Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Norkin v University of New England [2023] NSWCA 26 Hearing dates: On the papers Date of orders: 28 February 2023 Decision date: 28 February 2023 Before: Leeming JA; Basten AJA Decision: 1. List the summons seeking leave to appeal for a concurrent hearing of the application for leave to appeal and the appeal itself, confined to the ground "Whether the conduct of the University in undertaking a pre-assessment of the applicant's brother's visa eligibility within the Commonwealth "Simplified Student Visa Framework" complied with the Privacy and Personal Information Protection Act 1998 (NSW)", on a date to be fixed by the Registrar. 2. Direct the Registrar to appoint counsel to appear as amicus curiae. Catchwords: APPEALS – leave to appeal – university collection of personal information for purpose of pre-visa assessment – whether compliance with Privacy and Personal Information Protection Act 1998 (NSW) – other proposed grounds of appeal not warranting grant of leave – concurrent hearing of question whether compliance with Privacy and Personal Information Protection Act – other grounds dismissed Legislation Cited: Privacy and Personal Information Protection Act 1998 (NSW), ss 8, 10, 17, 18 Migration Act 1958 (Cth) University of New England Act 1993 (NSW), s 6 Cases Cited: DQV v University of New England [2021] NSWCATAP 208 Norkin v University of New England [2022] NSWSC 819 Category: Principal judgment Parties: Anton Norkin (Applicant) University of New England (First Respondent) Civil and Administrative Tribunal of New South Wales (Second Respondent – submitting appearance) Representation: Applicant (self-represented) C Tipene (solicitor) (First Respondent) Solicitors: Sparke Helmore Lawyers (First Respondent) File Number(s): 2022/212427 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2022] NSWSC 819 Date of Decision: 24 June 2022 Before: Davies J File Number(s): 2021/224913 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicant, Anton Norkin, is the brother and sponsor of a person who sought to enrol at the University of New England as an overseas student, who seeks leave to appeal from a decision of the Supreme Court Norkin v University of New England [2022] NSWSC 819 (Davies J) dismissing his appeal from NCAT: DQV v University of New England [2021] NSWCATAP 208. Both sides have supplied written submissions in support of and opposing the grant of leave, and consented to the grant of leave being dealt with in the absence of the public and without oral hearing. The factual background summarised below is taken from the reasons given by Davies J and the Appeal Panel, and may well be uncontroversial. 2. Under the University's program for admission of overseas students, the applicant's brother was required to supply personal information to allow the University to undertake a pre-assessment of his visa eligibility. The process involved the University being part of the Commonwealth "Simplified Student Visa Framework" (SSVF). Although the University apparently holds no decision-making authority under the Migration Act 1958 (Cth) and Migration Regulations, Davies J described the object of the arrangement as "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": at [8]. 3. The applicant and his brother brought proceedings in NCAT, apparently seeking relief on the basis that the attempt by the University to obtain information necessary for a visa application was in breach of the Privacy and Personal Information Protection Act 1998 (NSW) (Protection Act). The argument seems to have focused on s 8(1) of the Protection Act, which requires that 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." 1. NCAT rejected the claim, as did the Appeal Panel. The focus of the arguments at various stages appears to have been (i) identifying the "lawful purpose" of the University; (ii) its relationship to a "function" or to (iii) an "activity" of the University and (iv) as to the reasonable necessity of collecting information for that purpose. 2. Davies J accepted that the question as to whether the collection of personal information fell within s 8 of the Protection Act because it fell within s 6 of the University of New England Act 1993 (NSW), which identified the purposes and functions of the University, was a question of law: at [33]. 3. Davies J noted that there may have been a dispute as to whether one of the University's activities was to undertake "pre-visa assessments for prospective overseas students". The judge rejected that issue on the basis that, according to the Appeal Panel, there was "no dispute" as to that fact: at [38]-[39]. It is not clear if that were so, or what the concession, if made, covered. 4. Davies J's conclusions extended to the following points: 1. that for the purposes of the statutory construction principles, the "right to privacy" was not a fundamental right: at [58]-[59]; 2. the University did not need legislative authority to do anything which was within its objects and functions under the UNE Act, s 6: at [63]; 3. the Commonwealth did not delegate the assessment of visa applications to the University and it was "not improper or inappropriate for the University to act in accordance with the policy (that is, the SSVF) when it was not the decision-maker in relation to the visa": at [70]-[71]. 1. Although the Commonwealth appears not to have delegated decision-making powers to the University, it appears that it has delegated information collection powers, which it would otherwise exercise in order to determine visa eligibility. No doubt that is an administratively efficient and convenient arrangement both for the University and for the Commonwealth. However, collection of personal information by a New South Wales public sector agency (of which the University is one) is subject to the requirements of the Protection Act. It appears to be at least arguable that it is not a lawful purpose, or activity (or function) within s 6 of the UNE Act, for the University to act as an agent for the Commonwealth to collect information in determining whether particular people are given permission to enter Australia. Proposed grounds 1 and 11 of the draft notice of appeal extend to that issue, although they are infelicitously expressed. 2. The determination of that issue would potentially require analysis of the controls imposed on the use of personal information under the Protection Act, including ss 17 and 18. It would also require attention to requirements such as s 10(c), that persons asked to provide information are aware of the intended recipient. The issue is important in circumstances where the intended recipient of the personal information is outside the scope of the University's control and is not subject (arguably) to the requirements of State law. 3. There were difficulties in the preparation of the materials and the formulation and articulation of the grounds of appeal and submissions noted by Davies J at [21]-[23]. Both the Appeal Panel and Davies J appear to have gone to some pains to identify and determine the real issues sought to be raised before them. However, while the matters raised above may well not ultimately entitle the applicant to relief, the issues are potentially of some public importance. 4. The draft notice of appeal identified 14 proposed grounds. Some are incoherent (such as those based on "common law names" and the "binding authority of non-judicial body decisions"). Others reiterate arguments (such as the proposition that NCAT did not accord procedural fairness) which raise no question of principle nor are of general importance and which are far from establishing a clear error. 5. There is one point of public interest which warrants consideration by this Court constituted by three Judges of Appeal. It is whether the conduct of the University in the present case as part of the SSVF complied with the Protection Act. It is clear that this Court would be assisted by submissions from an amicus, and the orders we propose will direct the Registrar to take steps to appoint one. 6. For those reasons, we make the following orders: 1. List the summons seeking leave to appeal for a concurrent hearing of the application for leave to appeal and the appeal itself, confined to the ground "Whether the conduct of the University in undertaking a pre-assessment of the applicant's brother's visa eligibility within the Commonwealth "Simplified Student Visa Framework" complied with the Privacy and Personal Information Protection Act 1998 (NSW)", on a date to be fixed by the Registrar. 2. Direct the Registrar to appoint counsel to appear as amicus curiae. ********** 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: 28 February 2023