Ghobashy v Medical Board of Australia [2025] NSWCATOD 157 | Case summary

[4]

Draper v The Psychology Board of Australia [2013] NSWPST 3

Ghobashy v Medical Board of Australia [2025] NSWCATOD 157 | Case summary | Zoe

[22]

Section 55(1)(g) of the National Law provides that a National Board may decide an individual is not a suitable person to hold general registration in a health profession if the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession.
Section 55(1)(h) of the National Law provides that a National Board may decide that an individual is not a suitable person to hold general registration in a health profession if unable to practise the profession competently and safely.
The Board's refusal of Dr Ghobashy's application was pursuant to s 82(1)(c)(i)(E) and s 82(1)(c)(i)(C) of the National Law, which provide that a Board may decide to refuse to grant registration in the health profession if the applicant [(C)] is not a suitable person to hold registration, or [(E)] does not meet a requirement for registration stated in an approved registration standard for the profession.
Under the heading "Background" the Board referred to Dr Ghobashy's history of medical practice in this Country. Dr Ghobashy was granted initial limited registration in Australia on 25 March 2014, and, as at June 2025, most recently held limited registration for postgraduate training or supervised practice on the specialist recognition pathway until August 2020, having failed to progress to specialist registration during that period. Dr Ghobashy's comparability assessment with the Royal Australia and New Zealand College of Psychiatrists (RANZCP) expired on 31 January 2020 as he failed to meet the requirements for specialist registration within the specified timeframe. Because of such failure, Dr Ghobashy no longer met the requirements for limited registration on the specialist pathway. Dr Ghobashy passed the Australian Medical Council (AMC) Cat MCQ examination on 20 November 2020 and therefore met the minimum entry requirements for limited registration on the standard pathway.
On 25 March 2022, the Board refused Dr Ghobashy's application for limited registration for postgraduate training or supervised practice on the standard pathway to practise as a Psychiatry Registrar at Armadale Hospital under Level 3 supervision. Having formed the view that Dr Ghobashy was unable to practise the profession competently and safely, the Board had regard to five matters, they being:

[24]

On 10 November 2022, the Tribunal affirmed the Board's decision and dismissed Dr Ghobashy's appeal.
The Board recorded, accurately, the details of and circumstances surrounding the application which gave rise to the Dr Ghobashy's present appeal.
On 30 December 2023, Dr Ghobashy applied for limited registration for postgraduate training or supervised practice on the standard pathway to practise as a Psychiatry Registrar at Armadale Health Service under Level 2 supervision. On 26 July 2024, the Board proposed to refuse Dr Ghobashy's application on the basis that he was not a suitable person to hold registration, noting that he had been unable to demonstrate that he could safely and competently practise as a medical practitioner, and that there were no conditions that could remedy the identified defects in Dr Ghobashy's suitability. The Board reiterated its previous invitation to Dr Ghobashy to apply for limited registration to practise in a lower role with a higher degree of supervision. Dr Ghobashy rejected, and continues to reject, taking that course. The Board referred to Dr Ghobashy's submission in response to the Board's proposed refusal. That submission was dated 31 August 2024. Dr Ghobashy relied upon the submission in the present appeal.
Under the heading "Eligibility", the Board recorded, accurately, that since the Board's proposed refusal of his application, Dr Ghobashy's offer of employment with Armadale Hospital has been withdrawn, and there was, and remains, no evidence indicating that Dr Ghobashy has any other current offer of employment. The Board accordingly stated that Dr Ghobashy did not meet the registration standard for limited registration for postgraduate training or supervised practice (limited registration standard) which was an essential eligibility criteria for limited registration in accordance with s 65(1)(e) of the National Law.
Section 65 of the National Law is concerned with "eligibility for limited registration" and provides that an individual is eligible for limited registration in a health profession if:

[26]

Under the heading "Suitability - Failure to progress - Section 65(1)(g)", the Board recorded that it held similar concerns to the concerns it held about Dr Ghobashy's lack of progress to general or specialist registration when it decided to refuse his application for limited registration in March 2022. The Board reiterated the matters set out earlier in its letter to Dr Ghobashy with respect to his history between 2014 and 2020. The Board stated that since its previous decision, Dr Ghobashy had failed the AMC clinical examination twice (in April 2022 and February 2024), receiving a score of 4 out of 14 on each occasion. After reiterating its expectations of practitioners granted limited registration to achieve key milestones towards attaining general or specialist registration within four years of being granted limited registration, which Dr Ghobashy failed to do in six years, the Board considered that Dr Ghobashy had failed to perform satisfactorily in the position for which he was registered and to demonstrate adequate progression towards general or specialist registration, and therefore to fail to meet a requirement of a registration standard.
With respect to "safe and competent to practise" (s 55(1)(h)(ii)), the Board reiterated that it held similar concerns about Dr Ghobashy's ability to practise the profession competently and safely to those which it held when refusing his application in 2022. After referring to findings made by the Tribunal in the 2022 proceedings, the Board referred to Dr Ghobashy's two unsuccessful attempts to pass the AMC clinical examination since the Board's 2022 decision, to Dr Ghobashy not having practised since mid-2020, to Dr Ghobashy having provided little evidence of steps he had taken to address the concerns previously raised about his performance, apart from providing evidence of completion of various continuing professional development (CPD) and Dr Ghobashy's continued demonstration of a lack of insight or proper acknowledgement of the performance issues previously identified. For those reasons, the Board considered that Dr Ghobashy was unable to demonstrate that he was safe and competent to practise the profession and was thus not a suitable person to hold limited registration.
Under the heading "Other Considerations," the Board recorded a number of other matters which it took into account in refusing Dr Ghobashy's application. The Board referred to s 83 of the National Law, which is concerned with the imposition of "conditions of registration" but, noted that the level of supervision required by Armadale Hospital and sought by Dr Ghobashy to meet the withdrawn offer of employment was "unclear". The Board reiterated that, having been absent from practice for more than three years, upon re-entry to practice, Dr Ghobashy would need to submit a Plan for professional development and re-entry to practice to meet the Board's registration standard: recency of practice. The Board recorded that the Plan provided by Dr Ghobashy was "redundant" in circumstances where his offer of employment from Armadale Hospital had been withdrawn. The Board reiterated its previous advice to Dr Ghobashy that a Psychiatry Registrar position under Level 2 supervision would not be adequate to address its concerns, including those regarding Dr Ghobashy's performance. The Board did not consider that Dr Ghobashy's application provided sufficient evidence that he had acknowledged or attempted to remediate the concerns raised with his performance. The Board considered that Dr Ghobashy's further application for a Psychiatry Registrar position in those circumstances indicated a "significant lack of insight on your part." The Board recorded its view that a Psychiatry Registrar position was not an appropriate position for re-entry to practice after a gap of more than three years or in circumstances where the concerns with respect to Dr Ghobashy's overall performance remain. The Board repeated its previous suggestion to Dr Ghobashy that he may wish to apply for limited registration to practise in a lower role with a higher degree of supervision.

