Key Takeaways
- A person with an intellectual disability and mental health conditions can be a member of a particular social group in Indonesia for the purposes of the refugee criterion in section 36(2)(a) of the Migration Act 1958.
- In 2119786 (Refugee) [2025] ARTA 1834, decided on 21 August 2025, the Administrative Review Tribunal set aside a protection visa refusal and remitted the application with the direction that the applicant meets section 36(2)(a).
- The applicant had never suffered harm in Indonesia and did not claim that she had. Past harm is not an element of section 5J, which asks whether there is a real chance of persecution on return.
- The serious harm accepted was stigma, discrimination, verbal harassment and isolation, deprivation of the capacity to subsist through denial of accommodation, healthcare and basic services, and a real chance of institutional placement and ill treatment including the practice of pasung.
- The Tribunal was not satisfied effective protection measures were available under sections 5J(2) and 5LA, because the harm would occur in institutionalised settings and stems in part from the government's failure to provide adequate facilities and treatment.
- The applicant could not be expected to modify her behaviour under section 5J(3), because that would require concealing an innate or immutable characteristic.
- The Tribunal applied the vulnerable persons guidelines and took oral evidence from the applicant's brother and sister rather than requiring her to give a conventional account.
What did the Tribunal decide in 2119786 [2025] ARTA 1834?
A person with an intellectual disability and mental health conditions can be a member of a particular social group in Indonesia for the purposes of the refugee criterion in section 36(2)(a) of the Migration Act 1958. In 2119786 (Refugee) [2025] ARTA 1834, decided on 21 August 2025 at Sydney, the Administrative Review Tribunal set aside a decision refusing a protection visa and remitted the application for reconsideration with the direction that the applicant meets section 36(2)(a).
The applicant was an Indonesian citizen who had applied for a protection visa on 13 July 2017. A delegate of the Minister refused the visa on 8 December 2021 under section 65 of the Act. The application for review was lodged on 22 December 2021 and the hearing took place on 20 August 2025.
The decision is worth reading closely for three reasons. The applicant had never suffered any harm in Indonesia and did not claim that she had. She had not been in the country for decades. And she was not in a position to give her own evidence in the ordinary way. None of those things defeated the claim.
Who was the applicant in this case?
The applicant was an Indonesian national from West Jakarta who arrived in Australia in March 1996 and had never departed since. Her entire immediate family are Australian citizens who reside in Australia. She had never held paid employment in either Indonesia or Australia and had always relied on her family for support.
The protection visa application was completed by her mother on her behalf. The claims put to the Department were that she has an intellectual disability of a permanent nature, that there is no infrastructure for her in Indonesia, that she requires support and resides with her mother and brother in Australia, that she cannot look after herself independently, that she requires constant supervision and her movements must be monitored in case she leaves the family home, and that withdrawal of the significant daily care she requires would lead to a rapid decline in health.
By the time of the hearing the medical picture was detailed. The Tribunal accepted, on the medical evidence, that the applicant is affected by type 2 diabetes, moderate intellectual disability, epilepsy and chronic depression, and that she experiences frequent sleep delays and disturbance. It accepted she takes a number of medications to manage those conditions.
Why did the delegate refuse the protection visa?
The delegate accepted that the applicant has a mild intellectual disability but was not satisfied that she would be targeted or persecuted for one or more of the reasons in section 5J(1)(a) of the Act on returning to Indonesia. On complementary protection, the delegate considered that despite a level of discrimination there would be adequate resources for the applicant's conditions in Indonesia, and was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Indonesia, there was a real risk she would suffer significant harm.
That is a common shape of refusal and it is worth naming. The delegate did not reject the disability. The delegate accepted it and then found that the consequences of it in Indonesia did not reach the threshold. A refusal of that kind is not answered by proving the diagnosis again. It is answered by country information about what happens to people with that condition in that country, and by evidence about what support will and will not exist on return. If your protection visa has been refused on reasoning like this, our page on protection visa refusals sets out the review pathway, and our guide to what happens at Administrative Review Tribunal review explains how the hearing differs from the Department's process.
