Immigration Lawyers for Protection Visa 866: Indonesian Nationals

When does an Indonesian national need an immigration lawyer for a Subclass 866 application?

An Indonesian national applying for a Subclass 866 protection visa needs an immigration lawyer where something in their immigration history, their documents or the nature of their claim creates a difficulty the Department will raise against the application.

Not every applicant is in that position. Some Indonesian nationals hold a current substantive visa, have never left Australia since arriving, have documents whose origin they can account for, and have a claim that falls squarely within one of the categories the Department's country information on Indonesia already recognises. An applicant in that position has fewer complications to manage.

Most applicants are not in that position, and the difficulties are usually identifiable at the outset. They include a visa that has ceased, a visa that has been cancelled, an earlier visa application that recorded a different reason for coming to Australia, return travel to Indonesia after the events relied upon, documents obtained through an intermediary, a claim arising from circumstances that developed after arrival, or an application already refused.

Each of those matters changes how the application must be prepared. This article identifies the situations in which representation makes a material difference and explains what is done differently in each. The broader question of what a protection visa lawyer does across the course of a matter is addressed separately on our protection visa lawyers page.

What changes when the applicant's visa has already ceased?

Where the applicant's substantive visa has ceased and they have become an unlawful non-citizen, the matter becomes urgent and the sequence of work changes.

The application itself remains available. Becoming unlawful does not prevent a protection visa application, and neither does the section 48 bar, which applies where a visa has been refused or cancelled since last entry but does not extend to protection visas. What changes is the applicant's exposure while the application is prepared.

An applicant who lodges while unlawful is granted a different bridging visa, on different terms, from one who lodges while still holding a substantive visa. The difference affects the applicant's position for the whole of the processing period, and it cannot be corrected afterwards. Where a substantive visa is about to cease, the decision about when to lodge is therefore a legal decision, not an administrative one, and it must be made with the claim assessed at least in outline.

The second consequence is that an unlawful non-citizen is liable to detention and removal. In practice that means the preparation of the statement of claims cannot proceed at the pace it otherwise would. A lawyer will ordinarily lodge on the material available and supplement the statement afterwards, rather than hold a complete application while the applicant remains without status.

What changes when a visa has been cancelled?

Where a visa has been cancelled, the cancellation decision itself becomes part of the protection matter, and it has to be read before the claim is prepared.

The reason is that the findings made in the cancellation decision are on the applicant's departmental record and will be available to the delegate deciding the protection application. Where a visa was cancelled on the basis of incorrect information, or on the basis of a finding that the applicant did not intend to comply with its conditions, that finding will bear on the assessment of the applicant's credibility in the protection application.

A lawyer therefore obtains the cancellation decision, identifies precisely what was found, and addresses it in the protection submission rather than leaving it to be raised at interview. Where the cancellation itself remains open to review, the interaction between the two matters has to be managed, because steps taken in one affect the other. The general position on cancellation is set out on our visa cancellations page.

What changes when an earlier visa application gave a different reason for coming to Australia?

This is among the most common difficulties in the Indonesian caseload, and it is one that applicants frequently do not recognise as a difficulty at all.

An applicant who was granted a visitor visa stated a purpose of travel. An applicant who was granted a student visa satisfied the Department that they intended to study and would comply with the conditions of that visa. Where a protection application is then made on the basis that the applicant left Indonesia because they feared harm, the two accounts are in tension, and the Department holds both.

The tension is usually explicable. An applicant who feared harm may nonetheless have applied for a student visa because it was the only visa realistically available to them, or may not have understood that protection could be sought in Australia, or may have hoped the situation in Indonesia would improve. Each of those explanations is capable of being accepted. What is not capable of being accepted is an account that ignores the earlier application entirely and is then confronted with it at interview.

A lawyer obtains the applicant's departmental records, establishes what was said in the earlier application and by whom, and addresses the difference in the statement of claims, in the applicant's own explanation, before the Department raises it.

What changes when the applicant has returned to Indonesia since arriving in Australia?

Return travel to the country in which the applicant claims to fear harm is a matter the Department will raise, and it requires a direct answer.

Applicants return for reasons that are entirely ordinary: the death or illness of a parent, the birth of a child, a family obligation that could not be avoided. Those reasons are capable of being accepted, and the fact of return does not of itself defeat a claim. The Department's assessment is directed at whether the conduct is consistent with the fear asserted, which depends on where the applicant went, how long they stayed, what precautions they took, and whether the risk they fear was present in that place at that time.

