2009180 (Refugee) - [2025] ARTA 1100

2009180 (REFUGEE) [2025] ARTA 1100 (29 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Mr Frederick Johnston
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2009180

Tribunal:General Member T H R Baggiano
Date:29 January 2025

Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 29 January 2025 at 10:30am
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – homosexual – people living with HIV/AIDS – employment – access to health care – familial violence – access to HIV treatment – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Respondents S152/2003 (2004) 222 CLR
MZXKX v Minister for Immigration [2008] FMCA 567
Randhawa v MILGEA (1994) 52 FCT 437
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Indonesia, applied for the visa on 30 March 2017. The delegate refused to grant the visa on the basis that that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 28 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review. His representative, Mr Frederick Johnston, was also present at the hearing.
The applicant’s partner, [Partner A], was also present at the hearing as a support person.
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations under the Act.
CRITERIAN FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and receiving country
The applicant claims to be [an age]-year-old national of Indonesia.
The applicant has claimed his place of birth as Brebes, Central Java, his ethnicity as Javanese and his religion as Islam.
The applicant arrived in Australia on a Business Visitor (subclass 600) visa [in] November 2016.
The applicant provided a copy of the biodata page of his Indonesian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Indonesia and there is no information before me to the contrary. After also having sighted the original passport at hearing, I find that the applicant is a citizen of Indonesia, and that Indonesia is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
In his protection visa application, the applicant claimed that he left Indonesia because he obtained a high-interest loan from an illegal money lender in Jawa Tengah in order to travel to Australia on a ‘business traveller’ visa. The applicant claimed that despite paying the loan, the money lender is still demanding payment.
The applicant was not invited to attend an interview with the delegate.
Based on the delegate’s decision, the delegate found that the applicant is not a refugee as defined by s 5H(1) of the Act and that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Applicant’s pre-hearing evidence
On 4 December 2024, the Tribunal invited the applicant to complete a ‘pre-hearing information’ form. In response, the applicant’s representative submitted a completed ‘pre-hearing information’ form on behalf of the applicant, dated 11 December 2024. In the ‘Claims for protection’ section of the form, the applicant stated the following:
a.[The applicant] is a homosexual man living with HIV. He fears he will face persecution and / or significant harm if he returns to Indonesia for reasons of his membership to the particular social groups:
i.Homosexual men in Indonesia
ii.People living with HIV in Indonesia.
On 21 January 2025, the applicant’s representative provided the following documents to the Tribunal:
a.Pre-hearing submissions and independent country information;
b.Applicant’s statutory declaration setting out his personal details, background and claims;
c.Summary of the applicant’s claims;
d.Letter of Support from [Doctor A], Visiting Senior Medical Officer [at Health Service 1].
On 24 January 2025, the applicant’s representative provided the following document at the request of the Tribunal:
a.Statutory declaration from [Partner A], the applicant’s partner.
Given that the applicant sought to abandon his original claims as set out in his Protection visa application form, a summary of his new claims were provided by his representative as follows:
a.The applicant has a well-founded fear of persecution in Indonesia based on their actual and/or perceived membership of the following groups:
i.Homosexual men in Indonesia;
ii.Persons Living with HIV (PLHIV) in Indonesia;
iii.Muslim homosexual men in Indonesia; and
iv.The cumulative impact of these social groups
b.The applicant fears that if they are forced to return to Indonesia, he will be subjected to serious harm amounting to persecution by the community, his own family and police. Such harm they have experienced, and will continue to experience, includes:
i.Verbal, physical and/or sexual abuse;
ii.Inability to live openly as a gay man due to the fear of harm;
iii.Inability to obtain or maintain employment due to stigma and discrimination as a gay man and PLHIV resulting in significant economic hardship and an inability to subsist;
iv.Inability to access healthcare due to stigma and discrimination as a gay man and PLHIV, resulting in a denial of access to basic services, where the denial threatens the person’s capacity to sub sist and a threat to the person’s life or liberty;
v.Inability to trust in healthcare workers for fear of breach of disclosure within the community leading to stigma and discrimination;
vi.Inability to fully disclose health conditions in order to seek help for fear of discrimination and harm;
vii.Risk of increased physical violence due to his membership to the Muslim community as a homosexual male;
viii.Lack of family support and continued abuse from family members; and
ix.Lack of appropriate protection by police or authorities.
