HEALTH AND AGED CARE - Applicant is an overseas-trained doctor - eligibility for exemptions from s 19AB(1) of the Health Insurance Act 1973 (Cth) - 10 year moratorium - not in District of Workforce Shortage (DWS) - Respondent supports exemption with conditions to assist in procedures - decision set aside and substituted

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Health Insurance Act 1973 (Cth)

Australian Prudential Regulation Authority v TMeffect Pty Ltd [2018] FCA 508

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Minister for Health v Nicholl Holdings Pty Ltd (2015) FCAFC 73

Health Insurance Regulations 2018

Health Insurance (Section 19AB Exemptions Guidelines) Determination 2019

1. Dr Kunnumpurath is an overseas-trained doctor and a fellow of the Australian and New Zealand College of Anaesthetists. Dr Kunnumpurath took up a position with the Barbara Walker Centre for Pain Management at St Vincent's Hospital from 3 February 2025.
2. On 22 January 2025, Dr Kunnumpuruth applied for a Medicare provider number for his location at St Vincent's Hospital. Services Australia, who processed the application on behalf of the Respondent, identified that as an overseas trained doctor, Dr Kunnumpurath was subject to the moratorium created by section 19AB(1) of the Health Insurance Act 1973 (the Act), which prevents Medicare benefits being paid to overseas trained doctors subject to various exemptions provided for by the Act. On 7 February 2025, Services Australia made an application to the Respondent's Department on Dr Kunnumpurath's behalf for an exemption.
3. The application for an exemption was refused by the Respondent's Department on 14 February 2025, identifying that Dr Kunnumpurath's requested site was not in a District of Workforce Shortage for anaesthetists, and no information had been provided identifying an alternative basis for exemption. Dr Kunnumpurath applied for review of that decision on 17 February 2025.
4. On 17 March 2025, a delegate of the Respondent again refused the application for an exemption. In doing so, the delegate noted that they were obliged to assess Dr Kunnumpurath's application by reference to his current registration as an anaesthetist, noting that Dr Kunnumpurath had not received specialist registration as a specialist in pain medicine. The delegate also noted that St Vincent's Hospital was not in a District of Workforce Shortage for anaesthesia, and no other circumstances justifying an exemption had been identified.
5. On 25 March 2025, Dr Kunnumpurath applied to the Tribunal for review. In support of his application, Dr Kunnumpurath acknowledged that St Vincent's Hospital was not in a District of Workforce Shortage for anaesthesia, but asked that consideration be given to other exemptions. The exemptions Dr Kunnumpurath identified in this regard pertained to his participation in training in pain medicine, his recruitment to replace an outgoing pain medicine practitioner, reliance on information that his role would attract an exemption, and his role requiring him to assistance in operations.
6. Accepting Dr Kunnumpurath's evidence that he assists in operations, corroborated by correspondence from St Vincent's Hospital to that effect, the Respondent contends that the Tribunal should set aside the decision under review, and grant an exemption subject to conditions restricting Medicare benefits only to professional services rendered at operations. The Respondent otherwise submits that Dr Kunnumpurath's application for an exemption should be refused.