The applicant was also never interviewed by the Department. The delegate invited her to a hearing scheduled for 6 July 2021 and her representative responded that, given her severe intellectual disability as particularised in the submission and psychologist reports in support, she would be unable to participate in an interview. Our page on the protection visa interview explains what that stage normally involves and why it usually matters so much. The Department then asked for further information, including a current medical examination report from a suitably qualified medical professional and explanations of the current care arrangements, and medical and psychologist reports were provided in October 2021.
What is the refugee criterion in section 36(2)(a)?
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The criteria for the visa are set out in section 36 of the Act and in Schedule 2 to the Migration Regulations 1994, and our overview of applying for a protection visa in Australia covers how the application itself is made. An applicant must meet one of the alternative criteria in section 36(2)(a), (aa), (b) or (c).
A person is a refugee under section 5H(1)(a) if, having a nationality, they are outside their country of nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of that country's protection. Section 5H(1)(b) covers a person without a nationality by reference to the country of former habitual residence.
If the refugee criterion is not met, the complementary protection criterion in section 36(2)(aa) asks whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk the person will suffer significant harm, which is defined exhaustively in section 36(2A). The complementary protection test runs separately from the refugee test. In this case it was not reached.
What does section 5J require before a fear is well founded?
Section 5J(1) has three elements. The person must fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that, if returned, the person would be persecuted for one or more of those reasons. And the real chance must relate to all areas of the receiving country.
Section 5J(2) removes a well-founded fear where effective protection measures are available, with section 5LA defining what effective protection means. Section 5J(3) removes it where the person could take reasonable steps to modify their behaviour, but not where that would conflict with a characteristic fundamental to identity or conscience or conceal an innate or immutable characteristic. Section 5J(4) requires that the relevant reason be the essential and significant reason for the persecution, that the persecution involve serious harm, and that it involve systematic and discriminatory conduct.
Section 5J(5) lists instances of serious harm, including significant physical harassment, significant physical ill treatment, significant economic hardship that threatens the person's capacity to subsist, denial of access to basic services where the denial threatens the capacity to subsist, and denial of capacity to earn a livelihood of any kind where the denial threatens the capacity to subsist.
What is a particular social group under section 5L?
Section 5L treats a person as a member of a particular social group, other than the person's family, where a characteristic is shared by each member of the group, the person shares or is perceived to share it, and any of three things applies: the characteristic is innate or immutable, it is so fundamental to a member's identity or conscience that the member should not be forced to renounce it, or it distinguishes the group from society. Section 5L(d) adds the limit that the characteristic cannot be a fear of persecution.
Disability fits that structure directly. An intellectual disability is innate or immutable in the ordinary sense, it is shared by every member of the group, and it exists independently of any fear of harm, so section 5L(d) is not engaged. Other recognised bases for a protection claim include sexual orientation and gender identity, dealt with on our LGBTI protection visa page, and religious persecution, including conversion or leaving a faith. That is why this category of claim is structurally simpler than many others. The harder work is everywhere else in section 5J.
How does the Tribunal handle an applicant who cannot give evidence in the usual way?
The Tribunal takes evidence from the people who can give it. Throughout these proceedings the Tribunal had regard to the Guidelines on Vulnerable Persons issued in the migration and refugee jurisdiction, and to the guidance note published by the United Nations High Commissioner for Refugees on the psychologically vulnerable applicant in the protection visa assessment process.
Given its knowledge of the applicant's health conditions and intellectual ability, the Tribunal considered it appropriate to take evidence from the applicant's close family and invited them to comment on specific matters on her behalf. Her brother and her sister both gave oral evidence. The applicant herself appeared before the Tribunal on 20 August 2025 to give evidence and present arguments, and the hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. Having considered the detailed written and oral evidence from the brother and sister, the Tribunal did not consider it necessary to take evidence from the applicant's mother.
