2308701 (Refugee) - [2025] ARTA 1221

2308701 (REFUGEE) [2025] ARTA 1221 (14 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2308701
Tribunal:General Member R Hampson
Date:14 April 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 14 April 2025 at 9:17am
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – homosexual man – forced marriage in home country – beaten by villagers – marriage and travel history not included in protection visa application – oral evidence from partner in Australia – certified civil relationship – documentation and supporting statements provided post-hearing – country information – homosexuality not illegal but same-sex marriage illegal – some targeting by police and heavy social stigmatisation – some difficulty accessing housing or healthcare – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIMA v Respondents S152/2003 (2004) 222 CLR 1
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 Immigration and Multicultural Affairs on 15 June 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Indonesia, applied for the visa on 8 November 2022. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations
The applicant appeared by MS Teams video before the Tribunal on 17 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence by MS Teams video from [Mr A], the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages by MS Teams video.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND AND RECEIVING COUNTRY
The applicant claims to be a [Age] year old national of Indonesia.
The applicant claims his place of birth is Tangerang, Java, Indonesia, his ethnicity is Indonesian and his religion is Islam.
The applicant arrived in Australia as the holder of Tourist visa [in] October 2022.
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. 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 is gay and that homosexuality is not accepted by the Muslim and Indonesian public. He claimed he had a very difficult life in his home country as Indonesia does not accept homosexual behaviour. The applicant claimed he could not relocate within the country as Indonesian law does not accept this behaviour.
On 15 May 2023 the applicant was sent a s57, Natural Justice Letter by the delegate giving him the opportunity to comment on adverse information before the Department concerning his relationship status, travel, and employment history. The s57 letter put it to the applicant that he had declared on his Protection application for his relationship status as ‘Never Married’ but the information before the Department showed in June 2022, he had declared his relationship status as ‘Married’ and provided details of his wife and children, this information was not disclosed in his protection application. The s57 letter expressed concerns about his credibility. The applicant did not respond to this letter.
The applicant was not invited to attend an interview with the delegate.
Based on the delegates decision the applicant was found not to meet the criteria for a refugee as defined in s5H(1) of the Act and that he was not a person to whom Australia has protection obligations under s36(2)(a) of the Act. The delegate was also satisfied the applicant did not meet the criteria for complementary protection provisions as is set out in s36(2)(aa) of the Act.
Evidence before the Tribunal
Prehearing submissions
The applicant was sent a hearing notice form on 24 February 2025 and he responded to this on 26 February 2025. On 10 March 2025 the Tribunal received a further response to this notice with an attached signed Statement from the applicant along with two photographs of the applicant and another male (now known to be his partner [Mr A]) and a photograph of a scar above his [body part]. He also sent copies of his own Commonwealth bank account and copies of another person’s bank account in the name of [Mr A] (now known to be his partner). He also included a partially completed and paid for application for the registration of a Civil Partnership with [Mr A].
Applicants oral evidence at hearing
Regarding the preparation of the initial Protection visa application, the applicant stated that he sought assistance from his friend [Ms B] with whom he [worked] in [City] and she arranged for him to pay five hundred dollars to another person he was told was a migration agent/lawyer and the application would be prepared for him. He stated he was aware of what was in the application but did not understand the process and as such did not know further information was required to support his application but trusted his friend and the person, she recommended complete the application. In his prehearing statement he said that he did not respond to this document as he had a very poor understanding or English and legal matters. At hearing, on my questioning, he said he did not understand the subsequent letter from the delegate requesting further information in response to adverse information.
Regarding his family and life in Indonesia and particularly the information considered adverse as covered in the s57 Natural Justice Letter from the delegate the applicant explained that yes, he did have a wife and two children still residing in Indonesia and he did not deliberately leave this material out of his application but did not understand fully the ramifications of what the alleged migration agent/lawyer had put in his application.
He is the [birth order] of [number] siblings. His parents are no longer alive. He has contact with only one of his siblings and this is limited because the rest of his siblings, he said, are embarrassed by his sexuality and do not want to talk to him. He has had a closer relationship with one of his sisters with whom he stayed after being forced to leave his village after community members found out about his sexuality and his infidelity in his marriage.
