Protection Visa Lawyers for Indonesians in Australia

What is the role of a protection visa lawyer in a Subclass 866 matter?

The role of a protection visa lawyer in a Subclass 866 matter is to present the applicant's own account and evidence in the form the Migration Act 1958 requires, and to advise the applicant, before anything is lodged, whether that account meets the criteria for the grant of a protection visa.

The application form itself is a short document. The material that determines the outcome is the applicant's written statement of claims, the supporting evidence, the country information relied upon, and the applicant's own evidence at interview. A lawyer's work is to take the applicant's account accurately, to identify which parts of it are legally relevant and which are not, to obtain and organise the evidence that supports it, and to address in advance the matters the Department is likely to raise against it.

That work requires judgements that an applicant is not in a position to make, because they depend on how protection applications are decided rather than on what happened to the applicant. Those judgements include which criterion in section 36 the claim engages, whether more than one criterion is engaged, which experiences amount to serious harm as the Act defines it, what the Department's country information on Indonesia is likely to be used to establish, and what in the applicant's immigration history will be put to them at interview.

At My Migration Lawyers, protection matters are conducted under Principal Lawyer Weiwei Zhang. Our protection visa lawyers page sets out the service. This article sets out what that work involves when the applicant is an Indonesian national.

What happens in the first consultation, and what should an Indonesian applicant bring?

The first consultation is an assessment of the applicant's circumstances. Within it, a lawyer must establish four things: what the applicant says occurred and why they fear return, what their current visa status is, whether any statutory bar applies to them, and what deadlines are already running.

Applicants should bring their passport, their most recent visa grant notice if they have it, and any refusal or cancellation decision they have received. The date of last arrival in Australia is also required. There is no need to obtain documents from Indonesia beforehand, because until the claim has been assessed it is not possible to say which documents are relevant.

The questions asked in that consultation are detailed and often difficult. They cover the reasons the applicant left Indonesia, what occurred beforehand, who the applicant fears and what they believe would happen on return, whether the applicant approached the Indonesian police and what followed, whether the applicant has travelled back to Indonesia since arriving, and whether any other person prepared an earlier visa application on their behalf and what was said in it. Each of those matters affects either the assessment of the claim or the applicant's exposure at interview.

Consultations at My Migration Lawyers are conducted by video, so the applicant's location within Australia is not a limitation. Applicants who wish to understand the application process before obtaining advice will find it set out in our complete guide to the Subclass 866 protection visa.

How does a protection visa lawyer assess whether an Indonesian claim is arguable?

A lawyer assesses the account against the statutory criteria and against the country information before any preparation is undertaken, so that the applicant receives a realistic view of their position at the outset.

The first question is whether the harm feared is connected to a reason the law recognises. Claims made by Indonesian nationals commonly concern religion, sexual orientation or gender identity, political opinion connected with the Papua provinces, or membership of a particular social group in matters involving family violence. An applicant whose fear arises from a commercial dispute, a debt, a criminal allegation or a family disagreement may still have a claim, but it engages a different criterion and requires a different argument. That assessment should be given at the consultation rather than months into the matter.

The second question is what the Department's country information on Indonesia records about people in the applicant's position. A ministerial direction made under section 499 of the Migration Act requires the decision maker to take a Department of Foreign Affairs and Trade country information assessment into account where it is relevant. A lawyer reads that assessment before advising, because it indicates in advance the findings a delegate is likely to make about relocation within Indonesia and about the availability of protection from the Indonesian authorities.

The third question concerns the applicant's history in Australia: the period since arrival, any return travel to Indonesia, the account given in any earlier visa application, and whether any application has already been refused or any visa cancelled.

Why does advice not to lodge carry the same weight as the application itself?

Because section 48A of the Migration Act prevents a further protection visa application once one has been refused while the applicant is in Australia. That bar can only be lifted by the Minister personally under section 48B, and section 48B does not confer a right of application.