[27]

Dr Ghobashy submitted, correctly in the Tribunal's view, that, having regard to the terms of s 175C of the National Law, the Tribunal has the power to impose such category of supervision as it considers appropriate in the event that Dr Ghobashy is granted the registration which he seeks. Consideration of the category of supervision is but one of the matters to which the Tribunal may have regard. Consideration of an appropriate category of supervision only arises in the event that, by reference to the proved registration standards, the evidence establishes that Dr Ghobashy is potentially eligible to be granted the registration which he seeks.
Dr Ghobashy referred to the 2022 finding of the Tribunal at [282] and submitted that the Tribunal there "considered me to be more sufficient and effective with Level 2 or 1 for the same position" as that which he now seeks. With respect to Dr Ghobashy, that is not quite what the Tribunal found, as the terms of that paragraph make clear. The Tribunal there recorded that no category of supervision less than category 1 or 2 would have been appropriate, had the evidence otherwise supported granting Dr Ghobashy the registration he sought. Dr Ghobashy's inversion of what the Tribunal said in its 2022 decision cannot assist his present appeal. Even if the Tribunal's comments are interpreted in the way Dr Ghobashy does, that would not have any bearing on the determination of his present appeal. The Tribunal determines facts and issues for itself, in reliance upon the evidence before it. To the extents that the Tribunal makes similar or identical findings to those made by the Tribunal in 2022, that is coincidental.
Dr Ghobashy complained that the "agenda" of the Board was to "only allow me to have a registration with a lower role and a higher level of supervision which is Level 1 (the highest)" which was submitted to mean "in a simple word only allowing me to have an Resident Medical Officer (RMO) position. This is the first year position after the intern year with candidates just entering the residency program who have no knowledge and no experience about the field at the beginning of their career." That may be so, but it does not advance Dr Ghobashy's application. Put bluntly, if the Tribunal makes the findings sought by the Board, if Dr Ghobashy wishes to pursue a path which may result in his being registered to practise psychiatry, which is the level at which he should commence pursuing that aim.
Dr Ghobashy's contention that it was not "logical" to consider Level 1 or Level 2 supervision in view of his having "spent about four years of my practice in Australia on Level 3" (2014-2018) ignores what has and has not occurred since, for what is now a period of more than five years. Dr Ghobashy's submission that it was not logical to "come back to a year one of the career after thirty years' experience in the field" overlooks the undisturbed findings of the Tribunal in its 2022 decision and the undisputed facts with respect to Dr Ghobashy's subsequent unsuccessful examination results and absence of any practical experience for a period of more than five years. Similar observations apply to Dr Ghobashy's further submissions as to whether it is "logical" or "rational" for him to be expected to attempt to qualify in psychiatry in the manner suggested by the Board.
With respect to the Board's reliance on Dr Ghobashy's absence of practical experience for more than three years, Dr Ghobashy submitted that he had been "knocking every door to continue practice since August 2020". Although the Tribunal is not unsympathetic to whatever difficulties Dr Ghobashy may have had in obtaining employment, about which Dr Ghobashy has adduced no evidence, that cannot change the reality of his circumstances, or permit the Tribunal in exercising its function to deviate from the clear objective and guiding principle of the National Law, which mandates that the protection of the health and safety of the public must be the Tribunal's paramount consideration.
Dr Ghobashy submitted that his circumstances were beyond his control. That may be so, but it cannot change the difficulties he faces.
Dr Ghobashy referred to the CPD courses which he has completed since the 2022 decision of the Tribunal and, in particular, attachments 13, 22, 23 and 29, to Exhibit A1. Although Dr Ghobashy has not been "dormant" since August 2020, with no disrespect to him, the CPD courses which he has completed provide no substitute for practising in his desired field and completing the performance requirements applicable to that field. Without demeaning Dr Ghobashy's efforts, 50 hours of CPD against a background of more than five years of absence of practical experience cannot materially assist his case.
Dr Ghobashy reiterated his assertion that the Board's invitation to apply to practise in a role equivalent to a RMO with Level 1 supervision was not a course which he should consider. With respect to Dr Ghobashy, at least at the time of the Tribunal's decision in 2022, that invitation was objectively appropriate.
Dr Ghobashy engaged with what the Board clearly submitted was fatal to his appeal - the absence of a current offer of employment. Dr Ghobashy did not dispute that he had no current offer of employment. Nor did he or could he dispute that the offer on which he previously relied, from Armadale Health Service had been withdrawn prior to the Board's decision. Dr Ghobashy submitted that Armadale Hospital "refused to provide an extension/withdrew the offer due to two main reasons" they being that "after my employer came to the knowledge that the Medical Board will never grant me a registration for a Registrar position which was the position I applied and got an offer for. In other words, the abstaining of providing an extension of/withdrawal of the current offer came secondary to the Medical Board refusal as it came in the Board proposal of refusal letter dated 1st of August 2024". Although the withdrawal of the Armadale offer of employment was influenced by its belief that Dr Ghobashy would not be granted registration, the evidence does not suggest that Armadale Health believed that Dr Ghobashy would "never" be granted registration or did other than make its own decision to withdraw the employment offer.
Dr Ghobashy referred to attachment 53 of Exhibit A1. That document, a Form SPPA, was an application for a "Supervised Practice Plan and Supervisors Agreement for International Medical Graduates." The employing organisation named in the document was Armadale Health Service and, to the extent that it was completed, was dated 7 October 2024. Dr Ghobashy named Dr Melissa Dell, a Consultant Psychiatrist, as his proposed principal supervisor at Armadale Hospital. Nothing in the document however revealed or implied that Armadale Health Service was actually offering Dr Ghobashy a position. As the form itself makes clear, it was a supervised practice plan and supervisors agreement. To the extent that the Armadale Health Service was named in the document as the employing organisation, and an employer contact was nominated, and appears to have signed the document in that capacity (page 12 of 14), it was not an offer of employment, much less an offer of employment on the basis of any particular level of supervision.
Dr Ghobashy submitted that the "very lengthy process and delay" in having his application processed by the Board meant that it was the "responsibility" of the Board, and their "failure to take a decision in an appropriate time" that caused his offer of employment by Armadale Health Service to come to an end. Whether that is so or not, which is by no means certain, the reality is that Dr Ghobashy's offer from Armadale Health Service was either withdrawn or lapsed and, at the time of the hearing of his present appeal, he has given no evidence of a current offer, or of attempts to secure a further offer from Armadale Health, or an offer from any other suitable entity.
In support of his contentions with respect to the probable reasons for the withdrawal of the offer of employment by Armadale Health Service, Dr Ghobashy set out the dates of requests for information by the Board and the provision of information by him. The Tribunal finds that the requests made by the Board were reasonable and does not find that, as far as he was able to, Dr Ghobashy failed to respond to those requests. Although Dr Ghobashy does not see it that way, the Board was not impeding his efforts to gain registration and may even have been trying to help him to gain appropriate registration.
With respect to the Board's contention that it would not be appropriate to grant him more than four years on limited registration, Dr Ghobashy submitted that he was "applying on a different pathway which is the standard pathway, a totally different one from the specialist recognition pathway I was on before". The Tribunal does not understand that such application is governed by different, or more relaxed legislative provisions than was the application which the Board rejected. Dr Ghobashy submitted that he was "fulfilling the minimum requirements for re-entry to practice and having a registration" after passing the AMC Cat MCQ exam. He submitted that having a clinical practice would "help and expedite the process towards gaining general or specialist registration rather than sitting at home and studying without practice." Dr Ghobashy submitted that having a Registrar position (and not RMO position) would help him to regain his specialist pathway towards specialist registration. That may be so, but, for the Tribunal to grant Dr Ghobashy's appeal, the evidence would have to establish his eligibility to do so, and that doing so did not unreasonably risk the health and safety of the public.
Dr Ghobashy disputed the Board's contentions with respect to "poor performance and unprofessional conduct." Dr Ghobashy relied in that respect on a number of documents in Exhibit A1. Tab 36 of A1.
