DQV v University of New England

Grounds of appeal

1. In his Notice of Appeal, the appellant stated that his grounds of appeal were as follows: "In paragraph 119, the Tribunal finds 'I am satisfied that the SSVF authorises the University to undertake, as part of its admission processes for overseas students, a pre-student visa assessment of prospective overseas students so as to minimise its immigration risk that the courses for which [sic] offered admission and enrolment is not undersubscribed.' As it was submitted previously, policy-SSVF (versus law) cannot create rights or duties, cannot authorise anyone for anything. This policy was not published so it makes unapplicable under GIPA, FOIA and common law. Undersubscription was not pleaded in original defence, and was not justified."
2. In his submissions dated 28 October 2020 and 3 December 2020, the appellant raised some further matters in support of his appeal.
3. At the hearing, the appellant stated that he was appealing on three grounds. The first ground, which he described as being the main ground, is that the Tribunal had misapplied s 8 of the Privacy and Personal Information Protection Act and, in particular, that it had misapplied the meaning of words "directly related to a function" in s 8(1)(a).
4. The second ground is that the Tribunal's reasons in paragraph 138 of its decision were inadequate.
5. The third ground, as articulated by DQV at the hearing, is that the Tribunal made a jurisdictional error because, when requesting personal information from DQV, the University relied upon a policy which (1) had not been published, and (2) was not a clear statutory provision.
6. We have treated the three grounds of appeal which DQV articulated at the hearing as being his grounds of appeal. The University did not object to this course.

The scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
2. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
3. Although these principles were articulated in the context of an appeal from a decision of the Consumer and Commercial Division, they apply equally to an appeal from a decision of the Administrative and Equal Opportunity Division (see, for example, Destination NSW v Taylor [2019] NSWCATAP 123 at [58]; Alam v Insurance and Care NSW [2020] NSWCATAP 215 at [31]; Thomas v Commissioner of Police, NSW Police Force (No 2) [2019] NSWCATAP 76 at [25]).
4. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel noted that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

Appeal hearing

1. The appeal was first listed for hearing on 22 January 2021.
2. We raised with the parties the circumstance that DQU was not named as a party to the appeal. A review of the Tribunal's file indicated that the Tribunal had not corresponded with DQU about the appeal and the parties informed us that they had not served the appeal documentation upon him. The appellant stated that DQU did not wish to participate in the appeal.
3. Under r 29(1) of the Civil and Administrative Tribunal Rules 2014 (NSW) the parties to an internal appeal include the appellant and "any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance."
4. We made directions requesting the Registrar to send certain directions to DQU by email and requiring the parties to serve certain documents on DQU by email and to file evidence of having done so.
5. On 22 February 2021, the hearing resumed, by telephone. We were satisfied that DQU had been notified of the proceedings and that he had been served with relevant material, but that he did not wish to participate in the proceedings. Accordingly, we proceeded to hear the appeal.
6. At the end of the February hearing, we gave the appellant leave to file some further submissions and we gave the University leave to file some further evidence. We have had regard to that material in determining the appeal.

First Ground - Was collection purpose directly related to an agency function?

