration in a health profession, to enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration in the health profession…" 1. Section 62(1) refers specifically to a mechanism by which a person is enabled to "complete a period of supervised practice" so as to qualify for general registration. S62(2) allows the Board to "decide the individual is eligible for provisional registration by imposing conditions … under s83". Section 83(2) mandates that the Board must "decide a review period for the condition". 2. It may be thought that these provisions of the National Law do not sit easily with the construction for which the Applicant contends in these proceedings. This construction would enable an applicant who has tried but failed to obtain a recognised tertiary qualification to achieve registration by being permitted to undertake an examination which is designed and intended to qualify a class of individuals who already hold an overseas university degree. 3. The Applicant's construction of the relevant provisions of the National Law may well mean that, theoretically, a person could apply for provisional registration at any time during the last twelve months of a recognised degree program with a condition of successful completion of the course. The likelihood of an exercise of discretion in favour of such an applicant is another matter entirely. 4. In any event, if there is a discretion in this Tribunal which would allow and/or enable the relief sought by the Applicant, we determine that such should not be exercised in his favour. In our view, essentially the Applicant remains in the same position as was the case at the time of the proceedings before QCAT. The Applicant was excluded by the University of Queensland from its MBBS program on the basis of unsatisfactory academic progress. His academic record at the University of Queensland was summarised by QCAT as follows: "4. In semester 1 of 2012 the Applicant passed four subjects, although a pass in Medical Science 1 was achieved on supplementary assessment. In semester 2 he passed three subjects but failed Clinical Skills 2, despite being accorded supplementary assessment. No subjects were studied in 2013, and in 2014 the only subject studied was Clinical Skills 2 in Semester 2, which he passed. In each semester in 2015 he passed four subjects, although in the case of Clinical Science 2 only after supplementary assessment. In Semester 1 of 2016 he failed Medicine in Society and passed General Practice only after supplementary assessment; he passed both subjects in Semester 2. In Semester 1 of 2017 he failed Paediatric and Child Health and passed Surgical Specialities only after supplementary assessment. 5. After failing the third course, the university refused further enrolment because of unsatisfactory academic progress. 1. The Applicant referred to this decision in the course of the present proceedings. He took no issue as to the accuracy of this account of his academic record at the University of Queensland. The Applicant contended that "QCAT has already made a finding of fact that the Applicant has completed all required units for the Bachelor of Medicine/Bachelor of Surgery degree at UQ which is an accredited qualification. However, the QCAT found that the Applicant did not complete the final practical examination". The Tribunal, in fact, noted these aspects of the academic history of the Applicant in an introductory section to the reasons which is headed "Background to the Decision". 2. As noted, the Applicant called evidence from two witnesses who appeared under subpoena and were "expected to give evidence as to the Applicant's competence in their respective fields of medicine". As recorded above, however, Associate Professor Kothere said words to the effect: "All I can say is that you completed your eight-week rotation." and "I cannot say you are competent to perform as an intern in obstetrics and gynaecology. I do not have your results." Associate Professor Coulthard said words to the effect "I think you would be a bit rusty in paediatrics now". 3. It is our view that the evidence of these two witnesses did little to bolster the claims of the Applicant that he has competency in the fields of obstetrics and gynaecology and paediatrics. The Applicant has an academic record which, overall, leaves room for doubt as to his competency and militates against an exercise of discretion in his favour. 4. As to the conditions proposed by the Applicant, the evidence was abundantly clear that the Australian Medical Council would not permit him to undertake its examination for international medical graduates. Accordingly, the Applicant could not satisfy one of the very conditions which he proposes for provisional registration. 