Tab 36 of A1 is an RANZCP Stage 3 Generalist: end-of-rotation In-Training Assessment (ITA) form signed by Dr Ghobashy's principal supervisor, Dr John Wardell, on 16 January 2020 and by the Director of Training, Dr Andrew Pethebridge, on 17 January 2020. Apart from the antiquity of the document, it is to be remembered that, in the 2022 proceedings, Dr Wardell was critical of a number of aspects of Dr Ghobashy's performance under his supervision. The form itself is equivocal in any event. Whatever inferences might be drawn from the document, it cannot assist Dr Ghobashy's appeal.
Dr Ghobashy also referred to Tab 18 of A1. As his description of it makes clear, the performance report was generated in late 2019, six years ago. Tab 18, an extract from the Tribunal's 2022 decision, again emphasising [282] of the decision. Dr Ghobashy's reliance on a work performance report for the period 12 August 2019 to 1 October 2019 cannot assist his present appeal. Dr Ghobashy also relied on the work performance report (Tab 37, A1) with respect to that period. Again, the antiquity of that report precludes it from assuming any significance in the present proceedings.
Dr Ghobashy asserted that he had "proved in the last NCAT hearings through many official documents that I was doing very complex work tasks and assessments until the last day of my work at the service - including but not limited to - writing reports and representing my clients in the Tribunal hearings, examining up to 14 patients per each on call roster, performing ECT sessions with the consultants, heading the Clozapine Clinic, participating in family meetings etc ... I will be happy to forward those documents again if the honourable NCAT members asked for it." Quite apart from their antiquity, Dr Ghobashy's recollection of those events varies significantly from the opinions of his supervisors which were in evidence in 2022.
Apart from the fact that those submissions were considered by the Tribunal in the 2022 proceedings, Dr Ghobashy has not put forward in these proceedings, other than the CPD documents referred to earlier, any evidence of the performance of those duties since the Tribunal's 2022 decision. Having not practised in any capacity since August 2020, Dr Ghobashy could not present any reports subsequent to the 2022 hearing in any event.
Dr Ghobashy submitted that he had "many superior WRIG-30s, some of them I was on Level 3 of supervision" relying in that respect on the documents behind Tabs 37 to 42 and 52. We have already referred to Tab 37. It does not assist Dr Ghobashy's appeal.
Tab 38 is an RANZCP Stage 3 Generalist: mid-rotation in training assessment (ITA) form covering the period 5 February 2018 to 29 June 2018. Tab 39 was an Ahpra Work Performance Report (WRIG-30) with respect to the period from 1 May 2018 to 1 July 2018. Tab 40 was a WRIG-30 for the period 17 March 2017 to 16 June 2017. Tab 41 was a Medical Board of Australia Work Performance Report for Limited Registration with respect to an assessment period from 1 February 2015 to 31 January 2016. Tab 42 was a Medical Board of Australia Work Performance Report for Limited Registration for a period ending on 5 February 2015. Tab 52 was a RANZCP "Confirmation of Entrustment Form" dated 30 August 2018. The antiquity of all of those documents precludes them from assisting Dr Ghobashy's appeal.
Dr Ghobashy submitted that he has never "had any incident report, notice, complaint, adverse witness statement, or even a single documentation demonstrating a bad behaviour or misconduct either here or overseas." There is no evidence to the contrary. The absence of such evidence however simply removes potential grounds upon which Dr Ghobashy's appeal might fail. It is expected that medical practitioners will not have demonstrated "bad behaviour or misconduct."
Dr Ghobashy referred (Tab 33, A1) to medical records apparently produced by Lismore Base Hospital on Summons issued by Dr Ghobashy. The document referred to the admission on 29 February 2020 of a 25 year old female patient. The document apparently prepared by or based on Dr Ghobashy's clinical notes, at least in part, much of which is redacted, does not appear to raise criticisms of Dr Ghobashy's treatment of the patient. The clinical notes suggest that a Dr Faingold was present with Dr Ghobashy during consultations. Dr Ghobashy's submission appeared to suggest that he made some mistake in the clinical management of the patient. Any such mistake is not apparent to us from the document, but in any event, it refers to events five and a half years ago. The Board having not relied on the event, the Tribunal has had no regard to it.
Dr Ghobashy said with respect to "The accusations of non-professionalism, as well as misconduct with lack of care towards my clients and breaching NSW Health Code of Conduct, I would like to express that I am very keen to abide by the RANZCP rules and guidelines like (CanMEDS) since day one of my practise in this country". We do not understand the Board to contend that Dr Ghobashy's appeal should be dismissed because of any wilful or deliberate misconduct on his part. Rather, as the three grounds on which the Board has clearly based its case confirm, the Board's objections are predominantly based on Dr Ghobashy's asserted lack of expertise and non-recency of medical practice. It is unnecessary to revisit, as Dr Ghobashy appears to invite the Tribunal to, the evidence of Dr Wardell or the findings of the Tribunal with respect to it in 2022.
Dr Ghobashy asked the Tribunal to look at his digital National Police Certificate (Tab 27, A1). The Tribunal has done so. As Dr Ghobashy submitted, the Certificate records that there were "no disclosable court outcomes" recorded against him in any Australian State or Territory. The Tribunal does not understand it to be any part of the Board's case that Dr Ghobashy is not a suitable person to be granted the registration he seeks by reason of his character or any criminal offences.
Dr Ghobashy referred to his "failure twice in the clinical AMC exam" and appeared to submit that "Applying for that exam is an optional step, as it is not a prerequisite in order to obtain a limited registration. I could simply play it safe and refrain to attend the exam before obtaining my registration, and hence the Board will not blame me about any failure." Dr Ghobashy submitted that he attended the exam twice and was "able to pass the Medical Health stations easily." He further submitted that despite his failure "practicing [sic], studying and entering this exam twice is indicating that I was active during my non-practice period, and it proves that I was serious and determinant about passing this exam." The Tribunal does not understand Dr Ghobashy to lack motivation or, to the extent revealed by the documents which he has put into evidence, to have failed to complete CPD courses. The issue ultimately though is not about motivation or aspirations, but whether Dr Ghobashy is suitable to be granted the registration he seeks, and that his holding such registration would not constitute an unreasonable risk to the health and safety of the public.
Whilst "financial hardship" may have restricted Dr Ghobashy's ability to pursue his aspirations, about which Dr Ghobashy has adduced no evidence, those are not matters to which the Tribunal can have regard in the discharge of its functions pursuant to the National Law. Similarly, the Tribunal does not suggest that, if given the opportunity to do so, Dr Ghobashy would not try to the best of his ability to achieve the competence required for progression within his desired specialist field.
Dr Ghobashy revisited his "proposed position at Armadale." He referred to the Service Registrar interview dated 5 October 2023 of the East Metropolitan Health Service, Armadale Kalamunda Group and submitted that the document demonstrated "how tough the assessment was like". With respect to Dr Ghobashy, the document identifies a date and time for interview, the 10 minute reading time which was to precede it, and the questions which would be asked at the assessment. Whether Dr Ghobashy attended an interview on 5 October 2023 or not is unclear, but in any event, the document does not evidence that Dr Ghobashy successfully underwent the assessment process.
Dr Ghobashy also relied (Tab 45, A1) on an email to him from Dr Monica Taylor, Service Director, Mental Health Armadale Kalamunda Group, dated 17 March 2021. The email referred to Dr Ghobashy's application, his interview, and his being "deemed as suitable to the pool" and confirmed that "Should positions become available, the Service will offer contracts to the suitable applicants in the pool." Quite apart from the fact that the document is equivocal, there is no current offer from that or any other health service provider. The document provides no support for Dr Ghobashy's present appeal.
Dr Ghobashy submitted that his life and family have been "devastated by this painful traumatic journey which I have been through for the last five years of my life in an age which [sic] supposed to be the most productive." Although there is no evidence of Dr Ghobashy's personal or family circumstances, his claims may be true. Dr Ghobashy added that the "despotic decision" by the Board has "shattered my life apart and took my family with it leaving me in limbo." Whilst the Tribunal is not unsympathetic to whatever may be the consequences of Dr Ghobashy's unsuccessful application for the registration he seeks, and unsuccessful appeal against such refusal, nothing to which the Tribunal has been referred in this appeal, or which the Tribunal found in its 2022 decision, evidences "despotic" conduct by the Board. The Board's conduct was vindicated by the 2022 decision of the Tribunal.