The consequence is that a protection visa application is not a step that can be repeated. An applicant whose circumstances, however serious, do not engage either criterion is better served by being told so than by lodging an application that will be refused, because a refusal remains on the immigration record permanently and closes the pathway while the applicant remains in Australia.

For the same reason, a lawyer will not lodge a protection visa application merely because it is the only application available to a person. That situation arises frequently, and it is not a basis for an application. An application made to extend a person's stay will be refused, and it will prevent a genuine claim from being advanced later.

What does a protection visa lawyer establish about an applicant's status before addressing the claim?

Status is addressed first, because status is subject to time limits that the claim is not.

A lawyer will establish which visa the applicant holds, when it ceases, and what conditions are attached to it. Where the applicant holds a bridging visa, the lawyer will establish which bridging visa it is and what application it was granted in connection with. Where the applicant has become unlawful, the lawyer will establish when that occurred. Where a visa has been refused or cancelled since the applicant last entered Australia, the lawyer will obtain that decision.

The purpose of those enquiries is to determine whether the timing of lodgement affects the applicant's position, which it frequently does. An application lodged while the applicant still holds a substantive visa results in a different bridging visa, with different consequences, from one lodged after that visa has ceased.

An equally common task at this stage is correcting an assumption that a bar exists where it does not. Condition 8503, the no further stay condition attached to many visitor visas, expressly excepts protection visas, and conditions 8534 and 8535 on student visas are drafted to the same effect. The section 48 bar likewise does not prevent a protection visa application. Our articles on applying on a tourist visa and on Indonesian students and the Subclass 866 address those situations in detail.

Who may lawfully provide immigration assistance in Australia?

Immigration assistance may be provided only by an Australian legal practitioner or a registered migration agent. Both are regulated. A legal practitioner is regulated by the legal services regulator in their State or Territory and holds a current practising certificate. A registered migration agent is regulated by the Office of the Migration Agents Registration Authority, which maintains a public register. Each may lawfully prepare and lodge a Subclass 866 application, and each is accountable for the advice given.

A representative is appointed by lodging Form 956, Appointment of a registered migration agent, legal practitioner or exempt person. Once that appointment is in effect, the Department corresponds with the representative at the address nominated on the form. That has a practical consequence which affects a significant number of Indonesian applicants: where a representative was appointed and has since ceased to act, or where the nominated address is one the applicant does not control, departmental correspondence, including a decision, continues to be sent to that address.

The risk in this area arises from persons who fall into neither category. The Department's country information on Indonesia records the existence of an established migration industry of intermediaries, including persons who supply false identity documents, English language test results and financial documents. Advice obtained from a person who is not permitted to provide immigration assistance carries no professional accountability and no avenue of complaint, and its consequences are borne by the applicant.

How is the written statement of claims prepared with an Indonesian client?

The statement of claims is the applicant's own evidence, and it is the central document in the application. At My Migration Lawyers it is prepared with the client across several drafts. It is not composed for the client and presented to them for signature.

The first draft is taken from a detailed interview in which the client gives their account in their own order and their own terms, recorded without alteration. The second draft addresses structure and completeness. Events are placed in chronological order, dates are fixed as precisely as the client's recollection allows, and each incident is recorded in terms of what occurred, who was responsible, and how the client understood the reason for it. The reason is stated expressly, because a decision maker cannot make a finding about a Convention reason that the statement does not identify.

The third draft addresses the statutory elements in sequence, so that a delegate reading the statement can locate each of them. Those elements include why the fear is well founded, why the harm feared constitutes serious harm rather than discrimination, why the risk would not be avoided by moving elsewhere in Indonesia, and why the Indonesian authorities could not be expected to provide effective protection to this applicant.

The final draft is reviewed by the client in their own time and corrected by them. A statement the client has not read carefully will not withstand an interpreted interview, and inconsistency between the statement and the client's oral evidence is among the most common reasons an otherwise genuine claim is rejected.