The practical point for anyone in this position is that an inability to give a conventional account is a reason to build the evidence differently, not a reason to assume the claim cannot be run.
Why did the Tribunal accept people with an intellectual disability as a particular social group in Indonesia?
The Tribunal accepted that the applicant is a member of a particular social group being a person with an intellectual disability and mental health conditions, and that this particular social group exists in Indonesia. It found she has an innate or immutable characteristic shared by members of the group which is not the fear of persecution, as required by section 5L.
That is the whole of the reasoning on the group, and it is short because the statutory test is satisfied on its face. The contest in a disability claim is almost never whether the group exists. It is whether the treatment the person will receive amounts to serious harm, whether the disability is the essential and significant reason for it, and whether the state can protect them. Each of those was decided in the applicant's favour on the country information and the medical evidence.
What country information did the Tribunal rely on?
The Tribunal relied on the Department of Foreign Affairs and Trade Country Information Report on Indonesia together with further published material on mental health care and the practice of pasung.
On disability, the DFAT material records that people living with mental illness, cognitive disability, or those who are neurodiverse do not receive the same standard of care as they generally would in Australia. Stigma against people with autism, for example, is high, and the concept might be dismissed as fabricated or a result of poor parenting. Ostracism from families, schools or communities is possible. There is a lack of professionals with expertise in the area, but some facilities for children exist in big cities. DFAT states that the level of risk for people with disabilities depends on the nature of the disability and an individual's needs, and that it is impossible to give an overall assessment.
On mental health, the report records that mental health, including depression and anxiety, is poorly understood, and not widely accepted by most health providers and the general public. Services are limited or unavailable in most places, and access is affected by stigma, both from society and individual social and family groups. Admitting that a member of one's family is living with mental illness can bring shame on the whole family and so is often not admitted, much less treated. Dedicated mental health facilities exist, more commonly in urban areas, and care is usually covered under the national insurance scheme, but the mental health workforce and medical supplies can be limited, particularly in rural areas. The Tribunal also had reference to country information indicating that the capacity of Indonesia's psychiatric hospitals and psychiatric wards in general hospitals is much lower than the demand, that Indonesia faces tremendous challenges in the field of mental health, and that there is a severe shortage of mental health personnel as well as treatment and care facilities.
What is pasung and why did it matter to this decision?
Pasung is the practice of binding or shackling a person with a mental health condition, and it was central to the Tribunal's finding of serious harm. It had been specifically claimed that the applicant would be subject to the practice, and that it is prominent particularly in the context of mental health facilities and psychiatric institutions.
The country information the Tribunal set out records that many people with mental illnesses remain isolated, chained, and inside cages, called pasung in Indonesia, and that despite numerous policies introduced to eradicate pasung, Indonesia has made slow progress in decreasing this practice. Seclusion and restraint are also widespread in community settings in Indonesia where it is known as pasung, and it is frequently used, prompting significant human rights concerns. Pasung is described as a long-standing custom in West Java and Indonesia more broadly, and has traditionally involved a person who is agitated or considered at high risk of doing harm, either to themself or others, being shackled using a wooden log. The majority of people with mental health issues in Indonesia are hidden by their families and not exposed to public view, because mental illness is highly stigmatised and viewed as a shameful affliction in Indonesian culture and society.
The DFAT material also records that pasung may occur at a family home or at an institution, such as a healthcare or religious facility, that it may occur because of a lack of other treatment options, or because people with disability are seen as an economic burden, and that it may be perceived to be safer to lock a person with a mental illness away where no realistic treatment options are available and economic capacity to care for family members is limited. The Tribunal noted the Indonesian government has attempted to take measures to address pasung, including through a free pasung program, and that the national health research body claims the number of people with serious mental illness subjected to pasung decreased somewhat before 2023. It also noted that researchers have expressed doubts about the effectiveness of these programs, because the statistics do not account for increases in Indonesia's population and because of the lack of evidence to support them.