The applicant was born into a Muslim family and states that whilst he does not actively practice his religion, he has not denounced his faith.
He told the Tribunal he was forced by his parents to marry in 2013 as they knew about his sexuality and thought this a solution. He stayed with his wife but she found out as did her family about his sexuality and they forced him to leave. His wife resides with her parents in Indonesia and he has not had direct contact with her for about 7 years but speaks with his children who are aged [Ages] years old, when possible. He said this is not often as his wife will not allow much contact with their children because of his sexuality and the shame this brings.
The applicant completed his secondary schooling at age 18.
The delegate also questioned the applicants employment history and the Tribunal asked the applicant about this at hearing. Again, he stated he did not really know or understand what his friends friend had put in the protection visa application regarding his employment and had not deliberately or knowingly deceived the delegate on this point. After he finished school, he left home and moved to Jakarta where he worked selling [products] for about 5 years. He was then unemployed for 3 years but at this time he was residing at the home of his wife’s parents and he helped them in their small sales [business]. After his wife’s parents found out about his sexuality, he again was unemployed and this was during the pandemic.
On arriving in Australia on a tourist visa, he initially could not work and then was able to obtain a right to work and did so on farms around [City], New South Wales, and Victoria. The applicant now works in a [workplace] in [Town 1], North Queensland.
The delegate was also privy to information about the applicants travel history which he had not included in his protection visa application for the same reasons as discussed in paragraph 19.The applicant told the Tribunal at the hearing that he had travelled to [Region and Countries] with different siblings who had paid for his holidays with them.
The applicant left Indonesia initially for a holiday in Australia but also to understand what it was like to not be burdened by hiding his sexuality in his daily life and he knew Australia had a more open attitude towards LGBTIQ people than his home country of Indonesia.
When asked about his discovery of his sexuality he stated that, from when he was young, he liked people of same gender, and his parents saw that and forced him to marry to ‘face my deficiencies, they found a match and told me to marry her.’
When asked if he had experienced mistreatment for being gay[1], he explained, ‘yes, I was once beaten by the villagers, and I had a cut above my [body part] and had to get stitches. They found out I had a relationship with a partner, and they beat me up. This was in 2013. That’s when my parents found out I was like this, and they forced me to marry. When I was beaten up by the villagers, they found me someone to marry and forced me to get married. When asked if he received medical treatment and if so, did he confide in the medical staff, he said, ‘yes, I had stitches, but did not tell about the injuries’.
[1] Throughout the document the term ‘gay’ is used as this is used by the applicant. The DFAT Country Information Report on Indonesia dated 24 July 2023 referenced in the decision uses the term LGBTI (Lesbian, gay, bisexual, transgender, and intersex) and as such the terms will be used interchangeably.
He told one friend he was gay when he was at school, he said, ‘because I liked him and because of that he distanced himself from me’.
The applicant stated he did not have any substantial same sex relationships whilst living in Indonesia. He married in 2013 and he said his wife ‘did not know at marriage’ about his sexuality. He said, ‘I met with a male partner, and she found out. The last time was the end 2018. Chatting and meeting with men. I did have relationships. One for about 6 months. With a school friend’. This relationship was during his marriage and he said , ‘we were often together, and I liked him, and my wife found out. She was angry and wanted to kick me out, her family found out and didn’t want me anymore. This occurred in 2020. I went to my older sister’s house’. He explained his older sister knew about his sexuality and when asked did she mind about this, he said, ‘she did mind really but what could she do I am her brother’.
When asked whether others knew about his sexuality then, he said, ‘some people in the village found out and I had to move villages. I was asked to move so I moved to my wife’s family village’. He explained that then, his wife and her parents ‘found out when one of my friends visited me at home. That’s when my wife found out and was angry and the village asked me to leave’. He then went to his sisters home to live.
When asked about seeking assistance and or protection of the local authorities he said, ‘I was arrested once by police, and they took me home and I am scared of being tortured. This was in 2018’. He said the police were called by the local villagers and they detained him and waited for the police. He said, ‘I was taken by the police they tormented me and told me not to do it again and took me home. If I did it again, they would beat me and torture me’. He did not seek assistance from any other authority or organisation.