One matter is frequently overlooked and often determines the outcome. Section 5J(3) provides that a person cannot be required to modify their behaviour by concealing their religion, political opinion, race, disability, sexual orientation, gender identity or intersex status in order to avoid persecution. Many Indonesian clients have avoided harm precisely by concealment, and they describe that period as one in which they had no difficulties. A lawyer identifies that evidence and characterises it correctly, so that it is not read as evidence that the client was safe.

What does a protection visa lawyer do with country information that a self-represented applicant cannot?

A lawyer identifies the country information the decision maker is required to consider, cites it at the level at which it is expressed, and addresses the passages that do not assist the applicant.

Self-represented applicants commonly attach media reports. The Department gives limited weight to material of that kind. The material that carries weight is the Department of Foreign Affairs and Trade country information report on Indonesia, which is prepared expressly for protection status determination and which a decision maker is directed to take into account where relevant.

That report expresses its assessments in graded terms, and the grading is significant. It distinguishes a high risk, denoting a strong pattern of incidents, from a moderate risk, denoting sufficient incidents to suggest a pattern of behaviour, from a low risk, denoting incidents that are known but insufficient to establish a pattern. It also distinguishes official discrimination, meaning measures or conduct attributable to the State, from societal discrimination, meaning conduct by members of the community. That distinction is central to the question of whether effective protection is available. A submission that cites the report accurately at its own grading is more persuasive than one that overstates it, because overstatement undermines the credibility of the submission as a whole.

The more demanding task is addressing the passages that do not assist. The report records that Indonesian citizens may move and reside freely throughout the country and that informal employment is obtainable in the larger cities. It records that a failed asylum seeker is unlikely to be questioned by the Indonesian authorities on return. A delegate will locate those passages whether or not the applicant refers to them. They are better addressed in the submission, by reference to the applicant's own circumstances, than left to be applied without answer.

How are the claims organised and evidenced?

Each claim the applicant presses is put, and each is supported by the evidence that the criterion it engages requires.

Applicants frequently present a large number of incidents without distinguishing between them. The task for a lawyer is to identify which incidents bear on which element of which criterion, to obtain the evidence available for each, and to advise the client where an asserted claim is not supported by the material. The client then decides what is advanced. A claim that is put without any supporting material does not improve the prospects of a claim that is well evidenced, and it may provide a basis for an adverse credibility finding that affects the whole application.

A further question is whether the application engages the refugee criterion, the complementary protection criterion, or both. They are distinct tests with different statutory language and different exclusions, and an application engaging both is drafted as two arguments rather than as a single narrative. Our page on complementary protection explains where the second criterion applies.

The final question concerns family members. Members of the same family unit who are in Australia may be included in the application, and their outcome is generally tied to that of the primary applicant. Where a spouse or an adult child has an independent claim, for example arising from a different religion or from their own circumstances, whether that claim is better advanced within the same application or separately is a matter to be determined before lodgement.

How are documents from Indonesia dealt with?

Documents are dealt with by establishing their provenance before they are placed on the file.

The Department's country information on Indonesia 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, and that biometric checks are not always undertaken. The practical consequence is that applicants who are Indonesian nationals receive closer scrutiny on questions of identity than applicants from many other countries, irrespective of whether there is any difficulty with their own documents.

Sections 91W and 91WA of the Migration Act are the relevant provisions. A bogus document provided without a reasonable explanation may support an adverse inference and may itself be a basis for refusal.

For that reason a lawyer asks, early and directly, whether any document connected with the applicant's immigration history was obtained through an intermediary. Applicants are often reluctant to answer that question, and the answer is more consequential than most other matters in the application. Disclosed at the outset with an explanation, it is a matter the submission can address. Identified later by the Department, it becomes a credibility finding that affects the entire claim.