What did the family evidence establish?
The family evidence established the two things country information alone cannot: what care the applicant actually needs, and that nobody in Indonesia can provide it.
Her brother gave evidence that the applicant lives with him, that their mother is her primary caregiver and that he supports her financially entirely. He confirmed there are no formal guardianship orders in place, but that he, his sister and their mother jointly make legal decisions on her behalf. He gave evidence that she takes a number of medications for her various health conditions and sees a general practitioner every three months for blood tests and a check-up, and that a psychologist is seen when her condition is worsening rather than regularly.
He confirmed the applicant has never held paid employment in either Indonesia or Australia and has relied on her family to support her. Asked how she would support herself in Indonesia, he said he was worried because due to her conditions no one would employ her and there was no work she could do, as she is unable to think or communicate, interact with others, or follow basic instructions. He said she would not be able to survive in Indonesia and needs someone to guide her and be with her so she can survive.
On future harm, he gave evidence that people would look down on her in Indonesia, that she would not be respected due to her condition, that people will make fun of her, and that people will not see her as a human being because they will be thinking of her as useless or hopeless and will ignore her. He expressed concern that she would receive abuse in the form of people making fun of her or physical abuse, and that this could exacerbate her depression. He confirmed the family have limited relatives remaining in Indonesia, including two of his mother's brothers who are in their early or late seventies and face their own health problems, and said there are no relatives in Indonesia who would be able to provide the support required by his sister.
Her sister gave evidence that it is tough for people like her sister in Indonesia, that they are locked away, and that this will exacerbate the applicant's depression and medical conditions. She reiterated that there are no family members who could look after her sister in Indonesia, as in Australia the entire family is providing support, and gave evidence that the applicant's condition has worsened over time and that she is visibly mentally ill, giving examples of the applicant banging her head or hitting her face when she is frustrated, which occurs many times every day.
What updated evidence did the Tribunal order?
The Tribunal made its own order for current medical evidence before the hearing. On 25 July 2025 it issued an order directing the applicant to provide updated medical reports obtained from a qualified healthcare professional in relation to her current diagnoses and health conditions, an updated report from a clinical psychologist or psychiatrist relating to her current mental health conditions and intellectual disability, updated information in relation to her current circumstances, copies of the country information to be relied on in support of the claims, and any additional supporting evidence.
In response, a registered psychologist's report, statutory declarations from family members and letters from two general practitioners were provided, all dated within weeks of the hearing. The medical evidence in a disability claim goes stale. A report from four or eight years earlier describes a person who no longer exists in the eyes of a decision maker, and the Tribunal in this case would not decide the matter without current material.
What counted as serious harm in this case?
The Tribunal accepted that the applicant faces a real chance of serious harm in the form of stigma, discrimination and isolation from Indonesian society. Having considered her particular vulnerabilities and mental health conditions, it accepted that any stigma, discrimination, including verbal harassment, or isolation she would experience would amount to serious harm as contemplated by section 5J(4).
It also accepted there is a real chance she would be deprived of the capacity to subsist, in the form of being prevented from accessing appropriate accommodation, healthcare and basic services, due to her visible intellectual disability and mental health conditions. And it accepted there is a real chance she would be placed in a mental health institution in the foreseeable future and subject to ill treatment, including the practice of pasung, which would constitute significant physical ill treatment and harassment amounting to serious harm.
Those findings rested on earlier findings about her situation on return. The Tribunal accepted there is a real chance she would be perceived by the community as being intellectually disabled and as a person with cognitive impairment and mental health issues. It accepted she would face stigma, ostracism and isolation from general society, that intellectual disabilities and mental health issues are still poorly understood by the community at large, that individuals face a high level of stigma and discrimination, and that there is a real chance this would result in her not being treated as a respected member of society, being ostracised, and subject to verbal harassment including being mocked or humiliated.