c.The harm that the applicant will face in Indonesia also amounts to significant harm, including being:
i.Subject to be arbitrarily deprived of his life; and
ii.Subject to cruel or inhuman treatment or punishment; and
iii.Subject to degrading treatment or punishment.
d.The persecution that the applicant is likely to face includes psychological harm as defined by the Act and as outlined in SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625, and harm as considered in the matter of MZXKX v Minister for Immigration [2008] FMCA 567.
e.As a result of their membership of the social groups of Muslim Homosexual men in Indonesia, PLHIV in Indonesia and Homosexual Men in Indonesia, the applicant fears the following acts of persecution, and/or the following significant harm:
i.Inability to subsist and sustain due to lack of employment opportunities that amounts to significant hardship and denial of capacity to earn a livelihood of any kind;
ii.Inability to subsist and sustain due to stigma and discrimination from society and family and/or lack of income due to stigma and discrimination;
iii.Inability to rely upon his family for emotional or financial support due to stigma and discrimination towards homosexual men;
iv.Inability to live openly as a gay man for fear of harm from members of the community, family and authorities;
v.That they will be physically and emotionally threatened, harassed and ill-treated as a result of being a homosexual man;
vi.There is nowhere in Indonesia that the applicant can relocate to in order to avoid the harm feared since the stigma and discrimination towards homosexual [sic]; and
vii.That state is unable or unwilling to protect the applicant from the harm feared.
Applicant’s oral evidence at hearing
Preparation of protection visa application
Regarding the preparation of his protection visa application, the applicant stated that he engaged the assistance of a person known to him as ‘[Ms A]’ who was neither a registered migration agent or lawyer. He was referred to [Ms A] by a friend and paid her for the assistance.
While the applicant advised [Ms A] that he had a debt owing to a family member, [Ms A] falsified the story so that the applicant’s claim related to a debt that was owing to illegal money lenders who were charging a high level of interest on repayments. The story was falsified as [Ms A] advised the applicant that such a story would strengthen his protection visa claims.
The applicant stated that while he had owed a debt to [a] brother, the debt was fully repaid within a year of the applicant arriving in Australia. The applicant confirmed that he has no fear relating to debt, and that he seeks to abandon the claim in his protection visa application.
I acknowledged that the applicant’s new claim relating to being a homosexual man and a person living with HIV. While I have accepted that the applicant is living with HIV and that this diagnosis was received after the applicant’s protection visa application was refused by the delegate, I asked the applicant to explain why he had not raised any claims in relation to his sexual identity in his original protection visa application. The applicant responded that he was fearful of disclosing his true sexual identity, and that even now, he is not too open about his sexual identity or HIV status.
Asked why the applicant waited over seven months before submitting his protection visa application, the applicant advised that while he was fearful of the visa process, he ultimately submitted a protection visa application as he did not want to be detained and wanted to hold a visa which would allow him freedom of movement without being detained.
The applicant’s representative also stated that the applicant came to Australia as a vulnerable person with limited English and education. The applicant was also unfamiliar with and fearful of the protection visa process. The applicant’s representative stated that under the Tribunal’s Guidelines for the Assessment of Credibility, there may be varying reasons as to why there is a delay in lodgement of a protection visa, which include stress, anxiety, inadequate immigration advice – all of which were submitted to apply to the applicant’s case.
The applicant’s representative also submitted that the withholding of the homosexuality claim should not induce an adverse inference given that the applicant was uncomfortable about the claim and wanted to keep it hidden from the community, particularly the Muslim community.