1. The appellant argued that the Tribunal misapplied the words "directly related to a function" in s 8(1)(a) of the Privacy and Personal Information Protection Act when collecting his personal information. Section 8(1) provides: 8 Collection of personal information for lawful purposes (1) A public sector agency must not collect personal information unless - (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and (b) the collection of the information is reasonably necessary for that purpose.
2. The appellant says that the University's collection of his personal information was not for a purpose which was "directly related to a function" of the University within s 8(1)(a). That is because, in the appellant's submission, his personal information was collected to assess his brother's visa application and the function of visa assessment is conferred, under the Migration Act 1958 (Cth) and the Migration Regulations, upon a Commonwealth Department. Assessing visa applications is not a function of the University.
3. It was not in dispute that the University collected the appellant's personal information for the purpose of conducting a Genuine Temporary Entrant (GTE) (or pre-visa) assessment of DQU. The Tribunal found that the University conducted such assessments under the SSVF (at [111]-[116]). It did so to better manage the risk of courses the University offered not being undersubscribed. This could happen if a large proportion of the overseas student to whom offers had been made did not subsequently succeed in being granted a student visa (at [113]). Under the SSVF, the University had to form a state of satisfaction as to whether the prospective student was a genuine student and a genuine temporary entrant when making an offer (at [116]). It remained for a Commonwealth officer to determine whether a prospective overseas student met the requirements for a student visa (at [117]).
4. The Tribunal found, at [120], that "the collection of personal information from a prospective overseas student for the purpose of a pre-visa assessment by the University is for a lawful purpose that is directly related to the functions of University as set out in s 6(2)(c) and (g) of the UNE Act". It made the same finding in respect of the collection of personal information about the family members and sponsor of the prospective overseas student (at [121]).
5. The appellant did not ultimately challenge the Tribunal's finding that the purpose of conducting a pre-visa assessment is a "lawful purpose." The Tribunal recorded (at [98]) that "DQU and DQV accept that the University is permitted to undertake a pre-visa assessment of prospective overseas students" and, as formulated at the appeal hearing, the appellant's first ground of appeal did not take issue with this. Rather, he contended that the Tribunal wrongly found that the University's purpose was directly related to one of the University's functions. As he expressed this ground in his submissions of 3 December 2020: "Pre-visa assessment was not considered as directly related since establishing of UNE, and other Universities do not consider it as related."
6. We do not consider that this ground of appeal involves a question of law, within s 80(2)(b) of the NCAT Act. The appellant's complaint is that the Tribunal has made an error of fact, being that it has found that the purpose for which the University collected his information (a pre-visa assessment of his brother) was directly related to the University's functions, whereas he contends that it was not. Accordingly, the appellant needs leave to appeal on this ground.
7. The Tribunal identified "the provision of courses of study" and "the development of … admission policies" as functions of the University under ss 6(2)(c) and 6(2)(g) of the University of New England Act 1993 (NSW) (UNE Act). Sections 6(2)(c) and 6(2)(g) of the UNE Act provide: 6 OBJECT AND FUNCTIONS OF UNIVERSITY … (2) The University has the following principal functions for the promotion of its object: … (c) the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community, … (g) the development of governance, procedural rules, admission policies, financial arrangements and quality assurance processes that are underpinned by the values and goals referred to in the functions set out in this subsection, and that are sufficient to ensure the integrity of the University's academic programs.
8. The Tribunal stated (at [100]): "There is no dispute that the provision of higher education courses and the development of admission policies falls within s 6(2)(c) and (g) of the UNE Act. In my opinion, this would include the provisions of higher education courses to potential overseas students and the development of admission policies for such students."
9. The Tribunal did not, however, explain why it considered that the University's collection of personal information for the purpose of a pre-visa assessment was for a purpose that was directly related to the University's functions under ss 6(2)(c) and 6(2)(g) of the UNE Act.
10. The purpose of undertaking a pre-visa assessment is not, on its face, directly related to the University's function of providing a course of study within s 6(2)(c) of the UNE Act. It may be indirectly related to doing so, but that is not sufficient for s 8(1)(a) of the Privacy and Personal Information Protection Act.
11. Nor is the purpose of undertaking a pre-visa assessment, on its face, directly related to the development of admission policies. The University's admission policies provide for the University to collect personal information for the purposes of assessing whether a prospective overseas student meets the "Genuine Student, Genuine Temporary Entrant and financial evidence requirements" (see web page headed "Admission Information" and "Postgraduate Admissions for International Students - Operating Procedure," which are annexed to the witness statement of Ingrid Elliston, Director of UNE International, filed on 18 March 2019). However, the University did not collect the personal information of sponsors such as the appellant in order to develop those policies; it collected that information in accordance with policies which had already been developed.
12. The University submitted that the Tribunal had correctly set out the legislative and policy framework which applies to the University when offering higher education courses to prospective overseas students and when developing admission policies for such students. However, it did not explain why the Tribunal was correct to conclude that its collection of the personal information of prospective students and their sponsors was directly related to the University's functions of providing a course of study or developing admission policies.
13. In oral submissions, Ms Tipene, for the University, submitted that the University's lawful purpose in collecting the appellant's personal information is the provision or offering of courses to an international student and that there was a direct connection with the University's functions because an overseas student is not eligible for study unless he or she has a visa. We are not satisfied that that follows. Section 6(2)(c) of the UNE Act provides that one of the University's functions is the provision of courses of study (not the offering of such courses). The University described its collection purpose in written submissions as being to conduct a pre-visa assessment (a submission the Tribunal accepted). That purpose is not directly related to the provision of a course, but relates rather to the determination of the student's ability to come to Australia to undertake a course or courses. There is an insufficient nexus between the collection purpose and the function of providing courses of studies for there to be a direct relation between the two.