[34]

The Board's review of the relevant legislative provisions correctly reiterated the obligation of the Tribunal in exercising its function to regard the protection of the health and safety of the public as the "paramount consideration" (s 3B), reflecting the "main guiding principle of the national and accreditation scheme" (s 3A(1)).
The Board made a number of submissions with respect to Dr Ghobashy's previous application and Tribunal proceedings. As suggested to Counsel for the Board during the hearing, the Tribunal approaches Dr Ghobashy's appeal on the basis of the evidence before it. Where relevant, the undisturbed findings of the Tribunal in 2022 provide the historical background to these proceedings, particularly as far as they identified matters in which Dr Ghobashy's skills were found wanting. As will be seen, it is unnecessary to rely on any particular finding made by the Tribunal in the 2022 proceedings. Given that Dr Ghobashy has not practised medicine in any capacity since that time, or indeed since August 2020, and, save to the extent that he has completed CPD courses, and unsuccessfully attempted relevant examinations since that time, there is no evidence of circumstances which are in doubt, or such doubt as to require evaluation in these proceedings. In reality, and understandably, the Board's case is more reliant upon the absence of evidence of matters which could advance Dr Ghobashy's appeal than of evidence of events since the 2022 decision of the Tribunal which created obstacles to its success. With no disrespect to the Tribunal which decided Dr Ghobashy's 2022 appeal, its undisturbed findings provide the "starting point" for the evaluation of the present appeal, the "end point" of which turns on the findings of the Tribunal as presently constituted.
The Board recorded, accurately, that the genesis of the present proceedings was Dr Ghobashy's application in December 2023 for limited registration for postgraduate training or supervised practice on the standard pathway to practise as a psychiatry registrar at Armadale Health Service under Level 2 supervision. At that time Dr Ghobashy had an offer of employment at Armadale Hospital for that position. The level of supervision was submitted, accurately, to be "one level higher than had been considered in his previous application."
The Board referred to its Notice of Proposed Refusal of 1 August 2024 (Tab 45, R1). In that Notice, the Board identified the basis on which it proposed to refuse Dr Ghobashy's application. The Board's reasons for its proposed rejection of Dr Ghobashy's application were a failure to progress pursuant to s 55(1)(g) of the National Law and, in summary, were that:

[38]

