47 By issue 6, the applicant contends that the second Tribunal denied him procedural fairness by refusing his request to obtain records from the BITD regarding failed subjects, assignments and allocated study hours. This issue was the subject of a directions hearing before the second Tribunal on 23 March 2023.
48 At the directions hearing, the applicant indicated that he wished to summon the BITD, including the former director of the BITD and two former teachers, in order to obtain his student records and to cross-examine the former director. The second Tribunal declined to issue a summons on the basis that it would be "completely unlikely" for the teachers to have any documents. The AAT2 also noted that the BITD had been closed since 2012 and "had an obligation to return records to ASQA", such that better evidence could be obtained from ASQA. In declining the requested summons, the AAT2 issued a written direction to the respondent to request the ASQA to provide details of the applicant's enrolment at the BITD.
49 The Tribunal is bound by the rules of procedural fairness: see by analogy VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [38] (Hill, Sundberg and Stone JJ). A person who might be affected by an adverse finding should be given the opportunity to adduce evidence or make submissions rebutting a potential adverse finding: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [101] (McHugh J).
50 In considering whether the requirements of procedural fairness have been complied with, it is relevant to have regard to the AAT2's power to summons persons. The statutory framework within which a decision-maker exercises statutory power "is of critical importance when considering what procedural fairness requires". Procedural fairness will also "depend upon the facts and circumstances of the particular case": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). At the time of the directions hearing, the second Tribunal was empowered under s 40A of the AAT Act to "summon a person to … appear before the Tribunal to give evidence" or "produce any document or other thing specified in the summons".
51 The principles relating to the issue of subpoenas by a court are relevant to the issue of summons by the second Tribunal: see e.g. the approach adopted by Spender J in Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432. A primary consideration is whether the documents are relevant, and a summons can be set aside if "manifestly irrelevant to the issues between the parties": Trade Practices Commission v Kimberley Homes Pty Ltd [1989] FCA 262 at [11] (Hill J). The material sought may be of relevance if it "can reasonably be expected to throw light on" the issue in the principal proceedings: Cosco at 439-440 (Spender J).
52 In the present case, several factors weigh against a finding of procedural unfairness.
53 First, procedural fairness in the AAT Act did not require the second Tribunal to grant any summons desired by the applicant. Instead, s 40A was overlaid with considerations about the relevance of material subject to proposed summons. Those considerations were explained to the applicant by the second Tribunal at the hearing in AAT2 as follows:
The test of whether a summons should be issued has been described in various ways. For example, whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings, or whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings, and then there's also the fact that you - whether the material has relevance to the issues in dispute. It will not do so if it's only - the relevance can only be speculated upon, and that reflects a balance struck between ensuring that the tribunal has relevant material before it with which it can make an informed decision on an application for a review and the reasonableness of the burden placed on a person to whom a summons is directed.
54 That explanation is, with respect, self-evidently correct.
55 Secondly, before asking the applicant to comment, the second Tribunal explained its difficulties with respect to the proposed summons to the teachers:
it seems, I mean, completely unlikely in my view that they would have any documents because the institution that they worked for would be responsible for the documents relating to - as a registered training authority, and given that it's now 12 years ago or 13 years ago, I mean, I just can't really see that there's any possibility that there's any document tucked away with either of the teachers.
56 The respondent agreed with this, "given the length of time and the usual course people may keep records for a couple of years" but submitted that "given that they were just teachers in an institution, they presumably would have turned the relevant documents back to the institution before they finished, or the both of them after (indistinct) working there for a period of time."
57 Turning then to the proposed summons to the director, the second Tribunal explained that:
at this stage, Mr Ma, I don't think I'm disposed to allow you or to grant you the issue of a summons to him for this reason: it is so long ago. The organisation's been, what, closed down since, I think, about 2012. I mean, I think even for the ATO you only need to keep records for six or seven years …
58 Thirdly, the information received from ASQA comprised any information that the BITD would have been likely to have, given that the BITD had an obligation to return records to ASQA. As the second Tribunal explained to the applicant, ASQA was therefore more likely to have the records which the applicant sought in his proposed summons:
more importantly, is that the fact that the RTO had an obligation to return records to ASQA, so it seems to me that - and Mr Gauci has referred to the ASQA, Australian Skills Quality Authority webpage, and the reference to you can apply for student records in relation to ASQA because it's responsible for registered training providers, and if RTO's are to have a legal obligation to return the records to ASQA, I think that's the best chance that you've got of finding anything.
59 The second Tribunal therefore suggested that the first step for the applicant was to apply to ASQA for his student records.
60 Finally, the second Tribunal proceeded to issue a written direction under s 196 of the Administration Act to the Secretary to request ASQA to provide details of the applicant's enrolment at the BITD. Information was received by the Secretary pursuant to that direction, and was taken into account by the second Tribunal in due course in its decision in AAT2.
61 It is apparent therefore that there was no breach of procedural fairness in all of the circumstances. The request for the issue of the subpoenas was declined after the relevant principles were explained to the applicant and he was given an opportunity to comment on why the second Tribunal considered that it would be unlikely to result in the applicant obtaining the information which he sought. The second Tribunal also explained that the body which was more likely to have the information which he sought was ASQA and issued a direction to the Secretary to request that ASQA produce that material, which ASQA did. The fact that the information produced by ASQA did not ultimately include details of the hours of study undertaken by the applicant has no bearing on the question of whether he was afforded procedural fairness. Procedural fairness is concerned with process, and not with outcome.