Subclass 866 Protection Visa for Indonesians: How to Apply in Australia

What is the Subclass 866 protection visa for an Indonesian national?

An Indonesian national in Australia applies for the Subclass 866 protection visa, the only protection visa available to a person who arrived on a valid visa, and it is decided on two separate grounds under section 36 of the Migration Act 1958. There is no separate Indonesian pathway, no separate Indonesian form, and no separate Indonesian standard of proof.

The visa is permanent. If it is granted, the holder becomes a permanent resident immediately, with work rights, Medicare and a pathway to citizenship. There is no provisional stage and no second application later, which is why the first application carries the entire weight of the matter.

Almost every Indonesian applicant arrives by air, on a visitor visa, a student visa, a working holiday visa or a work visa. That matters, because the temporary protection visa and the safe haven enterprise visa were built for people who arrived by boat without a visa. An Indonesian who landed at Sydney or Melbourne airport with a passport and a visa label is applying for the permanent Subclass 866 and nothing else. Our complete guide to the Subclass 866 protection visa sets out the visa itself in full, and our protection visa service page covers the criteria at a glance.

Which form does an Indonesian applicant lodge, and where?

The application is made on Form 866, which the Department of Home Affairs prefers to be lodged online through ImmiAccount. Form 866 has three parts. Part A is explanatory material. Part B identifies every person included in the application and the family composition. Part C is the personal detail and the claims, and a separate Part C must be completed for every person included.

Two mechanical points cause real damage and both are avoidable. First, every question must be answered. Where a question does not apply, the answer is written as N/A, because leaving questions blank can lead to the application being treated as invalid. Second, the claims section is not a box to be filled in quickly. It is the document the delegate reads first, tests at interview, and quotes in the decision record.

Most Indonesian applicants lodge under time pressure, often in the last days of a substantive visa. The account itself has to exist before anything can be attached or submitted, and our step by step ImmiAccount guide covers that setup. Our overview of applying for a protection visa in Australia walks through the sequence from lodgement to decision.

Who can be included in one Indonesian family's application?

Only people who are in Australia at the time of application. Form 866 is explicit about it, and it is the single most common disappointment in Indonesian matters, because families are frequently split between Australia and Indonesia.

The category is a member of the same family unit, defined in section 5(1) of the Migration Act by reference to member of the family unit in regulation 1.12(4). In practice that covers a spouse or de facto partner, dependent children and other dependants who are here. A parent, sibling, adult child or partner who is still in Indonesia cannot be added to the application, however dangerous their position is said to be.

Each person included who has their own claims for protection completes their own claims questions. Where the main applicant is found to engage Australia's protection obligations, it is generally not necessary for the Department to separately assess the claims of the other family members included with them. That is an efficiency, not a reason to leave a second person's claims out where those claims are the stronger ones.

In what order does the Department decide an Indonesian application?

The order is fixed by section 36A of the Migration Act, and it is not discretionary.

The decision maker first assesses whether the applicant engages protection obligations and meets the refugee criterion in section 36(2)(a), and that assessment is conducted without reference to section 36(3). If the refugee criterion is met, section 36(1C) is then considered. If the refugee criterion is not met, or it is met but section 36(1C) is not, the decision maker assesses the complementary protection criterion in section 36(2)(aa), again without reference to section 36(2C) and section 36(3).

Only once one of those grounds is satisfied do the remaining criteria come into play, including the public interest criteria in clause 866.225, and it is departmental policy that all subsections of section 36 are assessed before any character concern is referred for assessment under section 501.

The practical consequence is simple. Both grounds should be run wherever the facts allow, because the decision maker is required to work through them in that order anyway. An application that pleads only the refugee ground invites a refusal that never properly engages with complementary protection under section 36(2)(aa).

Does an Indonesian applicant need a police certificate from Indonesia?

No. Under the Department's penal checking policy, every protection visa applicant aged 17 or older requires an Australian penal check, and an applicant who has lived in another country for more than 12 months since turning 16 requires a check from that country, other than the country from which they are claiming protection.

For an Indonesian applicant, Indonesia is the country from which protection is claimed. A certificate from the Indonesian National Police is therefore not part of the ordinary checking process. That is deliberate. Asking a person to approach the authorities they say they fear, for a document to give to a foreign government, would defeat the purpose of the protection system.

A check will be required from a third country where the applicant has lived, for example a period of work or study in Singapore, Malaysia, Korea or the Gulf. That is worth identifying early, because those certificates take time and a request for one late in the process stalls an otherwise complete file.

What does not apply to an Indonesian Subclass 866 application?

A great deal of what Indonesian applicants are told by friends, community pages and unregistered advisers is simply wrong.

