Protection Visa Indonesia: Subclass 866 for Indonesian Citizens

Can an Indonesian citizen be granted a Subclass 866 protection visa?

An Indonesian citizen in Australia can be granted a Subclass 866 protection visa only by meeting every criterion in Part 866 of Schedule 2. Nationality is not one of those criteria. There is no Indonesian quota, no country list that excludes Indonesians, and no separate assessment stream. An Indonesian citizen is assessed against exactly the same clauses as an applicant from anywhere else.

That is worth saying plainly, because the number of clauses involved surprises people. The protection claim itself is one criterion out of roughly a dozen. The rest cover health, character, security, identity, family unit membership and where you physically are on the day the visa is granted. An application can meet the protection criterion and still be refused on one of the others.

This article works through those criteria in the order the Department applies them, and then sets out what the visa actually gives you once it is granted. For the legal framework behind the protection criterion itself, see our Subclass 866 protection visa page.

The two sets of criteria: time of application and time of decision

Part 866 of Schedule 2 splits into criteria you must satisfy at the time of application and criteria you must satisfy at the time of decision. The distinction matters, because a matter that is on foot for a year or more can change in between.

The time of decision criteria for a permanent protection visa are in clauses 866.221 to 866.232. That is where the protection criterion sits, along with health, the public interest criteria and several clauses that most applicants never hear about. Clause 866.411 sits separately again, in the part dealing with the circumstances applicable to grant.

Because the substantive criteria are assessed at the time of decision, a change in your circumstances during the wait can matter. A criminal charge, a health diagnosis, a change in family composition or a change in country conditions can all bear on a decision made months after lodgement.

Why immigration clearance decides whether you can apply at all

You must have arrived in Australia holding a visa that was in effect and have been immigration cleared on arrival. Immigration clearance is defined in section 172 of the Migration Act 1958: you enter at an airport or seaport, present a passport and a visa in effect, and leave the port with the permission of an Australian Border Force officer.

A person who is an unauthorised maritime arrival, or who was not immigration cleared on their last entry to Australia, cannot make a valid application for this visa. If your visa was cancelled on arrival, or you were detained at the border, you were not immigration cleared.

For the overwhelming majority of Indonesian citizens this is not an obstacle. An Indonesian who flew into Sydney, Melbourne, Perth or Darwin on a student, visitor or working holiday visa and walked out of the airport was immigration cleared. The clause matters because it is the dividing line between the Subclass 866 and the temporary protection caseload, and a great deal of confused online content ignores it.

Which class of protection visa applies to an Indonesian citizen

Section 35A of the Migration Act provides for three classes of protection visa: the permanent Protection visa, the Temporary Protection visa and the Safe Haven Enterprise visa. An applicant is eligible for one of them if they are in Australia, they engage Australia's protection obligations or are a member of the same family unit of someone who does, and they satisfy all the other relevant criteria.

For an Indonesian citizen who arrived by air on a valid visa and was immigration cleared, the class is the permanent one, and the subclass is 866. The Subclass 785 and Subclass 790 belong to the unauthorised maritime arrival caseload and are not on the table.

The consequence is that there is no temporary halfway result. The Subclass 866 is granted or it is refused. There is no lesser protection visa the Department can fall back on for an Indonesian applicant who is close but not quite there.

What clause 866.221(2) actually requires

Clause 866.221(2) is the protection criterion. It requires the decision maker to be satisfied that the applicant meets the criterion in section 36(2)(a) of the Migration Act, which is the refugee criterion under the statutory definition in section 5H, or the criterion in section 36(2)(aa), which is complementary protection.

The two are assessed in that order. The refugee criterion goes first. Complementary protection is reached only if the refugee criterion is not met, and it is not a softer alternative: significant harm is a closed list in section 36(2A), and section 36(2B) removes the criterion where relocation within Indonesia is reasonable, where the Indonesian authorities could protect you, or where the risk is one faced by the population generally. More on the second ground is on our complementary protection page.