Although two of her mother's brothers reside in Indonesia, the Tribunal was not able to be satisfied there would be supportive family or friends willing and able to provide the assistance, supervision, care and structure she would require, given the evidence that both are elderly and experiencing their own health issues and cannot provide care. It considered that on return she would be without any accommodation or employment, that due to the stigma associated with intellectual disability and mental health conditions it is highly unlikely she would be able to obtain appropriate housing, and that she would not be able to obtain, and remain in, any kind of employment. It was satisfied the country information establishes a real chance that her intellectual disability and mental health issues will lead to destitution and homelessness, or that she would be placed in a mental health institution, and it accepted there is persistent ill treatment of patients in mental health institutions in Indonesia, including the continued practice of pasung.
Does an applicant need to have been harmed in the past?
No. The applicant did not claim to have experienced past harm in Indonesia on the basis of her intellectual disability and mental health conditions, and the Tribunal accepted this to be the case. It noted she was in the care of her family members and her late grandmother before she came to Australia.
That did not weaken the claim, because section 5J is forward looking. The question is whether there is a real chance of persecution if the person is returned, not whether persecution has already happened. Past harm is evidence, often powerful evidence, but it is not an element. A claim built entirely on what will happen, supported by country information and evidence about the person's circumstances on return, is a complete claim.
Why was the disability the essential and significant reason for the harm?
The Tribunal considered that the essential and significant reason for the serious harm feared by the applicant is her membership of a particular social group, being persons with an intellectual disability and mental health conditions, and that the harm would occur intentionally and selectively, and would involve systematic and discriminatory conduct.
That finding matters because section 5J(4) requires all three things. A general risk faced by the population at large is not persecution for a Convention reason. Harm that is directed at a person because of the very characteristic that defines the group, in this case visible intellectual disability, satisfies the causal requirement.
Why were there no effective protection measures under sections 5J(2) and 5LA?
The Tribunal was not satisfied on the evidence that the applicant would have access to effective protection from the Indonesian authorities, or any other organisation, because the harm feared would occur in institutionalised settings and is in part due to the government's failure to provide adequate facilities and treatment for persons affected by disabilities or mental health conditions.
It further noted that the nature of the harm feared includes discrimination, isolation, stigma and ostracism from society, which stems from accepted cultural attitudes as set out in the country information. In those circumstances the Tribunal was not satisfied there are effective protection measures available to the applicant from the Indonesian authorities, or any other party or organisation.
This is the point at which many disability claims are won or lost. Where the harm is inflicted in state or institutional settings, or flows from social attitudes the state has not changed, the state is not a source of protection from it.
Could the applicant modify her behaviour to avoid the harm?
No. The Tribunal found the applicant is not able to take reasonable steps to modify her behaviour so as to avoid a real chance of persecution, because this would require her to conceal an innate or immutable characteristic and would be contrary to the provisions in section 5J(3).
A visible intellectual disability cannot be hidden, and section 5J(3) does not require anyone to try. The Tribunal also accepted the real chance of persecution relates to all areas of Indonesia, as required by section 5J(1)(c), so relocation within the country was not an answer either. It followed that the applicant meets both the subjective requirement in section 5J(1)(a) and the objective requirement in section 5J(1)(b), that she fears persecution for the reason of her membership of a particular social group, and that there is a real chance she would face persecution for that reason if returned.
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What does the remittal actually mean for the applicant?
A remittal is not a grant. The Tribunal set aside the decision under review and remitted the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act.
What the direction settles is the refugee criterion. The Department must reconsider the application on the basis that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). What it does not settle is the rest of the visa. The remaining criteria for a Subclass 866 Protection visa, including identity, health, character and the public interest criteria, are assessed by the Department, and so is section 501 of the Act.
