Thursday, 7 September 2006

The Great Passport Fiasco : September 7th Edition

Or : Legal Square Pegs and Round Holes

From the Australian Passports Determination 2005

5.1 Period of validity

(1) For subsection 20 (2) of the Australian Passports Act, and subject to subsection (2), and sections 5.2 and 5.3, a passport ceases to be valid at the end of the day specified in the passport as the date of expiry.

(2) The maximum period for which a passport may be valid is as follows:

(a) subject to paragraphs (c) to (j), for a passport issued to an adult — 10 years;
(h) for a passport issued to a person travelling internationally for the purpose of gender reassignment, if the passport is issued to the person in the intended gender — 1 year;

There's the smoking gun. This is the subordinate legislation that they think applies, I think. I have to guess as the APO still has told me absolutely nothing.

All this so I get a passport for 1 year instead of 10, for the same price? Nah, couldn't be, could it?

Of course, since Medicare Australia says I'm medically female, even getting treatment for "moderate to severe androgenisation of a non-pregnant woman", to say that I'm going overseas for "gender reassignment" to female is at best contentious, at worst a nonsense. Yes, the operation I'm having is usually for gender reassignment, so it's arguable that it counts. It's also arguable that it doesn't, and if I can't provide acceptable surgical evidence of gender reassignment, it will be back to the old male passport again. Assuming they issue one of those.

This has actually happened to someone a few months ago according to a first-person report on a mailing list I'm on, which is why I'm determined not to give any benefit of the doubt. According to her post, the evidence of her overseas surgery was deemed "insufficient", her limited-validity passport confiscated on entry, and she was refused a new one with the appropriate gender.

A regular poster, she hasn't been heard from since. Yes, that probably means what you think that means. It happens sometimes. With luck, it's just a breakdown, and she's in hospital somewhere.

I had hoped that she was exaggerating. From my treatment by the APO, well, maybe, maybe not.

Maybe I could get a Document of Identity instead, if the APO deemed it was "un-neccessary or undesirable" that I be given a full Passport. They can be valid for 3 years, and in conjunction with a UK passport, would be adequate for my purposes. Travelling to the USA, for example.

Except that from the case VAK and Minister for Foreign Affairs and Trade [2002] AATA 588 (11 July 2002) It was held by the Administrative Appeals Tribunal that
36. Given that a document of identity is more circumscribed than a passport and is only given to an Australian citizen, who does not also possess the nationality of a Commonwealth country, in circumstances in which the issue of a passport would be unnecessary or undesirable, it would follow that it should, as a general proposition, only be given in circumscribed circumstances. It should not be issued in terms that would permit freedom of travel that equates with a passport even if for a shorter period of time.
That was under a previous Act, but it's arguable that it still applies.

But all this is guesswork, as the APO still hasn't told me anything.

So I've sent this off to my local MP, Bob McMullan:

Ms Zoe E Brain
[address 1]
[address 2]

PH: [phone 1]
E-mail :

Dear Mr McMullan,

I'm a resident of your electorate, and I would appreciate your help.


I'm about to be effectively exiled from Australia, despite being a citizen.


I'm an Australian Citizen with dual UK/Australian nationality who has to travel overseas for necessary surgery not available in Australia no later than November 12th 2006. I applied for an Australian passport back in June.

The only written communication I have received from the Australian Passport Office back in early July 2006 was a letter demanding two separate gynacological examinations to ascertain exactly what surgical procedures I have undergone. This despite me informing them that I hadn't had any, the somatic changes were due to an Ideopathic medical condition.

I wrote to the Minister concerned, the Hon Alexander Downer on 26th July 2006 to try to get the matter cleared up. I have heard nothing from him since then, other than a formal recognition that my letter was received.

I wrote to the Director of the Australian Passport Office on 4th August 2006, requiring him to give me a written response within 28 days, in accordance with the Administrative Appeals(Judicial Revew) Act Section 13. I have had nothing in writing from the Director either, and the deadline is long past. The APO is in clear breach of the act.

As an Australian Citizen, I cannot re-enter the country without an Australian Passport, as I don't qualify for any form of Visa for my UK passport. As matters stand, I will be effectively exiled from my home, my family, and my 5 year old son from the 11th of November this year, unable to re-enter, as lacking any visa or Australian passport, no airline will carry me, my citizenship certificate notwithstanding.


I'm Transsexual, and by most definitions, Intersexed too. Certainly a victim of an astoundingly rare and spectacular medical condition anyway. Therein lies the problem.