A single application can put both grounds. It should, where both are genuinely open, because the first application is normally the only one you get. Where the claim is based on sexual orientation or gender identity, see our LGBTI protection visa page.

Clause 866.221(3): family members who have no claim of their own

Clause 866.221(3) is the other route to the visa, and it is the one most Indonesian families rely on. It allows the visa to be granted to a person who is a member of the same family unit as another applicant who satisfies clause 866.221(2) and has been granted a Subclass 866.

In practical terms, the spouse and children of a successful applicant do not need protection claims of their own. They are granted on the strength of the main applicant's claim. They must still satisfy the health, character and security criteria in their own right.

Two things follow. First, who is named as the main applicant is a decision with consequences, and it is made before lodgement, not after. Where two adults each have claims, the stronger claim should usually lead. Second, clause 866.230 deals with a child born after the application is lodged: where regulation 2.08(2) applies, the child must be a member of the same family unit as an applicant who satisfies clause 866.221(2) and has been granted the visa.

The health criteria in clauses 866.223 to 866.224B

The health criteria for a permanent protection visa applicant sit in clauses 866.223 to 866.224B. They require the prescribed medical examinations to be completed and the results to be assessed.

Protection visa applicants are treated differently from most other visa applicants here, and the examinations required of them are set out in the Department's own instructions for protection, refugee and humanitarian applicants rather than in the general health requirement pages. The examinations are arranged through the Department's panel arrangements, not with your own doctor.

The practical point for an Indonesian applicant is timing. Health checks are commonly the last thing outstanding on a file that is otherwise ready, and a delay in attending them is a delay in the decision. If a health condition is disclosed, get advice on it early rather than waiting to see whether it becomes an issue.

Which public interest criteria apply to the Subclass 866, and which do not

The public interest criteria for a permanent protection visa are prescribed in clauses 866.225(a) and 866.225(b). They are PIC 4001 and PIC 4003A for every applicant, and PIC 4019 for an applicant who was aged 18 or over at the time of their application. That is the list.

What is not on the list matters just as much. PIC 4020, the integrity criterion that catches false or misleading information and bogus documents across most of the visa program and carries a bar of several years, is not a criterion for the Subclass 866. Neither is PIC 4021, the passport criterion, nor PIC 4004, the Commonwealth debts criterion.

This is one of the most commonly misstated points about protection visas online, including on pages that otherwise look authoritative. It does not mean a false document is harmless: identity and bogus documents are dealt with under sections 91W and 91WA of the Migration Act instead, and the consequences there are serious. It means the mechanism is different, and advice built on PIC 4020 is advice about the wrong provision.

PIC 4001, PIC 4003A and PIC 4019 in practice

PIC 4001 is the character criterion. It requires the Minister to be satisfied that the applicant passes the character test in section 501, or that the discretion to refuse should not be exercised. A substantial criminal record, an association of concern, or conduct indicating a lack of good character can all engage it.

PIC 4003A is a further character criterion, assessed alongside PIC 4001. The two are dealt with together in the Department's character consideration process, and an applicant who fails either cannot be granted the visa.

PIC 4019 is the Australian Values Statement. It applies to applicants who had turned 18 at the time of application, and it requires the applicant to have made the statement and to have declared that they will respect Australian values and obey Australian laws. It is administrative rather than substantive in most matters, but it is a criterion, and an unsigned statement is an outstanding criterion.

Section 36(1B): an adverse ASIO assessment ends the application

Section 36(1B) of the Migration Act makes it a criterion that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.

An applicant subject to a current adverse security assessment fails this criterion and the application must be refused. The decision maker does not weigh the assessment or look behind it. They need only be satisfied that an adverse assessment has been issued and is current at the time of the decision.

A qualified security assessment is a different thing. An applicant who is the subject of a qualified assessment does not fail section 36(1B), but the information in it may be relevant to other criteria, including whether protection obligations are engaged at all and whether section 5H(2), section 36(1C) or section 36(2C) applies.

