Lal v Australian Health Practitioner Regulation Agency
[2023] QCAT 431
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- Unreported Judgment
- Lal v Australian Health Practitioner Regulation Agency[2023] QCAT 431
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Lal v Australian Health Practitioner Regulation Agency[2023] QCAT 431
Lal v Australian Health Practitioner Regulation Agency[2023] QCAT 431
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lal v Australian Health Practitioner Regulation Agency and anor [2023] QCAT 431 |
PARTIES: | Rakesh lal (applicant) v australian health practitioner regulation agency (first respondent) and royal australasian college of physicians (second respondent) |
APPLICATION NO/S: | REO012-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 17 November 2023 |
HEARING DATE: | On-Papers Hearing |
HEARD AT: | Brisbane |
DECISION OF: | Judge Dann, Deputy President |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Tribunal made a decision on 11 October 2022 to dismiss an application made by the applicant pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 for want of jurisdiction – where the applicant apples to reopen or correct the decision – whether a reopening ground exists – whether the power to correct a decision is engaged Queensland Civil and Administrative Tribunal Act 2009 s 47 Health Ombudsman v Gascard (No.2) [2022] QCAT 300; cited Pawape v Medical Board of Australia [2023] QCAT 257; applied |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 5 September 2023, Dr Lal filed an application to reopen, correct, renew, or amend a decision (the Present Application). The decision that Dr Lal seeks to reopen, correct, renew or amend is a decision that I made on 11 October 2022 (the Decision). The Decision was to act pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) to dismiss an application to review a decision filed by Dr Lal on 31 August 2022 (the Review Application).
Background
- [2]Dr Lal is an experienced overseas-trained medical practitioner. He has practised, to varying extents, in several locations throughout India, Saudi Arabia, Seychelles, South Australia, and Queensland. He is not currently a registered medical practitioner in Australia. He last held some form of registration as a medical practitioner in Australia between 2017 and 2018. During that time, his registration required him to practice with supervision.
- [3]During Dr Lal’s most recent period of registration in Australia, he attempted to obtain specialist registration in respiratory medicine. To do so, he needed to successfully complete 12 months of practice under peer-review. He was unable to complete the 12 months of peer-reviewed practice. Consequently, he did not obtain specialist registration.
- [4]The Review Application named the Australian Health Practitioner Regulation Agency (AHPRA) and the Royal Australasian College of Physicians (RACP) as the respondents. The relief sought in the Review Application was that Dr Lal be granted unsupervised medical registration or alternatively that his appointment to a position with Queensland Health be restored so that he could complete the balance of his 12 months of work with peer review. He also sought compensation for what he described as lost time trying to persuade that not being registered as a medical practitioner in Queensland was ‘not an issue on his end’.
- [5]On 11 October 2022, I convened a directions hearing to hear submissions about how the Review Application was to proceed in the Tribunal including whether or not the Tribunal had the jurisdiction to deal with that application. Dr Lal appeared at the directions hearing by telephone with his daughter, Ms Lal.[1]
- [6]At the directions hearing, Dr Lal confirmed that the Review Application sought review of a decision communicated in an email dated 21 June 2022 from Ms Christine McKeay of AHPRA to Dr Lal stating as follows:
Dear Dr Lal,
No this is not possible, as this process is for applicants and only if it has been determined eligibility requirements for registration have been met.
Regards
…
- [7]Ms McKeay’s email followed an email from Dr Lal asking AHPRA to provide a ‘letter of “Approval in Principle”’ so that he could apply for a job. Viewed in context, the decision that Dr Lal sought review of in the Review Application was AHPRA’s refusal by email to issue him with a ‘letter of “Approval in Principle”’.
The Decision
- [8]In making my decision to act pursuant to s 47 of the QCAT ACT and dismiss the Review Application, I said as follows:
… Dr Lal obviously received that decision - or that email by 22 June 2022, because he responded to it that day. It is necessary, by reason of section 33 of the QCAT Act, for applications for review to be brought within 28 days of the day that the applicant is notified of the decision. It is plain, therefore, that this application, which was filed on 31 August 2022, is out of time by at least one month. Pursuant to section 61 of the QCAT Act, the tribunal has a discretion to extend time, which is a discretion which the cases say is a power to be exercised with caution, and which may confer a power to prevent injustice in relevant circumstances.
And I refer there to the statements in Rintoul v State of Queensland and Others [2015] QCA 79 at [16-17] decision of Justice Holmes of Appeal, as her Honour, the former Chief Justice, then was - noting that in her view section 61 was a provision which should be construed in that way. The difficulty arises in that there is no appealable decision identified in the material which Dr Lal has put before the tribunal. Section 199 of the Health Practitioner Regulation National Law (Queensland) sets out the decisions which a person may appeal against to the tribunal.
This difficulty is that the - there is no decision in that email which can be the subject of appeal. The solicitors for AHPRA, by way of short background, placed the following matters on the record, and I should indicate I have read the material which Dr Lal has filed in support of his application, which runs for some several hundred pages, and the facts which have been identified are consistent, and a neat summary of what I had identified in the material.
Dr Lal previously held registration in Australia in 2017 and 2018. He currently holds no registration. The email of 21 June 2022 is not a decision. It’s an email from a person who’s the national manager of registrations at AHPRA. Dr Lal has been corresponding with AHPRA since 2019 about how he might obtain registration, and the email is part of a chain of correspondence about how Dr Lal should apply in a manner that may produce a reviewable decision in the event it doesn’t go the way Dr Lal would wish it to. The - AHPRA submits that the application should be dismissed pursuant to section 47 of the QCAT Act because the application is misconceived.
