Domestic Violence in Indonesia: Protection Visa Australia

Can domestic violence in Indonesia support an Australian protection visa?

Yes. Domestic violence in Indonesia can support an Australian protection visa where the Indonesian state is unwilling or unable to protect the woman from the person harming her. The Migration Act 1958 does not require the persecutor to be a government. It requires a well founded fear of persecution for one of five reasons, and it requires the absence of effective protection in the home country. The person causing the harm can be a husband, a former husband, a father, a brother, or a member of the husband's family.

That distinction decides the case. The Department of Home Affairs does not refuse these applications because the violence was private. It refuses them because it finds that Indonesia would protect the woman, or that she could live somewhere else in Indonesia in safety. Every serious domestic violence claim from Indonesia is therefore an argument about state protection and about relocation, supported by country information, and not simply an account of what happened inside the marriage.

An applicant who understands that from the beginning presents a very different application from one who does not. The written statement that only describes the violence, and says nothing about the police, the courts, the family, the money, and the places she could realistically go, leaves the decision maker to answer the two decisive questions without her evidence.

Which protection visa applies to an Indonesian woman already in Australia?

The Subclass 866 protection visa is the only protection visa available to a person who is already in Australia and who arrived on a valid visa. It is a permanent visa. An Indonesian woman who came to Australia on a visitor visa, a student visa, a working holiday visa, a skilled visa or a partner visa, and who now fears returning to Indonesia, applies for the Subclass 866 protection visa. There is no separate visa for gender based claims and no separate visa for domestic violence.

The application is made inside Australia while the applicant holds a visa or is otherwise lawful. The requirements, the process and the decision path are set out on the Subclass 866 protection visa page, and the mechanics of the application itself are covered in the complete guide to the Subclass 866 protection visa. A general overview of the process is also available in the article on applying for a protection visa in Australia.

What are the two separate grounds a domestic violence claim can be run on?

There are two, and only one of them has to succeed. The first is the refugee criterion in section 36(2)(a) of the Migration Act 1958. The second is complementary protection in section 36(2)(aa).

The refugee criterion requires a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. A domestic violence claim from Indonesia is almost always run on membership of a particular social group.

Complementary protection requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Indonesia, there is a real risk the applicant will suffer significant harm. It does not require any of the five refugee reasons. Complementary protection is explained in detail on the complementary protection page.

Both grounds are assessed in the one application. A properly prepared application puts both, because the evidence that supports one frequently supports the other, and because the two tests treat internal relocation and state protection in slightly different statutory language.

Why does it matter that the abuser is a private individual and not the Indonesian government?

It matters because the law then asks a second question. Where the harm comes from a private person, the applicant must show that the Indonesian state will not protect her from that person, or cannot.

This is settled law in Australia. In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, the High Court held that a woman who fears serious harm from her husband, in a country where the authorities tolerate or condone that harm and withhold protection because she is a woman, can be a refugee. The persecution in such a case is the combination of the private violence and the state's failure to respond to it. The state does not have to be the one inflicting the harm.

Khawar is the case behind every domestic violence protection claim decided in Australia, including Indonesian claims. It is also the reason a bare account of violence is not enough. The applicant must put evidence about the state, not only about the marriage.

What is a particular social group, and how does an Indonesian woman fall within one?

Section 5L of the Migration Act 1958 defines a particular social group other than family. A group is a particular social group if a characteristic is shared by each member, the applicant shares that characteristic, the characteristic distinguishes the group from society at large, and the characteristic is not the fear of persecution itself.

In Indonesian claims the group is usually identified from the applicant's own circumstances. It may be women in Indonesia. It may be married women in Indonesia who are unable to obtain state protection from domestic violence. It may be divorced women, single women, women who have left a marriage, or women who have refused a marriage arranged by their family. The correct formulation depends on the facts the applicant herself gives, and more than one formulation is often open on the same account.

The characteristic cannot be the persecution. A group described as women who are beaten by their husbands is defined by the harm and fails section 5L. A group described as married women in Indonesia is defined by a status that exists whether or not violence occurs, and does not. This is a technical point that decides applications, and it is one of the most common reasons a claim that should have succeeded on its facts is refused on its drafting.