The Tribunal also found there was no indication before it that the applicant has a right to enter and reside in any third country, and accordingly found she has no such right for the purposes of section 36(3). Because the refugee criterion was met, the complementary protection criterion in section 36(2)(aa) was not considered. Our Subclass 866 Protection visa page sets out the full criteria, and the complete guide to the Subclass 866 Protection visa walks through the process from lodgement.
What this decision does not decide
This decision does not establish that every Indonesian with a disability qualifies for a protection visa. Tribunal decisions are made on the facts and evidence of the individual application and are not binding on other decision makers. The DFAT material itself says the level of risk for people with disabilities depends on the nature of the disability and an individual's needs, and that it is impossible to give an overall assessment.
The findings here turned on a specific combination. The disability is moderate and visible. The applicant cannot function independently, cannot communicate or follow basic instructions, and requires constant supervision. There is no one in Indonesia able to care for her, the only relatives there being elderly and unwell. She has no accommodation, no employment history and no prospect of employment. And there was current, detailed medical evidence and consistent family evidence covering all of it. A person with a mild, non visible condition, a supportive family in Indonesia and the capacity to work is in a materially different position, and the country information would be read differently in that case.
Why did this case take from 2017 to 2025?
The chronology is a fair warning about timing. The application was lodged in July 2017. The delegate invited the applicant to an interview in June 2021, sought further information in August 2021, received medical and psychologist reports in October 2021, and refused the visa in December 2021. The review was lodged that same month, in December 2021. The Tribunal ordered updated medical evidence in July 2025, heard the matter in August 2025 and decided it in August 2025.
That is roughly eight years from lodgement to decision, four of them at review. Two practical consequences follow. The first is that the evidence has to be refreshed, which is exactly what the Tribunal's own order required. The second is that a person's circumstances can change substantially during the wait, and those changes are part of the claim, because the question is what the person faces on return now.
Separately, the applicant had been in Australia since March 1996 and applied for protection in 2017. A long gap between arrival and application is something a decision maker can ask about, and it is better answered than ignored. Our note on whether delaying a Subclass 866 Protection visa application affects your claim deals with the point directly. In this case the delay did not defeat the claim, because the risk on return was made out on current evidence.
What evidence does a disability based protection claim need?
It needs current clinical evidence, evidence about care, and country information that connects the two. The material before the Tribunal in this matter shows the shape of it.
Current clinical reports. A registered psychologist's report prepared weeks before the hearing, and letters from two general practitioners of similar date. The psychologist's report confirmed the diagnosis of moderate intellectual disability, consistent with difficulties in most areas including communication, daily living and socialisation, and recorded that the applicant needs support and assistance to access the community, including to ensure road safety and to address risks of stranger danger. It recorded behaviours of concern including excessive crying and emotional outbursts when she is frustrated or upset, and self-harm behaviours, and that during such escalations she needs her family's support to redirect and calm her.
Evidence about who provides care and what happens without it. Statutory declarations and oral evidence from family members covering the living arrangements, who the primary caregiver is, who provides financial support, whether guardianship arrangements are formal or informal, what medical appointments occur and how often, and what daily care looks like.
Evidence about the receiving country, applied to this person. Not a general submission that conditions are poor, but country information about how people with this condition are treated, matched to evidence that the specific supports that might mitigate the risk, family, housing, income, treatment, are unavailable to this applicant.
Evidence of the absence of support in the home country. Here, that two elderly relatives with their own health problems are the only family left in Indonesia, and that they cannot provide care.
What does this decision mean for Indonesian nationals in Australia?
It means a protection claim can succeed on disability and mental health grounds where the country information and the personal circumstances line up, and that a delegate accepting the condition is not the same as the claim failing.
