Can Indonesians Apply for a Protection Visa in Australia?

Can Indonesians apply for a protection visa in Australia?

Yes. An Indonesian citizen who is physically in Australia can apply for a Subclass 866 protection visa. Nationality is not one of the criteria. There is no list of countries whose nationals are excluded, no quota, and nothing in the Migration Act 1958 or the Migration Regulations 1994 that treats an Indonesian applicant differently from anybody else.

That is the short answer, and for a lot of people it is the whole answer. The question behind the question is usually narrower. Can I apply while I am on a student visa. Can I apply if my visa has already expired. Can I apply if my visa says no further stay. Can I apply if something has already been refused. Those are the situations this article works through, one at a time.

One distinction has to be made first, because everything else depends on it. Being allowed to apply and being likely to succeed are two different questions. This article answers the first. The second is decided under the refugee criterion in section 36(2)(a) and the complementary protection criterion in section 36(2)(aa), which are set out on our Subclass 866 protection visa page and in the complete guide to the Subclass 866 protection visa. Plenty of people are entitled to lodge an application that will not succeed, and lodging one anyway is the single most expensive mistake in this area of law.

Which protection visa an Indonesian in Australia actually applies for

The Subclass 866 is the only protection visa that can be applied for from inside Australia by a person who arrived on a valid visa. It is a permanent visa, applied for on Form 866 through ImmiAccount, and under clause 866.411 of Schedule 2 to the Migration Regulations it can only be granted while the applicant is in Australia.

The Subclass 785 Temporary Protection visa and the Subclass 790 Safe Haven Enterprise visa exist, but they belong to the unauthorised maritime arrival caseload. A person who flew into Sydney, Melbourne, Perth or Darwin on a student or visitor visa is not in that caseload. The offshore Refugee and Humanitarian subclasses, 200 to 204, all require the applicant to be outside Australia at application and at grant, so they are not an option for anybody reading this from inside the country. The range of what is and is not available is dealt with in full in our Subclass 866 guide.

If you have not set up an account yet, our guide on how to create an ImmiAccount covers the steps.

Does the visa you hold now change whether you can apply?

No. The visa you currently hold does not decide whether you can lodge a protection visa application. It decides what happens to your status afterwards.

Student visa holders can apply. Visitor visa holders can apply. Working holiday, temporary graduate, sponsored work and bridging visa holders can all apply. A person who holds no visa at all can apply. The Subclass 866 has no requirement that you hold a substantive visa at the time of application, which is exactly what distinguishes it from a partner, student or skilled application lodged onshore.

What your current visa does decide is the bridging visa you receive and the conditions attached to it. A valid protection application generally attracts a Bridging visa A if you hold a substantive visa when you lodge. That bridging visa does not start straight away. It comes into effect when your current visa ends, so an Indonesian student with two years left on a student visa stays a student, on student conditions, until that visa expires. Work rights on the bridging visa are not automatic and depend on the class granted and the conditions attached.

The two cohorts we see most often each have their own article. If you are here on a student visa, start with can Indonesian students apply for a Subclass 866 protection visa. If you are on a visitor visa, see applying for a Subclass 866 protection visa on a tourist visa.

Can you apply if your visa has already expired?

Yes. An expired visa does not remove the right to apply for protection.

A person whose visa has ended without another one taking effect is an unlawful non-citizen. That carries real consequences, including liability to detention and removal and an exclusion period affecting later applications, and it changes the bridging visa position, usually to a Bridging visa E with tighter conditions. None of that stops a valid application being made.

The practical point is that the cost of waiting is paid in status, not in eligibility. Lodging while you are still lawful almost always leaves you in a better position than lodging a week after your visa ends. We deal with the effect of delay separately in does delaying a Subclass 866 application affect your claim.

An expired Indonesian passport is a different issue again. It is a practical problem for identity evidence rather than a legal bar, and it is dealt with below.

Does a no further stay condition stop an Indonesian applying?

No, and this is the most common misunderstanding in Indonesian enquiries.

Conditions 8503, 8534 and 8535 are the no further stay conditions. Each one is drafted to bar a further application for a substantive visa other than a protection visa. The carve out is in the text of the condition itself, so no waiver is needed before a Subclass 866 application can be made. Anyone who has been told they must first apply to have 8503 waived before they can seek protection has been told something that is not correct.

What 8503 does block is a partner, student or skilled application lodged onshore, which is a genuinely difficult problem and a different one. If that is your situation, our partner visa lawyers page is the better starting point.

Does an earlier refusal or cancellation stop you?

Generally, no. Section 48 bars a person whose visa has been refused or cancelled since last entering Australia from applying for most visas while they remain here. Protection visas sit among the classes that remain available, so section 48 is not a barrier to a Subclass 866 application.