As at the 26th July 2006 I had supplied to the Australian Passport Office, in response to repeated verbal requests for more data:

1. A passport application form, correctly filled out and checked
during a passport interview.
2. Citizenship certificate in my former name
3. Name Change Document (showing a male gender as that was on my unchangeable UK Birth certificate) showing both former and current names
4. Medicare Card in the name of Zoe Brain
5. Drivers License in the name of Zoe Brain
6. Photo Student ID in the name of Zoe Brain
7. Last year's tax return in the name of Zoe Brain
8. Medical letter stating Zoe Brain is undergoing hormone therapy
9. Letter from the Federal Attorney-General about my marital status to Ms Zoe Brain
10. Letter from my former place of work confirming my odd medical condition, and the radical changes that happened before any therapy commenced.
11. Bank statements in the name of Zoe Brain
12. Credit card Statement in the name of Zoe Brain
13. Letter of Offer for my PhD in the name of Zoe Brain
14. Expired Australian Passport showing a male gender and former name
15. Current UK passport showing a female gender in the name of Zoe Brain

Since then I have also supplied:

1. Written Confirmation from Medicare Australia that I am medically female, and undergoing treatment for "moderate to severe androgenisation of a non-pregnant woman"
2. A re-issued Citizenship Certificate in the name of Zoe Ellen Brain, indicating recognition of my status by the Department of Immigration, who do not issue new certificates for mere name changes.
3. A letter from my PhD supervisor at the Australian National University pointing out the necessity of Overseas Travel for me to complete my studies, and their importance to Australia.

According to advisors on the Passport InfoLine, my file has been marked with an instruction that no verbal information is to be given, all inquiries are to be referred to the Policy Section for a written response. Counter Staff at the APO in the R.G.Casey building have also been instructed not to give me any information.

How Can You Help

Right now, by you or one of your staff meeting me, or requesting further details, confirmation etc of my Kafkaesque situation. Extraordinary claims demand extraordinary evidence after all.

I expect some written communication from the APO at some stage, but I would be astonished if it did nothing but refer to the current Manual of Australian Passport Issue (not available to the public any more), and completely ignored both my individual circumstances and the provisions of the Australian Passport Act 2005.

These state that every Australian Citizen is entitled to a passport, provided only that the Minister is satisfied of their Identity and Citizenship, and that they are not fugitives or security risks under Section 3 of the Act. A passport has already been granted in the past where the Intersexed applicant, Alexander MacFarlane, was of indeterminate gender. Being unable to conclusively determine gender is no barrier to determining Identity.

Should my passport be granted in the near future, then all will be well, and no action neccessary. But when I can't even get an answer from the APO, I think this a most remote possibility.

If my application is rejected, then I will also be contacting Senator Gary Humphries about the matter. Hopefully a Bi-Partisan personal appeal to the Minister to exercise his discretion (not to mention some common sense) on purely Humanitarian grounds might succeed. The APO's delay - I won't say delaying tactics - have ensured that no avenue of legal appeal is open to me before my exile, and their problem goes away.

The longer I leave my operation, the greater the risk of Cancer in the abnormal organs. I have to leave in November 2006 : the only question is whether I will be allowed to return.

Yours Sincerely,

Zoe Ellen Brain BSc MInfoTech(Distinction)
I Am Not A Lawyer, either. I don't even play one on TV.

Right now, I can't even say for certain that a decision has been made or not, since I haven't been notified in writing about it.

By Miller and Minister for Foreign Affairs and Trade [2003] AATA 395 (30 April 2003) :
16. The definition of "decision" in the AAT Act is similar to that in subsection 3(2) of the Administrative Decisions (Judicial Review) Act 1977. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the High Court considered the meaning of the word. Mason J, with whom Brennan and Deane JJ agreed, stated at 327:

... a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an indeterminate decision, might accurately be described as a decision under an enactment.

His Honour stated that "Another essential quality of a reviewable decision is that it be a substantive determination": (1990) 94 ALR 11 at 23-24. (170 CLR 321 at 337)
And I can see nowhere where the APO can be forced to make a decision in a timely manner. I can't even see if the AAT has the power to compel them to do so. Perhaps the Federal Court, but there it will cost an estimated $30,000.

Is it incompetence or malice? It doesn't matter, the effect is the same. All I can do is wait for the APO's reply, should they manage to send one eventually.

No comments: