D'Rozario v Dental Board of Australia [2015] NSWCATOD 19
McMahon v Nursing and Midwifery Board of Australia [201] NSWNMT 4
Texts Cited: AHPRA, English Language Skills Registration Standard (1 July 2015)
AHPRA, English Language Skills Registration Standards, Consultation Report (May 2015)
Source
Original judgment source is linked above.
Catchwords
D'Rozario v Dental Board of Australia [2015] NSWCATOD 19McMahon v Nursing and Midwifery Board of Australia [201] NSWNMT 4Texts Cited: AHPRA, English Language Skills Registration Standard (1 July 2015)AHPRA, English Language Skills Registration Standards, Consultation Report (May 2015)
Judgment (8 paragraphs)
[1]
Solicitors:
Appellant appeared for herself.
Crown Solicitor's Office (Respondent)
File Number(s): 17/00112752
[2]
Background
Ms Han wishes to register as a psychologist. Ms Han attained a Postgraduate Diploma in Psychology from the University of Western Sydney in 2011, having previously graduated with a Bachelor of Science in Psychology from Macquarie University in 2004, and an Associate Diploma of Social Science (Community Welfare) from the Sydney Institute of Technology in 1999. In addition to her educational attainments, Ms Han has worked in the community sector as a family support worker and counsellor, and also performed roles as a research assistant and casual lecturer.
On 1 July 2016 Ms Han filed an application for provisional registration as a psychologist with the Psychology Board of Australia (the Board); a process that is managed through AHPRA.
Ms Han was born in Turkey and undertook her primary and secondary schooling there, before coming to Australia in 1995. As will be discussed further below, this triggered a requirement that Ms Han demonstrate her English language competency through one of a set number of pathways. In her application for registration Ms Han indicated that she met the "Extended education pathway" which requires six years of continuous full-time equivalent education taught and assessed within one of a number of recognised countries, which includes Australia. An alternate pathway is through the proposed registrant sitting and achieving a set mark in a specified International English Language Testing System examination (the IELTS test).
Ms Han's supporting documents concerning her educational history demonstrated that she had undertaken three tertiary level courses in Australia between 1997 and 2010, including continuous enrolment for the years 1997-2003; however in 2001 she was not enrolled in any subject.
On 4 August 2016 Ms Han was informed by AHPRA for the Board that her education was not deemed "continuous" because of the one year break that she took from her studies in 2001, even though she was still enrolled in the degree program at that time. The email also states that there is an exemption available to applicants for limited registration but that this does not apply to her category of registration. Somewhat confusingly the next sentence reads:
You may still proceed with a request for exemption from the Standard, if you choose, but it is not recommended as it is extremely unlikely that it will be successful. The most likely outcome is that the Board will refuse the application and advise you to sit one of the English language tests.
Ms Han made written submissions outlining why she believed she should be granted an exemption from the IELTS test, based on her demonstrated competence in English, including her professional and education achievements.
On 4 October 2016 the Board indicated that Ms Han's application for registration and an exemption to the English language registration standard were to be refused as the mandatory registration standards had not been met.
Ms Han made further written submissions and the Board made a decision on 7 March 2016 conclusively refusing registration on the basis that Ms Han had not completed six years full time continuous education and so did not meet the English language skills requirement via the extended education pathway.
On 13 April 2017 Ms Han filed an appeal with the Tribunal in which she sought an order overturning AHPRA's refusal of her provisional registration.
[3]
The hearing and evidence
Ms Han was self-represented at the hearing which was set down for one day. The Tribunal was mindful of the difficulties faced by Ms Han in this regard and our duties under s 38(5) of the Civil and Administrative Tribunal Act 2013 ("CAT Act")
At the commencement of the hearing Ms Han applied for an adjournment based upon an email from 5:45 pm the previous evening from the NSW Bar Association Legal Assistance scheme in which pro bono assistance was offered. Ms Han also stated that she wanted time and legal assistance in order to respond to the written submissions of the Board, which she had received the previous day.
The Tribunal declined the application for adjournment. The appellant initiated these proceedings in April 2017 and a timetable to hearing was set down at directions on 30 June 2017.
The submissions of the Board, while perhaps somewhat intimidating for a lay reader, contain no 'surprises' that could be seen as imposing an unfair burden on an unrepresented litigant. That is, there is no new evidence or information or legal argument in that material previously unavailable to the appellant. The submissions succinctly summarise Ms Han's evidence and lay out the statutory framework for the Board's original decision, and the Tribunal's powers on appeal.