What does a real chance of persecution mean in practice?

A real chance is a chance that is substantial rather than remote. It does not mean the applicant must prove that harm is more likely than not to occur. It does not mean she must prove she has already been seriously injured. A chance of well under an even chance can still be a real chance.

That test sits alongside section 5J(4), which requires the persecution to involve serious harm and to involve systematic and discriminatory conduct, and which requires the protected reason to be the essential and significant reason for the persecution. Section 5J(1)(c) adds a further requirement that the real chance relates to all areas of Indonesia, which is the relocation question dealt with below.

An applicant who has never been to a hospital, never made a police report, and left Indonesia before the violence escalated can still satisfy this test. The question is forward looking. It is what would happen on return, not what has already been documented.

Does Indonesia's domestic violence law defeat the claim?

No. The existence of a law is not effective protection. This is the single most common error in published commentary on Indonesian protection claims, and it is an error the Migration Act 1958 expressly does not make.

Section 5J(2) provides that a person does not have a well founded fear of persecution if effective protection measures are available in the receiving country. Section 5LA then defines what effective protection measures are. Protection is available where the relevant State is willing and able to offer protection, and where that protection is provided through an appropriate criminal law, a reasonably effective police force and an impartial judicial system, and where the applicant is able to access that protection, and where the protection is of a durable nature.

Every element of that definition must be satisfied. A criminal law on the statute book satisfies one limb. It does not satisfy the police limb, the judicial limb, the access limb or the durability limb. The Department is required to look at whether this applicant, in her circumstances, in her part of Indonesia, can actually obtain protection that lasts.

Violence against women, including domestic violence and spousal rape, is against the law in Indonesia. Further laws passed in April 2022 outlawed forced marriage, forced sterilisation and certain kinds of assault and harassment. None of that is the end of the analysis. It is the beginning of it.

What does the Department's own country information say about reporting domestic violence in Indonesia?

The Department and the Administrative Review Tribunal rely heavily on the Department of Foreign Affairs and Trade country information report for Indonesia. The report dated 24 July 2023 makes findings that matter directly to the access limb in section 5LA.

It records that victims of violence are often reluctant to report, that many women do not trust the police, and that women lack confidence in the ability or willingness of the police to help them. It records that a woman would most likely need to report to a male officer and may fear that the officer will not believe her or act to protect her. It records that filing police reports can lead to women being ostracised from their families, homes, jobs or schools. It records, in terms, that even where a woman is able to leave an abusive relationship the perpetrator is unlikely to be held to account.

The report also records that police record keeping is unreliable, that bribes can change police outcomes in favour of the person paying them, and that corruption and outside influence weaken judicial independence.

On services, the report records that support services exist but may lack the capacity to help all the women who need them, and that safehouses are not available in every part of the country and are more likely to be found in larger cities.

These are Australian government findings. They are the most persuasive material available to an applicant, because the decision maker cannot dismiss them as partisan. An application that engages with them directly, and ties them to the applicant's own town, family and circumstances, is answering the question the decision maker must actually decide.

Why does internal relocation decide most Indonesian domestic violence cases?

Because Indonesia is very large, and because the obvious answer to a private threat is to move away from it. Section 5J(1)(c) requires the real chance of persecution to relate to all areas of Indonesia. Section 36(2B)(a) provides that there is no real risk of significant harm if it would be reasonable for the applicant to relocate to an area of Indonesia where there would not be a real risk.

Relocation is not simply a question of geography. It is a question of whether relocation is reasonable for this applicant. The matters that bear on that include whether she can support herself, whether she has family or work connections in the proposed place, whether she has children with her, whether her husband's family can trace her, and whether the Indonesian system of civil registration makes her locatable.

The Department of Foreign Affairs and Trade report is directly relevant here as well. It records that some women move to Jakarta for greater independence, but that this option may not be available to women who are financially dependent on their families or who lack work connections in their hometown or in Jakarta. It records that Indonesian society is patriarchal, that women without husbands have less social access, and that single women face a moderate risk of societal discrimination. It records that women may be financially dependent on their husbands, and that leaving an abusive relationship may cause significant economic insecurity for a woman and her children.