Sections 36(1C) and 36(2C): danger to security, and particularly serious crime

Section 36(1C) requires that the applicant is not a person whom the decision maker considers, on reasonable grounds, to be a danger to Australia's security, or a person who, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Section 36(2C)(b) mirrors it, but operates differently. Section 36(1C) is a criterion for the visa in its own right. Section 36(2C)(b) instead prevents an applicant from satisfying the complementary protection criterion in section 36(2)(aa). Where an applicant fails section 36(1C) or section 36(2C)(b), the application must be refused under section 65(1)(b), and the Department does not then need to consider PIC 4001 or PIC 4003A at all.

The particularly serious crime ground has four elements, all of which must be established: a crime committed, a conviction by final judgment, the crime being particularly serious, and the person being a danger to the community. A conviction alone does not establish the last element. This is technical ground, and an Indonesian applicant with any criminal history in Australia or Indonesia should get advice on it before lodging rather than after.

Section 5H(2): when the refugee definition does not apply to you at all

Section 5H(2) codifies Article 1F of the Refugees Convention. It provides that a person is not a refugee if there are serious reasons for considering that they have committed a crime against peace, a war crime or a crime against humanity, a serious non-political crime before entering Australia, or acts contrary to the purposes and principles of the United Nations.

The threshold, serious reasons for considering, is lower than a criminal standard of proof and it is different again from the reasonable grounds test in section 36(1C) and section 36(2C)(b). The Department's own guidance is that these provisions must be applied carefully, and that evidence from the authorities in the country where the alleged crime was committed may be needed.

There is a point in that guidance that protects Indonesian applicants and is worth knowing. The Department is instructed not to send a request for that information to the authorities of the country the applicant claims protection from, because doing so may create fresh claims. An officer who thinks the information is necessary is directed to escalate internally instead.

Sections 91W and 91WA: identity documents and bogus documents

Section 91W allows the Department to request documentary evidence of identity, nationality or citizenship, and to refuse the application where the applicant refuses or fails to comply, or produces a bogus document in response, without a reasonable explanation. Section 91WA covers bogus documents provided with the application itself, and the destruction or disposal of identity documents after lodgement.

Three points from the Department's own guidance are worth stating exactly. Meeting a section 91W or section 91WA requirement is not the same thing as an identity finding, and inconsistent information can still damage credibility even where the documents are genuine. Where an applicant complies but identity is still not established, the Department must not refuse on the basis of those sections. And where a bogus document is produced that does not relate to identity, nationality or citizenship, those sections do not prevent the grant either.

This is the live risk area in the Indonesian caseload, because fraudulently obtained genuine Indonesian documents are readily available and the Department knows it. If a document in your hands came from an agent and you cannot explain where it came from, deal with that before lodgement, because it will be raised at the interview. Our protection visa interview page covers how that questioning runs.

The clauses nobody reads: 866.227, 866.231, 866.232 and 866.411

Four clauses at the end of Part 866 catch a small number of applicants completely by surprise.

Clause 866.227 requires that the applicant, or a member of their family unit, has not been offered temporary stay in Australia under Temporary Safe Haven visa arrangements under regulation 2.07AC, unless the Minister has made a determination under section 91L(1). Clause 866.231 requires that the applicant has not been made an offer of permanent stay of the kind described in the table in subregulation 2.07AQ(3). Clause 866.232 requires that the applicant does not hold a Resolution of Status (Class CD) visa.

Clause 866.411 is the one that matters to ordinary applicants. The applicant must be in Australia when the visa is granted. That is why leaving the country during processing can end the application in practice: the visa cannot be granted while you are offshore, and the bridging visa you were holding generally ceases on departure.

What a granted Subclass 866 lets an Indonesian citizen do

The Subclass 866 is a permanent visa. You become an Australian permanent resident on the day it is granted, and it lets you stay in Australia indefinitely.

