Indonesian Tourist Visa Holders: Protection Visa Australia

Can an Indonesian citizen on a tourist visa apply for a Subclass 866 Protection Visa?

Yes. An Indonesian citizen holding a valid Australian tourist visa can lodge a Subclass 866 Protection Visa application, and condition 8503 does not stop it. The tourist visa is the thing that makes you a lawful non-citizen in the migration zone, and being onshore and lawful is what the Subclass 866 requires. Nothing in the Migration Act 1958 treats an Indonesian passport holder differently from any other applicant at the point of lodgement. What changes the outcome is not your nationality and not the visa you arrived on. It is whether your individual circumstances meet the criteria in section 36 of the Act.

That distinction matters because most of the advice circulating in Indonesian communities in Sydney, Melbourne, Perth and Darwin is about the wrong thing. It is about whether you are allowed to apply. You almost certainly are. The real question, and the one this article is about, is what an Indonesian applicant actually has to prove, and why a large number of applications from Indonesian nationals fail on the same three or four points. If you are in Australia on a student visa rather than a visitor visa, the position differs in several respects and is set out in our article on Indonesian students and the Subclass 866 Protection Visa.

Which Australian visitor visa are you actually on, and why the stream matters

You are almost certainly on a Subclass 600 Visitor visa. Indonesian passport holders are not covered by the visa-free and near-automatic travel arrangements available to some other nationalities, so an Indonesian visitor to Australia applies for and is granted a Subclass 600. That visa has streams, and the stream you were granted in determines which conditions were attached to your visa.

Department of Home Affairs policy sets out that condition 8503 is imposed on a mandatory basis in the Subclass 600 Sponsored Family stream, the Approved Destination Status stream and the Frequent Traveller stream, and in the Tourist stream where the sponsorship under clause 600.224 has been approved by the Minister. It can also be imposed on a discretionary basis in the Business Visitor stream and in the Tourist stream.

This is why so many Indonesians arrive believing they are locked in. If a relative in Australia sponsored your visitor visa, condition 8503 was attached automatically. Nobody exercised a discretion against you. It came with the stream. Check your grant notice before you assume anything about your position, because the conditions listed there decide what you can and cannot do next.

What is a Subclass 866 Protection Visa?

A Subclass 866 Protection Visa is the permanent protection visa for a person who is already in Australia and who engages Australia's protection obligations. It is granted under section 65 of the Migration Act once the criteria in section 36 and the relevant Public Interest Criteria are met. If it is granted, you become an Australian permanent resident from the date of grant.

There is one protection visa pathway for a person who entered Australia lawfully on a visitor visa, and this is it. It is not a temporary visa, it is not renewed, and it is not the same thing as the humanitarian programme run for people outside Australia. The full mechanics are set out on our Subclass 866 Protection Visa page and in our complete guide to the Subclass 866 Protection Visa.

What does the refugee criterion in section 36(2)(a) require an Indonesian applicant to prove?

Section 36(2)(a) requires that you are a refugee as defined in section 5H(1), which in turn requires a well-founded fear of persecution under section 5J. Home Affairs policy breaks section 5J(1) into three elements.

A reason. You must fear being persecuted for your race, religion, nationality, membership of a particular social group or political opinion. For Indonesian applicants the reasons that arise most often are religion, membership of a particular social group, and political opinion, including political opinion imputed to you by others.

A real chance. There must be a real chance of that persecution occurring. Real chance is a low threshold in the sense that it is not more likely than not, but it is an objective test measured against country information, not against how frightened you feel.

In all areas. Under section 5J(1)(c) the real chance must relate to all areas of Indonesia, not only your home region. This is the single most destructive requirement for Indonesian claims, and it is dealt with in detail below.

Section 5J(4) then adds that the reason must be the essential and significant reason for the persecution, that the persecution must involve serious harm, and that it must involve systematic and discriminatory conduct. Section 5J(2) removes a fear from consideration where effective protection measures, defined in section 5LA, are available to you in Indonesia.

What is complementary protection under section 36(2)(aa)?