There is no safe country list. Australian migration law contains nothing that shuts out a claim because Indonesia is a democracy, a neighbour or a trading partner. Nationality changes the country information, not the test.

UNHCR registration is not required. A person does not need to have approached the United Nations High Commissioner for Refugees, in Indonesia or anywhere else, and no UNHCR document is a criterion for the visa.

Condition 8503 does not block the application. The no further stay condition carves out protection visas in its own words, so no waiver is needed before lodging. We deal with this in detail in our article on applying for a Subclass 866 protection visa on a tourist visa.

Length of residence, hardship and family ties are not the test. Years in Australia, an Australian partner, an Australian-born child or a good work history do not satisfy section 36. They belong in a different application, or in a request to the Minister, not in the protection criteria.

A tourism economy is not an answer. The fact that Bali receives Australian visitors says nothing about whether a particular person faces a real chance of persecution in their own province.

Which country information decides an Indonesian protection claim?

The Department of Foreign Affairs and Trade country information report on Indonesia decides more of these claims than any other single document. Ministerial Direction Number 84 of 24 June 2019, issued under section 499 of the Migration Act, provides that where DFAT has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take that assessment into account where it is relevant. The decision maker is not precluded from considering other information.

The current report is dated 24 July 2023 and replaced the previous report of 25 January 2019. It runs through refugee convention claims by race and nationality, religion and political opinion, then complementary protection claims, then state protection, internal relocation and treatment of returnees.

The consequence for an Indonesian application is direct. A claim that contradicts DFAT without engaging with what DFAT actually says will usually be refused on that basis, and the refusal will quote the report. A claim that identifies where the report supports the applicant, and explains with evidence why the applicant's own circumstances sit outside the general assessment, is a far harder application to refuse. Country information is not an obstacle to be ignored. It is the material the decision maker is directed to use.

Why does internal relocation defeat so many Indonesian claims?

Because Indonesia is large, and because DFAT says Indonesians move.

Section 5J(1)(c) requires the real chance of persecution to relate to all areas of the receiving country. Section 36(2B)(a) removes a real risk of significant harm where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk. Those two provisions do more damage to Indonesian applications than anything else in the Act.

DFAT assesses that Indonesian citizens are legally able to move and reside freely within all territories of the Republic of Indonesia, and that Indonesians can and do relocate, with major cities such as Jakarta offering greater employment opportunities. A claim built around one village, one regency or one local group has to explain why moving to another island would not solve the problem.

There is a counterweight, and it is in the same report. Indonesians who relocate within Indonesia are required to register with the relevant local authority within one year of relocating, under Presidential Decree No. 25 of 2008, based on Law No. 23 of 2006, and that registration information is passed to higher authorities. Where the feared harm comes from the state, or from a group with reach into official records, a registration system that reports upwards is directly relevant to whether relocation is reasonable. The argument is about reach and traceability, not distance on a map.

What does state protection mean for an Indonesian claim?

It means asking whether Indonesian authorities could provide the applicant with effective protection, which is what section 36(2B)(b) requires for complementary protection, and whether the state is able and willing to protect the applicant for the refugee ground.

DFAT's assessment gives both sides of this. Indonesia has a national human rights institution, Komnas HAM, with a good reputation and a history of investigating politically sensitive matters, but its recommendations are not binding on government and are not always implemented. Police investigate allegations of torture when they are made, but the findings of those investigations are seldom released, and DFAT records that torture is most often alleged to be carried out by police.

For the applicant, this turns on evidence of what actually happened. Did you go to the police, and what did they do. If you did not go, why not. A statement that the police would have done nothing is an assertion. A statement that you made a report, that you can describe the station and the officer, and that nothing followed, is evidence. Where a report was never made because the feared harm came from the police themselves, or from a family with local connections, that has to be said plainly and explained, not left as a gap for the delegate to fill in.

How is a religious claim from Indonesia tested?

Against the structure of Indonesian religious regulation, which is specific and which most published material gets wrong.

Indonesia recognises six official faiths: Islam, Catholicism, Protestantism, Buddhism, Hinduism and Confucianism. Religious groups other than those six must seek approval from the Ministry of Home Affairs to operate as civil society organisations, and failure to do so may lead to arrests and charges, for example for blasphemy. Indonesia's Criminal Code prohibits acts or words that insult one of the official religions, and the Electronic Information and Transaction Law makes it an offence to deliberately disseminate information aimed at inciting hatred or using blasphemous or heretical language. Sentences of several years' imprisonment have been imposed for statements made online.

Here is the point competitors get wrong, and it is the most important sentence in this section. Apostasy is not a crime in Indonesia. Conversions do occur, including individual conversions and whole communities converting, and a person's religion is registered and appears on their identity card, so conversion involves bureaucracy rather than prosecution.