Should leave to appeal be given?

1. We consider that the Tribunal made an error of fact in concluding that the University's collection of personal information was directly related to its functions in s 6(2)(c) and (g) of the UNE Act. The appellant requires leave to appeal.
2. The error we have identified does not necessarily mean that the University's collection of the appellant's personal information was not directly related to a function or activity of the University. In addition to the functions already identified, the University "has such general and ancillary functions as may be necessary or convenient for enabling or assisting the University to promote the object and interests of the University, or as may complement or be incidental to the promotion of the object and interests of the University" (UNE Act, s 6(3)(c)). The Tribunal was not asked to consider whether the purpose of collecting the appellant's personal information directly related to a general or ancillary function of the University.
3. Further, an agency is permitted to collect personal information for a lawful purpose that is directly related to an activity of the agency (Privacy and Personal Information Protection Act, s 8(1)(a)). Whilst the University's "functions" are probably limited to those identified in s 6 of the UNE Act (including functions conferred or imposed on it by other Acts: s 6(3)(d)), the term "activity" is much broader. There was no dispute that one of the University's activities was undertaking pre-visa assessments for prospective overseas students. In these circumstances, there can be little doubt that the University collected the appellant's personal information for a purpose that was directly related to one of its activities (which could be characterised as undertaking pre-visa assessments or providing the results of those assessments to the Commonwealth).
4. In considering whether to grant leave to appeal on this ground, we have had regard to the factors in Collins v Urban [2014] NSWCATAP 17 at [84], which are set out above. We have also had regard to the guiding principle for the NCAT Act, being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (NCAT Act, s 36(1)). Given that there was no dispute that one of the University's activities was conducting pre-visa assessments and providing the outcome of those assessments to the Commonwealth, we are of the view that there would be little utility in granting leave to appeal on this ground. That would not, in our view, facilitate the just, quick and cheap resolution of the real issues in the proceedings. Accordingly, we have decided to refuse leave to appeal on Ground One.