The applicant said he did not have any further relationships between 2020 and 2022 explaining, ‘I was looking for work to support my children’. In 2022 the applicant came to Australia and said about this, ‘I thought that with my situation that in Australia they could accept me as I am’. When asked how he knew Australia would be accepting of his sexuality he said, ‘I wasn’t sure but felt that in other countries they accepted LGBT and so on and they would accept me’.
When asked how he found out he could apply for protection for being gay in Australia, he said, ‘I told my friend [Ms B] about what my condition was like, and she told me to go to the lawyer. We worked at the same place in [City]’.
When asked about his experience of being gay in Australia and whether he has disclosed his sexuality here, he said, ‘yes, my friends knew. I like men here too and I met [Mr A]. In Australia if you like someone of the same gender it is not like in Indonesia. I feel safe and not afraid of the way I am here’.
The applicant met his current part [Mr A] on a dating platform and they started chatting for approximately 2 months and he then travelled to [Town 1] in North Queensland to meet [Mr A] in person. They have now been in a relationship for 17 months and live and work together in [Town 1]. When asked about his daily living expenses he said, [Mr A] pays electricity, pay for food together and they live in [Mr A]’s family business residence and do not pay rent.
When asked what he feared may happen to him if he went back to Indonesia he said, ‘I am scared I will be beaten up and scared I will be killed. I don’t have anyone else, my siblings know but they are embarrassed. I hope that doesn’t happen because I want to keep living with [Mr A]’. When asked if he could live anywhere else in Indonesia such as Bali, he said he could not because he felt the same thing would happen to him again because of ‘the way I am like’ referring to his sexuality.
I asked the applicant if he could provide any evidence to support his relationship with [Mr A] including evidence of joint finances, cohabitation, utility bills showing the same address, recognition of their relationship by others and joint social activities including travel. He confirmed that he would be able to provide these details after the hearing.
Oral evidence from the witness [Mr A] (the applicant’s partner)
When asked what he would like to tell the Tribunal [Mr A] said he had been in a relationship with the applicant for 19 months and they had met on a dating app called [App name] and they used a translating app to communicate. They chatted for several months before the applicant came to [Mr A]’s hometown of [Town 1] for them to meet. He explained they had been attracted to each other as they had much in common including farming, a love of animals and made each other laugh. He said the applicant had told him of his experience of victimisation and bashings for being gay in Indonesia. He explained the applicant told him about being bashed and being unable to tell medical professionals why he had injuries. He knew the applicant was previously married and had two children living in Indonesia and he tries to talk with them as often as their mother allows it. He said he knew the applicant realised he was gay at school but his family didn’t allow it but made him marry to deal with his sexuality. He said that he knew his wife’s parents knew he was gay but were ‘using him to work for them’ so they ignored it for a while until others including his wife found out.
When asked what the witness knew of the applicants protection visa application, he said he knew he was told by a friend about a ‘gay visa’ and paid a migration lawyer to do the application but the lawyer was a ‘scammer’ and he only spoke to the applicant through WhatsApp and never met with him or provided him with any information about what he had put in the application. He said that it wasn’t until they commenced their relationship that he, [Mr A] looked at the paperwork as the applicant needed a Medicare card and he realised how badly the application process had been handled and tried to contact the lawyer to no avail to obtain any documentation.
When asked about evidence of their relationship the witness said, ‘if needed I could rally 35 witnesses today to confirm our relationship’. He said he could supply photographs, statements of friends and family and a copy of their civil relationship certificate.
Post hearing submissions
The applicant provided the following documents after the hearing to support his ongoing relationship with [Mr A]:
a)Flight details from Brisbane to [Town 2] (the nearest airport to where the applicants partner, [Mr A] lives) for the applicant dated 10 September 2023.
b)Joint flight and accommodation bookings for the applicant and his partner [Mr A] dated 10 November 2023 from [Town 2] to Sydney return for a holiday.
c)A series of photographs of the applicant and his partner [Mr A] on holidays, with [Mr A]’s family in Sydney, buying the applicant a car, the couple feeding their chickens, in bed, at a restaurant, on the beach and fishing with friends dated from 10 October 2023 to 8 January 2025.