Complementary protection under section 36(2)(aa) applies where you are not a refugee but there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Indonesia, there is a real risk you will suffer significant harm. Significant harm is defined exhaustively in section 36(2A) and covers arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.

Complementary protection matters for Indonesian applicants for a specific reason. It does not require one of the five refugee reasons. A person facing a real risk of torture in police custody, or a person facing a corporal punishment that meets the definition of cruel or inhuman treatment, can engage section 36(2)(aa) without having to fit their case into religion or political opinion. Our complementary protection page sets out how the test is applied.

The trade-off is that section 36(2B) then takes the risk out of consideration in three situations, and those exclusions decide a very large share of Indonesian complementary protection cases.

Why does a claim based on simply being Indonesian never succeed?

Because the Department does not decide these cases on nationality. It decides them on the Department of Foreign Affairs and Trade Country Information Report for Indonesia, and that report is, across most categories, unhelpful to a generalised claim.

DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination, and DFAT is not aware of official discrimination against them. DFAT assesses that ethnic Papuans are at a low risk of societal violence in general, with the Papua highlands excluded from that assessment. DFAT assesses that religious minorities overall face a low threat of blasphemy allegations being made against them. DFAT assesses that Indonesian journalists and social media users are generally able to operate without interference throughout Indonesia, with the Papua provinces as the exception.

Read those assessments as a decision maker reads them. A claim that says "I am a Christian from Indonesia" or "I am Chinese Indonesian" or "I am Papuan" and stops there is answered by the country information before it is even tested. The applications that survive are the ones that identify something about the individual, not the group: a named incident, a report made to police and what the police did, a criminal charge, a family or community actor who has already acted, a public profile, a document, a witness. That is the whole difference, and it is the part that is hardest to do without help.

Does condition 8503 stop an Indonesian tourist visa holder applying for protection?

No. Condition 8503 in Schedule 8 of the Migration Regulations 1994 reads that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia. The protection visa exception is written into the words of the condition itself.

Department of Home Affairs policy states the position in the same terms: condition 8503 does not prevent the holder from applying for a protection visa, and it does not remove the ability to apply for a waiver of the condition once in Australia. You do not need a waiver. You do not need to leave Australia and re-enter. You do not need your Australian sponsor's agreement.

This is the single most costly misunderstanding among Indonesian visitor visa holders, because the people most likely to hold a mandatory 8503 are the ones who came on a family-sponsored visitor visa, which is to say the ones with relatives in Australia they can ask for advice. The advice they get is usually wrong, and the delay it causes is then used against them later.

When does an Indonesian tourist visa holder still need a condition 8503 waiver?

When the visa you want is not a protection visa. Condition 8503 blocks a valid onshore application for a partner, student, skilled or any other substantive visa until it is waived. Home Affairs policy confirms that a holder with 8503 cannot validly apply for another substantive visa, other than a protection visa, until the condition has been waived, and that where a waiver request is lodged with a visa application, the date of application is the date the condition was waived.

Subsection 41(2A) of the Migration Act allows the condition to be waived in circumstances prescribed in subregulations 2.05(4), (4AAA), (4AB) and (5A). Two points are worth knowing before you build a plan around a waiver. A decision not to waive the condition is not merits-reviewable under section 338 of the Act. And a waiver, once granted, does not imply that you are eligible for the visa you then apply for.

If you have both a protection claim and an Australian partner, the interaction between the two needs to be worked out before anything is lodged, not after. Our partner visa lawyers page sets out the onshore partner requirements, and the sequencing question is one we deal with at the first consultation.

How does the relocation rule work against an Indonesian applicant?

It works hard, because Indonesia is large, internally mobile and administratively unified. Under section 5J(1)(c) the real chance of persecution must relate to all areas of Indonesia. Home Affairs policy directs officers first to assess whether there is a real chance of persecution in your home region, the place you are likely to return to given your individual circumstances, and only then, in limited situations, to consider all areas.