Second ground - inadequacy of reasons

1. The second ground of appeal is that the Tribunal's reasons, in paragraph 138, were inadequate. This ground raises a question of law.
2. Paragraph 138 occurs towards the end of the Tribunal's consideration of whether the collection of DQU's personal information (being certified copies of DQU's year 10 and year 12 equivalent education qualifications) was reasonably necessary for the purpose of the University's pre-visa assessments, within s 8(1)(b) of the Privacy and Personal Information Protection Act. The Tribunal found that it was (at [136]). It then stated, at [138]: In regard to the requirement that DQU complete the Statement of Purpose (SOP) in his own handwriting, I accept that a document in DQU's handwriting is the personal information of DQU. While the Migration Regulations nor Direction 69 make reference to this being a requirement, I accept that a document written in the handwriting of a prospective overseas student can be an important factor towards determining whether that student's application for a student visa is genuine. Hence, I am satisfied that the collection of personal information of this kind is reasonably necessary for the purpose of the University assessing, in its admission processes, whether DQU is a genuine student and a genuine temporary entrant. I note, DQU was not singled out in being required to complete the Statement of Purpose Form (SOP), as the University's pro-forma form expressly states that it is to be completed in the handwriting of the prospective overseas student.
3. The appellant submitted, at the hearing of the appeal, that the Tribunal applied the wrong test when finding that a prospective student's handwriting "can be an important factor". He says that the Tribunal should have considered whether it was reasonably necessary to collect the information and, if so, why.
4. That ground, as articulated orally on appeal, differs from the ground set out in his email of 28 October 2020 and the ground which he agreed he was relying upon, earlier in the appeal hearing. The ground as articulated in his email was: "7. Inadequate reasons, in my opinion, demonstrated by Tribunal in par 138 (by non explain how handwritten text 'can be an important factor') and other 'similar' findings, for example, place of residency of ex-spouses."
5. It is implicit in the Tribunal's findings that there were, in substance, two applications for internal review and for Tribunal review, although contained in the one internal review application and in the one application to the Tribunal. One was made by DQU in respect of his personal information and that of his wife and children, and the other was made by the appellant in respect of his personal information and that of his wife and children. The Tribunal's finding that the appellant had standing to bring the application "in so far as it relates to his personal information" (Decision at [81]) is, implicitly, a finding that he did not have standing to bring his own application insofar as it related to his brother's personal information.
6. Paragraph 138 of the Tribunal's reasons relates solely to the collection of DQU's personal information. It is not part of the Tribunal's determination of the appellant's application relating to the appellant's personal information. In circumstances where DQU has chosen not to appeal, the appellant is not, in our view, entitled to challenge the way in which the Tribunal dealt with DQU's application.
7. If we are wrong about this, and the appellant has a right to appeal on a question of law relating to DQU's personal information, we are not satisfied that the Tribunal erred as the appellant claims. It is not necessary for the Tribunal to make explicit findings on each disputed piece of evidence, or to detail each factor it considered relevant or irrelevant: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (Tatmar) at 386, cited in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 (Orr) at 597 [74]. "Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it" (Tatmar at 386, cited in Orr at 597 [74]).
8. We consider that the Tribunal adequately explained why it considered that the collection of DQU's personal information (in the form of his handwriting) was reasonably necessary for its collection purpose (within s 8(1)(b) of the Privacy and Personal Information Protection Act). Accordingly, even if we had considered that the appellant was entitled to appeal on this ground, we would not have upheld the appeal.
9. For these reasons, we dismiss the appellant's appeal on Ground Two.