d)A joint holiday bank account with the Commonwealth bank listing a history of deposits from both the applicant and [Mr A] over a 6 month period.
e)A Certified Civil Relationship certificate dated [March] 2025 with the applicant and [Mr A] listed.
f)An Australian Taxation Office Notice of Assessment for the applicant for year ended 30 June 2024.
g)A signed statement dated 17 March 2025, from a friend of the applicant and [Mr A] in the name of [Ms C] outlining her knowledge of the couple’s relationship and her contact details for further information if required along with her Partner visa approval as proof of identification.
h)A signed statement dated 17 March 2025, from another friend of the applicant and [Mr A] in the name of [Ms D] outlining her knowledge of their relationship and her friendship with them, along with her Australian passport as proof of identification.
i)A signed statement dated 17 March 2025 from [Mr A]’s stepfather [Mr E] outlining his knowledge of the applicant and his relationship with [Mr A] along with contact information if further information is required, along with a copy of his Australian passport as proof of his identification.
j)A signed statement from [Mr F], a work colleague of [Mr A] outlining his knowledge of the applicant and his relationship with [Mr A] along with contact information if further information is required, along with a copy of his Australian passport as proof of his identification.
Country information
I have considered a range of country information, including the most recent DFAT Country Information report on Indonesia which provides information on sexual identity and gender in Indonesia.[2]
[2] DFAT Country Information report on Indonesia, dated 24 July 2023.
DFAT notes that whilst homosexuality is not 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. Because of the threat of arrest or extortion, most LGBTI people avoid police.’[3]
[3] Ibid at [3.98].

DFAT reports, ‘LGBTI people are heavily stigmatised in Indonesia’ with 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).’[4]
[4] Ibid at [3.97].
Other sources told DFAT 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.[5]
[5] Ibid at [3.106].
While LGBTI people do not report direct discrimination in the provision of healthcare, education, and services this is probably because most are forced to hide their sexual orientation or gender identity, and so do not experience discrimination as a result. Some LGBTI people may have difficulty accessing appropriate services; for example, LGBTI-appropriate housing or healthcare may simply be unavailable.[6]
[6] Ibid at [3.109].
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. As at publication, DFAT is awaiting further clarity on how the law will be interpreted as implementing regulations are finalised.[7]
[7] Ibid at [3.110].
DFAT assesses that LGBTI people face a moderate risk of societal discrimination: traditional views about sexuality and gender can restrict participation in the workforce and the broader community. People perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas and communities, including Muslim and Christian communities. LGBTI individuals face a moderate risk of official discrimination due to national laws that discriminate against them based on their sexuality, and due to official attitudes. DFAT assesses that LGBTI people living in Aceh face a high risk of official and societal discrimination and violence.[8]
ANALYSIS, REASONS AND FINDINGS
[8] DFAT Country Report on Indonesia, dated 2 July 2023, at [3.111].
Criteria 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.
The issue in this case is whether the applicant have a well-founded fear of persecution in relation to his home country of Indonesia and does he meet the refugee protection provisions in the Act and or does he meet the complementary protection provisions of the Act and as such is owed complementary protection by Australia. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Whilst there is a lack of detail in the applicants protection visa application and he did not respond to the delegates request for more information and this has meant he has presented new information at the hearing that was not previously before the initial decision maker. S 367A therefore requires the Tribunal to make a consideration regarding potentially adverse information. I have considered the reasons the applicant has stated on my questioning about this point and I accept his account of the reasons for this. The trust he placed in his friend who contacted an alleged migration agent/lawyer and the lack of communication from the outset from this representative were a consequence of his naivety about the process and his inability to understand the document which were in English and he did not have them translated for him. That along with it seems, placing his trust in a friend who then trusted another who may or may not have been a registered migration agent/lawyer has meant the application and ensuing documents were lacking critical details.
I have given weight to the applicants oral evidence to the Tribunal and I am satisfied he is recalling events from his own lived experience. His evidence was generally consistent regarding his sexuality, the harm he experienced in his home village in Indonesia and the discrimination he faced from his own family, his wife, and her family. This information has been supported by country information. It has also been supported by the witness testimony of the applicants partner and in post hearing submissions from friends and family of the applicants partner.