In those circumstances the Board considered that Dr Ghobashy was unable to demonstrate that he was safe and competent to practise the profession at this time.
The Board referred to "other considerations", which specifically engaged with whether, as provided by s 83 of the National Law, Dr Ghobashy's "deficiencies in suitability" could be remedied either by the imposition of conditions inherent in limited registration (Level 2 supervision) or conditions in addition to those inherent in limited registration for a Psychiatry Registrar under Level 2 supervision. The Board reiterated its previous advice to Dr Ghobashy that a Psychiatry Registrar position under Level 2 supervision would not be adequate to address its concerns, including those regarding his performance. The Board did not consider that Dr Ghobashy had provided sufficient evidence that he has acknowledged or attempted to remediate the concerns raised with his performance. The Board expressed concern that, despite being aware of its views Dr Ghobashy had again applied for a Psychiatry Registrar position, that assertedly indicated a "significant lack of insight" on his part. For those reasons, the Board considered a Psychiatry Registrar position was not an appropriate position for re-entry to practise after a gap in practise of more than three years or in the circumstances where concerns with respect to Dr Ghobashy's overall performance remain.
As recorded earlier in these reasons, Dr Ghobashy's decision not to give evidence, and thus be cross-examined, renders the Tribunal unable to make findings about the Board's concerns with respect to Dr Ghobashy's insight into his demonstrated professional shortcomings, the objective basis of which has been clearly identified by the Board.
The Board placed significant reliance on its suggestion to Dr Ghobashy on 1 August 2024, that he "may wish to apply for limited registration to practise in a lower role with a higher degree of supervision". Dr Ghobashy has not done that and has not given evidence with respect to why he has not, although his submissions leave little room for doubting that Dr Ghobashy considers that he should not have to do so.
On 31 August 2024, Dr Ghobashy provided a detailed written submission in response to the proposed refusal (R1, Tab 34). Apart from referring to matters which pre-dated the 2022 decisions of the Board and the Tribunal, and reiterating his good intentions, Dr Ghobashy advanced little which was realistically likely to cause the Board to change its proposed decision. Objectively, other than providing evidence of completed CPD activities, there was little which Dr Ghobashy could usefully have provided in support of his application.
Relevantly, Dr Ghobashy attached a "Clinical Course Certificate" from the Dr Jamal AMC Academy attesting to his having completed six week clinical courses online between 6 February and 20 March 2021, 15 March to 2 May 2023 and 1 August to 15 September 2023. The courses were said to consist of lectures on medicine, surgery, psychiatry, paediatrics, obstetrics, gynaecology, and physical examination "with 200 hours", other topics were also said to have been provided through the program. The course was said to be "designed to assist in preparation of Australian Medical Council clinical examination" and concluded that a "clinical trial examination was included in this course." It is apparent that Dr Ghobashy's unsuccessful attempt at the AMC examination in 2022 was after his 2021 studies through the Academy and that his 2024 failure was after his 2023 studies at the Academy.
Dr Ghobashy also attached a document dated 30 August 2024 from Dr Gayatri Sowajanya stating that Dr Ghobashy had been attending "regularly the daily group online sessions designed for studying, practise and rehearsals for the AMC clinical examination" for "almost the entire year, 2023 and 2024 with an average of about two hours of practise every day during the week". Similar subjects to those referred to by Dr Jamal were said to have been covered.
It is less than clear whether Dr Ghobashy's 2024 unsuccessful attempt at the AMC exam preceded or postdated his studies with Dr Sowajanya's group. If they preceded those studies, Dr Ghobashy has not subsequently attempted the AMC examination.
On 19 September 2024, Dr Ghobashy was advised that the Armadale Hospital had withdrawn its offer to him, on the basis that it "seemed he was not going to be granted the Ahpra level of supervision needed for the registrar position offered". On 10 June 2025, the Board informed Dr Ghobashy of its decision to refuse registration, stating the grounds set out above.
The Board made a number of submissions with respect to the "nature of the appeal." The Tribunal has earlier recorded the undisputed basis upon which the appeal proceeds. In oral submissions, the Tribunal raised with Counsel for the Board whether either party bore an onus of proof in the proceedings and, if so, which party that was. In brief submissions Counsel for the Board submitted that neither party clearly bore an onus of proof and that the Tribunal should make its decision in the light of the totality of the evidence and the statutory provisions governing the proceedings. It is unnecessary to attempt to suggest whether there is an onus of proof in the appeal, and if so, which party bears it. The outcome of this appeal would not be any different if either party bore an onus of proof, irrespective of which party that was.
Counsel submitted that neither the Board nor the Tribunal had any discretion in relation to Dr Ghobashy's absence of an offer of employment. The Board referred to the decision in McMahon v The Nursing and Midwifery Board of Australia [2013] NSWNMT 4 in which it was held at [112] that "While a standard is not a legislative instrument, its authority is recognised under the National Law. Further, the importance of a standard, once approved by the Ministerial Council, is that in various situations compliance with a standard ... is mandatory to retain or achieve registration. The legislation contains no discretion that enables a Board, (or a Tribunal), in particular circumstances, not to apply a standard approved." In Draper v The Psychology Board of Australia [2013] NSWPST 3, and Hanes v Psychology Board of Australia [2015] VCAT 886, that statement was accepted. The Tribunal accepts that, if Dr Ghobashy does not meet a requirement for registration stated in an approved registration standard for the profession, pursuant to s 82(1)(c)(i)(E), it must reject Dr Ghobashy's appeal.
The Board referred to the "long period between the notice of proposed refusal and the refusal decision" and submitted that, once the offer had been withdrawn, six weeks after the Board notified Dr Ghobashy of the proposed refusal, the subsequent period was "immaterial." Whilst the delay, although understandable, is regrettable, the evidence does not establish that the Board acted unconscionably, or that Dr Ghobashy was prejudiced by the delay between the Board notifying him of its proposed rejection of his application and it formally doing so. Arguably, by inviting him to make further submissions, Dr Ghobashy had another opportunity to attempt the AMC exam.
It was submitted to be unnecessary for the Tribunal to consider the other grounds on which the Board relied. The Board referred to the statement by the Court of Appeal in Reimers v Medical Board of Australia [2024] NSWCA 164 that it was open to the Tribunal to rest its decision on multiple independent bases and that, unless an appellant demonstrates that each independent basis of the Tribunal's decision was erroneous, an appeal would fail.
With respect to the Board's opinion that Dr Ghobashy was not a suitable person to hold registration by reason of his failure to meet the requirement in the registration standard pursuant to s 55(1)(g), the Board relied on the provisions of s 72(1) of the National Law which provides that limited registration can only be granted for a period of not more than twelve months and, although able to be renewed, may not be renewed more than three times (s 72(3)). If a person wishes to continue to seek limited registration after three renewals, he or she must make a new application for limited registration, as the note to s 72 makes clear.
The Board reiterated its reliance on the provisions of the Standard with respect to working towards meeting the requirements for general or specialist registration if (they) intend to apply for more than three renewals of registration, and to the provision of the Standard whereby an applicant for renewal must provide evidence that they are satisfactorily progressing towards meeting the requirements for general or specialist registration. The Board submitted that the evidence established that Dr Ghobashy satisfied neither of those requirements.
The Board relied on Dr Ghobashy having had limited registration between 2014 and 2020, during which time he failed the OSCE four times and was thus ineligible to sit it again, thereby failing to achieve a "key milestone". The Board also relied on Dr Ghobashy's failure to obtain general registration, although he had limited registration for a period that was two years longer (six years) than the Board's expectation (four years). It was thus submitted that the Board was correct to find that Dr Ghobashy had failed to perform satisfactorily in the position for which he was registered or to demonstrate adequate progression towards general or specialist registration. Dr Ghobashy was accordingly submitted to have failed to meet a requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession. Dr Ghobashy was accordingly submitted to be "not a suitable person to hold registration."
With respect to the Board's reliance on Dr Ghobashy's asserted inability to practise the profession competently and safely (s 55(1)(h)(ii)), the Board relied on the statement by Leeming JA in Reimers at [84] that "whether a person is unable to practise (the profession) competently and safely ... is essentially factual" and that competence was the "capacity of the practitioner to exercise the requisite skill or judgement for the particular profession". In Ahmad v Medical Board of Australia (Review and Regulation) [2023] VCAT 680 at [95] it was accepted that "competence" is "the capacity of the practitioner to exercise the requisite skill or judgement for the particular profession".
The Board submitted that there has been "no material change in circumstances since the previous decision that would ameliorate the concerns previously expressed by the Tribunal." That submission is well founded. To the extent to which there have been any changes in circumstances since the previous decision, they are limited to Dr Ghobashy's two failed attempts at the AMC exam, and to his further two years of absence of practice, neither of which circumstances assist his case.
Dr Ghobashy made much of his application for limited registration with a higher level of supervision than he proposed in the 2022 proceedings. Realistically, as the Board asserted, in the absence of an offer of employment, the higher level of supervision which Dr Ghobashy acknowledges to be appropriate is immaterial for present purposes.

