Subclass 866 Visa for Indonesians: What It Gives You and How It Is Decided

What is the Subclass 866 visa for an Indonesian in Australia?

The Subclass 866 is the permanent protection visa Indonesians apply for in Australia, granted as permanent residence from the day of grant. It is not a stepping stone to something else. There is no provisional stage, no second application later, and no probation period. If the Department grants it, the applicant becomes a permanent resident of Australia on that date.

The visa sits in Part 866 of Schedule 2 to the Migration Regulations 1994. It is granted under section 65 of the Migration Act 1958, once the decision maker is satisfied that every criterion is met. Clause 866.411 requires the applicant to be in Australia when the visa is granted, which is why the visa cannot be finalised for someone who has gone home to Indonesia while waiting.

Most Indonesians who apply are in Australia already on a student visa, a visitor visa, a working holiday visa or a bridging visa. The Subclass 866 is applied for from inside the country, online, through the applicant's own ImmiAccount. Nothing is filed in Jakarta, nothing goes through the Indonesian Embassy, and no Australian mission overseas is involved. If the account has not been set up yet, our guide on how to create an ImmiAccount covers the steps.

For the framework end to end, see the Subclass 866 protection visa page and the complete guide to the Subclass 866 protection visa. Country specific material for Indonesian clients sits on our Indonesia page.

Why the Subclass 866 is described as permanent from the day it is granted

Permanent means the visa has no expiry date attached to the right to remain. A Subclass 866 holder can live in Australia indefinitely, work for any employer, study, enrol in Medicare, and later apply for Australian citizenship under the general residence requirement in the Australian Citizenship Act 2007.

This is the single biggest practical difference between the Subclass 866 and the temporary protection visas people read about online. An Indonesian who arrived by air on a valid visa and applies onshore is applying for permanent residence, not for a temporary stay that has to be renewed. That fact changes how the application should be prepared, because the standard of proof does not soften just because the visa is the only one available.

The travel side is the one limit worth knowing. Like every permanent visa, the Subclass 866 carries a travel facility that runs for a set period from grant. After it expires, the holder needs a Resident Return visa to re-enter Australia. Losing track of that date is one of the most common problems protection visa holders create for themselves years later.

What the Subclass 866 is not

The Subclass 866 is not a refugee status determination, not an asylum registration, and not a place in Australia's offshore humanitarian intake. Those are three different things, and Indonesian applicants routinely arrive at a first consultation having confused them.

There is no asylum register in Australia. A person does not sign up as an asylum seeker and then wait for a decision on that status. There is one act, which is lodging a visa application, and one decision, which is whether the visa criteria are met. There is also no role for the United Nations High Commissioner for Refugees in an onshore application. The Department decides it.

The offshore Refugee and Humanitarian subclasses 200, 201, 202, 203 and 204 all require the applicant to be outside Australia. They are not an alternative for someone already here, and leaving Australia to pursue one is a serious step that should not be taken without advice.

The Subclass 866 is also not a bridging visa. The bridging visa is the thing that holds your status while the Subclass 866 is being decided. They are separate visas with separate conditions, and mixing them up is how people end up working without permission.

The difference between the visa and the claim, and why it matters

The visa is the legal status. The claim is the set of facts you say entitle you to it. The Department grants the visa. It does not certify your story.

This distinction decides how an application should be built. A decision maker is not asked whether your life in Indonesia was hard. They are asked whether you meet a criterion. Under section 36(2)(a) of the Migration Act, that criterion is that Australia has protection obligations to you because you are a refugee. Under section 36(2)(aa), it is that there are substantial grounds for believing you face a real risk of significant harm on return.

Everything in the file has to be pointed at one of those two provisions, or at the family unit grounds in sections 36(2)(b) and 36(2)(c). Material that does not connect to a criterion adds length, not weight. This is why a statement written as a life story often fails where the same facts, organised against the statutory tests, would not.

Who can be on one Subclass 866 application

A spouse, de facto partner and dependent children who are members of the same family unit and are in Australia can be included in one application. They are granted under sections 36(2)(b) and 36(2)(c), which do not require them to have a protection claim of their own. Their visa depends entirely on the main applicant succeeding.

That dependency is why the choice of main applicant is a decision, not an administrative detail. Where two members of an Indonesian couple both have claims, and one is materially stronger, the stronger claim should usually be the one that carries the application. Once the application is lodged, that choice is very difficult to unwind.

Family members outside Australia cannot be included. A spouse or child still in Indonesia is dealt with after grant, through a separate application, and that is covered later in this article.

What the Migration Act makes the applicant responsible for

Section 5AAA of the Migration Act places the responsibility for the claim on the applicant. The applicant must specify all particulars of their claim and provide sufficient evidence to establish it. The Minister does not have a duty to specify particulars the applicant has not raised, or to obtain evidence the applicant has not supplied.