For complementary protection the test is different and it is important not to blend them. Section 36(2B)(a) asks whether it would be reasonable for you to relocate to an area of Indonesia where there would not be a real risk of significant harm. Home Affairs policy, following SZATV v Minister for Immigration and Citizenship and Randhawa, applies reasonable in the sense of practicable, and expressly states that findings made under section 5J(1)(c) cannot be adopted for complementary protection.

The practical consequence for Indonesian applicants is blunt. If your fear arises from a provincial law, a provincial enforcement body or a local community, the Department will look at Jakarta, Surabaya, Bali or Medan and ask why you cannot live there. DFAT records that ethnic Papuans, like all Indonesians, can and do move to other parts of the country and can be found in different parts of Indonesia including Jakarta. A claim that does not answer relocation directly, with evidence about work, housing, family networks, registration and whether the feared actor has reach, invites the finding that ends the case.

Does Indonesian state protection defeat the claim under section 36(2B)(b)?

Often, unless the claim addresses it head on. Section 5J(2) removes a well-founded fear where effective protection measures within the meaning of section 5LA are available, and section 36(2B)(b) removes a real risk of significant harm where you could obtain protection from an authority of Indonesia.

Indonesia has functioning police, courts and a national human rights commission, and that is the starting assumption a decision maker works from. What defeats the assumption is evidence about how the Indonesian authorities behave in practice towards people in your position, not what the law says on paper. DFAT records that allegations of torture against security forces are sometimes made, that torture is most often allegedly carried out by police, that systems to detect it are not fail-proof and that in-country sources said checks and surveillance are not always happening. DFAT also records that because of the threat of arrest or extortion, most LGBTI people avoid police.

Those are the kinds of findings that answer section 36(2B)(b). A statement that the police did nothing is not evidence. A police report number, a date, a refusal to record a complaint, a demand for payment, a witness who was present, or country information showing the pattern, is.

Which Indonesian protection claims are recognised, and what has to be shown?

The claim types that arise most often for Indonesian applicants, and what each one has to establish, are these.

Aceh and sharia-based punishment. DFAT records that sharia regulations in Aceh prohibit alcohol, close proximity to a member of the opposite sex outside marriage or close family, adultery, gambling and same-sex sexual relations, that strict dress codes and curfews on women are enforced, and that punishments have included public canings since 2005. A claim here has to deal with whether the punishment feared meets significant harm under section 36(2A) or serious harm under section 5J(4), and with why you would return to Aceh rather than elsewhere.

Religious minority and blasphemy claims. Indonesia recognises six official faiths and requires religion to be registered, including on identity cards. DFAT records that the Criminal Code prohibits insulting an official religion and that the Electronic Information and Transaction Law also creates an offence, with severe sentences imposed in some cases. Ahmadi proselytising is banned by government decree with a five-year prison penalty. A claim built on faith needs an accusation, a charge, a decree, a document or an identified accuser, because the general level of risk DFAT reports will not carry it alone. Our religious persecution page sets out how these claims are framed.

Sexual orientation and gender identity. There is no national law against same-sex sexual relations, which is exactly why these claims are lost when they are argued as if there were. DFAT records that it is illegal in Aceh, that LGBTI people are sometimes targeted by police, that same-sex activity is an offence in the military, and that those rejected by family are at high risk of poverty, sham marriage or daily concealment. Our LGBTI protection visa page and our article on LGBTI protection visas in Australia deal with the evidence in detail, and our article on proving an LGBTI protection claim for Indonesian applicants covers the evidence an Indonesian applicant can realistically gather.

Papua and imputed political opinion. DFAT records a long-running armed conflict in the Papua provinces, a heavy security presence, displacement in Highland Papua, police raids on university dormitories, and activists charged with treason and imprisoned for protests including raising the Morning Star flag. Where the claim is about activism in Australia, section 5J(6) requires the decision maker to disregard conduct engaged in solely to strengthen the claim, so the history of the activism matters as much as the activism.

Family violence, forced marriage and separated women. Home Affairs policy accepts particular social groups framed around separation, and directs officers to assess whether the State turns a blind eye. DFAT records discrimination against women under adat customary law and assesses that single women experience a moderate risk of societal discrimination.