Importantly, in terms of the Board's position at the hearing, the submission re-states their approach to the matter made clear in a letter to Ms Han of 27 September 2017. That letter also made an offer of an in-person meeting with the Board in order to explain their position and answer questions.
While finding pro bono legal assistance is undoubtedly difficult, ample time was afforded between directions and hearing to allow Ms Han to pursue assistance.
The letter from the NSW Bar Association indicated that the relevant barrister had not yet met with Ms Han and had not reviewed all of her material. There was nothing in the correspondence to suggest that there was an informed view from a legal professional that the appeal had reasonable prospects of success.
In addition, given the constraints of the legislative framework (which, as explained below, involves a mandatory regime of registration standards with very clearly worded definitions, no provision for exemptions for the relevant category of registration, and allows no discretionary power to the Board in this regard), we do not believe that legal assistance could have altered the course of the hearing or the decision reached.
In these circumstances, bearing in mind the guiding principle of the CAT Act, s 3 and s 36, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, the Tribunal concluded that there was no unfairness to the appellant, greater efficiency and a significant reduction in the cost to all parties by continuing with the appeal as scheduled.
The appellant was offered an opportunity of a brief adjournment to review the respondent's submissions further and compose her own oral submissions, but declined.
Ms Han's materials contained professional references attesting to her skills and her excellence in English language communication, academic articles and policy submissions contending that the English language requirements in the Registration Standard are not appropriately tailored to their goal of ensuring safe standards for health professionals, and some comparative material demonstrating that the English language requirement in the relevant Registration Standard is more stringent than that in some comparable jurisdictions.
The essence of Ms Han's arguments were that:
She ought to be provided with an exemption from the IELTS test on the basis of her professional experience;
The registration standard is inequitable and discriminatory;
The registration standard is not a useful or appropriate measure of English proficiency.
[4]
The nature of the appeal and relevant law
This appeal is made under s 175 of the National Law which provides for the appeal of various decisions, including under s 175(1)(a) a refusal of registration.
Section 175(3) provides that the appeal is to be dealt with by way of a new hearing and permits fresh evidence, or evidence in addition to or in substitution for the evidence that was before the National Board, to be given. There is no requirement to demonstrate error on the part of the original decision-maker. The appellant bears the onus of proof: D'Rozario v Dental Board of Australia [2015] NSWCATOD 19.
Section 175C(1) provides that after hearing the matter, the Tribunal may confirm the decision, amend the decision, or substitute another decision, but this is qualified as follows:
(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision. (Emphasis added)
The legislative framework for registration is contained in the National Law. Section 62 provides for Eligibility for Provisional Registration as follows:
(1) An individual is eligible for provisional registration in a health profession, to enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration in the health profession, if -
(a) the individual is qualified for general registration in the profession; and
(b) the individual is a suitable person to hold provisional registration in the profession; and
(c) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for, or being registered in, the profession; and
(d) the individual meets any other requirements for registration stated in an approved registration standard for the health profession.(Emphasis added)
Section 5 of the National Law defines "approved registration standard" as a registration standard:
(a) approved by the Ministerial Council under section 12; and
(b) published on the website of the National Board that developed the standard.
Under s 38 of the National Law, the National Boards are required to develop and recommend registration standards for the registered health professions, including "(d) requirements about the English language skills necessary for an applicant for registration in the profession to be suitable for registration in the profession."
The relevant standard is the Registration Standard: English Language Skills, effective from 1 July 2015. This registration standard was recommended by 12 National Boards including the Psychology Board, and approved by the Ministerial Council on 17 March 2015. The standard is currently available on the website of the Psychology Board and was available at the time of Ms Han's application.
Section 82(1)(c) provides that a Board must refuse registration if the applicant is ineligible, including because the applicant per (i)(E) "does not meet a requirement for registration stated in an approved registration standard for the profession".
[5]
Findings and reasons
There is no claim that the Registration Standard was invalidly made or is beyond power. Rather, Ms Han's case is that the standard is unreasonable or unfair in its application to her, and that she ought to be provided with an exemption to it.