Read that provision alongside section 48A, which bars a second protection visa application after a refusal, and the consequence is stark. A claim that is not made in the first application is very difficult to raise afterwards, and there is no general right to a second attempt. The only route is section 48B, a personal and non-compellable power of the Minister to lift the bar. There is no right to have a request under it considered.

Identity sits in the same category. Section 91W allows an adverse conclusion to be drawn where an applicant refuses or fails to produce documentary evidence of identity, nationality or citizenship without a reasonable explanation, and section 91WA makes providing a bogus document or destroying identity evidence an offence. Indonesian applicants should bring the passport, the Kartu Tanda Penduduk, the Kartu Keluarga and the birth certificate to the first appointment, and should say plainly if a document is missing rather than allowing the gap to become a credibility problem later.

In what order does a decision maker work through an Indonesian file?

The decision maker works through the criteria in a fixed order, and knowing the order tells you where your application is most likely to fail. Identity comes first, because a claim cannot be assessed against country information until the decision maker knows which country and which community the applicant belongs to.

The refugee ground in section 36(2)(a) is considered next. Complementary protection under section 36(2)(aa) is only reached if the refugee criterion is not met. It is not an alternative argued in parallel and chosen between. It is the second question, asked after the first is answered against you.

If either ground is met, the decision maker then turns to the remaining criteria in Part 866 of Schedule 2 and to the public interest criteria, including health and character. If neither ground is met, the application is refused and the other criteria are never reached.

This order explains a pattern Indonesian applicants find confusing. A refusal letter can run to many pages on identity and credibility and say almost nothing about the harm feared. That is not an oversight. The decision maker stopped where the case stopped.

What the refugee ground in section 36(2)(a) requires

The refugee ground requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and it requires that fear to apply across the whole of Indonesia. Section 5H defines who is a refugee. Section 5J defines when a fear is well-founded.

Three parts of section 5J do most of the work. Section 5J(4) requires the Convention reason to be the essential and significant reason for the persecution, and requires the persecution to involve serious harm and systematic and discriminatory conduct. Section 5J(1)(c) requires the real chance of persecution to relate to all areas of the country. Section 5J(6) disregards conduct the applicant engaged in while in Australia unless the applicant satisfies the Minister that it was not engaged in for the purpose of strengthening the claim.

Section 5J(3) is the provision most often misunderstood. A person is not expected to hide who they are in order to be safe. The section prevents a decision maker from requiring an applicant to conceal or modify a protected attribute such as religion or sexual orientation as a way of avoiding harm. That principle underpins our pages on religious persecution claims and LGBTI protection visa claims, and it is worked through in LGBTI protection visas in Australia.

What complementary protection in section 36(2)(aa) requires

Complementary protection requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Indonesia, there is a real risk the applicant will suffer significant harm. No Convention reason is needed. An Indonesian facing harm for an entirely private reason, such as a family blood feud or a creditor, is in complementary protection territory rather than refugee territory.

Significant harm is a closed list in section 36(2A). It is arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. Nothing outside those five categories counts, no matter how serious it feels to the person living it.

Section 36(2B) then removes the ground in three situations. Where it would be reasonable for the applicant to relocate within Indonesia. Where the Indonesian authorities could provide protection. Where the risk is one faced by the population generally. Our page on complementary protection sets out how the test is applied, and complementary protection for LGBTI applicants works through it in a specific context.

How is an Indonesian applicant's credibility actually assessed?

Credibility is assessed by testing your account against itself, against your own documents, and against published country information about Indonesia. It is not assessed on whether the decision maker likes you or finds your story moving.

Four things are compared. First, internal consistency: does the account you give at interview match the written statement, the application form, and anything you said in an earlier student or visitor visa application. Second, specificity: a person who lived through an event can usually give dates, places, names and sequence, while an account assembled later tends to stay general. Third, plausibility against country information: the decision maker asks whether events of this kind happen in that part of Indonesia, to people in that position. Fourth, conduct: what you did at the time, whether you reported anything, whether you moved, whether you renewed your passport, and when you applied.

The general shape of the process is set out in applying for a protection visa in Australia. Where an applicant is otherwise credible but cannot corroborate a particular fact, the decision maker may accept the claim without documents. That is not generosity. It reflects that people fleeing harm rarely leave with a paper trail. What it does not survive is an applicant who is found to have invented part of the account, because a finding of fabrication on one point routinely infects the rest of the file.

What a decision maker does when your account has gaps or inconsistencies

A gap is not fatal. An unexplained gap usually is. The decision maker is required to put significant adverse information to the applicant and give an opportunity to comment, so inconsistencies are normally raised at interview or in writing before a decision is made.

