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

Fill in the form now to meet with our Protection Visa Lawyers

Law Council of Australia
Best Immigration Law Firm

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.

Claim your consultation

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.

Stephen Schwartz
Stephen S.
My experience with Walt, Joshua and team were nothing short of seamless. From the moment we stepped into Golds offices we were put at ease given that we were concerned both about timing and process of this visa. Walt and Joshua were completely available to us at a moments notice, often responding to any question or concern we had within the hour. The difficult and stressful application process was made all the more easy working with them and we got results in record time - 4 months from the day we hired them!In all honesty I couldn't recommend their expert advice or services enough, you definitely get what you pay for.Thanks Walt!read more
Alsa Shafi
Alsa S.
Very professional and always reachable.Friendly and brief with explaining things in regards to application.I would recommend Juliana aywaz in gold immigration. Thank u again for everything
sammie sammie
sammie S.
Highly highly recommend gold migration lawyers . Helped me from day 1 to day of PR . Special mentions Walt , I could have not do this without you . You are the great walt , I am so so grateful to you . Best regards xSim
Vishva Patel
Vishva P.
The migration is the best consultancy also Jay Khut find best option for student thank you
Gobernadorcillo Zamora
Gobernadorcillo Z.
VISA APPROVED IN 3 MONTHS!I recently had the pleasure of working with Gold Migration Lawyers for my fiancé visa application, and I couldn’t be more satisfied with their service. From the very beginning, their team was incredibly supportive and professional, guiding me through every step of the process with ease.Special thanks to Saleh El Kheir and Juliana Aywaz, who directly assisted us. Their expertise and dedication were evident throughout, providing clear recommendations and actionable steps to fast-track the application.The standout was the swift processing and approval of my application. Their diligent work made the process much faster than usual, which was a huge relief for us.I highly recommend Gold Migration Lawyers to anyone in need of immigration assistance. Their dedication and efficiency are truly commendable!read more
Antonia Ludwig
Antonia L.
Thank you to Noor and Justin for helping with the spouse visa application which was granted in just under 6 months. They were both very helpful and ensured we had the right documentation for smooth processing.
Kayla Summers
Kayla S.
Walt at Gold Migration is an absolute star. He was consistently kind, provided easy to understand information and direction, and secured our partner visa within 8 months! Walt was always friendly on calls, available when we needed him and reassured us throughout the journey. 10/10 would recommend.read more
Leona A. Macfarlane
Leona A. M.
I contacted Gold Migration Lawyer in April this year (2024). On 30 August 2024 we received the fantastic news that our visas have been double granted. This is life changing for my partner. I would like to express our sincerest gratitude for the extraordinary time and work Gold Migration lawyers have done for us both (and a special shout out to our amazing lawyer Oliver Christiansen who helped make this possible with his support, expertise and professionalism, James Scott (our very first point of contact) and Aileen Chour-our last & bearer of great news). The professionalism, a friendly voice at the other end of the telephone line, the guidance and expert advice given was exceptionally outstanding and beyond words. Highly recommended without a doubt. Dreams do come true! Thank you for changing our lives Gold Migration Lawyers. Henry & Leonaread more
Jaanika K
Jaanika K
We contacted Gold migration lawyers before applying for a partner visa. Walt made us feel confident with the service they provide so we hired them and no regrets - Walt was very quick to respond to any questions we had and provided us with the best service we could’ve wished for. I do recommend gold migration lawyers (and Walt) if you’re looking for one!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.