Norkin v University of New England

1. [1]

   The plaintiff seeks leave to appeal pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) against a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (NCAT) given on 9 July 2021: DQV v University of New England [2021] NSWCATAP 208. That decision had dismissed an appeal from a decision of the Administrative and Equal Opportunity Division of NCAT given on 11 September 2020: DQU v University of New England [2020] NSWCATAD 226. The plaintiff was given the pseudonym DQV in NCAT. He will be referred to in this judgment as the plaintiff.

Background

1. [2]

   The plaintiff is the brother of DQU and was his sponsor in an application by DQU to come to Australia as an overseas student to undertake postgraduate courses of study at the University of New England for one year.

2. [3]

   As an overseas student seeking to undertake a course of postgraduate study in Australia, DQU first needed to obtain a formal offer of admission from an Australian university registered under Pt 2 of the Commonwealth Education Services for Overseas Students Act 2000 (Cth) (ESOS Act). The University, established under the University of New England Act 1993 (NSW) (UNE Act) is an education provider registered under the ESOS Act. As a registered education provider, the university is authorised to offer to provide, and to provide, postgraduate courses of study for overseas students. Any offer the University makes to an overseas student is subject to the student being granted a student visa. Without such a visa (a subclass 500 student visa), the overseas student cannot take up any formal offer of admission that is made.

3. [4]

   Student visas are granted under the provisions of the Commonwealth Migration Act 1958 (Cth) and the regulations made pursuant to that Act. A student visa can only be issued or granted by the Minister responsible for the Migration Act or his delegate. The University is not a delegate of the Minister.

4. [5]

   DQU wanted to bring his wife and son with him, which meant they also needed to apply for and be granted visas.

5. [6]

   On 18 May 2018, the University issued to DQU a revised conditional offer of admission for the courses he wished to study. The conditions of the offer were that DQU meet the Genuine Temporary Entrant (GTE) requirements as specified by the Australian Government Home Affairs, and that he meet the University’s English language requirements for admission.

6. [7]

   GTE requirements are those prescribed in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) for the issue/grant of a subclass 500 student visa. While the University does not have authority to issue/grant a student visa, in 2016 it elected, as an ESOS registered education provider, to be part of the Commonwealth “Simplified Student Visa Framework” (SSVF). Under the terms of the SSVF, the University elected to ensure, as part of its admission processes, that international students to whom it made an offer of admission:

7. [8]

   The SSVF is an administrative arrangement whereby the University is authorised by the Commonwealth Department of Home Affairs to make its own inquiries during its admission processes as to whether a prospective overseas student can satisfy the prescribed criteria for the issue/grant of a student visa in the event that a formal offer of admission is made and accepted by the student. The object of this arrangement was to streamline student visa applications so that there would be minimal delay between a formal offer of admission being made by the University and the student applying for, and being granted or refused, a student visa by the Commonwealth.

8. [9]

   To satisfy the GTE requirements, the University collected or sought to collect personal information about DQU, about the plaintiff, and about DQU’s immediate family members. This included DQU’s Year 10 and Year 11 equivalent educational qualifications, photographs of DQU’s wedding, and certified copies of his wife’s and child’s passports. The University required DQU to complete a statement of purpose in his own handwriting. The University also sought information about the plaintiff’s annual salary and annual tax return, and the name, age, place of residence, and marital status of relatives and ex-spouses of the plaintiff and of DQU.

9. [10]

   Both the plaintiff and DQU contended that the personal information the University collected went beyond that which the University was lawfully entitled to collect, and that it intruded to an unreasonable extent on their personal affairs. They applied to the University for an internal review under the Privacy and Personal Information Detection Act 1998 No 133 (NSW) (“PPIP Act”).

10. [11]

    The University found that it had complied with the Information Protection Principles concerning collection in the PPIP Act.

11. [12]

    Both the plaintiff and DQU then applied to NCAT for a review of the University’s conduct.

12. [13]

    NCAT found that the University had not contravened the Information Protection Principles in ss 8, 9, 10(c) or 11 of the PPIP Act. The Tribunal also found that the SSVF authorised the University to undertake, as part of its admission processes for overseas students, pre-student visa assessment of prospective overseas students, and that the collection of personal information from a prospective overseas student for the purpose of the pre-visa assessment was for a lawful purpose, and was directly related to the University’s functions in ss 6(2)(c), 6(2)(d) of the UNE Act. On that basis, the Tribunal decided not to take any action on the matter, pursuant to s 55(2) of the PPIP Act.

