Are you a LGBTI from Indonesia? Do you fear returning to Indonesia?

Our Expert Immigration Lawyers have more than 12 years of experience helping LGBTI people from Indonesia to get a PROTECTION VISA in Australia

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INDONESIAN LGBTI – PROTECTION VISA

The Penal Code does not criminalise gay identity or same-sex intercourse in Indonesia. Some local laws criminalise same-sex activity, including in South Sumatra provincial laws and the cities of Pariaman and Palembang municipal laws.

Gay sex is punishable with up to 100 strokes in Aceh, a punishment that was meted out for the first time in May 2017 when two men accused of being caught in bed together were lashed 83 times each.

On 13 July 2018 two men received 87 strokes each for charges of same-sex intercourse.

Indonesia does not recognise sexual orientation or gender identity as grounds for protection in its anti-discrimination framework.

Pornography laws have been used to prosecute gay men engaging in consensual sex. That law contains provisions that identify gay sex as ‘deviant’, and carries penalties for offences of up to 15 years in prison.

Since 2016 an increasing number of incidents have been reported where police, or vigilantes who later report to police, have invaded private spaces including homes, hotel rooms and private clubs looking for LGBTI people. Victims have been paraded naked in public and identified in the media on some occasions, and as a result may have lost their jobs.

In 2017 Human Rights Watch reported that police apprehended 300 people for their presumed sexual orientation or gender identity. This included the arrest of 141 gay or bisexual men in one raid in May 2017 of a gym and sauna in Jakarta.

LGBTI people who are charged with these offences have difficulty in accessing legal representation due to discrimination by lawyers and judges.

In October 2018, two men were arrested for hosting an online social media page to connect LGBTI people and charged for spreading immorality under the Electronic Transactions and Information Law. The charge can incur a prison term of up to six years and maximum fine of IDR 1 billion/AUD 100,000.

LGBTI people generally avoid interaction with police where possible, as they believe police to be more likely to harass or blame LGBTI victims of crime than they are to provide access to justice. International observers have reported cases where police have colluded with Islamist organisations in harassing the LGBTI community. Officials often ignore formal complaints from LGBTI victims in assault cases, particularly if the suspect has police connections.

A 2013 study by the Pew Research Center found 93 per cent of Indonesians surveyed believed society should reject homosexuality.

Considerable social pressure pushes gay men and lesbians to enter into heterosexual marriages, and many lesbians are reportedly victim to ‘corrective rapes’. Family violence against LGBTI individuals is reportedly common.

Families and officials have subjected LGBTI people to ‘therapy’ intended to convert them to heterosexuality including, in some cases, after arrest. Psychologists in Indonesia are divided on whether or not LGBTI identities are a mental illness. In the past, LGBTI people have been enrolled in government disability programmes.

 

LGBTI INDONESIANS “WELL-FOUNDED FEAR OF PERSECUTION”

If you have a well-founded fear of persecution due to your gender identity or sexual orientation in Indonesia, you may be eligible for a Protection visa (subclass 866).

The first requirement states that you must fear persecution for at least one of five reasons specified in the Act:

  • Race
  • Religion
  • Nationality
  • Membership of a particular social group (PSG)
  • Political Opinion

LGBTI persons in Indonesia form a particular social group (PSG) within the meaning of the Refugee Convention because they share an innate characteristic or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it, and have a distinct identity which is perceived as being different by the surrounding society.

Although LGBTI persons in Indonesia form a PSG, establishing such membership may not be sufficient to be recognised as a refugee.

Our Immigration Lawyers can help you with your Onshore Protection Visa. Most of our LGBTI protection visa clients are international students and tourists who fear to return to their home country and would like to stay in Australia permanently. We have a proven success record in assisting nationals of Indonesia.

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FEAR OF PERSECUTION

Well-founded fear of persecution The Act states that a person has a well-founded fear of persecution if:

  • they fear persecution for at least one of five reasons specified in the Act (race, religion, nationality, membership of a particular social group, political opinion)
  • there is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
    the real chance of persecution relates to all areas of their home country
  • at least one of the five reasons must be the essential and significant reason for the persecution
  • the persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.