1. The Act provides for the payment of Medicare benefits for medical expenses incurred in respect of professional services rendered in Australia to eligible persons: Part II of the Act. Sections 19AB(1) and (2) of the Act however provide that Medicare benefits are not payable in respect of services rendered by certain overseas trained doctors or on their behalf. No issue arises in this matter as to whether Dr Kunnumpurath falls within subsection 19AB(1) of the Act.
2. The Minister is authorised to grant an exemption to subsections 19AB(1) and (2) in respect of a person or a class of persons, and may do so subject to such conditions as the Minister thinks fit: subsection 19AB(3) and (4) of the Act.
3. The legislation provides that the Minister may, by legislative instrument, determine guidelines that apply to the exercise of powers under subsections 19AB(3) and (4), and the Minister must comply with those guidelines when exercising those powers: subsections 19AB(4A) and (4B) of the Act. The relevant guidelines are the Health Insurance (Section 19AB Exemptions Guidelines) Determination 2019 (hereafter the Guidelines). The Respondent submits that the discretionary power must be exercised in accordance with the Guidelines and cites Minister for Health v Nicholl Holdings Pty Ltd (2015) FCAFC 73 as authority, but I note the remarks of the Court to that effect in that decision were made in the context of an application under the Administrative Decisions (Judicial Review) Act 1977 of a decision ultimately found to be a preliminary decision not made under an enactment, and was not therefore made in the context of a decision of the precursor to the Tribunal.
4. However, as explained in Australian Prudential Regulation Authority v TMeffect Pty Ltd [2018] FCA 508 at [68], referring to Tax Agents' Board of New South Wales v Aqabani [1] "... it must follow as a matter of principle, that if the decision-maker was bound to take a policy formulated and applied to ensure consistency of decision-making, so too must the Tribunal". I consider that in the case of the Guidelines, which have the status of a legislative instrument, I am to treat them as mandatory relevant considerations.
5. The Guidelines relevantly provide for the considerations of exemptions generally at section 6. Sections 7,8,9 and 10 provide for specific exemptions inapplicable to the present matter. Section 6 of the Guidelines provide that the Minister must take into account as a primary consideration whether the service location is in a (relevantly) District of Workforce Shortage in respect of the type of medical practitioner to which the application relates.
6. The Guidelines provide that the Minister may also take into account:

(a) whether the Applicant's registration or licence as a medical practitioner is subject to any conditions;

(b) where the Applicant is the holder of a visa, whether the visa entitles the Applicant to work as a medical practitioner or undertake clinical training in medicine;

(c) whether the Applicant has entered into, or has commenced negotiations to enter into, a contract of service or contract for services under which he or she will provide professional services at the service location;

(d) whether professional services were rendered at the service location within the last 12 months by another person:

(i) to whom an exemption in respect of that location applied; and

(ii) whose provider number in respect of that location has been cancelled by the Chief Executive Medicare;

(e) whether the Applicant will render professional services after hours at the service location;

(i) the Applicant has commenced negotiations to enter into a contract of service or contract for services under which he or she will provide professional services at the service location, and

(ii) the service location is not in a Distribution Priority Area or District of Workforce Shortage in respect of the type of medical practitioner to which the application relates,

whether the service location was in a Distribution Priority Area or District of Workforce Shortage in respect of that type of medical practitioner at the time negotiations commenced; and

(g) any other matters the Minister considers relevant.

1. The Respondent has also provided a tabulated document entitled 'Exemption types and Criteria assessed'.[2] The document summarises different factors and categories of "exemptions" set out in the Guidelines, but also some others that cannot be found in the Guidelines. In response to my query as to the status of that document, particularly given the legislative scheme expressly provides for the Minister to issue the Guidelines, the Respondent clarified its position in the course of the hearing that the document does not itself amount to Departmental policy[3], in the sense referred to by the principal best identified by reference to Drake v Minister for immigration and Ethnic Affairs (No 2),[4] but rather is to be seen as a helpful guide for decision makers within the Department. In this regard therefore, I approach the reference to the items in that document as "exemptions" in their own right with some caution.
2. Items listed in the table that do not appear to have direct corresponding provision in the Guidelines are 'assist at operations' and 'placement on a workforce or training program'. In relation to the latter, the Respondent explained that this is intended to provide for exemptions for medical practitioners enrolled in approved training programs and actively working towards attaining specialist registration. The Respondent's Statement of Facts Issues and Contentions state that the eligibility for this exemption is contained in section 3GA of the Act and Division 6 of the Health Insurance Regulations 2018, and eligibility is subject to the medical practitioner applying to be enrolled in the Register of approved placements and approved by a body specified in the Regulations.
3. I note that neither section 3GA of the Act nor Division 6 of the Regulations make any express provision engaging with the moratorium at subsection 19AB(1) of the Act or the Minister's power to grant exemptions at subsection 19AB(2) of the Act. The link between the two is elusive on the face of the legislation (including the Guidelines), but is purportedly made by the document at T31 folio 98. On that topic, the document is unhelpful to the extent that it states that:

A doctor may be eligible for an exemption if they have a placement at a location on a workforce training program. These programs have their own location restrictions.

1. The Respondent submits that the eligibility requirements for this exemption are contained in section 3GA of the Act and Division 6 of the Regulations. They are not, because as mentioned above those provisions make no provision for an exemption to the moratorium. The Respondent goes on to state that for a medical practitioner to be eligible for 'this exemption', they must be enrolled on the Register established by section 3GA of the Act, which in turn requires approval by a body specified in the regulations.
2. Finally, reference has been made by both parties to a 'competent authority pathway exemption'. That term does not appear in section 19AB of the Act, the Guidelines or the document at T31, folio 98. In the course of submissions, the Respondent further explained that the policy reasons behind this pathway for exemption arises from a resolution reached at the former Council of Australian Governments, Australian Health Ministers Advisory Council meeting of 2 March 2006, in which it was agreed that international medical graduates who have met competent authority's qualification requirements for general registration qualify for provisional general registration or equivalent. Further information is provided at ST6 folio 29, which is a flowchart that appears to deal with matters of registration rather than the discretion provided for at subsection 19AB(3) of the Act. It may be that the issue of competent authority pathway conflates with enrolment in approved training programs. In any event, Dr Kunnumpurath does not press this ground in support of his application in light of the Respondent's explanation that it is inapplicable for persons holding specialist registration.
3. In response to my queries regarding these aspects of the legislative and policy framework, the Respondent draws attention to paragraph 6(3)(c) of the Guidelines that provide for any other matters the Minister considers relevant to be taken into account. This provision in the Guidelines is clearly permissive as to taking into account matters of the kind identified in the Table at T31 folio 98 that cannot otherwise be found referred to in the Act or Guidelines as a basis for exemption, but it is important that I record that my approach recognises that such considerations are non-primary considerations under the Guideline, and the document at T31 folio 98 cannot be understood to be exhaustive as to other matters the Minister might consider relevant in exercising the discretion in accordance with the Guidelines.