[39]

On 9 October 2025, Dr Ghobashy filed a reply submission. In it he reiterated that he had passed the AMC Cat MCQ examination on 20 November 2020 and therefore met the minimum entry requirements for limited registration on the standard pathway, as admitted by the Board. The relevance five years later, of Dr Ghobashy having done that is not readily apparent, or explained by him elsewhere in his submission.
With respect to the Board's decision to refuse Dr Ghobashy's application on the basis that he did not have a proposed employer, and therefore did not meet the Standard, Dr Ghobashy submitted "This is a complete biased false claim, as I already had an offer of employment". Dr Ghobashy in fact had such an offer, but it was withdrawn in September 2024. Between that time and June 2025, Dr Ghobashy was unable to secure an alternate offer of employment. The evidence does not establish what, if any, attempts he made to secure such an offer. Dr Ghobashy reiterated his primary submission "focusing on the strategy of delay and procrastination the (Board) chose to follow, so my employer run out of patience, and consequently my contract became overdue at the end, despite it was one year's contract." The evidence does not establish any conduct of that kind, and, as Counsel for the Board submitted, the offer of employment would have expired, had it not been withdrawn. Moreover, the withdrawn offer did not provide the level of supervision which Dr Ghobashy has acknowledged in these proceedings that would be necessary. In any event, the offer could have been extended had the proposed employer wished to do so.
Dr Ghobashy reiterated his erroneous claim that the withdrawal of the offer "came after my employer had the knowledge that I will never be granted registration for a Registrar position", referring to the email (Tab 49, Exhibit A1) indicating that Armadale Health could not offer Dr Ghobashy a position, the offer was for a Registrar position and that it was not possible for him to be Level 1 supervision and function in that role. The employer pointed out that that level was "usually that of an RMO and we are not currently recruiting for this position."
Dr Ghobashy's "important question, why my employer will grant me an extension of the offer if the result will be the same at the end?" ignores the reality that Armadale Health renewed or extended its offer (Tab 53, A1), only finally withdrawing it on 7 January 2025. When the Board refused Dr Ghobashy's application, he did not have an offer of employment.
Dr Ghobashy complained about communications between Armadale and the Board without his approval or knowledge. The emails in question (R1, Tab 40) commencing with the email from Ahpra to Dr Dell on 6 December 2024, following up on an email of 28 November 2024 regarding Dr Ghobashy's supervision plan, training plan and clarification regarding his position, asked whether Dr Dell required any additional information or needed some time to prepare her response, and indicated that the information was required in order for Ahpra to continue to assess Dr Ghobashy's application for registration. In the email of 28 November 2024 to Dr Dell, the Board raised a number of enquiries about the level of supervision for the position which had been offered to Dr Ghobashy, the supervised practise plan and supervisor's agreement and training plan, all of which fell within the ambit of the Standard and were reasonable inquiries.
Dr Ghobashy submitted that it would "not be a positive matter to refuse my appeal ... as the MBA tactics of procrastination until the offer became overdue - and hence claiming that there is no offer of employment - could be regarded as an encouragement to have the same attitude with me next times [sic] and with other practitioners' applications as well. Additionally, suggestions and insinuations to the employer about the proposal of refusal will definitely have an impact on the offer fate [sic] especially if there was a background of lack of transparency, like what happened to me."
As submitted by the Board, reasonably having regard to the requirements of the Standard, much of the delay in the Board making a decision was referable to requests to Dr Ghobashy or Armadale Health for further information. As recorded above, it was always open to Armadale Health to further extend or to renew its offer to Dr Ghobashy. Moreover, as Armadale Health's communications confirm, the likelihood of Dr Ghobashy's application being refused by the Board was not the only matter relied upon by Armadale Health when it withdrew the offer of employment.
Dr Ghobashy reiterated that he has not yet commenced employment towards general registration notwithstanding that he had passed the first part of the AMC exam (AMC Cat MCQ exam) at his first attempt in November 2020. Dr Ghobashy reiterated that applying for a position did not require him to have the complete AMC certificate first as it is granted only after passing the AMC clinical exam. Dr Ghobashy reiterated that the application which gave rise to these proceedings is "now on a different pathway (standard pathway) and I have never worked towards the general registration before while I was working towards the fellowship on the specialist pathway. Accordingly, accusing me of failure to have the general registration is a completely false claim." The Tribunal is not aware of that accusation having been made. All the Board has done is invite Dr Ghobashy to what it considers, not unreasonably, to be a more realistic potential pathway to the career he aspires to attain.
Dr Ghobashy disputed that, after the fourth attempt, he will again be allowed to sit the OSCE exam. In support of that claim, Dr Ghobashy relied on attachments 30, 31 and 31 of Exhibit A1. The email from the RANZCP to Ahpra of August 30, 2024, noted that no decision had at that date been made in relation to Dr Ghobashy's request for informal reconsideration to be undertaken by the Committee for Specialist International Medical Graduate Education (CSIMGE) regarding his exclusion from the RANZCP specialist pathway. The email noted that Dr Ghobashy was excluded from the specialist pathway in 2019 and has not made any progress on the pathway since that time and noted that, should Dr Ghobashy retain registration it would be "appropriate for the RANZCP to review the application and consider the application". The email dated 2 September 2024 from the RANZCP to Ahpra sought a "timely and empathic resolution of Dr Ghobashy's claim". The substance of the previous email was repeated. Contrary to Dr Ghobashy's submission, other than requesting a "timely and empathic resolution," the RANZCP, properly, provided no support for Dr Ghobashy's application, and, in effect, reserved its position in the light of further evidence with respect to it.