Family background
Regarding the applicant’s family members in Indonesia, he stated that he comes from a family of farmers. He has a father, mother and [specified siblings] who live in Brebes, and an older brother who lives in [Country 1]. The applicant keeps in contact with his family on a regular basis.
The applicant’s parents are conservative Muslims.
Education history
I raised with the applicant that his dates of education in his protection visa application did not appear to be correct. At hearing, the applicant corrected all dates for his primary and high schooling. At the age of [age], the applicant’s father asked him to leave school so that he could help his family in the rice fields.
In around 2015 to 2016, the applicant returned to study the [Country 1] language but did not complete this course. It was during this time that the [Country 1] language school that he attended assisted him in obtaining [a permit] to facilitate travel to a number of countries, including Australia. The applicant later used this [permit] and his Australian Business Visitor visa to facilitate his entry to Australia. Aside from identity documents, bank statements and an Indonesian police clearance certificate, the applicant is not aware of any other documentation that was submitted by the [Country 1] language school.
Employment and travel history
The applicant confirmed that he worked with his family in the rice fields from when he was around [age range] years of age. In around 2011 to 2015, the applicant moved to [Country 2] as he wanted to take up employment where he could earn money for himself. In [Country 2], the applicant worked in a factory that produced [products 1].
Asked whether the applicant ever worked in the construction industry as indicated in his protection visa application form, the applicant said that he did not. The applicant confirmed that the employment information input into his protection visa application form by a third party was incorrect.
Since relocating to Australia, the applicant has been working on various farms.
New claims: homosexuality and HIV diagnosis
Asked why the applicant left Indonesia, the applicant responded that this was due to his sexuality which resulted in him being bullied, harassed and beaten. He explained that from the age of nine or ten, his father started beating and kicking him due to the applicant displaying feminine traits, including his tendency to form friendships with female classmates. The applicant’s father did not like the applicant presenting as a girl and thought that his behaviour brought shame upon the family. His older siblings also told him to stop acting like a ‘sissy’ and ‘tranny’ and to start acting like a ‘manly man’.
At the height of the beatings from his father when the applicant was around 11 of 12 years of age, he went to live with his grandmother who cared for him. His grandmother advised him to do as his parents told him and to stop being a ‘burdensome child’. She advised that if he is asked to act like a man, he must do so, and that he should not go against human nature by acting like a girl.
The bullying and harassment of the applicant also infiltrated into the school setting where the applicant’s classmates would call him a ‘tranny’ and ask why he did not act like a man. This treatment caused a deep hurt within the applicant and resulted in him changing his attitude and demeanour so that he was less feminine and to avoid unwanted attention and harassment.
The applicant felt an attraction to another male student in his early high school years. However, as homosexuality was not talked about during that time, the applicant did not have an in-depth understanding of sexuality. The applicant did not know that he was ‘different’ up until the age of 17. It was only as an adult that he realised that he was attracted to males rather than females and this is when he accepted within himself that he was gay.
The applicant provided evidence about his prior relationship in Indonesia where he and his former partner, [named], were required to meet discreetly and pretend only to be friends. The relationship ended due to the difficulty of maintaining a long-distance relationship. The applicant also provided evidence about his prior relationship in Australia with [Partner B] which ended amicably. The applicant felt shame and embarrassment about the relationship as his former partner had two children from a previous heterosexual relationship, and the children may not have known about the nature of the applicant’s relationship with their father.

The applicant spoke at length about his current relationship with [Partner A], who was also in attendance at the hearing as a support person. In around 2017, the applicant and [Partner A] had become friends when the applicant was still in a relationship with [Partner B]. The applicant and [Partner A] met on a gay [dating app].
The applicant and [Partner A] started living together in around 2018 and their relationship is ongoing. The applicant was able to describe how he and [Partner A] live a shared life together, how they support one another, their joint travels and how their relationship is known to a limited number friends who are also from the LGBTQIA+[1] community. [Partner A] has also been instrumental in providing the applicant with much-needed support from the time he was diagnosed with HIV to current date.