That covers the two situations we are asked about most: a student visa refused onshore, and a student visa cancelled for non-compliance with course requirements. Neither closes the door on protection. Both may also be worth challenging in their own right, which is a separate question covered on our visa refusals and visa cancellations pages.

Section 48A is the provision that does bar a further application, and it is dealt with next.

What actually stops an Indonesian from applying

Four things genuinely close the door, and none of them is the thing people worry about. They are a previous protection refusal, a right to live safely in another country, the exclusion and character provisions, and being outside Australia. Everything else is a complication rather than a bar.

Section 48A: why you normally get one protection application only

Section 48A bars a person in the migration zone from making a second protection visa application once a protection visa has been refused. It applies even where your circumstances have changed since, even where the first application was prepared by somebody else, and even where the refusal had nothing to do with the merits of your claim.

The only route around it is section 48B, a personal and non-compellable power of the Minister to lift the bar so that a further application can be made. It is not an appeal. There is no right to have a request considered, and requests are assessed against published guidelines that set a high threshold.

This is the reason a weak first application is so damaging, and the reason the real work on a protection file happens before lodgement rather than after a refusal. If your Subclass 866 has already been refused, the live question is not a second application but review, and the review period is short and strictly applied. See our protection visa refusals page and our Administrative Review Tribunal guide for Subclass 866 refusals, and do not let the period run while you decide.

Section 36(3): a right to live in a country other than Australia

Australia's protection is a last resort. Under section 36(3), Australia is taken not to have protection obligations to a person who has not taken all possible steps to avail themselves of a right to enter and reside in a country other than Australia, whether temporarily or permanently, unless the exceptions in sections 36(4) to 36(5A) apply, which broadly cover cases where the person would face the feared harm in that country too.

Form 866 asks the question directly, and the Department checks it as a matter of routine, including by making enquiries with the authorities of any country where it suspects a right to reside exists. For Indonesian applicants it comes up in a small number of recognisable situations: dual citizenship, permanent residence held in a third country, a spouse's nationality that carries a right of residence, and long-term residence permits from earlier study or work abroad.

If you hold any of those, say so at the first consultation. It changes the shape of the application rather than ending it, but only if it is dealt with before lodgement instead of being discovered afterwards.

Identity: the issue that decides more Indonesian applications than people expect

Identity is not a bar to applying, but it is where Indonesian applications most often run into trouble.

Section 91W allows the Department to draw an adverse conclusion where an applicant refuses or fails to produce documentary evidence of identity, nationality or citizenship without a reasonable explanation. Section 91WA makes it an offence to provide a bogus document or to destroy identity evidence. Both matter here because Australian country information records that fraudulent Indonesian identity documents, and fraudulently obtained genuine documents, are readily available, so decision makers approach documents from that market carefully.

Bring what you actually have to the first appointment: your passport, your Kartu Tanda Penduduk, your Kartu Keluarga and your birth certificate. If the only copy you hold is a photograph on your phone, say so. If a document was arranged for you by somebody in Indonesia and you cannot explain where it came from, say that too. A document whose provenance cannot be explained is a problem that is manageable before lodgement and very hard to manage after a departmental question about it.

Character, security and the exclusion provisions

These are the provisions that genuinely exclude people, and they are narrow.

A Subclass 866 applicant must satisfy public interest criteria 4001 and 4002, which deal with the character test in section 501 and with adverse security assessments. Section 5H(2) excludes a person from the refugee definition where there are serious reasons for considering they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside Australia, or acts contrary to the purposes and principles of the United Nations. Section 36(1C) excludes a person from complementary protection where the Minister considers them a danger to Australia's security, or where they have been convicted by final judgment of a particularly serious crime and are a danger to the Australian community.

For the overwhelming majority of Indonesian applicants none of this is in play. Where it is, it is usually because of a conviction in Australia, a pending charge, or military or police service in Indonesia that the applicant has not thought to mention. Military service is asked about on the form. Answer it accurately and raise it in advance, because an exclusion issue that surfaces at the interview is a different matter from one that has already been addressed in the submission.

Health checks

Protection visa applicants undergo health examinations, and the health criteria for the Subclass 866 sit in clauses 866.223, 866.224, 866.224A and 866.224B. They are drafted differently from the health requirement applied to most visa classes, and a health condition does not ordinarily prevent the grant of a protection visa.

The practical point for applicants is simply to complete the examinations when they are requested and not to delay them. A condition that would be an obstacle on a partner or skilled application is not usually an obstacle here.

Can your partner and children apply with you?

Yes, where they are members of the same family unit and they are in Australia. They are included in the one application, and a family member included that way does not need a protection claim of their own. If the main applicant succeeds, they are granted on the basis of that claim.

