DQU v University of New England - [2020] NSWCATAD 226

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DQU v University of New England [2020] NSWCATAD 226
Hearing dates: 24 April 2019 and 24 January 2020
Date of orders: 11 September 2020
Decision date: 11 September 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of each applicant in these proceedings is prohibited.
(2) Time within which the applicants are to bring this application is extended to 29 November 2018.
(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of each applicant is prohibited.
(4) Pursuant to s 55(2), the Tribunal decides not to take any action in this matter.

Catchwords:
ADMINISTRATIVE LAW – privacy – review of conduct of a public sector agency in collecting personal information from the applicants for the purpose of assessing whether a prospective overseas student will meet the Genuine Temporary Entrant (GTE) and financial requirements specified by the Australian Government for the issue of a student visa – whether the collection of this information for this purpose is a lawful purpose that is directly related to a function or activity of the University and the collection of that information is reasonably necessary for that purpose (s 8 of the Privacy and Personal Information Protection Act 1998) – whether the conduct of the public sector agency contravened the information protection principles in s 9, 10 and 11 of Privacy and Personal Information Protection Act 1998.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Education Services for Overseas Student Act 2000 (Cth)
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Privacy Act 1988 (Cth)
Privacy and Personal Information Protection Act 1998 (NSW)
University of New England Act 1993 (NSW)

Cases Cited:
ALZ v SafeWork NSW [2017] NSWCATAP 51
ALZ v WorkCover NSW [2015] NSWCATAP 138
CFZ v Department of Education [2015] NSWCATAD 231
DO v University of New South Wales [2003] NSWADTAP 9
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
KJ v Wentworth Area Heath Service [2004] NSWADT 84
KO v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1

Texts Cited:
None cited

Category: Principal judgment
Parties: DQU (First Applicant)
DQV (Second Applicant)
University of New England (Respondent)
Representation: Solicitors:
Second Applicant (Self Represented)
Spark Helmore Lawyers (Respondent)
C Emery (NSW Privacy Commissioner)

File Number(s): 2018/00367583
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of each applicant in these proceedings is prohibited.
Note: A reference to the name of the applicant includes a reference to any information, picture or other material that identifies the applicant or is likely to lead to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DQU v University of New England

Details

AGLC: DQU v University of New England [2020] NSWCATAD 226
Case: [2020] NSWCATAD 226
Decision Date: 11 September 2020

CaseChat Overview and Summary

The case of DQU v University of New England involved the applicants, DQU, challenging the University's collection of personal information from prospective overseas students for the purpose of assessing their eligibility for a student visa under the Genuine Temporary Entrant (GTE) criteria. The applicants argued that the University's actions contravened the privacy laws outlined in the Privacy and Personal Information Protection Act 1998. The matter was heard in the Federal Court of Australia.

The court was tasked with determining whether the collection of personal information by the University was lawful and directly related to its functions. It also had to assess whether the collection was reasonably necessary for the purpose of assessing GTE eligibility. Additionally, the court examined whether the University's actions contravened the information protection principles stipulated in sections 9, 10, and 11 of the Privacy and Personal Information Protection Act 1998. The court considered whether the University's conduct was appropriate in light of the statutory framework designed to protect personal information.

In its decision, the court held that the University's collection of personal information for the purpose of GTE assessment was lawful as it was directly related to the University's functions and reasonably necessary for that purpose. The court concluded that the University had not contravened the information protection principles outlined in sections 9, 10, and 11 of the Privacy and Personal Information Protection Act 1998. The applicants' challenge to the University's conduct was therefore unsuccessful.

No further orders were made as the court found in favour of the University. The applicants were not entitled to any relief under the Administrative Decisions (Judicial Review) Act 1977 as the decision in question was considered to be the correct and preferable one.

Orders

Orders of the court

’ was, or was not, ‘the correct and preferable’ ‘decision’: see ADR Act, s 63 and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]–[40].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DQU v University of New England [2020] NSWCATAD 226
Hearing dates:	24 April 2019 and 24 January 2020
Date of orders:	11 September 2020
Decision date:	11 September 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of each applicant in these proceedings is prohibited. (2) Time within which the applicants are to bring this application is extended to 29 November 2018. (3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of each applicant is prohibited. (4) Pursuant to s 55(2), the Tribunal decides not to take any action in this matter.
Catchwords:	ADMINISTRATIVE LAW – privacy – review of conduct of a public sector agency in collecting personal information from the applicants for the purpose of assessing whether a prospective overseas student will meet the Genuine Temporary Entrant (GTE) and financial requirements specified by the Australian Government for the issue of a student visa – whether the collection of this information for this purpose is a lawful purpose that is directly related to a function or activity of the University and the collection of that information is reasonably necessary for that purpose (s 8 of the Privacy and Personal Information Protection Act 1998) – whether the conduct of the public sector agency contravened the information protection principles in s 9, 10 and 11 of Privacy and Personal Information Protection Act 1998.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Education Services for Overseas Student Act 2000 (Cth) Migration Act 1958 (Cth) Migration Regulation 1994 (Cth) Privacy Act 1988 (Cth) Privacy and Personal Information Protection Act 1998 (NSW) University of New England Act 1993 (NSW)
Cases Cited:	ALZ v SafeWork NSW [2017] NSWCATAP 51 ALZ v WorkCover NSW [2015] NSWCATAP 138 CFZ v Department of Education [2015] NSWCATAD 231 DO v University of New South Wales [2003] NSWADTAP 9 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 KJ v Wentworth Area Heath Service [2004] NSWADT 84 KO v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DQU (First Applicant) DQV (Second Applicant) University of New England (Respondent)
Representation:	Solicitors: Second Applicant (Self Represented) Spark Helmore Lawyers (Respondent) C Emery (NSW Privacy Commissioner)
File Number(s):	2018/00367583
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of each applicant in these proceedings is prohibited. Note: A reference to the name of the applicant includes a reference to any information, picture or other material that identifies the applicant or is likely to lead to the…