The Registration Standard mandates that when applying for initial registration an applicant must demonstrate their English proficiency. When the applicant has undertaken their secondary education in a country other than a "recognised country" (Australia, Canada, New Zealand, Ireland, South Africa, the UK or the USA) there are two paths: the continuous education requirement, or the English Language tests. The continuous education requirement is:
You have undertaken and satisfactorily completed at least six years (full-time equivalent) continuous education taught and assessed solely in English, in any of the recognised countries, which include tertiary qualifications in the relevant professional discipline which you are relying on to support your eligibility for registration under the National Law.
The Registration Standard explicitly requires that the six years of education be continuous. The Standard includes a definition section which states:
Six years (full-time equivalent) continuous education means education over a period of six consecutive calendar years without a break from study apart from the education institutions' (eg school or university) scheduled holidays.
It is very clear that there is no provision for any form of exemption, and no discretion provided for, in the registration standard as it applies to provisional registration. This Tribunal has noted that compliance with the Registration Standards is mandatory and, "The legislation contains no discretion that enables a Board (or a Tribunal) in particular circumstances, not to apply a standard once approved": McMahon v Nursing and Midwifery Board of Australia [201] NSWNMT 4 [112].
The Registration Standard does allow for an exemption to the Standard for a "limited registration" in defined circumstances that relate to clinical demonstration, research and post graduate study rather than to practice. Ms Han is not applying for a limited registration, nor would such a form of registration assist her to commence in practice as a registered psychologist.
Although a Board has the power to impose conditions upon a registration under s 83(1) and may apply conditions to a provisional registration by virtue of s 62(2), the Queensland Court of Appeal has held that it cannot apply a condition as a means of avoiding compliance with the relevant registration standard: Chinese Medicine Board of Australia v Lee [2014] QCA 149 [55].
This Tribunal can hear new evidence not available to the Board at the time of making its decision, but it cannot substitute a decision that was beyond the power of the Board to make. Section 82(1)(c)(i)(E) mandated that the Board refuse Ms Han's application for registration because she did not meet the Registration Standard. The exemption that Ms Han argues for was not within the Board's power and is therefore not within the Tribunal's power.
The Tribunal is unable to find that Ms Han met the Registration Standard. The definition within the Standard allows no latitude concerning "continuous education" which must take place over consecutive years in an un-broken fashion.
The appeal must be dismissed. Ms Han may be understandably upset by this result but we urge her to consider the available registration route available to her.
[6]
Costs
Section 175B of the National Law, concerning appeals, provides that, "The responsible tribunal may make any order about costs it considers appropriate for the proceedings."
The Board sought its costs if successful in these proceedings. In particular the Board relied upon the fact that there had been two communications with Ms Han since the filing of the appeal to draw her attention to the fact that the Board had no power to grant an exemption, an email from AHPRA dated 22 June 2017 and a letter dated 28 September 2017 by the Crown Solicitor.
The Tribunal determines that Ms Han should not be liable for costs in this matter. While the question at issue may appear clear to a legal mind, Ms Han did not have legal advice and was arguably mislead by the 4 August 2016 communication from APHRA in which she was invited to make a request for an exemption (albeit with the disclaimer that it was "extremely unlikely" to be successful), in circumstances where no such exemption power was in existence.
Moreover, it is apparent that Ms Han believes that she has been pursuing an important issue of principle, in that she views the standard as discriminatory and as unreasonable.
Full time continuous tertiary studies are increasingly rare, as socio-economic pressures compel many students to take time off, or undertake some of their studies part time. Equally many women take time out of their studies for maternity leave and women, and to a lesser extent, men, may take periods of leave for other caring and family responsibilities. The continuous education requirement arguably impacts with disproportionate severity upon those with such life circumstances, including Ms Han.
Ms Han argues that there is no evidence to demonstrate that a one year break from higher education leads to a lower proficiency in English, especially if the applicant is living in Australia and engaged in a working environment conducted in English.
The Registration Standard recommended by the Board and approved by the Ministerial Council was made by a panel of experts following a public consultation and review process. [1] The evidence considered by the Board is not before us in this matter, and we are not able to make any comment upon it.
Ms Han has sought to make important arguments of principle, but unfortunately has done so within a legislative framework that allows no room for discretion. If there is a case to be made that the extended education pathway should not so strictly require continuous enrolment that argument can be made through a policy channel such as the Registration Standard review process.
[7]
Orders
The appeal is dismissed.
No order as to costs.
[8]
Endnote
And see also, AHPRA, English Language Skills and Registration Standards, Consultation Report (May 2015).
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 30 November 2017