1. Turning to Dr Kunnumpurath's case, Dr Kunnumpurath accepts that St Vincent's Hospital is not in a District of Workforce Shortage (DWS). In this regard, I find that St Vincent's Hospital is not in the Northern Territory, a geographical area determined by the Department that satisfies the statistical formula in the definition of District of Workforce Shortage provided for in the Guidelines, nor in an area identified as Remoteness Areas 3,4 or 5 as determined by the Department.
2. I take into account therefore, as a primary consideration, that Dr Kunnumpurath's service location is not in a District of Workforce Shortage in respect of his speciality of anaesthetics. In this regard, I accept that I must view Dr Kunnumpurath's application in the context of his registration as a specialist anaesthetist notwithstanding he is in the process of obtaining further specialist recognition as a pain medicine specialist. I place significant weight against granting Dr Kunnumpurath the exemption he seeks in light of this primary consideration.
3. I may also take into account whether Dr Kunnumpurath's registration or license as a medical practitioner is subject to any conditions. Dr Kunnumpurath's registration as a medical practitioner and specialist anaesthetist was not expressed to be subject to any conditions in the document at T25, albeit I note this document expired 30 September 2025. I note Dr Kunnumpurath continues to practice as he did before that date and infer that his registration has been renewed on the same terms as were previously in place. The absence of any conditions does not weigh in favour of granting the exemption in my view, and this non-primary consideration is best understood as to be a neutral factor in my view.
4. I may also take into account whether Dr Kunnumpurath is the holder of a visa that entitles him to work as a medical practitioner or undertake clinical training in medicine. Dr Kunnumpurath is a citizen of the United Kingdom and the holder of a Temporary Skill Shortage (subclass 482) visa granted initially upon the nomination of the Department of Health in Queensland, but with St Vincent's Hospital subsequently being replaced as sponsor by the Department of Home Affairs on 7 February 2025. I am satisfied that Dr Kunnumpurath holds a visa that entitles him to work as a medical practitioner, and indeed appears to have been granted to him primarily for that purpose. I place some weight in favour of granting the exemption by taking into account that Dr Kunnumpurath is entitled to work as a medical practitioner and indeed his visa appears to have been granted for that purpose by way of addressing a skill shortage. However, I also note that the visa was initially granted following support of a sponsor in a location other than the location of St Vincent's Hospital, and this reduces the favourable weight.
5. I may take into account that the Applicant has entered into a contract of service under which he will provide professional services at the service location. I find that Dr Kunnumpurath has entered into an employment contract with St Vincent's Hospital, noting the correspondence from the Acting Clinical Director of the Barbara Walker Centre for Pain Management in that regard. This weighs in favour of granting the exemption, although I understand that the absence of a provider number (the administrative consequence of the moratorium applying without exemption) does not frustrate that contract of employment or prevent Dr Kunnumpurath from performing the bulk of his duties. In this regard, Dr Kunnumpurath explained that the main motivation behind seeking a prescriber number was to enable him to make referrals to the medical practitioners without requiring a colleague to counter-sign the referral. As such, while the existence of contractual arrangements weighs in favour of granting the exemption, the fact that the employment arrangement is not otherwise frustrated leads me to assign only limited favourable weight in this regard.
6. I may take into account whether professional services were rendered at St Vincent's Hospital within the last 12 months by another person to whom an exemption applied and whose prescriber number for the location has been cancelled. While Dr Kunnumpurath did identify a practitioner who he had replaced, I permitted the Respondent to provide evidence in oral submissions from its records confirming that practitioner had not been the subject of a subsection 19AB(3) exemption. I find on that basis that Dr Kunnumpurath was not replacing another practitioner who had been granted an exemption, and this consideration does not weigh in favour of granting the exemption.
7. I may take into account whether the Applicant will render professional services after hours at the service location. Dr Kunnumpurath told me that his role at the Barbara Walker Pain Management Centre is essentially performed during business hours. While he does on occasion find himself working after hours, as many medical and other professionals do from time to time, he does not perform services as an anaesthetist in other areas of the hospital that operate on shifts or around the clock. This factor carries neutral weight in my view.
8. Finally as to the specified factors in the Guidelines to be taken into account as non-primary matters, I may take into account a situation where negotiations commenced when a location was in a DWS, but subsequently ceased to be in a DWS. This is not the case with St Vincent's Hospital, and so the consideration is inapplicable.
9. I turn then to consider "any other matters the Minister considers relevant", in the context of my discussion above regarding the legislative and policy framework regulating the exercise of this discretion.