The lawyer is also responsible for the practical requirements that are frequently overlooked: certified translations of all material in Indonesian, and evidence organised so that a delegate can identify which document supports which part of the statement.

What does representation involve at the protection visa interview?

The interview is the stage at which the claim is tested, and for most Indonesian applicants it is conducted through an interpreter. Preparation for it is a discrete piece of work.

A protection visa lawyer prepares the applicant in three respects. The first is the chronology, so that the applicant can answer questions about dates without estimating. The second is the matters already apparent on the file which will be raised, including any delay between arrival and lodgement, any return travel to Indonesia, and any difference between the reasons given for travelling to Australia in an earlier visa application and the account now advanced. The third is the conduct of an interpreted interview, which proceeds more slowly and more literally than ordinary conversation. Terms such as waria, adat, khalwat and qanun have no precise English equivalent, and place names are frequently transliterated differently across documents. Each of those produces inconsistencies in the transcript which are later treated as credibility issues.

A migration lawyer does not tell an applicant what to say. Coaching is improper, and it is readily apparent in a transcript. Our page on the protection visa interview sets out how the interview itself is conducted.

What is involved in responding to adverse information?

Where the Department holds information that would be the reason, or part of the reason, for refusing the application, it will generally put that information to the applicant and invite a response within a specified period. That correspondence is the most significant document an applicant is likely to receive before the decision.

An applicant without representation commonly treats it as an accusation and responds to the wrong aspect of it, or does not respond at all. A lawyer treats it as an indication of the findings the delegate is presently minded to make, responds to the specific matter raised with evidence directed to it, and takes the opportunity to put the balance of the case again. The period allowed for a response is short.

This is also the stage at which an appointment made years earlier on a Form 956, and never withdrawn, causes difficulty, because the invitation is sent to the representative recorded on the file rather than to the applicant.

What does a protection visa lawyer do between lodgement and decision?

The obligations in this period are narrower than applicants generally expect, and they matter.

Once an application has been lodged it awaits allocation and decision. There is no mechanism by which the Department can be required to decide a protection visa application more quickly, and no representative can create one. What a lawyer does during that period is keep the file current: supplementary statements where the applicant's circumstances change, updated country information where conditions in Indonesia change materially, and evidence of relevant activity in Australia, such as involvement with a church, a community organisation or an advocacy body.

A lawyer is also responsible for advising on 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. An applicant who returns to Indonesia during processing creates both a practical difficulty and an evidentiary one, and advice should be obtained before travel is arranged rather than afterwards.

What must be done in the period immediately after a refusal?

An application to the Administrative Review Tribunal must be made within a short period which is strictly applied, and which the Tribunal has no power to extend. Advice should be obtained in the same week the decision is received.

The first matter a lawyer establishes is not the content of the decision but the date on which the applicant is taken to have received it, because that is when the period begins. It runs from deemed receipt rather than from the date the applicant read the decision. A decision sent to an ImmiAccount the applicant has ceased to monitor, or to a representative appointed years earlier on a Form 956 that was never withdrawn, can expire while the applicant believes the application remains undecided. That accounts for the loss of more review rights than any question going to the merits.

The second matter is the applicant's bridging visa, which ceases a short time after refusal. An application to the Tribunal made within time preserves lawful status. Where the period is missed, the applicant generally becomes unlawful, and that is considerably more difficult to remedy than the refusal itself.

The decision record is then examined in detail, which is a separate piece of work: identifying which claims were accepted, which were rejected and on what basis, which country information the delegate relied upon, and what evidence must be obtained before a hearing. Our page on protection visa refusals sets out the review pathway, and our guide to Administrative Review Tribunal review of a Subclass 866 refusal explains how the Tribunal deals with the file. Refusals of other visa types are addressed on our visa refusals page.

Why is the first application treated as the only application?

Review by the Tribunal is a fresh consideration of the merits, which is often described as a second opportunity. It is not one in any practical sense.