An application that does not deal with relocation, on the applicant's own facts, has left the strongest available refusal ground unanswered.

When does complementary protection apply to a domestic violence claim?

Complementary protection applies where the applicant faces a real risk of significant harm on return, whether or not the harm is connected to any of the five refugee reasons. Section 36(2A) defines significant harm exhaustively. It means arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

Severe beatings, sexual violence within a marriage, and threats to kill are capable of falling within cruel or inhuman treatment or punishment. The statutory definitions of those terms require intentional infliction of severe pain or suffering, or extreme humiliation, which is generally straightforward in a domestic violence case, because the conduct is deliberate.

Section 36(2B) then sets out three exclusions. There is no real risk where the applicant could reasonably relocate within Indonesia, where she could obtain protection from an Indonesian authority such that there would not be a real risk, or where the risk is one faced by the Indonesian population generally and not faced by her personally. The third exclusion is the one that catches poorly prepared claims. Generalised statements about the position of women in Indonesia, without evidence about this applicant and this abuser, invite a finding that the risk is a general one.

Complementary protection is frequently the stronger of the two grounds in a domestic violence case, because it removes the argument about how the particular social group is described. The same point is developed in the article on complementary protection for Subclass 866 applicants.

What counts as serious harm, and what counts as significant harm?

Section 5J(5) sets out instances of serious harm for the refugee criterion. They include a threat to the applicant's life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens her capacity to subsist, denial of access to basic services where that denial threatens her capacity to subsist, and denial of capacity to earn a livelihood where that denial threatens her capacity to subsist.

The last three matter in Indonesian domestic violence claims and are usually left out. A woman who returns to Indonesia, who cannot return to the marital home, whose family will not take her back because she has brought shame on them, who has no independent income and whose husband controls the household registration documents, is describing economic harm that the statute recognises. That evidence belongs in the application, not only the account of physical violence.

Significant harm under section 36(2A) is a narrower and differently worded list. Conduct can be serious harm without being significant harm, and the reverse is also possible. This is a further reason to plead both grounds.

Can a woman be expected to avoid harm by changing how she lives?

No, not where the change is one the Act protects. Section 5J(3) provides that a person does not have a well founded fear if she could take reasonable steps to modify her behaviour to avoid persecution. That provision then carves out the modifications she cannot be required to make.

One of those carve outs is directly on point for Indonesian claims. An applicant cannot be expected to avoid persecution by entering into or remaining in a marriage to which she is opposed, or by accepting the forced marriage of a child. A decision maker cannot lawfully reason that a woman would be safe if she returned to her husband, or complied with a marriage her family has arranged, or stopped seeking a divorce.

Other carve outs include altering or concealing religious beliefs or practice, concealing race, ethnicity or nationality, altering or concealing political opinion, concealing a disability, and altering or concealing sexual orientation, gender identity or intersex status. Those matter where a domestic violence claim overlaps with another ground, which in Indonesian cases is common. Violence within the family frequently follows a religious conversion or the discovery of a woman's sexual orientation. The overlap with religious claims is dealt with on the religious persecution page, and the overlap with sexuality based claims on the LGBTI protection visa page and in the article on what LGBTI protection visa applicants must prove.

What evidence actually supports a domestic violence protection claim from Indonesia?

The applicant's own written statement is the central piece of evidence, and in most cases it is the only direct evidence of what happened. It must be detailed, chronological, specific as to dates, places and people, and consistent with everything else on the file, including the visa applications the applicant has previously lodged.

Supporting material that carries weight includes medical records or photographs of injuries, messages and call records from the abuser or his family, any police report and, where no report was made, a clear explanation of why not, documents from the religious court in any divorce or custody proceedings, evidence of financial dependence and of who controls the family documents, statements from family members or friends who witnessed the violence or the threats, and country information that matches the applicant's own facts.

The absence of documents is not fatal and is often expected. The Department of Foreign Affairs and Trade report itself explains why Indonesian women do not report violence and why records are unreliable. What is fatal is an unexplained absence. A statement that says the police were never contacted, and stops there, leaves the decision maker free to conclude that protection was available and simply not sought.

My Migration Lawyers does not create an account for a client. The firm takes the client's own account, tests it against the country information and the statutory criteria, identifies the evidence that exists and can realistically be obtained, and presents that material in the form the Migration Act 1958 requires. The statement remains the client's own evidence, reviewed and corrected by her before it is filed, and the client decides which claims are advanced.

What happens at the protection visa interview in a domestic violence case?

The interview is where the claim is tested. A delegate of the Minister will ask the applicant to describe the violence in her own words, will probe dates and sequences, and will ask directly why she did not go to the police, why she did not move to another part of Indonesia, and why she did not apply for protection sooner. Inconsistency between the interview and the written statement is the most common reason a credible applicant is disbelieved.

Interviews in gender based claims raise practical issues that should be raised before the day, including the sex of the interviewer, the sex of the interpreter, the Indonesian or regional language to be used, and whether the applicant can give her evidence without family members present. What happens on the day, and how applicants prepare, is set out on the protection visa interview page.

What does not apply: the family violence provisions in the partner visa rules

The family violence provisions in the Migration Regulations 1994 are a different law, and they do not apply to a protection visa. They are routinely confused with protection claims, including by applicants who have been told by friends that domestic violence means they can stay in Australia.

The family violence provisions allow a partner visa applicant whose relationship has ended because of family violence committed by the sponsoring partner in Australia to continue with the partner visa application. They are about the breakdown of a relationship with an Australian sponsor. They are explained on the family violence partner visa page.

A Subclass 866 protection visa claim is about harm feared in Indonesia on return. Violence committed by an Australian partner in Australia is not, by itself, a protection claim, because the harm must be harm feared in the receiving country. It can become relevant to a protection claim where the Australian relationship is the reason the applicant now faces harm in Indonesia, for example where the marriage or its breakdown has exposed her to reprisal from her own family. The two pathways can also run in sequence rather than together, and which of them is available depends on the applicant's visa history. That is a question to be settled before anything is lodged, because lodging the wrong application first can close the other off. Where an applicant is already without a substantive visa, a further consideration arises under Schedule 3, which affects the partner visa pathway but not the Subclass 866 protection visa.

What happens if the Subclass 866 application is refused?

A refusal is not the end of the matter. A refused applicant may apply to the Administrative Review Tribunal for merits review. The Tribunal reconsiders the whole application, hears the applicant in person, and can make a different decision on the same facts. Many domestic violence claims are decided at the Tribunal rather than at the Department, because the Tribunal hearing is the first opportunity the applicant has to answer the relocation and state protection findings in detail.

The deadline to apply for review is short and it is strictly applied. There is no general power to extend it. The day the refusal is received is the day the clock starts. The review pathway is set out on the protection visa refusals page and the Tribunal process is covered in the Subclass 866 refusal and Administrative Review Tribunal guide. Review rights across other visa refusals are dealt with on the visa refusals page.

Can a woman apply again after a protection visa has been refused?

No, not while she remains in Australia. Section 48A of the Migration Act 1958 bars a further protection visa application by a person in the migration zone whose protection visa application has already been refused. The bar applies regardless of what grounds she would now rely on and regardless of whether those grounds existed at the time of the first application.

The only way past the bar is the Minister exercising the personal power in section 48B to lift it. That power is not compellable, there is no right to have a request considered, and a request is not a review. A woman whose domestic violence claim was never properly put in her first application is therefore in a far worse position than one who has not yet applied. This is the practical reason why the first application matters more than any later step.

Can children and family members be included in the application?

Yes. Members of the same family unit who are in Australia can be included in the one Subclass 866 application as combined applicants. In a domestic violence case this ordinarily means the applicant's children who are in Australia with her.

Two points are easily missed. First, a child who is included is assessed as part of the family unit, but a child may also hold protection claims in her own right, for example where the child is at risk of being taken by the father's family on return or is at risk of an underage marriage. Those claims must be put expressly. Second, family members who are not in Australia cannot be included, and there is no separate application available to them from Indonesia on the strength of the mother's claim while the application is pending.