Can you be told to be discreet about who you are in Indonesia?

Not in a refugee claim. Section 5J(3) provides that a fear is not taken to be avoidable by modifying behaviour where the modification would conflict with a characteristic fundamental to the person's identity or conscience, or would conceal an innate or immutable characteristic. That protects religion, sexual orientation and gender identity from a finding that you could simply keep quiet.

The position under complementary protection is not the same, and any honest guide has to say so. Section 36(2)(aa) contains no equivalent carve out, which leaves the question of expected discretion genuinely unsettled where a claim runs only on complementary protection. We deal with this in our article on complementary protection for LGBTI applicants.

How do sections 91W and 91WA affect Indonesian identity documents?

Section 91W allows an officer to request evidence of your identity, nationality or citizenship. If you produce a bogus document in response and do not have a reasonable explanation, section 91W(2) prevents the grant of the visa. Section 91WA operates where a bogus document is provided as part of or in connection with the application, or where you destroy or dispose of identity documents after lodging, again subject to a reasonable explanation and either producing genuine evidence or taking reasonable steps to do so.

Following BGM16 v Minister for Immigration and Border Protection, section 91WA(1) applies only to documents submitted with or in connection with the protection visa application being decided, so documents provided for an earlier visa application do not fall within it. They can still be used to assess credibility.

For an Indonesian applicant this usually comes up in one way. You entered on a passport and a visitor visa application that told a different story from your protection claim. That is not fatal and it is extremely common. It is fatal when it is discovered at interview rather than explained in writing at lodgement.

What happens to your Indonesian tourist visa on the day you lodge?

Nothing, at first. Your Subclass 600 Visitor visa keeps running on its own terms until it ceases. Lodging a protection visa application does not cancel it and does not change its conditions. What lodging does is create a bridging visa that sits behind the visitor visa and comes into effect when the visitor visa ends, so that you remain lawful while the protection application is decided.

The conditions on that bridging visa, and in particular whether you can work, depend on your status and timing at lodgement rather than on your nationality. We cover that in our article on applying for a Subclass 866 Protection Visa on a tourist visa. The point to hold on to here is that the strongest position available to an Indonesian visitor is to lodge while the Subclass 600 is still valid.

What happens if your Subclass 600 visa expires before you lodge?

You become an unlawful non-citizen, and the application becomes harder in three ways at once.

You are exposed to detention and removal from the day the visa ceases. Your bridging visa position changes, and so do your work rights. And the period of unlawfulness becomes a fact the decision maker has to explain, because a person who says they fear return to Indonesia and who allowed their visa to lapse without acting is a person whose fear will be tested against their own conduct.

None of that makes the application invalid. A person who is already unlawful can still make a valid protection visa application, and the general process is set out in our article on applying for a protection visa in Australia. It simply means the application is now being run from the worst available starting position, and that is a matter of weeks, not months, in most cases.

Why is delay treated as evidence against an Indonesian applicant?

Because delay is one of the few things a decision maker can weigh without leaving the file. If you say you fled Indonesia in fear and then spent a long period in Australia on a visitor visa without saying so, the Department will ask why, and will usually record an adverse credibility finding if the answer is not on the record.

There are good answers. Fear of Indonesian authorities finding out. A family member in Australia who told you to wait. Not knowing protection visas existed. A change in Indonesia after you arrived, which is a sur place claim and is expressly recognised. None of these answers works if it first appears at interview. All of them work better when they are set out in writing at lodgement with something to support them. Our article on whether delay affects a protection visa claim deals with this in full.

What does section 48A mean if you have already been refused once?

Section 48A prevents a person in Australia whose protection visa application has been refused from making another protection visa application while they remain in Australia. There is no ordinary exception. Only the Minister can lift the bar, using a personal and non-compellable power under section 48B, and that is not a pathway any responsible adviser builds a plan around.

Read that alongside section 48. Section 48 stops a person in Australia without a substantive visa, whose visa has been refused or cancelled since last entry, from applying for most visas, but protection visas remain available. So a refused visitor visa extension does not close this door. A refused protection visa does.