Indonesian claims are decided on the Department of Foreign Affairs and Trade Country Information Report on Indonesia and on the applicant's own circumstances. The same report that helped this applicant contains the passages that will defeat others, including that some facilities exist in big cities, that care is usually covered under the national insurance scheme, and that the level of risk depends on the individual. An Indonesian applicant who cannot deal with those passages will struggle. The way the claim is prepared decides the outcome far more often than the category of claim does, which is also the pattern in other Indonesian matters, including the student claims and claims lodged by people who arrived on visitor visas.
If a protection visa is refused, the review pathway runs to the Administrative Review Tribunal, and the Administrative Review Tribunal guide for Subclass 866 Protection visa refusals explains how review works. Review rights for other visa types are set out on our visa refusals page. Where the Tribunal affirms a refusal, the next step is not a further merits review but judicial review in the Federal Circuit and Family Court, which is limited to jurisdictional error. The deadline at each stage is short and strictly applied.
What are the practical lessons from 2119786 [2025] ARTA 1834?
Four things carried this claim, and none of them was the diagnosis on its own.
Current medical evidence, obtained close to the hearing and addressing function rather than only diagnosis. What the applicant can and cannot do day to day is what a decision maker uses to assess risk on return.
Family evidence, given by people who could describe the care actually provided and the absence of anyone in Indonesia able to provide it. Two witnesses gave consistent accounts of the same facts from different angles.
Country information used precisely, on disability, on mental health services, and on pasung, rather than a general assertion that conditions are difficult.
And the correct legal framing, so that the group satisfied section 5L, the treatment satisfied section 5J(4), the state could not protect under sections 5J(2) and 5LA, and section 5J(3) offered no answer because the characteristic cannot be concealed.
The other lesson is procedural. An applicant who cannot give evidence in the ordinary way is not shut out. The vulnerable applicant guidelines exist for exactly this situation, and the Tribunal used them to take evidence from the people who could give it.
How does My Migration Lawyers work on protection visa reviews at the Administrative Review Tribunal?
My Migration Lawyers acts for people in protection visa matters and appears at the Administrative Review Tribunal regularly. Protection visa reviews are a standing part of the firm's practice, and the firm carries a substantial number of Administrative Review Tribunal protection matters at any given time, across a range of nationalities and claim types, including Indonesian matters.
On a claim of this kind, the work is specific. We read the delegate's decision to separate what was accepted from what was rejected, because the two require entirely different responses. We frame the particular social group so that it satisfies section 5L. We commission or update the clinical evidence so that it is current at the hearing and addresses daily function, care needs and what happens if that care is withdrawn. We identify the family members who can give evidence and prepare them to address the specific gaps, rather than to give a character reference. We go to the current country information for the relevant country and work out what it says both for and against the claim, because the passages that cut against you are the ones the Tribunal will put to you at the hearing. And we make the request for procedural adjustments early where an applicant is vulnerable.
If your protection visa has been refused, or you are caring for a family member whose claim depends on evidence they cannot give themselves, we can advise you on where you stand. You can request a consultation with a migration lawyer using the online form, or contact My Migration Lawyers and a lawyer will reply by email. Consultations are held by video, Australia wide from our Sydney practice, and our protection visa lawyers page sets out how we work on these matters. Principal Lawyer Weiwei Zhang leads the firm's protection work, and further case notes and guides are published on the My Migration Lawyers blog.
Frequently Asked Questions
Can an Indonesian with a disability apply for a protection visa in Australia?
Yes. An Indonesian national already in Australia can apply for a Subclass 866 Protection visa, and disability can form the basis of the claim. In 2119786 [2025] ARTA 1834 the Tribunal accepted that a person with an intellectual disability and mental health conditions is a member of a particular social group that exists in Indonesia, and that she faced a real chance of serious harm on return. The question is never the diagnosis on its own. It is what happens to a person with that condition in Indonesia.
Is intellectual disability a particular social group for an Australian protection visa?