13. [14]

    The plaintiff (but not DQU) appealed to the appeal panel of NCAT against the decision of the Administrative and Equal Opportunity Division. At the hearing of the appeal, the plaintiff said that he was appealing on three grounds. His main ground was that NCAT had misapplied s 8 of the PPIP Act and, in particular, it had misapplied the meaning of the words “directly related to a function” in s 8(1)(a). The second ground was that the Tribunal’s reasons in para [138] of its decision were inadequate. The third ground was that the Tribunal had made a jurisdictional error because, when requesting personal information from the plaintiff, the University relied upon a policy which (a) had not been published, and (b) was not a clear statutory provision.

14. [15]

    In its judgment, the appeal panel found that the Tribunal made an error of fact, being that the collection of the appellant’s personal information for the purpose of conducting a pre-visa assessment of his brother was “directly related” to its functions of providing courses to students and developing admission policies. However, the appeal panel determined not to grant leave to appeal on that ground, because the collection purpose was directly related to the University’s activity of assessing visa applications, and so was permissible under the privacy legislation. The appeal panel held that the grant of leave would serve no useful purpose and would not be consistent with the application of the Tribunal’s guiding principles for the “just, quick and cheap” determination of issues.

15. [16]

    The appeal panel also determined that the Tribunal had not made any other error. Accordingly, the appeal was dismissed.

16. [17]

    The plaintiff purported to appeal from the decision of the appeal panel to the Court of Appeal, pursuant to r 50.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). He did this by filing a summons seeking leave to appeal, and filing a white book as required by r 51.12. Rule 50.12 does not provide for the filing of a white book. The requirements of r 50.12 were not complied with. The appeal ought to have been filed in the Common Law Division of this Court. The Court of Appeal remitted the proceedings to the Common Law division.

17. [18]

    The plaintiff then filed a document headed “draft notice of appeal” (although an amended summons had been directed to be filed by the Registrar), which set out the appeal grounds on which he relies. The document contained not only what purport to be grounds of appeal but appeared to be fresh submissions in relation to each such ground. The document reads as follows:

18. [19]

    The right to appeal to this Court from NCAT is found in s 83 Civil and Administrative Tribunal Act 2013 (NSW) which provides:

19. [20]

    It may be observed that an appeal is available only on a question of law and only with the leave of this Court.

20. [21]

    It is not at all clear that the grounds relied upon by the plaintiff are grounds which identify questions of law. Although the plaintiff appears for himself in the proceedings, it ought to be noted that he is a solicitor of this Court, and has been for some years. It can reasonably be expected that where he brings an appeal which is dependent on identifying a question of law, the summons should be drafted in such a fashion as to identify clearly what the question of law is said to be.

21. [22]

    It should also be noted that without any leave being given, the plaintiff appeared by audio visual link at a hearing designated as a live hearing. The plaintiff was in an unknown foreign country; the quality of the AVL was poor, with the result that it was at times difficult to hear and understand the plaintiff, as the transcript shows; and the plaintiff’s first language was not English. The submissions set out at [18] above provide some indication of the form of the plaintiff’s oral submissions. A close perusal of the transcript frequently fails to make clear the submissions the plaintiff was endeavouring to make.

22. [23]

    Counsel for the University in his submissions has helpfully reconstructed the grounds of appeal by reading together what appears in the draft notice of appeal and the Summary of Argument filed by the plaintiff with the white book in the Court of Appeal. The plaintiff did not take issues with this reconstruction. In that way, the grounds are these:

Leave to appeal

1. [24]

   In Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as The Owners Strata Plan 92888 [2021] NSWSC 1315, Henry J said of the principles governing leave to appeal under s 83 Civil and Administrative Tribunal Act at [90]:

2. [25]

   In Ashi Pty Limited v Karasco Investments Pty Ltd [2009] NSWSC 780, I said in relation to the issue of leave to appeal:

Grounds of appeal

1. [26]

   The plaintiff accepted that these grounds should be considered together.

2. [27]

   Section 8 of the PPIP Act provides:

3. [28]

   Section 6 of the UNE Act sets out the objects and functions of the University as follows:

4. [29]

   At first instance the Tribunal held that there was no dispute that the provision of higher education courses and the development of admission policies fell within s 6(2)(c) and (g) of the UNE Act. The Tribunal held that this would include the provision of higher education courses to potential overseas students and the development of admission policies for such students. The Tribunal was satisfied that the collection of personal information from a prospective overseas student for the purpose of a pre-visa assessment by the University was for a lawful purpose that was directly related to the functions of the University as set out in s 6(2)(c) and (g) of the UNE Act.