This is why a first application has to be right. For an Indonesian applicant it is usually the only application there will ever be.

Which beliefs about Indonesian protection claims are simply wrong?

These come up at nearly every consultation and every one of them is incorrect.

That condition 8503 blocks you. It does not. The condition carves out protection visas in its own words.

That you need to leave Australia and re-enter. You do not, and leaving is dangerous once an application is on foot, because the visa cannot be granted to a person who is outside Australia.

That Indonesia being a democracy ends the claim. It does not. The tests in sections 5J and 36(2)(aa) are applied to your circumstances, not to the country's general political classification.

That your sponsor in Australia has to consent. They do not. A protection visa application is yours. Your sponsor is not notified of it and has no role in it.

That being a member of a persecuted group is the claim. It is not. It is the context. The claim is what happened, or is likely to happen, to you.

That you can add the real claim later. Changing the core of a claim after lodgement is one of the most damaging things that can happen to a protection application, because it creates an inconsistency the decision maker must weigh.

That an application buys time. It does not, and an application made because every other door has closed rather than because you fear return will be refused, will sit on your record permanently, and will trigger the section 48A bar.

What happens at the interview if you need a Bahasa Indonesia interpreter?

The Department provides an interpreter, and you should use one even if your English is good. The interview is where the claims are tested, and precision matters more than fluency. Village names, provincial bodies, religious terminology, dates in the Indonesian calendar and the difference between what you saw and what you were told are all easier to get exactly right in your own language.

Two things go wrong with interpreting in Indonesian matters specifically. Regional language and dialect are treated as though they were standard Indonesian, and an answer given in Javanese, Acehnese or Papuan Malay is rendered loosely. And applicants correct the interpreter politely rather than firmly, and the transcript then records something they did not say. Say so at the time, clearly, and ask for it to be noted. Our protection visa interview page sets out what else to expect.

What happens if the Subclass 866 Protection Visa is refused?

You can apply to the Administrative Review Tribunal for merits review. The deadline is short and it is strictly applied, and the Tribunal has no power to extend it for any reason. The clock runs from when you are taken to have received the decision, not from when you read it, which is why a decision sent to an ImmiAccount or an email address you have stopped checking is such a common way to lose a review right.

The Tribunal reconsiders the whole case on the merits and can take new evidence and hear from you directly. It is not an appeal on the papers, and for many Indonesian claims it is where the case is genuinely decided, because the country information analysis and the relocation reasoning can be addressed properly. Our protection visa refusals page, our visa refusals page and our guide to the Administrative Review Tribunal after a Subclass 866 refusal set out the process.

How does My Migration Lawyers work on a protection matter for an Indonesian tourist visa holder?

The work is done by a lawyer, Weiwei Zhang, Principal of My Migration Lawyers, and it runs in a fixed order.

We start with your grant notice and your visa conditions, because the stream your Subclass 600 was granted in tells us what applies to you and what does not. We then take the claim in full, including the parts you have not told anyone, and we test it against the Department of Foreign Affairs and Trade Country Information Report for Indonesia before anything is written, so that we know where the weak points are while there is still time to answer them.

We then build the written claim around the statutory tests rather than around the story. That means addressing relocation under section 5J(1)(c) and section 36(2B)(a) directly, addressing state protection under section 5LA and section 36(2B)(b) directly, addressing any inconsistency with what you said on your visitor visa application, and dealing with identity documents before a section 91W request is ever sent. We arrange certified Indonesian translations, we prepare you for the interview with an interpreter, and we attend with you.

If your application has already been refused, we act on the Tribunal review, on the same basis and within the same short deadline. What we do not do is lodge an application to buy time. If your circumstances do not engage Australia's protection obligations we will tell you that at the first consultation, because a refused protection visa closes the pathway permanently under section 48A.

You can read more about how we work on our protection visa lawyers page and about the Principal on Weiwei Zhang's profile. To have your circumstances assessed, request a consultation, or contact My Migration Lawyers with your question and a lawyer will reply by email.