The answer that works is the true explanation, given directly. Trauma affects recall and sequencing. Interpretation through a second language introduces error. Earlier visa applications are often completed by an agent in Indonesia without the applicant reading them. Each of those is a real explanation, and each of them can be evidenced. What does not work is expanding the story to close the gap, because the expansion itself becomes a new inconsistency.

Delay in applying is treated the same way. Waiting years after arrival before lodging is not a bar, and it does not extinguish a claim, but it will be raised, and it needs an explanation grounded in what actually happened. We deal with this in detail in does delaying a Subclass 866 application affect your claim.

Why country information about Indonesia decides more than your documents do

Country information is the yardstick every Indonesian claim is measured against. Ministerial Direction 84, made under section 499 of the Migration Act, requires decision makers to take into account the Department of Foreign Affairs and Trade country information report on Indonesia where it is relevant. That report is therefore the most important document on the file after the applicant's own statement.

This produces an outcome applicants find counter intuitive. A claim supported by five documents from Indonesia can fail, while a claim supported by none can succeed, because the question is not how much paper there is. The question is whether the account fits what is known about conditions in that place, for that group, at that time.

It also means the country information has to be engaged with directly rather than avoided. Where the report is unhelpful to a claim, the submission has to explain why the applicant's circumstances sit outside the general picture. Where the report is silent, other sources have to be introduced and their reliability explained. Indonesia is a large and varied country, and a report written at national level will rarely describe a single regency accurately.

Why relocation and state protection are asked about in every Indonesian file

Internal relocation defeats more Indonesian claims than any other issue, because Indonesian citizens may lawfully live anywhere in the republic and most feared harm is local. The decision maker will ask why the applicant could not live in Jakarta, Surabaya or Denpasar instead of leaving the country.

Two points decide that question. Relocation must be reasonable, not merely possible, so evidence about whether the applicant could actually work, subsist and live safely in the proposed location is what carries the argument. And relocation is no answer at all where the feared harm comes from the state, because the national police and the armed forces operate throughout Indonesia.

State protection runs on the same logic. Indonesia has a national police force, functioning courts, a constitutional bill of rights and a national human rights commission, so the starting point does not favour applicants. A general statement that Indonesian police are corrupt will not carry a claim. Evidence that these police, in this district, did nothing about this complaint, might.

What the decision record says, and why you will need it later

The decision record sets out the findings of fact, the country information relied on, and the reasons each criterion was or was not met. It is not a form letter. It is the document that governs everything that happens next.

Read it carefully and read it early. It tells you whether the application failed on identity, on credibility, on relocation, on state protection, or because the harm feared fell outside section 36(2A). Those are entirely different problems, and they call for entirely different evidence on review.

It also matters for anyone who later applies for another visa, because findings recorded in a protection decision do not disappear. An adverse credibility finding can surface years afterwards in a partner visa or a work visa assessment, which is one reason a weak protection application filed to buy time is such an expensive decision.

What does a granted Subclass 866 let an Indonesian do in Australia?

A granted Subclass 866 makes the holder a permanent resident, with the right to live in Australia indefinitely, work for any employer in any occupation, study, and enrol in Medicare. There are no visa conditions restricting work hours, course enrolment or employer, which is the practical change most Indonesian clients notice first.

Permanent residence also opens doors that were closed on a student or visitor visa. A permanent resident can sponsor a partner for a partner visa, subject to the sponsorship rules. A permanent resident can access the citizenship pathway once the general residence requirement in the Australian Citizenship Act 2007 is met. A permanent resident can buy property, obtain finance and hold the kinds of employment that require ongoing work rights.

What the visa does not do is make the holder an Australian citizen, and it does not remove the character provisions of the Migration Act. Permanent residence is a status, not immunity.

Can a Subclass 866 visa be lost after it is granted?

Yes, but not because conditions in Indonesia improve and not because the holder travels. There is no provision in the Migration Regulations that strips a granted Subclass 866 from someone on the basis that the country they feared has become safer.

What can end the visa is cancellation, on the same grounds that apply to other visas. Section 109 allows cancellation where incorrect information was given or a bogus document was provided in connection with the application, which is the ground most directly connected to how a protection application was prepared. Section 116 allows cancellation in prescribed circumstances. Section 501 allows refusal or cancellation on character grounds, and mandatory cancellation applies where a person is serving a sentence of imprisonment and fails the character test on the substantial criminal record ground.

Travelling back to Indonesia after grant does not cancel the visa by operation of law. It is, however, a fact that can be used against the holder if a cancellation question is ever raised, because returning voluntarily to the country in which harm was feared is inconsistent with the claim on which the visa was granted. It is also relevant if the original application is ever reopened under section 109. Our visa cancellations page sets out how the cancellation grounds work.