Solicitors acting for the college endorse those submissions, and also note that the college is not related to AHPRA. It is an accreditation body. The decision which Dr Lal has identified is not something which has any relationship to the college. During the course of submissions, Dr Lal has indicated to the tribunal that he has been corresponding with AHPRA about a position as a practitioner in New South Wales, and he has been asking AHPRA for advice and guidance about that. He had, in fact, made an application for registration on 25 May, which has been withdrawn - was withdrawn on the 21st of June 2022.
The representative for AHPHRA informed the court that Dr Lal is to file an application for registration by reference to the processes on the website, and once that has occurred, it can be anticipated and expected that consideration of his application will take place. I am satisfied on the material before the tribunal that the tribunal does not have jurisdiction to deal with Dr Lal’s present application.
In those circumstances, it is an application which is misconceived, within section 47(1) of the Queensland Civil and Administrative Tribunal Act. It follows, therefore, that there is no basis to extend time in any event, pursuant to section 61 of the QCAT Act, and the tribunal dismisses the application.
The Present Application
- [9]The Present Application seeks to reopen and/or correct the Decision to dismiss the Review Application for want of jurisdiction.
Application to reopen a decision
- [10]As I observed in Health Ombudsman v Gascard (No.2) [2022] QCAT 300, an application to re-open a proceeding must be made within 28 days of the relevant day, which in this case is 11 October 2022. Therefore, Dr Lal could only proceed with an application for re-opening if he also applied to extend the time in which to apply to reopen the proceeding. He has not done so.
- [11]Even if Dr Lal were to apply to extend the time to apply to reopen the proceeding, such an application would be highly unlikely to succeed. To succeed in an application to extend time, the Tribunal would consider the strength of Dr Lal’s application to reopen the proceeding.[2] In circumstances where he has not properly identified a reopening ground, [3] his application to reopen the proceeding is not strong. I note that Dr Lal attended the hearing on 11 October 2022 by telephone and the Present Application does not identify any new evidence that has arisen that was not reasonably available when the proceeding was first heard and decided. Rather, the basis for the Present Application appears to be ongoing frustration with the process for an internationally trained specialist medical practitioner who seeks registration in Australia.
Application to correct a decision
- [12]As I observed in Pawape v Medical Board of Australia [2023] QCAT 257 at [8]:
The statutory power to correct mistakes provides that the Tribunal may correct a decision made by it in a proceeding if the decision contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a matter, person or thing or a defect in form.
- [13]It is clear from Dr Lal’s application that the basis for his application is not to correct a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures or a mistake in the description of a matter. Rather, Dr Lal says that the Decision should be corrected because of:
- Possible oversight of evidence along with new emerging evidence
- Conduct of AHPRA after QCAT case ended in Oct 2022 has been in bad faith
- RACP conducted – The supervised practice report process “RACP REPORT 2” was conducted with misleading and fraudulent plan contract, information under FURTHER EDUCATION AND TRAINING ACT 2014 – SECT 18, SECT 188, SECT 164 and should be nullified under SECTION 103
- [14]In the circumstances, an application to correct a decision cannot succeed.
- [15]It is apparent from the face of the Present Application that Dr Lal is seeking that the Tribunal reopen the matter and grant him some form of substantive relief. As I have previously determined, the Tribunal does not have the jurisdiction to grant him substantive relief in his quest to become a registered medical practitioner in Australia when he has not made, and the Medical Board of Australia has not considered, an application for him to be registered. That is unchanged by the fact that Dr Lal continues to feel frustrated while engaging with AHPRA and the RACP.
- [16]The solicitor who appeared for AHPRA at the directions hearing on 11 October 2022 said this of Dr Lal’s path to registration:[4]
[SOLICITOR]: Now, I understand, based on the material I have been brief with that in September - on or about 15 September, Dr Lal was offered a position as a general practitioner at the Medcirc Clinic in Young and Grenfell in country New South Wales. That is a general practitioner position, and it’s an accredited GP-training practice. Now, my client has been sent a number of emails subsequent to that request on the 15th of September where Dr Lal has asked for advice about what do to next, and asked for guidance through the registration process. The difficulty, I think my client and perhaps Dr Lal is having, is that my client conceded that they’ve properly advised Dr Lal over a number of years how to make an application, and assessing whether the practitioner, Dr Lal, is eligible or whether that’s an appropriate employer - that can’t be done until there’s been an application for registration, and there hasn’t.
So really, the first hurdle for Dr Lal is to file an application, and I appreciate both Dr Lal and his daughter have expressed some concerns and some frustrations with the communication process with my client. However, my client’s position is that they’ve been very responsive, and indeed, entertained a number of emails and a number of requests from Dr Lal. Perhaps this directions hearing will provide some clarity in that Dr Lal needs to make an application. It’s a matter for him to do that through the website that he has been referred to on a number of occasions, and that once that’s done, I suspect - and I have no confirmation, but I would expect that the consideration of the employer in country New South Wales will take place.
…
- [17]It remains the case that under the National Law, the Tribunal has no power to grant any relief to Dr Lal unless he has made an application for registration and the National Board has decided the application.
Orders
- [18]In the circumstances, I order that the application filed on 5 September 2023 is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009.