5. Nothing in the evidence suggested any reason for optimism that the University of Queensland would permit the Applicant to undertake its OSCE examination. The converse would seem more likely, given that the University authorities have excluded the Applicant from the course on account of unsatisfactory academic progress; dismissed his appeal and declined to award him the degree of MBBS although he completed the remaining units while enrolled on a provisional basis. We are far from persuaded that any request from this Tribunal to the University authorities would be fruitful or, indeed, appropriate in the present circumstances. Accordingly, we conclude that the Applicant could not satisfy this condition for his proposed provisional registration. 6. We have real and substantial doubt as to whether it is the responsibility of this Tribunal of itself to craft conditions which would enable the Applicant to obtain provisional registration. In any event, we are unable to devise any suitable and/or effective conditions which would achieve that purpose. 7. In our view, these considerations militate convincingly against any exercise of discretion in favour of a grant of provisional registration to the Applicant. In reaching this conclusion, we are conscious of and have regard to the paramount consideration of safeguarding the health and safety of the public and ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered, even on a provisional basis. Costs 1. The Applicant contended that each party should pay their own costs of the proceedings, in reliance on s60 of the Civil and Administrative Tribunal act 2013 (NSW) ('the CAT Act'). This section provides, in essence, that each party to proceedings in the Tribunal is to pay his, her or its own costs unless "there are special circumstances warranting an award of costs". Section 60(3) provides guidance as to what matters the Tribunal may take into account in determining whether "special circumstances" exist in any particular case. 2. In written submissions in support of his costs argument, the Applicant traversed the proceedings in QCAT and outlined his complaints against the Board as a litigant. We note that the orders of QCAT made provision for written submissions on the issue of costs. For reasons unknown to us, the Applicant did not pursue the costs issue in those proceedings. In these circumstances, we do not propose to take into account the alleged conduct of the Respondent in the QCAT litigation in our consideration of the issue of the costs of these proceedings. 3. The Respondent submitted that this Tribunal has power to make an order for costs in its favour pursuant to s175B of the National Law. Section 175 deals with "Appellable decisions",one of which is "a decision by a National Board to refuse to register [the] person (s175(1)(a)". A note to s175(1) reads that: "An appeal under this section to the Tribunal in its capacity as an appropriate responsible tribunal is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013." 1. Section 175B provides that: "The responsible tribunal may make any order about costs it considers appropriate for the proceedings." Accordingly, this Tribunal has a discretion to make any order as to costs which is considered appropriate in all of the circumstances of the proceedings. 1. The Respondent submitted that the Applicant had an opportunity to put his case for provisional registration in QCAT and was unsuccessful in those proceedings. The Respondent contended that the Applicant was able to initiate the current proceedings only because he had changed his place of residence from Queensland to New South Wales and his actions are "almost an abuse of process". 2. We would stop short of labelling the Applicant's commencement of the current proceedings as "almost an abuse of process" but, nonetheless, we consider that there are matters which weigh in favour of the Respondent on the question of costs. Ultimately, the Applicant found himself in a very similar position at the conclusion of these proceedings as was the case in his unsuccessful QCAT litigation. 3. As noted, the evidence of the two witnesses called by the Applicant did little to advance his contentions as to competency. In these proceedings, the Applicant advanced two proposed conditions which he could not fulfil and made no other proposals. The Applicant was on clear notice that the AMC examination was unavailable to him and, in our view, he must be taken to have been aware that he would not be permitted to undertake the OSCE course at the University of Queensland. 4. In these circumstances, we conclude that the Applicant should pay the costs of the Respondent in the present proceedings. We do not accept the submission of the Applicant that such an order "would be prohibitive and deny the Applicant and other medical students their statutory right to seek review" and/or "would be inconsistent with s 60(1) Civil and Administrative Act and the objects of the Act stated in s 3(2) and (B)". Orders 1. The decision of the Board made on 30 November 2021 is confirmed pursuant to s175(1)(a) of the National Law 2. The Appeal is dismissed pursuant to section 79(2)(b)(i) of the Civil and Administrative Tribunal Act 2013 3. The Applicant will pay the costs of the Respondent of and incidental to the appeal, as agreed or taxed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2022