It can be. Section 5L of the Migration Act 1958 asks whether a characteristic is shared by each member of the group and is innate or immutable, so fundamental to identity that it should not have to be renounced, or distinguishing from society, and whether it is something other than the fear of persecution. An intellectual disability meets that structure directly. In 2119786 [2025] ARTA 1834 the Tribunal accepted the group without difficulty. The contest in these claims is about harm, causation and state protection.
What is pasung and does it support an Indonesian protection claim?
Pasung is the Indonesian practice of binding or shackling a person with a mental health condition, including confining them in a family home or an institution. In 2119786 [2025] ARTA 1834 the Tribunal accepted country information that many people with mental illness remain isolated, chained and inside cages, that progress in eradicating the practice has been slow, and that seclusion and restraint are widespread in community settings. It accepted a real chance the applicant would be placed in an institution and subjected to it, amounting to serious harm.
Can I apply for protection if I was never harmed in Indonesia?
Yes. Past harm is not a requirement. The test in section 5J is forward looking and asks whether there is a real chance of persecution if you return. In 2119786 [2025] ARTA 1834 the applicant did not claim any past harm in Indonesia and the Tribunal accepted that to be the case, because she had been cared for by her family before she came to Australia. The claim succeeded on what she would face on return, proved through country information and evidence about her circumstances.
I have lived in Australia for decades. Can I still claim protection from Indonesia?
Yes. A long absence does not by itself defeat a claim. The applicant in 2119786 [2025] ARTA 1834 arrived in Australia in March 1996 and had never departed, and her entire immediate family are Australian citizens living here. What matters is the risk on return now, assessed on current country information and your current circumstances. A long gap between arriving and applying is something a decision maker may ask about, so it is better addressed directly in the application than left to be raised later.
Can a family member give evidence for me at the Tribunal if I cannot?
Yes. Where an applicant is vulnerable, the Tribunal can take evidence from the people who are able to give it. In 2119786 [2025] ARTA 1834 the Tribunal applied the vulnerable persons guidelines for the migration and refugee jurisdiction and the UNHCR guidance note on psychologically vulnerable applicants, and took oral evidence from the applicant's brother and sister, inviting them to comment on specific matters on her behalf. Ask for procedural adjustments early, with medical evidence explaining why they are needed.
What medical evidence does an Indonesian disability protection claim need?
It needs to be current and it needs to address function, not just diagnosis. In 2119786 [2025] ARTA 1834 the Tribunal issued its own order for updated reports and received a registered psychologist's report and letters from two general practitioners, all dated within weeks of the hearing. The psychologist addressed what the applicant can and cannot do day to day, the support she needs in the community, and her behaviours of concern. Reports that are several years old describe a person the decision maker cannot assess.
Can I have an interpreter in Bahasa Indonesia at my Tribunal hearing?
Yes. Hearings are conducted with an interpreter where one is needed. In 2119786 [2025] ARTA 1834 the applicant appeared before the Tribunal in Sydney and the hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. Ask for the interpreter when you lodge the review application rather than on the day of the hearing, and tell the Tribunal which language and dialect you need so the right interpreter is booked.
The Department accepted my condition but refused my protection visa anyway. Is that the end?
No. A delegate can accept a medical condition and still refuse the visa, because the refusal turns on what happens to you in the receiving country rather than on the diagnosis. That is what occurred in 2119786 [2025] ARTA 1834, where the delegate accepted the applicant has an intellectual disability but was not satisfied she would be persecuted for it. The Tribunal reached the opposite conclusion on country information and family evidence. A refusal of that shape is answered with new evidence, not by proving the diagnosis again.
What happens if my protection visa is refused?
A refusal is not the end. Protection visa refusals generally carry a right to apply to the Administrative Review Tribunal for merits review, which is a fresh hearing where you can give evidence the Department never had. The deadline for applying is short and strictly applied, so the date matters more than the arguments at that point. If the Tribunal affirms the refusal, the next step is judicial review in the Federal Circuit and Family Court, which is limited to jurisdictional error.

