In support of his assertion that the Board had ignored relevant documentation from the RANZCP, in addition to reliance upon the emails at Tab 30 A1, Dr Ghobashy relied on the documents at Tab 35 and 51. As recorded earlier, the document at Tab 35, dated 24 October 2018, set out the requirements of the RANZCP 2012 Fellowship Program. It is not in dispute that Dr Ghobashy has not satisfied those requirements. The documents behind Tab 34, from the RANZCP dated 21 October 2019 set out Dr Ghobashy's OSCE result for September 2019. Dr Ghobashy's total OSCE score was 255.5 out of 550, the OSCE "cut score" for the examination being 275. Whilst, as the break-up of Dr Ghobashy's results confirms, he exceeded the cut score in a number of instances, Dr Ghobashy fell substantially below that score on five of the eleven stations. The email to Dr Ghobashy from the RANZCP of 11 December 2018 (Tab 51, A1) simply recorded that Dr Ghobashy had been granted an extension of twelve months beyond the initial expiry date of his comparability status on 31 January 2018 to complete the OSCE and extended the time for him to do so to 31 January 2020. Almost six years later, Dr Ghobashy has still to satisfactorally complete the OSCE.
Dr Ghobashy submitted that the Board's claim that he failed to progress towards general or specialist registration was a "pseudo reason to refuse" his registration. Nothing to which the Tribunal has been referred supports that assertion. The two most significant matters, neither of which Dr Ghobashy disputes, is that he has failed, despite extension of time, to complete formal requirements pursuant to the Standard and has now not practised medicine in any capacity for more than five years.
The balance of Dr Ghobashy's submissions in reply reiterated the substance of his primary submissions and referred to most, if not all of the attachments found in A1 to which he referred in those submissions. The Tribunal heard the audio recording of the 2022 hearing to which Dr Ghobashy referred in his primary and reply submissions. As submitted by the Board, nothing then said by the Presiding Member, or emerging from [282] of the Tribunal's reasons, or elsewhere from the Tribunal's reasons suggested that the Tribunal was there attempting to prescribe the level of supervision which would be appropriate if Dr Ghobashy secured the registration he sought, or suggesting that, if he agreed to such supervision, Dr Ghobashy should be granted registration.
In oral submissions, Counsel for the Board made reference to the decision of the Court of Appeal in Reimers and the decision of the Tribunal in Ibrahim v Medical Board of Australia [2014] NSWCATOD 108. Dr Ghobashy expressed concern that he had not had an opportunity to consider and respond to those authorities. Without objection from the Board, the Tribunal granted Dr Ghobashy the opportunity to make submissions with respect to those authorities.
Dr Ghobashy filed a submission on 30 October 2025. With respect to him, the matters raised by Dr Ghobashy with respect to R2 had previously, and in most instances more than once, been raised by him. In relation to the decision in Ibrahim, which was concerned with lack of recency of practise, Dr Ghobashy submitted that lack of recency of practice was not the only reason for the refusal of registration in that case, there being criticism of the practitioner's performance in relation to two of three clinical scenarios in the accreditation process. Dr Ghobashy pointed out that the "discontinuous nature" of Dr Ibrahim's work was significantly greater than his. Dr Ghobashy submitted that the ""clock stops ticking" once I submitted my application" in December 2023, and that, accordingly, his period of non-practise was only three years and three months, from August 2020 until December 2023. The Tribunal cannot accept that contention. The plain fact is that, in addition to the three years and three months of non-practise which had accrued by the time Dr Ghobashy filed his application in December 2023, almost two years more of non-practise have since elapsed. We know of no legal or logical reason why the Tribunal would accept Dr Ghobashy's contention. Doing so could well have dire consequences for the health and safety of the public. Dr Ghobashy stressed that the "experience and credentials" which he claimed to have acquired in his field was totally different to that of Dr Ibrahim. Dr Ghobashy referred to his previous overseas experience and qualifications. Ultimately, Dr Ghobashy submitted that Ibrahim was "completely out of relevance, totally insignificant and absolutely incomparable with my situation."
Dr Ghobashy submitted that reliance upon the decision in Reimers as supporting lack of recency as a basis for declining reinstatement involved a "great misinterpretation of the decision." After identifying a number of the factual matters in Reimers, and distinguishing them from his own circumstances, Dr Ghobashy submitted that there was "no zone for comparison between the experience of Dr Reimers as a specialist which lasted for less than two years and mine which started in 1998 until 2014 (the year I came to Australia) including nine years working as an overseas consultant plus six years of working as a Registrar in Australia". Dr Ghobashy relied in support of that submission on the documents at Tab 50 of A1. The Curriculum Vitae was prepared by Dr Ghobashy. Without disputing the accuracy of the educational qualifications which he set out, none of Dr Ghobashy's qualifications were acquired in Australia, or formally recognised by Ahpra or any other relevant body in Australia.
Although the Tribunal does not criticise the Board for referring to them, the decisions in Ibrahim and Reimers do not materially influence the Tribunal's decision in this case. Each case turns on its own facts and circumstances. Inherent in Dr Ghobashy's submissions with respect to the decisions is that his qualifications and experience were better than those of either practitioner, and his shortcomings less than theirs. Inherent in Dr Ghobashy's submissions is acceptance that assessment of skills and competence is by reference to the lowest standards, a proposition rejected by the Court of Appeal almost three decades ago (Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630).
Finally, Dr Ghobashy said with respect to the Fact Sheet the Medical Board provided, correctly, that he had addressed those issues in his primary submissions. Dr Ghobashy reiterated his contention that the specialist recognition pathway "despite it is irrelevant to my current application for registration because I am applying now on a different pathway which is the "standard pathway", yet that does not mean I failed the specialist pathway as the Medical Board claims." Dr Ghobashy submitted that he had "already finished Milestone one and all the requirements of Milestone B except the OSC exam which is a matter of current reconsideration at the college."
In his reply submission, Dr Ghobashy submitted that, for reasons there set out (paragraph 3(b)) he made application, which was pending, to the Board to further extend time for him to complete the OSCV. In his primary submissions [71(b)], Dr Ghobashy referred to attachment 30. As noted earlier, what the RANZCP said in September 2024 was that should Dr Ghobashy regain registration it would be appropriate for the RANZCP to review the application and consider it and that, with appropriate registration, Dr Ghobashy would be eligible to enter into the training program or access the RANZCP Certificate of Psychiatry. That is the only evidence before the Tribunal with respect to that issue.