5. [30]

   The plaintiff’s first ground of appeal to the appeal panel of NCAT was that the Tribunal had misapplied s 8 of the PPIP Act and, in particular, had misapplied the meaning of words “directly related to a function” in s 8(1)(a).

6. [31]

   The appeal panel dealt with that ground of appeal by saying:

7. [32]

   The University accepted that the appeal panel may have been in error in concluding that the Tribunal at first instance had made an error of fact. In Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; (2015) 317 ALR 328, the Full Court of the Federal Court said at [100(e)] that, ordinarily there is no error of law simply in making a wrong finding of fact, but a determination of a question of fact may give rise to a question of law where the issue was whether facts found fall within a relevant statutory provision.

8. [33]

   The question whether the University’s collection of personal information fell within s 8 of the PPIP Act because it fell within s 6 of the UNE Act was a question of law, with the result that the plaintiff did not need leave to appeal to the Appeal Panel. However, the error made by the appeal panel in determining that the matter was a question of fact does not go anywhere, because the appeal panel dealt with the substance of the ground by finding that the data collection was “directly related to activity” of the University under s 8(1)(a) of the PPIP Act. They did so because they held, and it was not disputed, that one of the University’s activities was conducting pre-visa assessments and providing the outcome of those assessments to the Commonwealth.

9. [34]

   In my opinion, that determination was correct, with the result that nothing is achieved by giving leave to the plaintiff to argue that the appeal panel’s determination that there was only an error of fact and not one of law is futile.

10. [35]

    The complaint about a denial of procedural fairness was said by the plaintiff to be that the Tribunal went beyond the pleadings of the party in finding that the collection fell within the activities of the University. This submission was difficult to understand because, as I pointed out to the plaintiff, the matter did not proceed on pleadings either before the Tribunal at first instance or on appeal.

11. [36]

    What the Tribunal at first instance relevantly had to determine under s 8(1), as the University accepts, was a question of law, namely, whether the information was collected for a lawful purpose that is directly related to a function or activity of the agency. The focus of the parties was on the functions of the University, and the Tribunal determined that the collection was directly related to a function of the University.

12. [37]

    Nevertheless, at the conclusion of the hearing before the appeal panel, directions were made giving the plaintiff the opportunity to put on further submissions about three matters, one of which was the issue raised by ground 1, being the statutory construction issue. The plaintiff lodged further submissions on 24 March 2021. These submissions and accompanying documents are found in the Court Book between pp 389 and 430. The plaintiff made no submissions in relation to this ground of appeal. In those circumstances, there was no procedural unfairness in relation to this issue.

13. [38]

    The Appeal Panel determined that the collection was not directly related to a function in s 6(2)(c) or (g) of the UNE Act, and in that way the Tribunal was said to have erred. However, the appeal panel went on to say:

14. [39]

    Since there was no dispute about the activities of the University in that regard, it is difficult to see how the plaintiff has been denied procedural fairness on the determination of a question of law, where the factual substratum underpinning the legal question was not in dispute. The appeal panel was entitled to reach a view on the question of law, although that view differed from the approach taken by the parties to the legal question. If the appeal panel was wrong in that conclusion, the hearing of the present appeal gave to the plaintiff the opportunity to argue the correctness of the conclusion. The plaintiff was not denied procedural fairness, because he was not deprived of leading other evidence than had been led in the Tribunal. That was because the underlying factual matters relevant to the conclusion were not in dispute.

15. [40]

    In any event, during the course of the hearing of the present appeal, I offered the plaintiff the opportunity to make submissions about the correctness or otherwise of the appeal panel’s conclusion that the information collected was related to an activity of the University. The plaintiff again submitted that the appeal panel was wrong because its decision “went beyond the pleadings of the party”. He said that this was all he wanted to say on the procedural unfairness ground. He otherwise made no submissions in relation to the correctness or otherwise of the appeal panel’s decision on this point of statutory construction, about which this ground now complains.

16. [41]

    In relation to ground 2.1, the plaintiff submitted that under s 8 of the PPIP Act, there are three elements that the agency needed to prove to justify collection of the information. Those three elements were said to be (1) collection for the (2) purpose, and (3) for the function or activity. The plaintiff submitted that the appeal panel confused the second and third of those elements.