[1] The Tribunal’s decision refers to ‘LGBTQIA+’ (lesbian, gay, bisexual, transgender, queer, intersex and asexual and all other identities not encompassed by the acronym ). The country information referenced in this decision refers to ‘LGBT’ and ‘LGBTI’. All of these terms are used interchangeably and encompass the applicant’s sexual identity of being a gay man.
In around July or August 2021, the applicant became unwell and was in emergency care at [Hospital 1]. According to the letter of support from [Doctor A], he initially required treatment for sepsis but was later transferred to the [Hospital 2] Intensive Care Unit where he was diagnosed with a severe [infection] and [another medical condition] as a result of his extremely poor immune function due to HIV infection. The applicant remained in hospital for four months until he was discharged.
The applicant is currently undergoing antiretroviral therapy and, according to [Doctor A], has shown excellent adherence, resulting in an undetectable viral load, improved immune recovery and stable health. The specialist medical practitioner also stated that the applicant’s continued access to this treatment is crucial for maintaining his health and preventing further progression of HIV. She is also of the view that there will be systemic barriers, including inconsistent supply chains, stigma in healthcare settings, inability to guarantee confidentiality and protection, and limited access to quality antiretroviral therapy, which may jeopardise the applicant’s ability to maintain his current health status.
When the applicant received his HIV diagnosis, he had suicidal thoughts. At hearing, the applicant stated that as a Muslim, he wondered whether he was given HIV by God and whether this was his fate. The applicant felt like he could not survive at that point in time. The applicant confirmed that following his diagnosis, he received an immense amount of support from medical professionals and his partner, [Partner A], who all told him that he is not alone in this journey and that there are other people out there just like the applicant. The applicant spoke at length about the support that [Partner A] provides him, how he confides in [Partner A] when he goes through bouts of sadness and how he is appreciative that [Partner A] is not scared of him because of his diagnosis.
Aside from [Partner A], the applicant has only spoken about his HIV diagnosis with his mother. However, for fear of being shunned and disowned by his mother, he felt that he needed to make up a story to explain how he came to be diagnosed with HIV. The story he gave was that he contracted HIV through engaging in sexual activity with prostitutes. The applicant has asked his mother not to disclose his HIV status to his father or siblings. As such, the only explanation his father and siblings have is that he contracted a [different condition] which caused his hospitalisation.
The applicant stated that should he return to Indonesia, it will be difficult to live there as a homosexual and with no support for same-sex activities. He fears that there will be unwanted reactions, bullying and harassment if he was found to be in a relationship with a man. As a worst case scenario, he also fears that he will be incarcerated.
He fears that his sexuality will be seen as ‘sexual deviation’ by society which will also impact his ability to find ongoing and/or meaningful work to allow him to subsist. He is of the view that due to his low education level and sexual identity, he will not be able to secure a job. This is because people who are gay are considered not to be mentally sound.
The applicant stated that homosexuals in Indonesia are seen as a very lowly group. In relation to individuals living with HIV in Indonesia, he has heard that they are shunned and gossiped about and need to lock themselves in their own homes. He is of the view that individuals living with HIV in Indonesia are left to slowly fade out to die as they will not be able to withstand the consistent gossiping, harassment, discrimination and shunning.
Asked whether he thinks authorities in Indonesia could protect him, the applicant stated that there would not be support in Indonesia as the majority of the population is Muslim and there is an expectation for those in minority groups to align their behaviour and values with the majority.
Asked whether the applicant could relocate to another part of Indonesia, like Jakarta or other big cities, to avoid issues relating to his sexuality and HIV diagnosis, the applicant stated that he could not. He explained that while Indonesia is a large country with many ethnicities and religions, it does not mean that the other religions would be accepting of him. He is of the view that it would be impossible for him to live under the same roof with a same-sex partner, regardless of location. Further, he believes that his family would track him down, ask him to return home and pressure him into marrying a woman as it is their expectation that at his age, he should be married and have his own family.
