Tanious and Australian Medical Council

[2011] AATA 341

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 341

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1132

GENERAL DIVISION		)
Re		Mofeed Tanious

Applicant

And Australian Medical Council

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date of Decision                  5 May 2011

Date of Written Reasons  17 May 2011

Place  Sydney

Decision The Tribunal has no jurisdiction to review the decision of the Australian Medical Council concerning Mr Tanious’ application for registration as a medical practitioner.

..................[sgd]............................

Senior Member

CATCHWORDS

JURISDICTION – whether Tribunal has jurisdiction to review the results of an examination by the Australian Medical Council of an overseas trained doctor seeking registration to practise in Australia – no decision under an enactment – no jurisdiction to review

Administrative Appeals Tribunal Act 1975 s 25

Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)

REASONS FOR DECISION

17 May 2011 Senior Member Jill Toohey           

1.At an interlocutory hearing on 5 May 2011, I determined that the Tribunal had no jurisdiction to review the results of an examination by the Australian Medical Council (AMC) of an overseas trained doctor seeking registration to practise in Australia.  The applicant, Dr Mofeed Tanious, has asked for written reasons.  These reasons reflect those given orally at the conclusion of the hearing.

Background

2.Dr Tanious is an overseas-trained medical practitioner who seeks registration to practise in Australia.  On three occasions, most recently in February this year, he has failed to pass the clinical examination conducted by the AMC for the purposes of assessing his eligibility for registration.

3.From the limited documentation before the Tribunal, it appears that Dr Tanious asked the AMC to review its most recent decision and the matter was referred to the AMC’s Board of Examiners.  However, correspondence from the AMC to Dr Tanious indicates that any appeal is limited to whether the procedural requirements specified in the AMC’s Examinations Specifications booklet were not followed “in a significant matter or to a significant extent” or whether a “candidate’s performance was impaired by significant deficiencies in the examination procedures beyond the control of the candidate”.     

4.It appears that the Board of Examiners considered Dr Tanious’ appeal In March this year and determined that there was no reason to disturb the results of the clinical examination.  The Tribunal is advised that a letter to this effect was sent to Dr Tanious in March but, for reasons which are not clear, he has not yet received it.

Has the Tribunal jurisdiction to determine the application? 

5.By s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment or for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

6.The Tribunal has power to review any decision in respect of which application is made to it under any enactment: s 25(4).

7.The Tribunal has no general power to review decisions: it may only review those decisions in relation to which it has been given jurisdiction.  So, the first question in any matter is whether an enactment confers on the Tribunal the power to review a decision made under it.

8.Since 1 July 2010, registration of medical practitioners, including overseas-trained practitioners, in New South Wales has been regulated by the Health Practitioner Regulation National Law (NSW) made under the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). A doctor practising medicine in Australia must be registered with the Medical Board of Australia.  An overseas-trained practitioner seeking registration is required to pass examinations conducted by the AMC. 

9.Nothing in the legislation confers on this Tribunal the power to review any decision made under it. 

10.As there is no decision made under an enactment for the purposes of s 25 of the AAT Act, it follows that the Tribunal has no jurisdiction to review the results of Dr Tanious’ clinical examination test.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey

Signed:         .........................[sgd].......................................................
           Diana Weston, Associate

Date of Hearing  5 May 2011
Date of Decision  5 May 2011
Date of Written Reasons          17 May 2011
Applicant  Self-represented  
Solicitor for the Respondent     Mr J Topfer, Mallesons Stephen Jacques