1. The difficulty with Pham's submissions is that this Tribunal only has the jurisdiction conferred on it by the National Law. It does not have any inherent power to conduct a judicial review of the Board's decisions. It does not have any power to investigate the allegations which have been made by Pham concerning the allegation of bias in its decision making processes. It has a merits review jurisdiction; that is, a jurisdiction to revisit the decision on its merits. Although this Tribunal may occasionally express disapproval of the way in which a decision maker has gone about its task, the focus of a merits review is not the primary decision-maker. The Tribunal rehears the application and substitutes the correct or preferable decision on the evidence before it. Although the reasons for decision of the primary decision maker are not irrelevant, the Tribunal has no power of judicial review of those reasons.
2. The Tribunal must of course make decisions consistently with the provisions of the Charter, but it has no independent jurisdiction to investigate the breaches alleged by Pham.
3. We have reached the view that there is in fact no appellable decision before the Tribunal.
4. We agree that the application when instituted was in respect of an appellable decision. However, the decision which has now been substituted by the Board on the invitation of the Tribunal is a decision to require performance assessment. That decision is not an appellable decision.
5. As we have previously indicated, the Act provides that if an applicant does not comply with an assessment requirement then her application is taken to be withdrawn.
6. This mechanism seems to us to accord with common sense as there is effectively no aspect of the Board's decision to require a performance assessment which can be reviewed by this Tribunal under section 199 of the National Law.
7. We do not agree that this leaves Pham with no remedy.
8. Apart from the remedies which she would have if she instituted proceedings for judicial review in the courts, she has a simple way of bringing this matter back to this Tribunal on its merits.
9. She may simply undergo the performance assessment, and then challenge the Board if it fails to make a decision following the completion of that performance assessment, or alternatively challenge any negative decision made by the Board on her registration application following the performance assessment.
10. It is Pham's refusal to undergo the performance assessment which creates the difficulty in this case. The National Law does not allow for a review of the requirement to undertake a performance assessment. This is abundantly clear from the terms of the legislation, and there is no scope for reading down or ignoring the effect of section 80(5) as Pham's solicitor has pressed us to do.
11. However the legislation does not deny her the right to make her complaint to this Tribunal once the Board has made a decision based on that assessment, or has failed to make a decision within the requisite time.
12. As we have concluded that the Tribunal has no jurisdiction, the application is dismissed.

Judge Harbison Dr George Alexander Dr Ross King