Country information
I have taken into account a range of country information, including the most recent DFAT Country Information Report on Indonesia which provides information on sexual orientation, gender identity and persons living with HIV.
Indonesian religious landscape
Indonesia is the world’s largest majority Muslim country, by population. According to the most recent census in 2010, approximately 87.2 per cent of the population is Muslim (almost all of whom are Sunni), 7 per cent is Protestant, just under 3 per cent is Catholic and 1.7 percent is Hindu.[2]
Homosexuality in Indonesia
[2] DFAT Country Information Report Indonesia, Department of Foreign Affairs and Trade, 24 July 2023, page 13.
There is no national law against same-sex relations, but it is illegal in Aceh, where ‘offenders’ are caned as a judicial punishment for same-sex acts. Nonetheless, LGBTI people are heavily stigmatised in Indonesia. Terms like ‘LGBT’ are broadly taboo or used as an insult. In-country sources told DFAT it is very difficult to be openly LGBTI in Indonesia. A 2020 Pew Research Centre survey found that public acceptance of homosexuality was only 9 per cent among Indonesians, an increase from 3 per cent in 2013, however still among the lowest of the 34 countries surveyed (by comparison, public acceptance was 81 per cent among Australians).[3]
[3] Ibid, section 3.97, page 23.
Despite not being illegal, LGBTI people are sometimes targeted by police. For example, according to international media, a private ‘gay party’ was raided by police with charges laid against nine people for ‘obscene acts’ under anti-pornography laws in August 2020. Other raids on private homes of suspected LGBTI people were ordered by the mayor of Depok in West Java in January 2020. LGBTI people may face charges in the military, where same-sex sexual activity is illegal. In June 2022, two soldiers were sentenced to eight and nine months’ prison respectively for having male-male sex. LGBTI people have been dismissed from the police force because of their sexual orientation. Because of the threat of arrest or extortion, most LGBTI people avoid police.[4]
[4] Ibid.
Authorities and influential Muslim organisations intimidate and harass LGBTI communities, activists and organisations, hindering groups that provide services to the LGBTI community.[5]
Importance of family networks for LGBTQIA+ persons
[5] ‘Freedom in the World 2024 – Indonesia’, Freedom House, March 2024.
The experience of LGBTI Indonesians depends a lot on their families. Family networks are crucial. Those whose families reject them are at high risk of poverty, may be forced into sham marriages, or simply be required, on a day-to-day basis, to hide their sexual orientation or gender identity. Given prevailing societal attitudes, many LGBTI people will submit to sham marriages or attempts to ‘cure’ them.[6]
Future legislative landscape
[6] DFAT Country Information Report Indonesia, Department of Foreign Affairs and Trade, 24 July 2023, section 3.99, page 23.
Parliament passed a revised Criminal Code in December 2022. The Code includes provisions that criminalise cohabitation and adultery, though the law limits who can lodge the complaint to direct family members. Because same-sex marriage is illegal in Indonesia, the law could in effect criminalise same-sex sex. Penalties include a maximum one-year prison term. DFAT understands that the provisions will become law three years after promulgation.[7]
People living with HIV
[7] Ibid, section 3.110, page 24.
The DFAT Country Information Report on Indonesia states that HIV carries a strong stigma which may prevent people being tested or treated, and many people with HIV likely do not know they have the condition. Death from late-stage HIV (AIDS) occurs. However, because of stigma and lack of testing, communities may dismiss AIDS-defining illnesses and related deaths as some other medical problem.[8]
[8] DFAT Country Information Report Indonesia, Department of Foreign Affairs and Trade, 24 July 2023, section 2.23, pages 8-9.