That does not defeat a conversion claim. It relocates it. A claim that a convert will be prosecuted by the Indonesian state for leaving Islam contradicts the country information and will be refused. A claim that a particular applicant's own family, neighbourhood, employer or local religious authorities have already responded to their conversion with threats or violence, and that the state will not or cannot intervene, is a claim in the right shape. Our page on religious persecution and protection visas explains how these claims are assessed.

How does Aceh change the analysis?

Aceh has special status for the use of sharia law, and the regulations there reach conduct that is lawful everywhere else in Indonesia. Sharia regulations in Aceh prohibit the consumption, production and distribution of alcohol, close proximity to a member of the opposite sex to whom a person is not married or closely related, adultery, gambling and same-sex sexual relations, and they impose strict dress codes and curfews on women. Since 2005, punishments have included public canings.

Two qualifications decide most Aceh claims. Sharia in Aceh is intended to apply to Muslims, and not to non-Muslims or non-permanent residents. And those regulations are provincial. An Acehnese applicant therefore faces the relocation question in its sharpest form, because the conduct that exposes them in Banda Aceh may not be an offence in Medan, Jakarta or Surabaya.

The answer, where there is one, lies in who is looking for the applicant and how far that reach extends, not in the content of the provincial regulations alone.

How is a Papua claim tested?

As a political opinion claim, actual or imputed, against country information that is unusually difficult to verify.

There is a long-running armed conflict in the Papua provinces related to secessionist aspirations, with a heavy police and military presence, and parts of the region, particularly the Highlands, are remote and dangerous. Most allegations of extrajudicial killing in Indonesia relate to the Papua provinces, and DFAT notes that when killings occur in violent or remote areas it is often difficult to know the circumstances. Independent observers have limited access, which cuts both ways in a protection claim.

DFAT also assesses that ethnic Papuans are at low risk of societal violence in general, an assessment that expressly does not extend to the Papua Highlands, and that people of Papuan ethnicity can and do move in and out of the area. Ethnicity alone is therefore not a claim. Activity, association, family connection to a named group, arrest history, or a profile created by protest or online posting is what moves a Papua claim from general instability, which section 36(2B)(c) excludes, to a personal risk.

The treatment of returnees matters here too. DFAT assesses that a failed asylum seeker is unlikely to be held or questioned by Indonesian authorities, and is not aware of examples of that occurring, but that those engaged in separatist or terrorist activity may be questioned. For a Papuan applicant with a genuine profile, that sentence is the claim.

What evidence can an Indonesian applicant realistically produce?

The evidence that wins these applications is almost always evidence the applicant already has, or can obtain from within Australia.

That means the applicant's own detailed statement, which is the spine of the whole file. It means the identity documents already held, including the passport, the resident identity card and the family card. It means messages, call logs, photographs and social media material still on the applicant's phone, captured properly before an account is deleted. It means letters from a church, temple, organisation or community group in Australia, medical records created here, and statements from people in Australia who can say what they witnessed or what the applicant told them at the time.

It does not mean sending a frightened person back into contact with Indonesian police stations, courts or government offices to collect paperwork that was never created. Where a document does not exist, the answer is to say so and explain why, not to leave silence in the file. A delegate can accept an explained absence. A delegate cannot accept a document that cannot be authenticated, and material of doubtful provenance is far more dangerous to a claim than a missing record.

Does sexual orientation or gender identity change how the claim runs?

The legal test does not change, but the evidence and the country information do, and section 5J(3) matters more here than anywhere else, because an applicant cannot be expected to avoid harm by concealing an innate or immutable characteristic or one fundamental to their identity or conscience. Our page on LGBTI protection visa claims and our article on proving an LGBTI protection claim for Indonesian students deal with these claims specifically.

What happens at the protection visa interview for an Indonesian applicant?

The applicant is interviewed by a delegate of the Minister, and almost every applicant is interviewed. The interview is audio recorded with the applicant's permission, and the officer deciding the application considers that recording along with everything else on the file.

An interpreter is provided where one is needed, and the interpreter is not permitted to disclose anything they hear. Original identity documents should be brought, with English translations certified by a translator accredited by the National Accreditation Authority for Translators and Interpreters. New material handed over at the last moment may delay the interview rather than help it, because the officer may need time to consider it or may decide to seek the information in writing instead.