What happens to children born in Australia while the application is pending

A child born in Australia to an Indonesian couple while a Subclass 866 application is being decided is dealt with automatically, not by a new application. Regulation 2.08 of the Migration Regulations treats a child born after the application is made, and before it is decided, as an applicant in that same application.

Section 78 of the Migration Act deals with the child's own status. A child born in Australia who is a non-citizen at birth is taken to have been granted a visa of the same kind, class and subclass as the visa held by a parent at the time of the birth. In practice that means a baby born while the parents hold a bridging visa is taken to hold that bridging visa, and a baby born after the Subclass 866 is granted is taken to have been granted the Subclass 866.

The step that is not automatic is telling the Department. The birth has to be notified and the child's details added, and the sooner that happens the fewer problems it creates. Notifying after a decision has been made is far harder than notifying before.

What the visa means for family still in Indonesia

A Subclass 866 does not bring family in Indonesia to Australia automatically. Family members who were not in Australia could not be included in the application, and the grant of the visa does not extend to them.

After grant, a permanent resident can sponsor a spouse or de facto partner for a partner visa in the usual way, starting with the offshore Subclass 309 partner visa. The relationship criteria are the same for same sex couples, which is set out on our LGBTIQ+ partner visa page. Where the partner is already in Australia, the onshore Subclass 820 partner visa is the pathway, and our partner visa lawyers page explains how those matters run.

There is one point that has to be said plainly. Australia does not have a general family reunion right attached to a protection visa granted onshore. Anyone told otherwise should get that advice in writing from whoever gave it.

What happens if the Subclass 866 is refused

A refusal carries a right of merits review to the Administrative Review Tribunal, and the deadline is short and strictly applied. The Tribunal has no power to extend it, and the period runs from when the applicant is taken to have received the decision, not from when the letter was actually read. An out of date address in ImmiAccount is enough to lose the review right entirely.

Review at the Tribunal is a full merits review. The Tribunal stands in the shoes of the original decision maker, can consider evidence the Department never saw, and will usually hold its own hearing. It is a genuine second decision, and in protection matters it is frequently where the case is actually resolved. See our protection visa refusals page, the Administrative Review Tribunal guide for Subclass 866 refusals and what to expect at an ART review.

If the deadline is close, lodge the review application first and organise the evidence afterwards. Nothing else on the file matters if the review right is lost.

Which mistakes cost Indonesian applicants the Subclass 866

The mistakes that end Subclass 866 applications are almost always made before the application is lodged, not after. Five recur.

Leaving a claim out. Section 5AAA puts the onus on the applicant and section 48A closes the door afterwards. A claim about religion or sexuality that is held back out of embarrassment and raised only at the Tribunal will be tested against the fact that it was not raised earlier.

Letting somebody else write the statement. Statements prepared by an unqualified adviser, or copied from another person's matter, read like every other statement the decision maker has seen that month. They also contain facts that are not the applicant's, and those facts fall apart at interview.

Inconsistency with earlier visa applications. A student visa application saying the applicant intended to return to Indonesia sits awkwardly with a protection claim that the applicant could never safely return. That has to be addressed, not ignored.

Leaving Australia. Clause 866.411 requires the applicant to be in Australia at grant, and a bridging visa held on the basis of the application generally ceases on departure. A trip to Jakarta for a funeral can end the application in practice.

Applying to buy time. It spends the one protection application available, it exposes the applicant to section 48A, and it can create credibility findings that follow them into every later application, including partner and work visas. Where a protection claim does not exist, the honest advice is to say so and look at what else does. Our pages on visa refusals and the Schedule 3 waiver cover two of the alternatives.

How My Migration Lawyers works on Subclass 866 matters for Indonesian clients

We treat a protection matter as a legal file rather than a form. The first step is an assessment of whether a claim exists at all and which ground it runs on, before anything is lodged. That assessment includes the immigration history, which we verify ourselves rather than asking a client to chase documents they do not hold.

Assisting applicants drafting the statement so that every claim is actually made and connects to a criterion in section 36. Matching each element to the country information the decision maker is required to consider. Dealing with relocation, state protection and credibility head on instead of hoping they are not raised. Preparing the client for the protection visa interview. Where a refusal has already happened, protecting the review right first and arguing the matter at the Tribunal second.

Protection matters are supervised by Weiwei Zhang, Principal Lawyer. You can read more about Weiwei Zhang, about the firm on our about page, and about this area of work on the protection visa lawyers page. Consultations are held by video from anywhere in Australia. Other situations in the Indonesian caseload are covered in can Indonesian students apply for a Subclass 866 protection visa, applying for a Subclass 866 protection visa on a tourist visa, Subclass 866 for LGBTI Indonesian students and can international students apply for a Subclass 866 protection visa. The rest of our written material is collected on the migration law blog. The practice is based in Sydney.

If you want your situation assessed, request a consultation. If you would rather put your question in writing first, contact us here.