As cited in the applicant’s representative’s legal submissions, the UNAIDS 2023 factsheets reveal that there are approximately 570,000 adults and children living with HIV in Indonesia. This is the fifth highest level of persons living with HIV in Asia.[9] The death toll for Indonesians living with HIV sits between 24,000 to 31,000 people as of 2023, and there has been an 85% increase in AIDS-related deaths since 2010.[10]
[9] Jocelyn, et al, HIV/AIDS in Indonesia: current treatment landscape, future therapeutic horizons, and herbal approaches. Front Public Health.
[10] UNAIDS, Country factsheets, Indonesia 2023, Accessed 29 January 2025, <>
As cited in the applicant’s representative’s legal submissions, poor adherence to treatment arises from various access issues ranging from social stigma, regional scarcity, and mental health problems.[11]
[11] Ketut Suryana et al, ‘Factors Associated with Adherence to Anti-Retroviral Therapy Among People Living with HIV/ADS at Wangaya Hospital in Denpasar, Bali, Indonesia: A Cross-Sectional Study’ (2019) 11, HIV/AIDS – Research and Palliative Care 307; Yi Li et al, ‘Factors Associated with Symptoms of Depression among Injection Drug Users Receiving Antiretroviral Treatment in Indonesia’ (2014) 5(5) Journal of AIDS & Clinical Research.
Households supporting people living with HIV spend up to five times more on medical expenses and the labour force participation rate among these households are lower, compared to other households. Forty-five per cent of households with people living with HIV are unemployed.[12]
Attitudes towards people living with HIV in the healthcare setting
[12] ILO fact sheet on Access to Health Care Benefit for People Living with HIV in Indonesia, accessed 29 January 2025, <>
As cited in the applicant’s representative’s legal submissions, a study conducted on understanding HIV-related stigma among Indonesian nurses demonstrated that the complex relationship between religion and culture in Indonesia permeates public institutions, including hospitals. In this study, nurses’ stigmatising attitudes were closely related to their workplaces, including the degree to which they perceived other health workers to be agents of stigma and the religions affiliations of their hospitals. Perceived workplace stigma is important to understand because it is an indicator of the culture of a medical unit or the extent to which certain stigmatising attitudes become accepted or trigger health workers to behave in discriminatory ways. Nurse may emulate attitudes or behaviours to gain acceptance from their peers. The results of the research strongly indicated that a nurse’s religion, degree of involvement in religion, and the religious affiliation of the workplace contributed significantly to stigmatising attitudes towards people living with HIV and populations at risk for HIV. Stigmatising attitudes were strongest among Muslim nurses, although stigmatising attitudes among Catholic and Protestant nurses were also high.[13]
Possibility of relocation
[13] Waluyo A, Culbert GJ, Levy J, Nor KF, ‘Understanding HIV-related stigma among Indonesian Nurses’, J Assoc Nurses AIDS Care, (2015), Accessed 29 January 2025, <>
The DFAT Country Information Report Indonesia states that working in international hotels or tourism in other parts of the country (including big cities like Jakarta), may be a safer place for LGBTI people for the same reasons. Even then, LGBTI people in these locations would potentially be subject to violence or discrimination.[14]
REASONS AND FINDINGS
[14] DFAT Country Information Report Indonesia, Department of Foreign Affairs and Trade, 24 July 2023, section 3.106, page 24.
Credibility and findings of fact
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[15] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[16] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and nor does the Tribunal require rebutting evidence before it can find that a particular factual assertion by an applicant has not been made out.[17]
[15] Administrative Appeals Tribunal, Migration &Refugee Division, Guidelines on the Assessment of Credibility, July 2015.
[16] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43-44.
[17] Randhawa v MILGEA (1994) 52 FCT 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
While there were a number of inconsistencies about the applicant’s education, employment, address and travel history, and the introduction of new claims relating to the applicant’s sexual identity and HIV diagnosis, the applicant provided reasonable explanations for these, namely:
a.due to his limited education and English language capabilities and lack of understanding of the Australian visa process, he had relied heavily on a third party to prepare his protection visa application;
b.he was fearful of disclosing details of his sexuality to the third party;
c.his HIV diagnosis was received after the delegate refused his protection visa application.
