Thursday, 3 August 2006

The Great Passport Fiasco : August 3rd Edition

Well, I've just received another phonecall from the case officer.

As expected, same answer, exactly. No.

At least it was quick. "Policy" ignored the new evidence, just quoted the book, that's it.

Next step : a letter to the Director of Passport Operations. The Case Officer was good enough to supply me the address without me even asking.

In this letter, I'll be doing two things. I'll submit my case (yet again), but I'll also make a formal demand for reasons for the previous adverse decision, in accordance with Section 13 of the Administrative Decisions(Judicial Review) Act 1977.

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 13
Reasons for decision may be obtained

(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.
I really need to see the Postgraduate Student's Association Lawyer on this one too before I send it. Make sure everything's all squared away, legally.

And while I'm waiting to see him, a letter to the Commonwealth Ombudsman too.

There's still a few rungs on the ladder to go before we start going Fully Legal, but right now, that's the most likely option.

Yet more time wasted when I should be working on my PhD.

OK, here's the Draft letter. The final one I send may be quite different, but here goes. I've included URLs to the legislation involved for those interested in the legalities. Unlike the APO, whose Policy section appears not to be....

To :
The Director of Passport Operations
R.G.Casey building
John McEwen Crescent
Barton ACT 0221

From :
Zoe Ellen Brain
{Address Line 1}
{Address Line 2}

Re :
Rejected Passport Application


Dear Sir/Madam,

In accordance with ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 13 and the similar provisions in the ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 28, please furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision not to grant my passport application.

I wish to draw to your attention the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 5, paragraphs 1(e) and 2(f) stating that the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case is an improper exercise of power.

I also wish to draw to your attention the AUSTRALIAN PASSPORTS ACT 2005 - SECT 7, stating that Australian Citizens are entitled to be issued with an Australian passport, provided only that the application is in accordance with the relevant forms and fee paid, and subject only to section 8 and exclusions from Division 2. The AUSTRALIAN PASSPORTS ACT 2005 - SECT 8, states that the Minister must be satisfied of the Identity of the person, and their status as an Australian Citizen before issuing a passport. Division 2 is not germane to the issue.

Finally, I wish to draw your attention to the consequences of any inability by the Minister to determine my Identity.

Firstly, that I am unable to be issued with any travel-related document whatsoever, because of the exclusion in AUSTRALIAN PASSPORTS ACT 2005 - SECT 10

Secondly, that lacking any travel-related document, and as an Australian Citizen unable to obtain a visa, I would be unable to re-enter Australia should I leave. An inability to prove Identity and Citizenship would cause me to be refused entry should I land here.

Thirdly, because I must shortly undertake medical treatment only available overseas, I will therefore be effectively exiled from my country of Citizenship as the result of this decision.

Yours Sincerely

Zoe Ellen Brain, BSc MInfoTech(Distinction)


References:
Administrative Decisions Act 1977 Section 5 - applications for review
http://www.austlii.edu.au/au/legis/cth/consol_act/adra1977396/s5.html

Administrative Decisions Act 1977 Section 13 - Reasons for decision
http://www.austlii.edu.au/au/legis/cth/consol_act/adra1977396/s13.html

Passports Act 2005 Section Section 7 - Entitlement to passport
http://www.austlii.edu.au/au/legis/cth/consol_act/apa2005261/s7.html

Passports Act 2005 Section Section 8 - Identity and Citizenship for Passport
http://www.austlii.edu.au/au/legis/cth/consol_act/apa2005261/s8.html

Passports Act 2005 Section Section 10 - Identity for Travel Document
http://www.austlii.edu.au/au/legis/cth/consol_act/apa2005261/s10.html

Passports Act 2005 Section 48 - "Refusal to issue" is a reviewable decision
http://www.austlii.edu.au/au/legis/cth/consol_act/apa2005261/s48.html

Administrative Appeals Tribunal Act 1975 Section 28 - Reasons for decision
http://www.austlii.edu.au/au/legis/cth/consol_act/aata1975323/index.html#s28

3 comments:

isolated_freak said...

Jeez, it seems increasingly crazy to me that the world assigns so much importance to a private physical aspect of one's body. Why does gender even have to be indicated on identification documents?

It is extremely unfair that you have to go through such inconvenience...but maybe your case will really end up improving the lives of others in your position in the future. But, I know that there is so much more to your life than this and that having to deal with the ignorance over gender takes away from it.

Anyway, I really wish you the best with all of this.

deebee said...

What an excellent example of outdated bureaucracy crushing common sense. All it needs is someone to show a bit of humanity and have the changes enshrined in law.

Keep going Zoe, only through people challenging the system on a solid and reasonable basis can that system change.

Just be aware that you're making life better for those following in your footsteps.

Off topic for a mo - check out Rodney Croome's blog at http://www.rodneycroome.id.au/weblog for his post about the census - and this link http://tinyurl.com/kk25u for a story in The Age about an intersexed woman who has been denied her request for her sex to be changed on her birth certificate.

This is the type of crap we're fighting.

Zoe Brain said...

Thanks so much for the support. It really makes a difference.