10. The Respondent submits that as Dr Kunnumpurath has demonstrated with evidence that he does assist in procedures from time to time, it would be appropriate that an exemption is granted with associated conditions restricting Medicare benefits to those services. Relying primarily on the Respondent's favourable disposition to this matter as a matter that justifies an exemption subject to conditions, and recognising the Respondent's role in administering the Act, I accept that the Applicant's role in assisting at operations is a relevant matter. I further note that the inclusion of this matter in the document at T31, folio 98, albeit not in the Guidelines, demonstrates it is an established view in the Respondent's department that such a role justifies an exemption subject to conditions and I place weight on that accordingly. Indeed, I consider the Respondent's position that it is desirable to make Medicare benefits available for functions associated with assisting in operations carries substantial weight in favour of granting the exemption with associated conditions.
11. Having regard to Dr Kunnumpurath's written submission, there remains one further matter for consideration; what is described as workforce training / 3GA exemption. As mentioned above, these appears to have previously been conflated with what has been referred to as a 'competent authority pathway' exemption which is no longer pressed.
12. The Respondent's position is that Dr Kunnumpurath is not eligible for that exemption because he is not enrolled in the Register of approved placements (established under section 3GA of the Act), because the Australian and New Zealand College of Anaesthetists have not endorsed Dr Kunnumpurath's enrolment as is required by paragraph 3GA(5)(a) of the Act. In my view however, having regard to the legislative and policy framework in place for the exercise of the discretion, it is at best an overreach to describe this as a matter going to eligibility for an exemption.
13. Dr Kunnumpurath is involved in a training program to be recognised as a fellow of the Faculty of Pain Medicine in the Australian and New Zealand College of Anaesthetists. This is established by the endorsement of his Supervisor / Mentor at the Barbara Walker Centre for Pain Management at ST3. Curiously, provision exists on the relevant form for the Chief Executive Officer of the Australian and New Zealand College of Anaesthetists to certify to the effect that Dr Kunnumpurath is an enrolled trainee in that program, but the Australian and New Zealand College of Anaesthetists has not done so.
14. It follows that Dr Kunnumpurath, correctly, is not on the Register of Approved Placements established by section 3GA of the Act because it is essential for the endorsement of the College to have occurred under subsection 3GA(5) of the Act. However, that state of affairs in my view is not conclusive as to whether or not Dr Kunnumpurath's apparent participation in a training program to be recognised as a fellow of the Faculty of Pain Medicine in the Australian and New Zealand College of Anaesthetists is a matter to be taken into account for the purposes of the paragraph 6(3)(g) of the Guidelines. I take into account that Dr Kunnumpurath is participating in a training program as a Pain Medicine Specialist and place substantial favourable weight on this matter.
15. On balance however, I have placed substantial weight on the primary consideration that St Vincent's Hospital is not in a DWS. The favourable weight I have placed on Dr Kunnumpurath's working in accordance with the purpose of his visa, fulfilling a contract of employment and completing a program of training towards becoming a Pain Medicine Specialist do not outweigh the primary consideration in my view. As mentioned above, it is significant that the fact that Dr Kunnumpurath is subject to the moratorium has not frustrated his capacity to fulfill his contract of employment, and nor is there anything in the material before me to suggest it will adversely impact his training and ultimate recognition of his new specialty.
16. Having regard to the factors provided for in the Guidelines, I am not satisfied to grant a general exemption to the moratorium created by section 19AB(1) of the Act to Dr Kunnumpurath.
17. However, I agree it is appropriate to grant an exemption to Dr Kunnumpurath subject to a condition that Medicare benefits only be payable in respect of professional services rendered by him in relation to assistance at operations at St Vincent's Hospital Melbourne.
18. Finally, I observe that in the course of the hearing Dr Kunnumpurath explained that a primary motivation in seeking the exemption was to obtain a prescriber number to facilitate him referring patients to other practitioners. Currently, as I understand it, Dr Kunnumpurath must approach colleagues with prescriber numbers to provide these referrals on his behalf. The Respondent explained that there is provision for a 'refer and request only' prescriber number to be issued on application.
19. I have considered whether it would be administratively efficient to incorporate a direction that would allow Dr Kunnumpurath to have access to a 'refer and request only' prescriber number as part of the resolution of these proceedings, noting it is most unfortunate that this option has not been raised with Dr Kunnumpurath previously given it has served as a motivation in pursuing the matter. The Respondent contends that Dr Kunnumpurath can make that application via Services Australia. On reflection, it is not clear to me whether the provision of a 'refer and request only' provider number involves access to Medicare benefits such that there is nexus to the decision under review, or whether the 'refer and request only' provider is of a different administrative character. In these circumstances, I accept that it is best that Dr Kunnumpurath make that application independently if he has not done so already.

[1] [2005] FCA 383

[3] See contra [41] of the Respondent's Statement of Facts Issues and Contentions.