I accept that the applicant’s reliance on the third party to prepare his application resulted in his claims not being fully and truthfully articulated. As such, I have not drawn any adverse credibility inference for the purposes of s 367A of the Act.
While the claims expressed in his protection visa form were ultimately abandoned, the applicant subsequently provided substantial evidence to support his new claims. In combination, his evidence at hearing and statutory declaration formed a detailed and credible account of his past experiences in Indonesia and the adverse treatment he fears he will be subjected to by family, society, health care providers and authorities in Indonesia due to his sexuality and HIV diagnosis. The applicant became visibly distressed when speaking about his father’s treatment of him during his childhood, and also visibly emotional when speaking about his faith and his sexuality and the support that his current partner provides to him. I accept the applicant’s account of his past experiences in Indonesia and that of his current relationship in Australia to be truthful.
I have given weight to the applicant’s oral evidence to the Tribunal. I am satisfied that he was recalling events from his lived experience. The evidence provided in his statutory declaration and at hearing was generally consistent regarding the harm perpetrated by his father and school classmates. The applicant’s claims regarding his experience of familial violence and fear of society perception and being found out be authorities are also supported by country information.
Considering the above, I accept the following claims as credible:
a.The applicant is a homosexual man;
b.The applicant is a person living with HIV and receives ongoing treatment;
c.The applicant’s religions status as specified on his national identification card is ‘Islam’;
d.The applicant’s father beat and kicked him from around the age of nine or ten due to his feminine behaviour and traits;
e.The applicant was bulled and harassed at school for his feminine behaviour;
f.The applicant felt the need to change his behaviour and hide his sexuality to escape the beatings, bullying and harassment;
g.The applicant entered his first same-sex relationship in Indonesia in around 2015;
h.The applicant entered a same-sex relationship in Australia with [Partner B]. The relationship ended after around six months;
i.The applicant entered into a relationship in Australia with his current partner, [Partner A], in around 2017. The relationship is ongoing.
As the applicant has abandoned his original claim relating to a debt owed to illegal money lenders, I have disregarded this claim on the basis that the applicant has confirmed that it was a falsified claim crafted by an unrelated third party. As such, I find that this abandoned claim would not result in serious harm to the applicant and will not be addressed further in this decision.
Refugee criterion assessment
Based on the applicant’s circumstances, I consider there is a real chance, being a possibility that is not remote or far-fetched, that the applicant would be subjected to harm in the reasonably foreseeable future if he is returned to Indonesia.
I accept on the basis of the applicant’s past experiences, his level of education (non-completion of high school), socio-economic status (employment in the farming sector) and the above country information that there is a real chance that he will suffer serious harm by his family, by way of loss of family networks, familial violence including physical, verbal and psychological abuse and forced marriage to a woman, and by Indonesian health care workers, authorities and society if he returns to his previous place of residence, Brebes, Central Java, or attempts to relocate to any other region within Indonesia, including Jakarta, now or in the reasonably foreseeable future. I accept that the harm may include significant physical and verbal harassment and significant ill-treatment of the applicant, such that would constitute serious harm for the purposes of s 5J(5).
In considering whether the harm the applicant fears is for reasons of his race, religion, nationality, membership of a particular social group or political opinion, I consider that it is for the reason of the applicant’s membership of the following social groups:
a.Homosexual men in Indonesia;
b.Persons living with HIV in Indonesia; and
c.Muslim homosexual men in Indonesia.

I consider that these groups are identifiable by the characteristics of gender, sexual orientation, nationality and health status and that the common characteristics or attributes are not a shared fear of persecution. I am satisfied that the harm that the applicant fears is for reason of his membership of particular social groups for the purpose of s 5J(1)(a).