COMPLEMENTARY PROTECTION REQUIREMENTS

The complimentary protection provisions enable visa applicants to claim protection on broader grounds than those contained in the Refugee Convention, reflecting Australia’s obligations under international human rights law.

International human rights law precludes countries from sending people back to places where they face a real risk of being arbitrarily deprived of their life, or a real risk of being tortured or exposed to other cruel, inhuman or degrading treatment or punishment.

MIGRATION ACT 1958 (CTH)

Section 36(2A) of the Migration Act 1958 (Cth) largely gives effect to those obligations in domestic law. People at risk of this kind of harm are eligible for a protection visa. In this way, human rights law provides a ‘complement’ to protection under the Refugee Convention, hence the name ‘complementary protection’.

Specifically, section 36(2A) provides that Australia is not permitted to remove people to countries where they face a real risk of one or more of the following:

  • arbitrary deprivation of life
  • the death penalty
  • torture
  • cruel or inhuman treatment or punishment
  • degrading treatment or punishment.

Complementary protection introduced greater efficiency, transparency and accountability into Australia’s protection regime. Prior to March 2012, Australia was unable to guarantee that people who did not meet the refugee definition in the Refugee Convention, but who nonetheless faced serious human rights abuses if returned to their country of origin or habitual residence, would be granted protection.

Particular social group

There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person will be a member of a particular social group if:

  • each member of the group shares a characteristic
  • the person shares, or is perceived as sharing, the characteristic
  • any of the following apply:
    • the characteristic is innate or immutable (cannot be changed)
    • the characteristic is so fundamental to a person’s identity or conscience, they should not be forced to renounce it (go against it); or
    • the characteristic distinguishes the group from the rest of society
  • the characteristic is not a fear of persecution.
Serious harm

To have a well-founded fear of persecution, the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to:

  • a threat to the person’s life or liberty
  • significant physical harassment of the person
  • significant physical ill treatment of the person
  • significant economic hardship that threatens the person’s capacity to subsist (ability to survive)
  • denial of access to basic services, where the denial threatens the person’s capacity to subsist (ability to survive)
  • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (ability to survive).
Systematic and discriminatory conduct

To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.

  • Systematic means the harm is not random or generalised, but is targeted against the person.
  • Discriminatory means the conduct of the persecutor affects the person or members of a group in a way that singles that person or a group out from the rest of the community.

This means that if the serious harm feared by the person is not directed at them or a group to which they belong, for one of the five reasons above, the person does not have a well-founded fear of persecution and will not be a refugee.

Real chance of persecution

For the fear of persecution to be well founded, there must be a ‘real chance’ that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.

If there is a place in their home country where the person can live without a well-founded fear of persecution, they will not be a refugee. However, they must be able to safely and legally access that place.

Seeking protection from authorities in their home country

If the government or other parties that control all or a large part of the person’s home country is willing and able to offer effective protection to the person, they might not meet the definition of refugee. However, the person must be able to access the protection and the protection must be of a durable nature (provided on an ongoing basis). If the protection is able to be provided by the government, the protection must also include an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If this protection is able to be provided, the person does not have a well-founded fear of persecution and will not be a refugee.

A right to enter and reside in another country

If a person has a right to enter and reside in another country in which they do not fear persecution or significant harm, they must take all possible steps to exercise that right. If they do not, they might not be a refugee.

Modifying behaviours

According to the Act, a person does not have a well-founded fear of persecution if they can take reasonable steps to modify their behaviour so as to avoid a real chance of persecution their home country. However, this would not be the case if such a change would:

  • conflict with a characteristic that is fundamental to the person’s identity or conscience
  • require the person to conceal or hide a characteristic that is innate or immutable (one that they could not change), or
  • require the person to:
    • change their religious beliefs, including by renouncing a religious conversion, or conceal their true religious beliefs, or cease to be
    • involved in the practice of their faith
    • conceal their true race, ethnicity, nationality or country of origin
    • change their political beliefs or conceal their true political beliefs
    • conceal a physical, psychological or intellectual disability
    • enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child
    • alter their sexual orientation or gender identity or conceal their true sexual orientation, gender identity or intersex status.