17. [42]

    The appeal panel said at [4]:

18. [43]

    The plaintiff did not clarify the point he was endeavouring to make in relation to para [4] above. However, it does not seem to me that there was any confusion of what the plaintiff maintains were separate elements in s 8 of PPIP Act. The appeal panel was expressing the terms of s 8 in a shorthand way.

19. [44]

    Paragraph [4] was a summary of the determination on the point. The detailed reasons of the Appeal Panel on that ground of appeal are set out at paras [36] to [52] of its decision. Those reasons demonstrate no confusion about what are said by the plaintiff to be the separate element in s 8 of the PPIP Act. The appeal panel identified the purpose in paras [30] to [41] and [45]. The undisputed activity that was related to the purpose is identified in para [52].

20. [45]

    The plaintiff does not demonstrate that the appeal panel made any error of law.

21. [46]

    Even if there was error on the part of the appeal panel in its approach to substituting a view that the collection was related to an activity rather than a purpose, the error is not such that leave should be granted for an appeal to this Court. Where it was not disputed that the collection related to an activity of the University, the plaintiff fails to show anything more than that the appeal panel’s decision was wrong: Taylor Construction at [90(c)]. The plaintiff suffers no detriment as a result of the appeal panel’s approach.

22. [47]

    Grounds 1, 2 and 2.1 should be rejected.

23. [48]

    The plaintiff submitted that the reasons of the appeal panel at paragraph [54] were inadequate. He submitted that what he put to the appeal panel was that the Tribunal at first instance had asked itself the wrong question, but that the appeal panel had ignored his submission. He said that he had submitted that the statutory test was that the collection was reasonably necessary, but that the Tribunal had applied two tests, being whether the collection was relevant and whether it was reasonably necessary.

24. [49]

    The appeal panel said at [54]:

25. [50]

    Paragraph [54] of the appeal panel’s decision and para [138] of the Tribunal’s decision both concerned the collection of information from DQU. DQU did not appeal from the Tribunal’s decision. If there was an error relating to DQU’s claim, the plaintiff has no right of appeal in respect of that error. When I raised this matter with the plaintiff at the hearing of the appeal, he appeared to accept that he was not entitled to appeal from the decision on that issue.

26. [51]

    In any event, it is clear from para [138] that the Tribunal applied the proper test of whether the collection was reasonably necessary. Relevance was not mentioned or implied.

27. [52]

    Ground 3 should be rejected.

28. [53]

    The plaintiff submitted that this ground went to the core issue of the appeal. Although the submission appeared to be that the regulations relied on to justify the collection of the information, and possibly the statute (although that was not clearly articulated) were incompatible with the fundamental rights which the plaintiff identified, the plaintiff said that his submission was that there were no legislative provisions that authorised the University to collect the information.

29. [54]

    The plaintiff identified the fundamental common law rights as access to education and the right to privacy. He relied on what was said in Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15.

30. [55]

    Coco concerned whether the Invasion of Privacy Act 1971 (Qld) conferred authority on the judge, who approved the use of listening device, to authorise entry onto premises for the purpose of installing, maintain and retrieving the devices. The plaintiff placed considerable weight on this case to submit that it prevented the collection of the information the subject of the proceedings. It is necessary, therefore, to set out the significant statement of principle from that case.

31. [56]

    The joint judgment of Mason CJ, Brennan, Gaudron & McHugh JJ said (at 435 - 438):

32. [57]

    It is apparent that the fundamental right under consideration was “the right of a person in possession or entitled to possession of premises to exclude others from those premises”. There can be no doubt that such a right is a fundamental one: Halliday v Nevill (1984) 155 CLR 1 at 10; Plenty v Dillon (1991) 171 CLR 635 at 639. The right gave rise to the tort of trespass very early in the history of the common law.

33. [58]

    The plaintiff submitted that the right to privacy was a fundamental right. He submitted that the right not to have to disclose one’s name (presumably to a police officer when asked) showed that privacy was such a right. However, any right not to be required to answer questions by a police officer (unless varied by statute) is not a reflection of a right to privacy; rather it flows from the right to silence, associated with the right not to incriminate oneself. The right to silence may be said to be a fundamental right.