Third ground - jurisdictional error

1. The third ground identified what were said to be jurisdictional errors. It is not necessary for an appellant to identify a jurisdictional error on an appeal to the Appeal Panel. An appellant only needs to identify a question of law in order to be able to appeal as of right (NCAT Act, s 80(2)(b)). Further, if we were to find that the Tribunal made an error of law, we could allow the appeal irrespective of whether the error was jurisdictional (NCAT Act, s 81(1)(a)). For this reason, we have not focused on the characterisation of the alleged errors as jurisdictional or non-jurisdictional, but have rather considered whether the appellant has identified an error of law.
2. The appellant claims that, when the University asked him for his personal information, it relied upon the SSVF to do so and this was a policy which had not been published and was not a clear statutory provision.
3. Even though the appellant stated that this was a jurisdictional error, we are not satisfied that he has identified a question of law. Accordingly, he needs leave to appeal on this ground.
4. The premise of this ground is that the SSVF was not published when the University collected his personal information. A document published by the Department of Home Affairs entitled "Simplified Student Visa Framework (SSVF) Appraisal" is dated May 2018. The appellant stated, at the hearing, that the Department of Home Affairs informed him that the SSVF was published on 30 May 2018. Ms Tipene, for the University, accepted that the University had collected some of the appellant's personal information before 30 May 2018 (earlier that month). However, Ms Tipene said that the SSVF commenced on 1 July 2016 and that it was her understanding that it had been publicly available from that time.
5. Ms Tipene took the Appeal Panel to a document which was, according to Ms Elliston's evidence, a fact sheet for education providers regarding the SSVF when it was first introduced. The fact sheet stated that the SSVF was "intended to commence on 1 July 2016."
6. The Appeal Panel gave the University leave to file evidence of the publication date of the SSVF within two weeks of the hearing. The University filed the following documents: 1. A Ministerial media release, dated 16 June 2015, announcing the "introduction of a simplified international student visa framework (SSVF) to support Australia's education services sector"; 2. An extract from Hansard of questions without notice in the Senate on 17 June 2015, which records Senator Cash as stating that she had announced, the previous day, the introduction of a simplified student visa framework (SSVF) to support Australia's international education services sector; 3. An explanatory statement, to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (Cth), which stated that one of the purposes of that regulation was to introduce a simplified international student visa framework. The explanatory statement included an annexure entitled "Deregulation of the student visa programme and future directions for streamlined visa processing" which discussed the proposal for streamlined visa processing; 4. A copy of the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (Cth), dated 14 April 2016, including Schedule 4, headed "Student visa simplification".
7. We are satisfied that the SSVF had commenced well before the collection of the appellant's personal information and that there were publicly-available documents about the SSVF (being the documents referred to above). The University had also published a document entitled "Postgraduate Admission for International Students Operating Procedures," approved on 21 September 2016. The Operating Procedures explained that the University required certain prospective overseas students to undergo a GTE assessment for the purposes of the SSVF. However, there is no evidence before us which establishes that the policy itself, that is the SSVF, was published before the end of May 2018.
8. Even if the SSVF had not been published at the date of collection of the appellant's personal information, it does not follow that the University's collection of personal information, for the purposes of the SSVF, was not for a lawful purpose. Nor does it follow that that purpose was not directly related to a function or activity of the University.
9. When the presiding member asked the appellant, at the hearing, why it was relevant that the policy was not published (if that was the case), the appellant replied that laws do not take effect until published. He said that it was similar with policies. He argued that the Commonwealth's function of assessing visa applications was purportedly delegated by way of policy, and the policy was not effective until published.
10. The appellant's understanding of the effect of the publication of a policy and the legal arrangements between the Commonwealth and the University is incorrect. The Commonwealth did not "delegate" the assessment of visa applications to the University. The University undertook a pre-visa assessment of a prospective student, but the function of determining the visa applications remained with a Commonwealth officer. Further, the effectiveness of the SSVF, as a policy, did not depend upon its publication. Whilst transparency is generally an administrative virtue, the question of whether the agency has adopted a policy, and whether the policy is "in force," is a question of fact. It does not depend upon publication of the policy. There is no doubt, and the Tribunal found, that the University collected the appellant's personal information in fulfilment of its role as a participant in the SSVF (at [97]).
11. The appellant made some submissions as to why the circumstance that the SSVF is not a "clear statutory provision" is relevant. In his email of 28 October 2020, he stated that "express statutory authority is required for any action that interferes with a fundamental freedom or immunity, but not a policy." He did not identify the "fundamental freedom or immunity" to which he refers. In submissions dated 21 April 2021, the appellant cited Coco v R [1994] HCA 15; (1994) 179 CLR 427 and stated: "As function of GTE (visa assessment) was bested to Dept of Home Affairs, was not delegated to university, so collection of information for that is illegal."
12. The appellant provided documents containing his personal information to the University, in his role as sponsor of his brother's visa application, at its request. We are not satisfied that this interfered with any fundamental freedom or immunity. The appellant's submission about delegation is dealt with above.
13. Ground 3 lacks merit. None of the factors identified in Collins v Urban [2014] NSWCATAP 17 at [84] is present in this case and we can identify no other discretionary reason to grant leave to appeal.
14. Accordingly, we refuse leave to appeal on Ground 3.

Orders

1. We make the following orders: 1. Leave to appeal on grounds 1 and 3 is refused. 2. Appeal is dismissed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2021