With the visa you can live, work and study in Australia permanently. You can access government services including Medicare and Centrelink. You can sponsor eligible family members for permanent residence through the offshore Humanitarian Program. You can travel to and from Australia for five years. You can attend free English language classes if you are eligible. And you can become an Australian citizen if you meet the requirements.

There is no visa label. The visa is digitally linked to your travel document or ImmiCard, so nothing is stamped in your passport and there is nothing physical to show an employer or a landlord. Evidence of your status is obtained through the Department's online systems.

The five year travel facility, and what happens after five years

The travel facility attached to the Subclass 866 lasts five years from grant. During that period you can leave and return to Australia, subject always to condition 8559.

After five years the permanent residence itself does not expire. You remain a permanent resident. What expires is the authority to re-enter Australia from overseas, and travelling after that point requires a further travel facility, obtained by applying for a Resident Return visa. A permanent resident who leaves the country without one can find themselves unable to board a flight back.

Most people deal with this by applying for Australian citizenship before the five years is up, which removes the problem entirely. Where citizenship is not yet available, the travel facility needs to be diarised rather than assumed.

Bringing family members from Indonesia after grant

A Subclass 866 holder can propose eligible family members for permanent residence through the offshore Humanitarian Program. That is a separate application, made by the family member from outside Australia, with you as the proposer.

Two things to be realistic about. It is a proposal within a capped program, not an entitlement, and the fact that you hold protection does not by itself decide the outcome for a relative. And it applies to family members who are outside Australia. A relative who is already here on another visa is in a different position and needs their own advice.

Where the family member in Indonesia is a spouse or a de facto partner, the partner visa program is often the more direct route and should at least be compared. See our partner visa lawyers page and the page on the Subclass 309 offshore partner visa.

What you must tell the Department once you hold the visa

You and your family members must obey Australian law. Beyond that, the Department requires you to notify a defined set of changes.

Those are changes to your name, phone number, email address, residential address or passport; changes to your marital or de facto status; the birth of a child; and a death in your family. Keeping the address current is not a formality. It is the address the Department writes to.

None of this is onerous, but it is a set of obligations attached to a visa that can be cancelled, and the notification requirements are the easiest of them to overlook.

Becoming an Australian citizen

A Subclass 866 holder can apply for Australian citizenship if they meet the requirements, and permanent residence from the day of grant starts that clock running.

Citizenship is a separate application under separate legislation, with its own residence, character and knowledge requirements. It is not automatic and it is not granted on the strength of the protection finding. What the protection visa does is put you on the pathway from day one, which a temporary visa would not.

For an Indonesian client there is a further consequence worth raising early rather than late, which is the effect of acquiring Australian citizenship on Indonesian citizenship. That is a question of Indonesian law, not Australian law, and it should be checked before the citizenship application rather than after.

How My Migration Lawyers works on Subclass 866 applications for Indonesian citizens

The criteria set out above are why a protection application is a legal file rather than a form. The protection claim is one clause. The application is refused if any of the others is not met, and several of them, including health, character and security, are assessed at the time of decision rather than at lodgement.

The firm assesses all of the criteria at the outset, not just the claim. That means identifying character, security or identity issues before lodgement, deciding who should be the main applicant where more than one family member has a claim, making sure the family unit members are correctly included, and dealing with the clauses most applicants never see. Where a refusal has already happened, the firm acts on the review to the Administrative Review Tribunal, and the deadline for that is short and cannot be extended. See our protection visa refusals page.

Protection matters are supervised by Weiwei Zhang, Principal Lawyer, and consultations are held by video with clients anywhere in Australia. To have your situation assessed, request a consultation, or contact us in writing first if you would rather set out the position that way. Background reading is on our protection visa lawyers page, in the complete guide to the Subclass 866 protection visa, and, if you are a student, in Can Indonesian students apply for a Subclass 866 protection visa.