What happens to a woman's visa status while the application is decided?

An applicant who lodges a valid Subclass 866 application while she holds a substantive visa is ordinarily granted a bridging visa, which takes effect when her current visa ends and allows her to remain lawfully in Australia while the application is decided. Work rights on that bridging visa depend on the circumstances in which the application was made, including whether the applicant applied before or after her substantive visa expired.

Two conditions cause problems in practice. A visitor visa carrying a no further stay condition prevents a further application in Australia until the condition is waived. An applicant who is already unlawful faces additional consequences that affect both the bridging visa and any later visa application. The position for visitor visa holders is covered in the article on applying for a Subclass 866 protection visa on a tourist visa, and the position for student visa holders in can Indonesian students apply for a Subclass 866 protection visa and in the wider article on international students and the Subclass 866 protection visa.

The application itself is lodged online. An applicant who does not yet have an account will need one before anything can be filed, and the steps are set out in the guide on how to create an ImmiAccount.

Is the application confidential from the applicant's husband and family in Indonesia?

The application is a confidential process between the applicant and the Australian government, and it is not served on the person the applicant fears. Where a protection visa matter reaches the courts, section 91X of the Migration Act 1958 prohibits the High Court, the Federal Court and the Federal Circuit and Family Court from publishing the applicant's name in relation to the proceeding.

Applicants should still take care with what they disclose to family members, with social media, and with shared devices and email accounts, because the practical risk of disclosure in a domestic violence case usually comes from those sources rather than from the Department.

What mistakes cost Indonesian domestic violence applicants their claim?

Five recur.

Lodging a bare form. A Subclass 866 application that contains a short answer in the claims box and nothing else is an application without evidence. The claims must be set out in full at lodgement, because everything said later is measured against what was said first.

Leaving the delay unexplained. A woman who has been in Australia for a long period before applying will be asked why. There are good answers in domestic violence cases, including that she believed the marriage could be repaired, that she was waiting for a divorce, or that she did not know protection was available. An unexplained delay is treated as an indicator against credibility. The point is developed in the article on whether delaying a Subclass 866 application affects the claim.

Ignoring relocation. An application that does not explain why the applicant cannot safely live in Jakarta, Surabaya or another province is conceding the strongest refusal ground available to the Department.

Describing only the physical violence. Economic control, the seizure of identity and household documents, threats to take the children, and the position of the applicant's own family are all part of the claim and all engage the statutory tests.

Allowing someone else to write the account. A statement written for an applicant in words she does not use, containing detail she cannot confirm at interview, damages her far more than a short statement in her own words. The applicant must be able to give the same account, under questioning, in her own language.

How does My Migration Lawyers work on an Indonesian domestic violence protection claim?

The firm is instructed by the client directly. Weiwei Zhang, Principal Lawyer at My Migration Lawyers, takes the client's own account of what happened in Indonesia and what she fears on return, and settles the written statement with her so that it is her evidence in her own words, reviewed and corrected by her before anything is filed.

From there the work is legal. The firm identifies the grounds available on the account given, under section 36(2)(a) and section 36(2)(aa), and settles how the particular social group is described so that it meets section 5L. It assembles the country information that bears on state protection under section 5LA and on relocation under section 5J(1)(c) and section 36(2B)(a), and ties that material to the client's own town, family, finances and circumstances. It identifies which supporting documents realistically exist and which do not, and explains the absence of the rest. It prepares the client for the interview, including the practical arrangements that matter in a gender based claim. If the application is refused, it prepares and runs the review in the Administrative Review Tribunal within the deadline.

The firm acts for clients across Australia and consultations are conducted by video, so an applicant's location in Australia does not affect her ability to be represented. The firm practises from Sydney. Further guides on protection and partner visas are published in the migration law blog. More about the firm and how it works is on the about page and on the profile of Weiwei Zhang, and the broader protection practice is described on the protection visa lawyers page.

To have an Indonesian domestic violence protection claim assessed, request a consultation. For any other enquiry, contact My Migration Lawyers.