I accept that each instance of harm that the applicant could be subjected to due to his sexual identity and/or HIV diagnosis amounts to serious harm. For the particular social groups of ‘homosexual men in Indonesia’ and ‘Muslim homosexual men in Indonesia’, country information makes it clear that members of the LGBTI community are stigmatised and experience discrimination in Indonesia. For the particular social group of ‘persons living with HIV in Indonesia’, based on the applicant’s past experience of being targeted for his effeminate characteristics and behaviour, it is likely that he would be perceived as being a homosexual man even if he attempts to hide his sexuality. As such, his HIV status and his perceived homosexuality combined is likely to result in harm that that amounts to serious harm.
Additionally, I accept that if the applicant were to hide his sexual identity, he would be doing so to avoid the threat of serious harm. Any modification of the applicant’s behaviour to avoid harm in Indonesia for reasons of his membership of the particular social group of ‘homosexual men in Indonesia’ or ‘Muslim homosexual men living in Indonesia’ would conflict with a characteristic that is fundamental to his identity or conscience, conceal an innate or immutable characteristic or alter his sexual identity or conceal his true sexual orientation. Therefore, he cannot be required to take steps to modify his behaviour, such as by returning to Indonesia and living discreetly to avoid the feared persecution pursuant to s 5J(3).
The applicant cannot be required to conceal his HIV diagnosis to avoid harm in Indonesia. Doing so would result in the loss of future treatment crucial for maintaining his health and preventing further progression of HIV, in addition to the likely loss of critical family networks which would contribute to a downward spiral towards poverty and inability to fund treatment. However, revealing his HIV diagnosis to healthcare providers in Indonesia also poses an unacceptable risk to the applicant due to the engrained discriminatory attitudes underpinned by religious belief of some health care professionals, such as nurses, towards people living with HIV and as set out in country information.[18] This places the applicant in a predicament whereby he would be at risk of serious harm whether he conceals or reveals his HIV status.
[18] Waluyo A, Culbert GJ, Levy J, Nor KF, ‘Understanding HIV-related stigma among Indonesian Nurses’, J Assoc Nurses AIDS Care, (2015), Accessed 29 January 2025, <>
I accept on the basis of the applicant’s past experiences and above country information that community and government attitudes and hostility towards the LGBTQIA+ community and people living with HIV in Indonesia are pervasive and underpinned by Islamic teachings which are followed by a majority of the population[19] and are such that the real chance of persecution cannot be said to be restricted to a particular area of Indonesia, and that the risks faced by the applicant would not be mitigated by relocation to another area other than the one he lived in prior to coming to Australia.
[19] DFAT Country Information Report Indonesia, Department of Foreign Affairs and Trade, 24 July 2023, page 13.
By virtue of being born into a Muslim family, Islamic teachings which forbid same-sex activities and Indonesian laws which do not recognise same-sex marriage, will continue to apply to the applicant. I find that the applicant’s sexuality will be at odds with the majority of society’s religious values and could result in serious harm by way of discrimination in the employment setting which would impact the applicant’s ability to subsist and fund ongoing HIV treatment.
I am not satisfied that the applicant would have access to effective protection from harm. Country information indicates that the Indonesian government and authorities are at times hostile towards the LGBTI community.[20] This leads me to find that the harm feared is either inflicted by the state or its agents or that the state is complicit in the harm feared.[21]
[20] DFAT Country Information Report Indonesia, Department of Foreign Affairs and Trade, 24 July 2023, section 3.98, page 23.
[21] MIMA v Respondents S152/2003 (2004) 222 CLR at [23] per Gleeson CJ, Hayne and Heydon JJ.
I am also satisfied that the applicant does not have a right to enter and reside in a third country and meets s 36(3).
I find that the applicant is a refugee as defined in s 5H(1) of the Act. Accordingly, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
General Member T H R Baggiano
Date of hearing:  29 January 2025
Representative for the applicant:              Mr Frederick Johnston
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…