Family members who are still in Indonesia cannot be included, because the visa cannot be granted to a person who is outside Australia. Children born in Australia after lodgement are added to the existing application rather than made the subject of a new one, and the Department has to be told, because you are required to notify changes in family composition while the application is being decided.

Where a family member has their own, stronger claim, it may be better for that person to be the main applicant. That decision has to be made before lodging, because section 48A makes it very difficult to revisit afterwards.

Is there a deadline for applying for protection?

There is no statutory deadline. A protection visa application can be made at any time while you are in Australia, whether you arrived last month or eight years ago.

Delay is not neutral, though. It is weighed as part of the assessment, because a decision maker will ask why a person who genuinely feared return waited years to ask for protection. Delay is explicable, and it is explained in Indonesian files all the time: the situation at home changed, the applicant was not out to anybody, a relative died, a law changed, an arrest happened. What matters is that the explanation is in the statement rather than left to be inferred.

The other cost of delay is status. Applying while lawful produces a better bridging visa position than applying after becoming unlawful, and every week of unlawful time is a week that counts against you later.

Can you apply from Bali, or from anywhere outside Australia?

No. The application must be made while you are in Australia, and under clause 866.411 the visa cannot be granted unless you are in Australia when the decision is made.

This is also why leaving matters so much once an application is on foot. A bridging visa held on the basis of a protection application generally ceases when you depart Australia, and the visa cannot be granted while you are offshore, so a trip home for a funeral or a family emergency can end the whole application in practice. Ask before you book, not after.

For an Indonesian living in Indonesia and searching from there, the honest position is that the Subclass 866 is not available to you, and neither is any onshore alternative.

Does applying affect your university, your employer or your sponsor?

No. The Department does not notify your education provider, your employer, your scholarship sponsor or your family that you have applied for protection. Protection information is handled as confidential, and the Department does not approach the government of the country you fear in order to verify your claim.

This matters in the Indonesian caseload because so many enquiries come from people who have told nobody in Australia what happened. What you tell a lawyer for the purpose of obtaining legal advice is also confidential and, in most circumstances, privileged. If the reason you have not applied is that you are frightened of who will find out, that is worth raising at the consultation rather than sitting with.

What can change is your practical situation while the application is decided: which visa you hold, what your work rights are, and whether you can continue studying. Those are answerable questions and they should be answered before you lodge, not after.

Being able to apply is not the same as having a claim

Everything above is about permission. The criteria are a different matter, and they are where applications are actually decided.

The refugee ground requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and the fear has to apply to all areas of Indonesia. The complementary protection ground requires substantial grounds for believing there is a real risk of significant harm, which is a closed list in section 36(2A). Our complementary protection page explains the second ground, and complementary protection for LGBTI applicants deals with how it works in practice.

Two provisions defeat more Indonesian claims than anything else. Internal relocation asks why you could not live in Jakarta, Surabaya or Denpasar instead, given that Indonesian citizens may lawfully live anywhere in the country. State protection asks why the Indonesian police and courts could not protect you. Both have to be answered in the submission before the Department raises them.

Claims based on sexual orientation or gender identity are set out on our LGBTI protection visa page, with the evidence question dealt with in Subclass 866 for LGBTI Indonesian students and the legal test in LGBTI protection visas in Australia. Religious claims, including conversion, blasphemy exposure and claims by Ahmadi and Shi'a Muslims, are covered on our religious persecution page. The departmental interview, which almost every applicant attends, is explained on our protection visa interview page.

When a protection application is the wrong application

Sometimes the answer to can I apply is yes, and the answer to should I apply is no.

If you are in a genuine relationship with an Australian citizen or permanent resident, a partner visa is usually the stronger path, including for same sex couples. See the Subclass 820 partner visa and LGBTIQ+ partner visas. If the real problem is a refused or cancelled visa, the answer may be a review of that decision instead.

Lodging a protection application to buy time is a bad trade. It spends the one application you have, it exposes you to section 48A afterwards, and claims that do not hold up create credibility problems that follow you into every later application. Where the honest assessment is that no protection claim exists, the right advice is to say so.

Getting your own situation assessed

If you want to know whether you can apply, and whether you should, the first step is a consultation. Your situation is assessed, you are told which ground your claim would run on, and you are told plainly if it does not run on either.

We verify your immigration history ourselves using the passport details already on file rather than asking you to chase bridging visa notices and old application forms you do not hold. What we ask you for is what you can realistically produce.

All protection matters are supervised by Weiwei Zhang, Principal Lawyer. You can read more about Weiwei Zhang, about the firm on our about page, and about how we run these matters on the protection visa lawyers page. Consultations are held by video with clients anywhere in Australia.

Request a consultation, or contact us in writing if you would rather set out your situation first.