34. [59]

    The question whether there is tort for a breach of privacy, or whether other remedies are available for a breach of privacy, is a current one. I discussed the authorities in Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822 at [59] to [67]. I concluded there that, to that point of the law’s development, no Australian superior court had recognised a generalised tort for breach of privacy. What flows from that conclusion is that a right to privacy cannot be considered a fundamental right. Privacy may come to be regarded as a right in due course. Indeed, the PPIP Act is one legislative step along that path. However, privacy cannot be regarded as a fundamental right of the kind that the High Court was dealing with in Coco.

35. [60]

    The plaintiff submitted that the right to education is recognised in section 26 of the Universal Declaration of Human Rights. The plaintiff pointed to the Explanatory Statement attached to the Migration Legislation Amendment (2016 Measures No 1) Regulation 2016 (Cth), and, particularly, to Attachment B to the Statement of Compatibility with Human Rights. He submitted that it showed that the right to education existed.

36. [61]

    Even if that was true (and the Statement says nothing about a right to education), that does not mean that any right to education is a fundamental right of the kind the High Court was dealing with in Coco. The Universal Declaration of Human Rights is not part of the domestic law of New South Wales. Even if it were, rights created under that Declaration would not be a fundamental right in the Coco sense.

37. [62]

    The plaintiff submitted further that there was no legislative provision which allowed or entitled the University to collect the information which they sought from him. That was because, he submitted, it breached the rights to privacy and education.

38. [63]

    In the light of what is said in Coco, unless there was a fundamental right which could not be breached without legislation to authorise it, the University does not need legislative authority to do anything which is within its powers to do under the University of New England Act. There are no such fundamental rights which preclude the University seeking the information. On the other hand, the legislature has seen fit to give some protection to the privacy of persons dealing with it by the enactment of the PPIP Act, but the plaintiff was not successful in showing that the University breached that Act.

39. [64]

    This ground should be rejected.

40. [65]

    The plaintiff submitted that SSVF was only a policy and not law. In that way, he submitted, the University could not justify its actions in relying on the SSVF. He made reference to Green v Daniels (1977) 51 ALJR 463. He also submitted that the policy had not been published at the time the University acted in accordance with it, and he made reference to what was said in Watson v Lee (1979) 144 CLR 374.

41. [66]

    This ground or sub-ground of appeal largely mirrored part of ground 3 of the plaintiff’s appeal to the appeal panel. The appeal panel described it this way at para [24]:

42. [67]

    The appeal panel determined at para [68] that the SSVF had commenced well before the collection of the appellant’s personal information and that there were publicly available documents about it, which the appeal panel identified. These were findings of fact which cannot be challenged on the present appeal, unless there was no evidence to justify the findings. The plaintiff did not assert that those findings were not open to the appeal panel on the evidence it had.

43. [68]

    The appeal panel also held that whether the policy was “in force” did not depend on publication of the policy. The appeal panel said that whether the policy was in force was a question of fact.

44. [69]

    The appeal panel was correct in those determinations. Reliance on Watson v Lee is misplaced. That was a case concerned with regulations made under an Act of Parliament, and compliance with the Acts Interpretation Act 1901 (Cth). The decision says nothing about policies or publications of them.

45. [70]

    In relation to whether the University was entitled to act pursuant to the SSVF when it was not an Act or a regulation, the appeal panel said correctly, at para [71], that the Commonwealth did not delegate the assessment of visa applications to the University. That function remained with a Commonwealth officer. That approach was entirely consistent with what was said in Green v Daniels, where Stephen J said at 467:

46. [71]

    It was not improper or inappropriate for the University to act in accordance with a policy when it was not the decision maker in relation to the visa.

47. [72]

    The plaintiff did not make clear at the hearing of the appeal how this ground was related to ground 4, although his oral submissions merged the two grounds. The relationship seemingly appears at para [72] of the Appeal Panel’s reasons where this appears:

48. [73]

    I have already determined that no fundamental right or freedom is transgressed by what the University did. The appeal panel similarly held at para [73] that no fundamental freedom or immunity was interfered with.

49. [74]

    This ground should be rejected.

50. [75]

    The plaintiff agreed that this ground was not raised before the appeal panel. When I informed him that this Court was concerned only with errors of law by the appeal panel, and that there could not be an error of law if something had not been argued and decided by the appeal panel, the plaintiff withdrew this ground.