The applicant states he is born of a Muslim family and whilst he does not practice his faith he has not and cannot denounce it. Country information states that while apostasy in not a crime in Indonesia and religious conversions do occur the process can be ‘difficult and frustrating but not impossible to navigate and some people have difficulties with their families accepting their decision’.[9]
[9] DFAT Country Information Report for Indonesia, dated 24 July 2023 at [3.21].
Considering the above I accept the following claims as credible:
a)The applicant is a gay man;
b)The applicants religious status is ‘Muslim’;
c)The applicant commenced his first homosexual relationship in about 2012;
d)At about this time his parents found out and forced him to marry which he did so in 2013.
e)He then had further short term homosexual encounters during his marriage ending in his wife finding out along with villagers who beat him and ousted him from the village.
f)The applicant was eventually shunned by his wife and her parents and asked to leave their home and he went to the home of his older sister, the only one of his siblings who supported him.
g)The applicant came to Australia and commenced communicating via a dating app with his current partner [Mr A].
h)The two have now been in a relationship for 17 months and reside and work together.
i)The applicant has limited contact with his two children in Indonesia and no contact now with his family.
Does the applicant satisfy the refugee criterion for protection?
Based on the applicants 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 were returned to the home area of his receiving country, Indonesia.
I accept that there is a real chance he will suffer serious harm by way of violence in his community, arrest by police and significant discrimination by his wife and her family and Indonesian society in general if he returns to his previous place of residence in Java, Indonesia or attempts to relocate to any other region in Indonesia now or in the reasonably foreseeable future. I accept the harm may include significant physical and verbal harassment and ostracization and ill treatment of the applicant such that would constitute serious harm for the purposes of s 5(J)(5) of the Act.
I must consider 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 a particular social group, namely “homosexual’s from Indonesia”. I consider that this group is identifiable by the characteristics of gender, sexual orientation, and nationality 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 a particular social group for the purpose of s 5J(1)(a).
If the applicant were to return to Indonesia and hide his sexual identity to avoid threat of serious harm this would be considered a modification to his behaviour to avoid harm in Indonesia for reasons of his membership of a particular social group of homosexual men living in Indonesia. This then 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).
I accept on the basis of the applicant’s past experiences and above country information that community and government attitudes and hostility towards the LGBTI community in Indonesia are pervasive and underpinned by Islamic doctrines which applies to all Indonesian Muslims 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. Therefore, I am satisfied that s 5J(1)(c) is met as the real chance of persecution relates to all areas of the receiving country, Indonesia.
The applicant reported that when his parents found out he was homosexual he was forced to marry to negate the embarrassment to is family. When his wife and her family found he was homosexual he was shunned by the villagers, physically assaulted, and made to leave the community in which he lived. This experience is echoed in the DFAT report on Indonesia. ‘The experience of LGBTI Indonesians depends a lot on their families. Family networks are crucial. Those whose families reject them are at a 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.’[10]
[10] Ibid at [3.99].
As such I accept the applicant faces stigmatisation and discrimination for his sexuality if he were to return to his home country of Indonesia.
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 and that treatment is worse for Muslim people. Whilst homosexuality is not prohibited if it is practised in the privacy of one’s home the level of social stigma and discrimination is high particularly those living in rural and or Muslim communities and does include targeting by police because of this.[11]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.[12]I am not satisfied therefore the applicant has access to effective protection in all areas of the receiving country, Indonesia as is the criteria in s 5J(2).
[11] Ibid at [3.111].
[12] MIMA v Respondents S152/2003 (2004) 222 CLR at [23] per Gleeson CJ, Hayne and Heydon JJ.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a) of s 5J that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. I am satisfied the applicant fears persecution for reasons of his membership of a particular social group and these are the essential and significant reasons per s 5J(4)(a) and that the persecution he faces involves systematic and discriminatory conduct per s 5J(4)(c).
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph S 5J(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. I am satisfied the applicant did not engage in conduct for the purposes of strengthening his claim to be a refugee such that his relationship claims are consistent, supported by evidence and witness statements and testimony.
If a person fears persecution 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.
DATE OF HEARING: 17 March 2025
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.
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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.
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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
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(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.
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