What a lawyer does differently is deal with it in the statement rather than in response to a question. The applicant's account of the trip, the precautions taken and the circumstances that made it necessary are set out in the applicant's own words, supported by whatever evidence exists, such as the death certificate or medical records that explain the reason for travel. Left unaddressed, the same facts are presented to the applicant at interview as an inconsistency.

What changes when an earlier application was prepared by someone else?

Where an earlier visa application, of any kind, was prepared by another person, a lawyer will want to know who prepared it, what was said in it, and whether the applicant read it before it was lodged.

The reason is that the applicant is answerable for what was lodged in their name, whether or not they read it, and whether or not the person who prepared it was permitted to provide immigration assistance. Where an earlier application contained information the applicant cannot account for, that becomes a matter for sections 91W and 91WA of the Migration Act 1958, which permit an adverse inference and may provide a basis for refusal where a bogus document has been provided without a reasonable explanation.

The Department's country information on Indonesia records an established migration industry of intermediaries, including persons who supply false identity documents, English language test results and financial documents. An applicant who dealt with such a person may not know what was submitted on their behalf. A lawyer obtains the departmental file so that the applicant knows what is on their record before the protection application is prepared, and so that anything requiring explanation is explained at the outset rather than discovered by the Department later.

What is done differently in a claim based on sexual orientation or gender identity?

Claims of this kind turn on two matters that are rarely addressed adequately without advice: the characterisation of concealment, and the evidence available to an applicant whose life in Indonesia was deliberately unrecorded.

On the first, section 5J(3) of the Migration Act 1958 provides that a person cannot be required to modify their behaviour by concealing their sexual orientation, gender identity or intersex status in order to avoid persecution. The Department's country information on Indonesia records that most LGBTI Indonesians conceal their identity, that use of dating applications is hidden and commonly routed through virtual private networks, and that family rejection carries a high risk of poverty and of forced or sham marriage. An applicant who says they had no difficulties in Indonesia is frequently describing successful concealment. Characterised correctly in the statement, that evidence supports the claim. Left as it was said, it reads as evidence that the applicant was safe.

On the second, the evidence in these matters is different in kind from other claims. There are usually no police reports and no medical records, because nothing was reported. What exists is generally the applicant's own account, material generated in Australia, and evidence from people who knew the applicant's circumstances. Our page on LGBTI protection visas sets out the claim type, and the evidentiary question is dealt with specifically in our article on proving an LGBTI protection claim.

The country information also distinguishes sharply between locations. It assesses that LGBTI people in Aceh face a high risk of official and societal discrimination and violence, and expresses a different assessment for the country generally. Where the applicant is from Aceh, that distinction is central to the relocation question and must be addressed on the evidence rather than asserted.

What is done differently in a claim based on religion?

Religious claims from Indonesia require the specific legal and administrative framework to be identified, because a general description of intolerance will not establish the elements.

The Department's country information records that Indonesia recognises six official faiths, that a person's religion is registered and appears on their identity card, that the Criminal Code prohibits acts or words that insult one of the official religions, and that the Electronic Information and Transactions Law makes it an offence to disseminate blasphemous or heretical language. It records that sharia is applied in Aceh and, through customary law, in West Sumatra. It records that members of the Ahmadiyah community may not lawfully proselytise and may be charged with blasphemy, and that Shi'a Muslims in conservative Sunni areas face a moderate risk of societal discrimination.

Each of those is a distinct legal situation and each supports a different argument. A claim by a member of a minority community is not the same as a claim by a person who has converted, which is not the same as a claim by a person against whom a blasphemy allegation has been made. A lawyer identifies which of these the applicant's circumstances engage, and cites the country information at the grading at which it is expressed rather than overstating it.

Where the applicant converted after arriving in Australia, the claim engages the additional question dealt with below. Our page on religious persecution claims sets out how these are run.

What is done differently in a claim connected with the Papua provinces?

Claims connected with the Papua provinces raise questions of imputed political opinion and of the applicant's own profile, and both require care.

The Department's country information records a long-running armed conflict in the Papua provinces, that raising the Morning Star flag is unlawful, that activists have been charged with treason and imprisoned in connection with protests, and that arrests connected with Papuan secessionism have occurred outside the Papua provinces as well as within them. It also records that most allegations of extrajudicial killing relate to those provinces.

Two matters arise. The first is whether the applicant's own activity, or the activity of a family member, is capable of attracting adverse attention, and what evidence establishes it. The second is the relocation question, which in these claims is answered by the fact that arrests have occurred elsewhere in Indonesia rather than by any general proposition about mobility.

A separate assessment applies to ethnic Papuans who are not politically active, for whom the country information expresses a different and lower assessment outside the Papua highlands. Conflating the two positions weakens both.

What is done differently in a claim arising from family violence?