51. [76]

    The plaintiff submitted that the appeal panel fell into error by considering that it was bound by its own previous decisions. The error was said to have occurred by what was said by the appeal panel at paragraph [74] of its reasons. The plaintiff made reference to Viro v The Queen (1979) 141 CLR 88; [1978] HCA 9 to submit that only decisions of superior court of record are binding decisions.

52. [77]

    Paragraph [74] of the appeal panel’s reasons says:

53. [78]

    As noted above, ground 3 of the appeal to the appeal panel largely mirrored what is Ground 4.1 in the present appeal.

54. [79]

    Collins v Urban [2014] NSWCATAP 17 was a decision of an appeal panel of NCAT, and was one of the first matters dealing with appeals in residential tenancy matters after NCAT was established. The appeal was under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). At para [82] of that appeal panel’s reasons, the panel said that principles governing the granting of leave by an appeal panel should generally be consistent with those applied by the Court when considering the question of leave to appeal. The appeal panel then proceeded to set out at para [84] the general principles which could be derived from a number of cases.

55. [80]

    Nothing was said by the appeal panel to suggest that other appeal panels were bound by those principles. Nothing was said by the appeal panel in the present appeal to suggest that it considered itself bound by those principles or by what was said in Collins v Urban. Since a number of those principles were derived from superior courts, it may well be inappropriate for a subsequent appeal panel not to follow them in any event. Further, it would be inefficient generally for an appeal panel not to be able to follow a prior decision of an appeal panel if the earlier panel considered procedural guidelines or principles.

56. [81]

    Reliance by the plaintiff on Viro v The Queen is misconceived. That case determined that the High Court of Australia was no longer bound by decisions of the Privy Council, and it gave guidance to courts below the High Court where there were conflicting decisions of the Privy Council and the High Court. Nothing was said to support the plaintiff’s submission that “only decisions of superior courts are binding”. The only relevant statement of principle appears in the judgment of Stephen J who said (at 129):

57. [82]

    When I enquired of the plaintiff if he was saying that Collins v Urban was wrongly decided, he said that he did not know anything about that decision. His point was only that, because it was a decision of an administrative body it did not constitute law. The plaintiff did not identify what error of substance was made, even if the appeal panel had wrongly followed what was said in Collins v Urban. Seen in those terms, the ground may be regarded as captious.

58. [83]

    This ground should be rejected.

59. [84]

    At the conclusion of his oral submissions, the plaintiff sought to tender a document at p 1152 of the Court Book. This was a document from the University headed “Postgraduate Admission for International Students – Operating Procedure”. It was dated October 2021. It post-dated the events which led to the present proceedings. Its admission was opposed by the University for that reason.

60. [85]

    The plaintiff submitted that its relevance was to the grant of leave, to show that the appeal was of public significance because the University was continuing to adopt the approach that was challenged by the plaintiff in these proceedings. On that basis I said that I would provisionally admit the document, and deal with its admissibility in this judgment.

61. [86]

    I have not found that any of the grounds raised by the plaintiff have been made out. That is to say, no error has been demonstrated, except for the holding of the appeal panel that the Tribunal at first instance had made an error of fact, when the error was one of law. However, for the reasons given earlier, nothing flows from that error. In those circumstances, there is no need to determine if the plaintiff has demonstrated anything more than error on the part of the appeal panel to justify leave being given to appeal to this Court.

62. [87]

    Accordingly, the document is rejected, because it is not relevant to any issue in the appeal.

63. [88]

    There is one further matter. On 14 June 2018 the University sent an email to the plaintiff saying:

64. [89]

    On 28 August 2018 the University sent an email to DQU saying:

65. [90]

    The affidavit from Ingrid Elliston, the Director of UNE International at the University, explained that the negative assessment came from DQU’s very low level of English, his change of career from Medicine to Nursing, and his close family ties in Australia sponsoring DQU. It is apparent, therefore that the matters about which the plaintiff complains were not causally related to the rejection of DQU’s application.

66. [91]

    It is difficult to see, therefore, what the utility of the present appeal is. If the plaintiff had been successful on this appeal, it would not have changed anything as far as his brother’s application was concerned. There would have been no utility to upholding the appeal. To the extent that the plaintiff seems to contend that the University had no right to seek the information as a matter of general principle, he has no standing to challenge such a decision.

Conclusion

1. [92]

   Accordingly, I make the following orders:

   1. (1)

      I dismiss the amended summons filed 6 October 2021.

   2. (2)

      The plaintiff is to pay the defendant’s costs.