Tan v Medical Board of Australia

The Medical Board of Australia (the respondent) filed an amended application in the Administrative Appeals Tribunal (the Tribunal) seeking dismissal of Dr Tan's (the applicant) application to have conditions removed from his registration. Dr Tan's application was dismissed due to his failure to attend an assessment that was required under the Health Practitioner Regulation National Law (ACT). The Tribunal was required to determine whether it had jurisdiction to review the respondent's referral of the applicant for assessment and the deemed withdrawal of the applicant's application. The Tribunal found that the referral for assessment was not an appellable decision because it was not a decision to refuse to change or remove a condition imposed on the practitioner's registration. The Tribunal also found that the deemed withdrawal of the applicant's application was not a decision of the Board or an appellable decision.

The Tribunal considered the provisions of the Health Practitioner Regulation National Law (ACT) and found that the notice requirements in sections 80(1)(d) and 80(4) were met, and the referral could be made even though the applicant was already registered as a medical practitioner. The Tribunal also found that the requirement in section 125(5) that the Board must decide to grant the application or refuse to grant the application did not prevent the referral or make the referral a refusal or result in a deemed refusal. The Tribunal further found that the operation of section 80(5), through section 125(4), that the applicant is taken to have withdrawn the application if the applicant does not comply with a requirement for an assessment referred to in the 21 October 2022 letter, was not on its face a decision of the Board or an appellable decision. The requirement in section 125(5) that the Board must decide to grant the application or refuse to grant the application did not prevent the operation of section 80(5) or make its operation a refusal or a deemed refusal.

The Tribunal dismissed the amended application of the respondent dated 28 October 2022. There is no order as to costs.