Two things are particular to Indonesian applicants. The first is language. An applicant whose first language is Acehnese, Javanese, Madurese or a Papuan language may be interviewed in Bahasa Indonesia and may not say that they are struggling, out of politeness. The language of the interview should be settled in advance, not discovered on the day. The second is the interpreter themselves. In a community where people know each other, an applicant may reasonably fear that an interpreter knows their family. That concern is raised in writing before the interview, not in the room. Our page on the protection visa interview sets out what happens on the day.

What status does an Indonesian applicant hold while the application is decided?

Lodging a protection visa application does not cancel the visa already held. A student visa continues on its own terms until it expires. What normally happens at lodgement is that a bridging visa is also granted, and it sits dormant until the substantive visa ends.

Which bridging visa is granted, and what conditions attach to it, depends on the applicant's circumstances at the moment of lodgement. A person who lodges while still holding a substantive visa will usually hold a bridging visa with work rights. A person who lodges after becoming unlawful may hold a Bridging Visa E with no work rights and will need to apply separately on the basis of financial hardship. That difference decides whether a person can pay rent for the next two years, which is why the timing of lodgement is a practical decision as much as a legal one. Our article for Indonesian students considering a Subclass 866 application covers the student position in detail.

Does it matter how long you waited before applying?

Delay is not a bar, and there is no deadline in the Act for lodging a protection visa application. But delay is weighed.

A delegate is entitled to ask why a person who feared return waited years before saying so, and an unexplained delay is regularly used as a credibility finding. There are good explanations and they are common: the harm arose after arrival, the applicant only learned what had happened at home later, the applicant was concealing something they could not say out loud, or the applicant received bad advice. Every one of those explanations works better in the original statement than in an answer given under pressure at interview. Our article on whether delaying a Subclass 866 application affects your claim deals with this in full.

What happens if an Indonesian applicant's Subclass 866 visa is refused?

A refusal at the Department is not the end of the matter, but the window to act is short and it is strictly applied.

A refused applicant generally has a right to apply to the Administrative Review Tribunal for merits review. The Tribunal stands in the shoes of the decision maker and decides the application again on the material before it, including new material and new country information. It can affirm the refusal, or remit the application to the Department with directions. A remittal is not a grant, but it means the claim is assessed again.

The deadline for applying to the Tribunal is short, it runs from the day the refusal is taken to have been received, and it is not forgiving. Missing it usually ends the matter, whatever the merits of the claim. Our page on protection visa refusals and our Administrative Review Tribunal guide for Subclass 866 refusals set out how review works.

Behind all of it sits section 48A. Once a protection visa application has been refused, that section prevents another protection visa application being made while the person remains in Australia. Only the Minister can lift the bar, under a personal and non-compellable power in section 48B. That is the reason the first application has to be right the first time, and the reason a thin application lodged quickly to secure a bridging visa is such an expensive decision.

Which mistakes most often sink Indonesian protection applications?

Running one ground when the facts support two. The refugee ground and complementary protection are assessed in a fixed order under section 36A. Pleading only one leaves the second undeveloped.

Describing hardship instead of significant harm. Section 36(2A) is a closed list: arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. Poverty, unemployment and social exclusion are not on it unless they can be characterised as one of those five things.

Ignoring relocation. If the application does not deal with why moving to another province would not work, the delegate will decide that question without help.

Contradicting the country information without engaging it. DFAT's report is the material the decision maker is directed to consider. It has to be answered, not avoided.

Inconsistency across forms. Names, dates, addresses, family members and travel history appear on the visitor or student visa application, on Form 866, on Form 80 and in the statement. Differences between them are found, and they are treated as credibility issues.

Adding the real claim late. A claim raised for the first time at interview, or after a refusal, is assessed against the applicant's failure to raise it earlier. Section 91W also allows an unfavourable credibility conclusion where identity or nationality evidence is refused or a bogus document is produced without reasonable explanation.

Letting a bridging visa lapse or travelling home. Both are avoidable, and both cause damage that no later submission repairs.

How My Migration Lawyers works on Indonesian Subclass 866 matters

Our protection visa lawyers act for Indonesian nationals in Australia on Subclass 866 applications and on refusals of them, and the work is the same in every matter. We take a full history, in the applicant's own words, before anything is drafted. We identify which grounds are available on the facts and plead each one separately. We read the current DFAT country information report on Indonesia against the individual account and deal with relocation, state protection and the treatment of returnees directly rather than leaving them to the delegate. We build the statement and the supporting material around what the applicant can actually produce. We prepare the applicant for the interview by making sure they know their own file, and we settle language and interpreter issues in writing beforehand. Where an application has already been refused, we assess the decision record against the review deadline immediately, because that deadline does not move.

If you are an Indonesian national in Australia and you are considering a protection visa application, or your application has been refused, you can request a consultation with a migration lawyer or contact My Migration Lawyers and a lawyer will reply by email.