Helping People Just Like You

What matters to us most is what our clients have to say about their experience once everything has been resolved. Below are some of the messages we have received from people we’ve represented.

Nane Siamoa
Nane S.
Gold Migration Lawyers made everything so easy for us to understand our Case Manager Walt was the best always so patient with us because we didn’t have a clue what we were doing my partner and I work full time jobs with little time to spare so having them represent us and help us throughout this whole process and submit our application was the BEST DECISION I have ever made and only after 58 days of submitting our application our Partner Visa was GRANTED!!! 🙌🏽🙌🏽🙌🏽🙌🏽 THANKYOU GOLD MIGRATION LAWYERS Especially to you Walt for all your Hardwork in helping us receive this 461 Visa and start our new journey together here in Australia 🇦🇺read more
Gabriel
Gabriel
In March, I received an invitation from the AAT and consulted a few immigration lawyers. I ultimately chose Gold Migration, and it was the best decision I could have made.I want to give a big shout-out to Seameh and Gearoid. Seameh has been amazing and incredibly helpful since day one, providing continuous support and guidance. Gearoid, thank you so much for preparing me for my case with such patience and dedication. Your help was invaluable.We went to the AAT in May, and a few weeks later, I was overjoyed to be notified that I had won my case. Tears of happiness streamed down my face as I realized what a monumental victory this was.I highly recommend Gold Migration. To say they are amazing would be an understatement. Their professionalism and dedication are truly exceptional. They went above and beyond for me.Once again, I can't thank you both enough. Your assistance means the world to me, and I am deeply grateful.read more
J T
J T
I would like to thank Peter Pang (he has left) and Walt Calis for their absolutely amazing and caring nature. Peter was an absolute gem. When I heard that he had left, I was devastated. However that feeling didn’t last long as Walt helped me with my visa application after. He has always been so prompt in responding to my emails, so caring, and friendly. Nothing was ever too difficult for him and he made sure I was well informed and updated throughout the whole process. Although my visa application was a long wait of 4 years, we made it through. He called me to deliver the good news and I can’t thank him enough. Thank you once again Walt. I appreciate you and everything you have done.read more
Natalie Nyein
Natalie N.
I was so stressed about applying for a protection visa because I heard about how difficult it was to apply for and the rejection rates, but Saemeh and her team made the process easy and seamless. All I had to do was fill out some forms and send out my documents and they took care of everything! If you are a Burmese citizen looking for a protection visa I couldn't recommend anyone better to handle your case.read more
Pramela Raja Desinggit
Pramela Raja D.
I cannot speak highly enough of my lawyer Mr Walt and his exceptional representation throughout my appeal process at the Administrative Appeals Tribunal (AAT). From the moment I engaged their services, I was impressed by their professionalism, expertise, and unwavering dedication to my case.Mr Walt demonstrated an unparalleled understanding of migration law and meticulously prepared my appeal, leaving no stone unturned. His clear communication and guidance throughout the entire process alleviated any concerns I had, providing me with the confidence and reassurance I needed during what was undoubtedly a stressful time.What truly sets Mr Walt apart is his genuine care for his clients. He took the time to understand my unique circumstances, and his personalized approach ensured that my case received the attention it deserved. His strategic legal arguments were both persuasive and compelling, ultimately leading to a favorable outcome at the AAT.I am immensely grateful to Mr Walt for his unwavering support and tireless efforts on my behalf. Thanks to his expertise and dedication, I can now look forward to a positive future in Australia. I wholeheartedly recommend Mr Walt to anyone in need of expert migration legal services.Thank you once again for everything.Sincerely,Pramela Raja Desinggitread more
KAMALPREET SINGH
KAMALPREET S.
I am highly thankful to Saemeh Ghasemi and Carolyn Araboghlian for helping me to get visa for my wife and 12 years old step daughter.I was stuck with any other migration agent for almost 2 years but no response from immigration.Someone has recommended me Gold migration and I received my visa in 5 months with their hardwork and well prepared lodgement of my file.Little bit expensive for me but really worth it.Thanksread more
Nay Zaw
Nay Z.
Saemeh has been very supportive and knowledgeable. Highly recommended.