Claims of this kind turn almost entirely on the availability of protection from the Indonesian authorities and on the reasonableness of relocation, rather than on whether the violence occurred.

The Department's country information records that domestic violence is unlawful in Indonesia, that victims are frequently reluctant to report, that many women do not trust the police, that a woman would ordinarily need to report to a male officer, that the making of a report can result in a woman being ostracised from her family, home, employment or school, and that safe houses are not available in every part of the country. Those findings support the argument that protection is not accessible to a particular applicant, but they do not make the argument on their own.

What a lawyer does is apply those findings to the applicant's circumstances: where she lived, whether she reported and what followed, what family or community support exists or has been withdrawn, whether she has children and what that means for her ability to relocate, and what her economic position would be on return. Where a report was made, the report is obtained. Where no report was made, the reasons are stated in the applicant's own account rather than left to inference.

What is done differently where the risk arises from a criminal or judicial process?

Where the applicant's fear arises from a prosecution, a sentence or treatment in custody rather than from persecution for a Convention reason, the claim ordinarily engages the complementary protection criterion rather than the refugee criterion.

The Department's country information records that Indonesian law provides for the death penalty across a wide range of offences, including drug offences. It records allegations of torture, principally in police custody rather than in prisons, and records overcrowding and conditions in detention. Those matters bear on significant harm as the Act defines it.

The analysis is different from a refugee claim in two respects. There is no requirement to identify a Convention reason, which removes a difficulty. But the exclusions apply, and the risk must be one faced by the applicant personally rather than by the Indonesian population generally, which is a substantial hurdle where the complaint is about the criminal justice system as a whole. Our page on complementary protection explains where the criterion applies.

What is done differently where the fear arose after the applicant came to Australia?

Where the circumstances giving rise to the fear developed after arrival, the claim is available, but it attracts a specific statutory test that applicants are rarely aware of.

Circumstances of this kind arise regularly among Indonesian nationals in Australia. An applicant may have converted to another faith, may have begun living openly in a way that was not possible in Indonesia, may have become politically active, or may have been identified publicly through social media. Conditions in Indonesia may also have changed since departure.

Section 5J(6) of the Migration Act requires that conduct engaged in by the applicant in Australia be disregarded unless the applicant satisfies the Minister that the conduct was engaged in otherwise than for the purpose of strengthening the claim. The practical effect is that the applicant must be able to demonstrate the genuineness of the conduct and its chronology, which ordinarily means dated evidence, evidence from the organisation or community concerned, and an account that explains why the conduct began when it did.

This is also the situation in which timing does the most damage. Conduct beginning shortly after a visa refusal and shortly before a protection application invites the finding the provision is directed at. Where the conduct is genuine, the evidence establishing that has to be assembled deliberately, and it is significantly easier to assemble at the time than to reconstruct later.

What changes when family members are included in the application?

Where members of the same family unit are in Australia and are included in the application, their outcome is generally tied to that of the primary applicant. That has two consequences which have to be considered before lodgement rather than after a decision.

The first is that a refusal affects everyone included. Where more than one member of the family has a claim of their own, the question of who should be the primary applicant is a substantive decision, not an administrative one. It is answered by identifying which claim is best evidenced and which engages the criteria most directly, not by who ordinarily deals with official matters in the family.

The second is that an independent claim held by a spouse or an adult child can be obscured where it is presented only as part of the primary applicant's narrative. This occurs frequently where family members have different religions, different political histories, or where one member has a claim arising from their own circumstances. A lawyer identifies those claims separately and advises whether they are better advanced within the same application or in a separate one.

Where children are included, the best interests of any child affected by the decision is a relevant consideration. It is a matter to be raised and evidenced rather than assumed, and it requires material directed to the individual child.

What changes where identity documents are incomplete or were obtained through an intermediary?

Applicants who are Indonesian nationals receive close scrutiny on questions of identity, and the reason is recorded in the Department's own country information rather than in anything particular to the applicant.

That report records that genuine documents can be obtained fraudulently without great difficulty, that changes of name are not difficult to effect, that passports may be obtained under a new name, that biometric checks are not always undertaken, and that the integrity of the Kartu Tanda Penduduk is only as reliable as the documents presented to obtain it. It also records that a police clearance is not necessarily a reliable indication of a person's record, because police record keeping is decentralised and databases are not nationwide.

Sections 91W and 91WA of the Migration Act are the provisions that operate. Section 91W permits the Minister to require documentary evidence of identity, nationality or citizenship and permits an adverse inference where the applicant fails to comply or provides a bogus document without a reasonable explanation. Section 91WA provides a basis for refusal where a bogus document is provided or identity documentation is destroyed or disposed of, subject to a reasonable explanation.