[40]

By reference to the submissions of Counsel for the Board, the Tribunal has earlier recorded the relevant legislative provisions. It is unnecessary to repeat those submissions.
The Tribunal is comfortably satisfied that the evidence supports finding that each of the grounds relied on by the Board for its decision of 10 June 2025 has been established by the evidence before the Tribunal. In view of the Tribunal's earlier review of the parties' submissions, the Tribunal's reasons for those findings can be stated without needing to repeat much of our earlier reasons.
The first ground on which the Board refused Dr Ghobashy's application was that he lacks an offer of employment, without which his application must be dismissed. Whatever the reasons for such absence, the evidence establishes beyond dispute that, at the time Dr Ghobashy's application was refused, and since that time, Dr Ghobashy has not had an offer of employment as required by the standard. The Tribunal accepts that pursuant to s 65(1)(e) of the National Law, Dr Ghobashy's appeal cannot succeed in the absence of such an offer. Section 65(1)(e) provides that "an individual is eligible for limited registration if the individual meets the requirements for registration stated in an approved registration standard for the health profession". Section 82(1)(c)(E) provides that the Board, and now the Tribunal, "must" refuse to grant registration if the applicant does not meet a requirement for registration stated in an approved registration standard for the profession.
The context in which "must" appears in s 81 does not justify interpreting the provision to do other than impose an obligation to exercise the function (Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655; Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33; 156 ALR 110). Either the requirement is established, or it is not. If it is, Dr Ghobashy does not require the Tribunal to exercise a discretion favourable to him. If, as is the case, the requirement is not established, that defect cannot be remedied by the exercise of discretion.
The Standard (Tab 43, R1) provides (paragraph 9) that an applicant for registration must provide information from a "proposed employer" addressing the matters identified in paragraph 9(a) to (g). As those requirements make clear, considerably more information with respect to the proposed training and supervision of the applicant, and the qualifications and experience of proposed principal and other supervisors is required than merely an offer of employment. Why that is so is not difficult to understand in view of the paramount consideration mandated by the National Law. The Tribunal accepts that the evidence does not establish that Dr Ghobashy has an offer which complies with the requirements of the Standard. In those circumstances, his application must fail. Even if it did, for these, and the following reasons, the Tribunal would not exercise a discretion to waive this requirement.
The second ground which the Tribunal finds made out relates to Dr Ghobashy's failure to progress in accordance with s 55(1)(g). Although the Board's decision referred to findings made in the 2022 Tribunal proceedings, we are not persuaded that the Board's decision was not adequately supported by the events, and non-events which post-dated the findings to which the Board referred. The matters of relevance upon which the Board relied, and which the Tribunal finds established, to the extent that there is controversy in that regard, are essentially:

[41]

(1) That Dr Ghobashy was not eligible to attempt the OSCE again, having unsuccessfully attempted it on four prior occasions. Although Dr Ghobashy appears to suggest that the RANZCP may be willing to allow him to again attempt the OSCE, the evidence does not establish that to be more than a possibility. That factor supports the Tribunal's finding.

(2) In support of its decision, the Board relied upon Dr Ghobashy's inability to progress to specialist registration, and inability to meet the requirements for limited registration on the specialist recognition pathway. The Board acknowledged that Dr Ghobashy was now applying for limited registration on the standard pathway. Dr Ghobashy's submissions in these proceedings confirm that to be his intention. The Board relied on Dr Ghobashy having twice failed the AMC clinical examination since the Board's previous decision, and the Tribunal proceedings. The hearing before the Tribunal concluded on 18 August 2022. It is not apparent from the Tribunal's reasons that, if Dr Ghobashy had attempted the AMC clinical examination earlier that year the Tribunal was aware of it. The failure to pass the AMC clinical examination twice after the Board's 2022 decision, and to receive a score of 4 out of 14 on each occasion, provides substantial justification for finding that Dr Ghobashy has failed to progress in his desired field of practice.

(3) The Board referred to the requirement of the Standard that during a registration period an applicant is required to perform satisfactorily in the position for which he/she is registered, and work towards meeting the requirements of general or specialist registration. The Board expects practitioners who are granted limited registration to achieve key milestones towards attaining general or specialist registration within four years of being granted such registration. As is not in doubt, Dr Ghobashy failed to achieve key milestones within six years of obtaining limited registration for postgraduate training or supervised practise.

(4) The Board considered, and the Tribunal finds that the evidence establishes that Dr Ghobashy has continued to fail to perform satisfactorily in the position for which he was registered or to demonstrate adequate progression towards general or specialist registration and thereby fails to meet the registration standard.

[44]

The Tribunal has been careful to avoid reliance on the Tribunal's 2022 findings which could be unfair to Dr Ghobashy. The extent to which those findings conveyed to Dr Ghobashy what steps he might consider taking in the pursuit of his aspirations assume significance in view of Dr Ghobashy's response to them. Dr Ghobashy has given no evidence in these proceedings. The Tribunal is unable therefore to make any findings with respect to the extent to which Dr Ghobashy is able to accept responsibility for the adverse supervisor's comments which were in evidence before the Tribunal in 2022. Dr Ghobashy has had three years to reflect on those comments. Dr Ghobashy gave evidence in the 2022 Tribunal proceedings. Why he has not given evidence in these proceedings has not been explained. The Tribunal draws no inferences in reliance upon that absence. We are simply unable to make findings with respect to matters which are material to deciding the third basis of the Board's rejection of Dr Ghobashy's application.
In protective proceedings, a practitioner's insight, or lack of insight, into his or her established professional deficiencies is recognised as a significant consideration. Absent evidence from Dr Ghobashy which is able to be accepted, the Tribunal is unable to find that Dr Ghobashy presently has any greater insight into his professional shortcomings than he had in 2022. Dr Ghobashy's submissions are unhelpful to him. They are replete with express and implied criticism of others, rationalisation of his own performance deficiencies and repeated conspiracy theory claims. Save in one largely irrelevant instance, Dr Ghobashy has not indicated either awareness or acceptance of his own professional shortcomings.
Dr Ghobashy elected, after the Tribunal explained to him the consequences of doing so, not to give evidence and to be cross-examined. In those circumstances there is no evidentiary foundation for finding that Dr Ghobashy has insight into his professional deficiencies, and the need for him to undergo significant training, at a lower level than that which he considers himself eligible for if he is to have prospects of fulfilling his aspirations.
To the extent that it might be suggested that the Board counted two factors (the two failed AMC clinical examinations and the absence of practise since mid-2020) twice in its determination, the Tribunal does not find, having regard to the different grounds on which the Board relied, that any such complaint would have merit. Those matters were relevant in the Tribunal's view to both the grounds on which the Board made its decision. The Tribunal also relies on those matters.
The Tribunal has earlier referred to the CPD activities in which Dr Ghobashy has engaged. Whilst undertaking those activities is consistent with Dr Ghobashy's genuine desire to advance towards specialist registration, as the Board recorded, without hearing evidence from Dr Ghobashy, and cross-examination of him on that evidence, the Tribunal cannot find that such activities overcome Dr Ghobashy's undisputed professional deficiencies on which the Board relied and the Tribunal relies.
Dr Ghobashy's submissions provide considerable support for finding that he continues to demonstrate a lack of insight or proper acknowledgement of the performance issues previously identified. Perhaps more benignly, there is simply no evidence to establish that Dr Ghobashy has insight into, or proper acknowledgement of the performance issues previously identified despite more than three years in which to reflect on those matters. Dr Ghobashy refuses to embrace the Board's invitation to apply for limited registration to practise in a lower role with a higher degree of supervision. The objective evidence amply supports the appropriateness of his doing so. Dr Ghobashy's rejection of that reality supports finding that his lack of insight, combined with his demonstrated lack of professional skills would render his holding limited registration an unacceptable risk to the health and safety of the public.
For the foregoing reasons, Dr Ghobashy's appeal will be dismissed.

Ghobashy v Medical Board of Australia [2025] NSWCATOD 157;

At a glance

Court

Decision date

Source

Judgment (51 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)