Abdul hamid Adam
Abdul hamid A.
My partner and I walked into Gold Migration for the first time in early November 2023 for seeking help about my case in AAT. Saemeh Ghasemi help me and support me through with everything that I need to prepare for hearing in next few week. Saemeh Ghasemi also accompany and attend AAT hearing with me. Saemeh Ghasemi always give us mentally support, tell us don’t be stress. In January 2024, Saemeh called me and give me a good news, that we won ATT. Thank you Saemeh Ghasemi, you make my self and my partner can be together and stay in Australia together. Thank you Gold migration lawyers.read more
Simon m
Simon m
I engaged Gold Migration, because I had left things a little too late and there were some factors that were too complicated and too confusing and too high risk for me to do on my own.My first meeting with them was by video. I was looking at a set up with lined up desks much like you see in a court room drama. There were 3 people in the room. They asked me to describe my circumstances and they answered my questions. They were forthright and pulled no punches, they told me the risks and the issues I would have to deal with. Then they conferred together and then gave me a price. It wasn’t the most expensive I had been quoted, nor the cheapest, but what impressed me about them was the machine like efficiency they dealt with the problem from the beginning. There are NO surprises from this firm. They lay out all the costs at the time of engagement, they tell you the steps they will be taking and their approach.Remember this is Immigration you’re dealing with, even expert lawyers have no control over such a department, timescale is not in the control of you or your lawyers.For the first month it was a flurry of activity for me. They sent me a cloud based drive to upload all my documents and evidence to. They reviewed it and made suggestions. All of the statements they asked me to write came with examples and best way to write them. Then they told me they had everything they needed and to leave it with them. On reflection I realised I had witnessed a highly experienced team in action. They asked for and got what they needed, it was explained and documented and organised. They have a very efficient set of procedures they follow and they make sure all the boxes are ticked before they submit.You can’t fault this level of experience and practical application, you basically pay them and go along for the ride. Over the months as immigration dealt with the case they came back to me a few times and asked for more information. I know they wrote reports and fielded questions from immigration but all I got was a comment that everything was tracking as planned.The most interesting part for me to see was the obvious pleasure and satisfaction they enjoyed when they called me to tell me we finally had the PR visa. They took it personally and that meant a lot to me.Are they expensive ? Well that depends, how much is having your family members live with you in Australia worth to you ? They are not the cheapest , they are not the most expensive, but I am confident that they are the best!If you are worried about getting a loved one or a valued worker a visa, or you are having issues with your visa, you should not hesitate to go with the gold standard. Go with Gold Immigration and sleep better at night knowing your visa issue is in good hands.read more

frequently asked questions

Can I lodge a Protection (866) Visa whilst in Australia?

If you are eligible, yes you can. The Protection (866) Visa can only be lodged whilst you are in Australia.

What are my options if I am not in Australia yet?

There are 4 different offshore visas that you may be eligible to apply for. They are the Refugee (200) Visa, the In-Country Special Humanutarian (201) Visa, the Emergency Rescue (203) Visa and the Woman At Risk (204) Visa.

How would I be eligible for a Protection (866) Visa?

You must be in Australia, and arrived here legally, on a valid visa, and be immigration cleared on arrival. You must also be a genuine refugee, meet the DHA’s identity requirements, not have held specific visas and more.

Do I need to have an interview with the Department of Home Affairs?

Yes, the DHA will interview you to discuss the claims on your application.

Can I travel back to my home country after a Protection Visa is granted?

A protection visa holder with Condition 8559 must apply to the DHA for permission to travel to their home country before they depart.

I am scared to go back to my home country because I will be persecuted. What are the different reasons that the DHA accepts this?

To have a well-founded fear of persecution, a person must fear serious harm because of their race, religion, nationality, membership of a particular social group and/or political opinion.