What a lawyer does differently is establish provenance before anything is lodged, advise on what a reasonable explanation requires, and ensure the explanation is given in the applicant's own account at the outset. An applicant who has no documents at all is in a materially better position than one whose documents cannot be accounted for.

What changes where an application has already been refused?

Where a protection visa application has already been refused while the applicant is in Australia, the position changes fundamentally, and the first question is whether a review right remains.

The period for applying to the Administrative Review Tribunal is short, it is strictly applied, and the Tribunal has no power to extend it. It runs from the date the applicant is taken to have received the decision, not from the date the decision was read. Where that period has not expired, advice should be obtained immediately, because the bridging visa also ceases a short time after refusal and an application made within time preserves lawful status.

Where the period has expired, section 48A prevents a further protection visa application while the applicant remains in Australia. The bar is lifted only by the Minister personally under section 48B, which confers no right of application and is not a review mechanism.

Where review remains available, the work is different from a first application. The decision record is analysed to establish what was accepted, what was rejected and on what basis, and what country information the delegate relied upon. Evidence is directed at the findings actually made. A claim raised for the first time at hearing, having been absent from the material before the Department, invites a finding that it was recently invented, so the scope for introducing new claims is limited. Our page on protection visa refusals sets out the pathway, and our guide to Administrative Review Tribunal review of a Subclass 866 refusal explains how the Tribunal deals with the file.

What changes where circumstances change while the application is being processed?

An application is decided on the circumstances as they stand at the time of decision, not as they stood at lodgement, so material changes have to be put before the Department as they occur.

Changes that commonly arise among Indonesian applicants include a deterioration in the position of the applicant's family in Indonesia, a change in the applicant's own circumstances in Australia, the birth of a child, the breakdown of a relationship where a spouse was included in the application, and changes in conditions in Indonesia recorded in updated country information.

Each of those is dealt with by a supplementary statement or further submission, and each has to be assessed for its effect on the claim as already advanced. A change put before the Department inconsistently with what was lodged creates a difficulty rather than assisting.

The other matter arising in this period is travel. Departure from Australia does not end the application, but clause 866.411 of Schedule 2 to the Migration Regulations 1994 requires the applicant to be in Australia at the time of grant, and a bridging visa generally ceases on departure. Advice should be obtained before travel is arranged.

Which of these situations can be managed without a lawyer?

An applicant may lodge and conduct a protection visa application without a representative, and some do so successfully.

The situations in which the absence of representation matters least are those in which the applicant holds a current substantive visa, has not travelled to Indonesia since the events relied upon, has documents whose origin they can account for, gave a consistent account in any earlier visa application, has a claim falling within a category the country information already recognises, and is not including family members with independent claims.

The situations in which it matters most are the converse of each of those, together with any matter in which an application has already been refused, any matter in which a visa has been cancelled, and any matter in which the fear arose after arrival in Australia and section 5J(6) is engaged.

The consideration that applies across all of them is section 48A. Because a protection visa application cannot be repeated once refused, the cost of proceeding without advice is not a delay but the loss of the application. That is the reason the assessment is worth obtaining even where representation is not ultimately retained.

How does My Migration Lawyers take on Subclass 866 matters for Indonesian nationals?

The matter begins with a consultation at which the claim is assessed against both criteria, the applicant's status and any period already running are established, and the specific difficulties in the matter are identified and explained. Where the claim is not arguable, the applicant is told so at that stage, because of the operation of section 48A.

Where we are instructed, the applicant's departmental records are obtained so that the file is prepared with knowledge of what has previously been lodged in the applicant's name. The statement of claims is prepared with the applicant over several drafts, in the applicant's own terms, and is reviewed and corrected by the applicant before lodgement. The country information relevant to the claim is identified and cited, including the Department of Foreign Affairs and Trade report on Indonesia, and the passages that do not assist are addressed in the submission. The applicant is prepared for an interpreted interview. Where adverse information is put, we respond within the period allowed. Where an application is refused, we advise on review immediately.

Fees are fixed by stage and are set out in a written costs agreement before work commences. Consultations are conducted by video, so an applicant's location within Australia is not a limitation, and correspondence is conducted by email so that the advice given at each stage is recorded in writing.

Protection matters are conducted under Principal Lawyer Weiwei Zhang. How the firm works is set out on our about page, and the service on our protection visa lawyers page. The requirements of the visa itself are set out on our Subclass 866 page, and applicants holding student visas will find the status questions addressed in our article on Indonesian students and the Subclass 866 protection visa.

To have your circumstances assessed, request a consultation. If you would prefer to ask a question first, contact us and a lawyer will reply by email.