The Tribunal decides the application by reference to the claims the applicant has made. A claim raised for the first time at hearing, having been absent from the statement lodged with the Department, invites a finding that it was recently invented. Whatever the applicant intends to rely upon must therefore be before the Department prior to the first decision.

That is the reason the greater part of the work in a protection matter is undertaken before lodgement rather than after refusal. It is also why an application prepared without a proper interview of the applicant, or expressed in language the applicant does not use, cannot simply be improved later. It is a fixed record which a lawyer instructed afterwards must work around, and inconsistency with it will be put to the applicant.

Can an applicant change representatives during a Subclass 866 matter?

An applicant is entitled to change representatives at any stage, and the consent of the previous representative is not required.

A new representative is appointed by lodging a further Form 956, which supersedes the earlier appointment, after which departmental correspondence is directed to the new address. The practical steps are to obtain the complete file from the former representative, including the statement as lodged and all material submitted with it, and to confirm the address the Department currently holds, because any decision or invitation to comment will be sent there.

What a new representative cannot do is withdraw what has already been said. The statement lodged remains on the record, and any inconsistency between it and a later account will be put to the applicant. The first task in taking over a protection matter is therefore to read what was lodged.

What should an applicant ask before engaging a representative?

Five questions, each of which should receive an immediate answer.

The first is whether the person is an Australian legal practitioner or a registered migration agent, and what their practising certificate or registration number is. A person who cannot answer that question is not permitted to provide immigration assistance.

The second is who will conduct the matter. At My Migration Lawyers, protection matters are conducted under Principal Lawyer Weiwei Zhang.

The third concerns fees: what the fee is, what stages it covers, and whether it is fixed. My Migration Lawyers charges fixed fees by stage, set out in a written costs agreement provided before any work is undertaken, so that the cost of each stage is known in advance rather than billed by reference to time.

The fourth is the representative's assessment of the claim. An assessment offered at a first consultation, before any material has been read, is of no value. Given the operation of section 48A, an application lodged on that basis costs the applicant the only application available to them.

The fifth concerns what happens if the application is refused, and whether review is included in the quoted fee or charged separately.

What is a protection visa lawyer unable to do?

There are limits on what any representative can properly offer, and they are worth stating expressly, because they are the claims most often made by persons who are not permitted to provide immigration assistance at all.

No representative can guarantee the outcome of an application. No representative can require the Department to decide an application more quickly, and no fee secures priority. No representative can lift the bar imposed by section 48A, which is a power exercisable only by the Minister personally. No representative can extend the period for applying to the Administrative Review Tribunal, because the Tribunal itself has no power to extend it. No representative may put material before the Department which the applicant cannot account for.

An offer to do any of these things indicates either that the person is not permitted to act, or that what is proposed would damage the applicant's position rather than assist it.

How does My Migration Lawyers conduct Subclass 866 matters for Indonesian clients?

Matters are conducted in a fixed sequence, and the difficult advice is given at the beginning rather than at the end.

The matter begins with a consultation at which the claim is assessed against both criteria, the client's status is established and any period already running is identified. Where the claim is not arguable, the client is told so at that stage, because of the operation of section 48A, and an application is not lodged in order to extend a client's stay.

Where we are instructed, the statement is prepared with the client over several drafts, in the client's own terms, and is reviewed and corrected by the client before it is lodged. We identify and cite the country information relevant to the claim, including the Department of Foreign Affairs and Trade report on Indonesia, and we address in the submission the passages of that report which do not assist. The provenance of each document is established before it is placed on the file. The client is prepared for an interpreted interview, including the matters already apparent on the file. Where adverse information is put to the client, 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 a client's location within Australia is not a limitation. 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. Clients holding student visas will find the status questions addressed in our article on international students and the Subclass 866 protection visa. The two claim types most frequently advanced by Indonesian clients are addressed on our pages on LGBTI protection visas and religious persecution.

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.