Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: applied
The Federal Magistrate considered that the Tribunal complied with its obligations to provide natural justice. His Honour observed that there was no requirement to provide all material to the appellant as long as an opportunity was given to deal with adverse information ' that is credible, relevant and significant to the decision to be made ' (at [23] citing Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629). His Honour also stated that '[a] decision maker is not required to disclose information that is already obvious '. 7 The appellant also submitted to his Honour that the Tribunal failed to consider the question of state protection. This ground was not included in the amended notice of appeal. Federal Magistrate Scarlett concluded that the Tribunal did not need to consider whether protection may be withheld for reason of ethnicity (at [22]). That finding followed from the conclusion that the Chinese in Indonesia were not targeted because of their ethnicity and that it was speculation that ethnic Chinese might be targeted. 8 A further issue arose during the hearing of this appeal that was not within the amended notice of appeal. That is whether there was an absence of evidence or of an available inference, so that the Tribunal's conclusion was not open to it or that the Tribunal decision was otherwise illogical. There was no objection to these grounds of appeal. The parties addressed the issue in more detail in written submissions filed after the hearing. 9 The Tribunal's reasoning seems to be as follows: 1. The May 1998 riots did target ethnic Chinese. 2. Only a very small percentage of the country's ethnic Chinese were harmed during those riots. 3. The appellants were unharmed. 4. There is no evidence that the appellant's siblings, who continue to reside in Indonesia, have been harmed since May 1998 because of their race. 5. There have been changes in Indonesia since August 1998, when the appellant left the country. 6. There were demonstrations in Jakarta in September 1999. 7. Those demonstrations were directed at the authorities; there was some looting of businesses in Chinatown but the evidence does not indicate that ethnic Chinese were among those targeted because of their race. 8. There was an outbreak of violence in Bandung in 1999 in which a predominantly Chinese area was targeted but there were no reported deaths or injuries. 9. Even if there were a further riot, it is no more than speculation that ethnic Chinese might be targeted because of their race. 10. Even if Chinese were targeted, the chance of such riots resulting in serious harm to the appellant was remote. 28 The Minister also submits that, because the information was in the public domain and sourced from newspapers, it was "obvious" and therefore there was no requirement to put it to the appellant. The Minister relied on Kioa at 633 and Miah at [141] in support of its submission. Those authorities do not stand for that proposition and the submission is rejected. The mere fact that information has been published does not make it obvious, nor does mere publication make apparent the use to which the information will be put by the Tribunal. 29 The transcript of the Tribunal hearing was not available to the Federal Magistrate. After the hearing of the appeal, the Minister filed a copy of the transcript and supplementary submissions which referred to the transcript without objection. The appellant was given an opportunity to, and did, put further submissions in reply. The parties thereby consented to my perusal of the transcript. 30 The Tribunal told the appellant that the recent changes in Indonesia were ' quite significant ' as far as the appellant was concerned and that there had been some ' significant changes ' since the May 1998 riots. The Tribunal stated to him that there had been no press reports of anti-Chinese riots in Java in 1999.