Passports Round 2 - First Volley

From:
Mr Zoe Ellen Brain
(address redacted)

To
Mr Ross Tysoe
Assistant Secretary
Passport Client Service Branch

Date: 17 August 2007

Re:
Letter recieved 6th October 2006
Letter sent 17th September 2006

Dear Sir,

1. Could you please inform me of the legislative basis for denying my passport application, and offering me a Document of Identity (DOI) instead, in the letter of the 6th Oct 2006?

I would appreciate it if you quoted not merely the name of the relevant acts, determinations, explanatory notes, and instructions, but the exact sections therein.

As I understand it, section 6.3 of the Australian Passports Determination 2005 as was in force at the time indicated that an offer of a DOI may be made to

"an Australian citizen to whom the issue of an Australian passport is unnecessary or undesirable"

The Explanatory notes paragraph 89 indicated that such people included:

* Australian citizens who are transgender, that is are living in the identity of a member of the opposite sex
and
* Australian citizens whose travel the Minister believes should be restricted.

along with other categories that obviously do not apply.

I will leave aside the blatant contravention of the International Covenant on Civil and Political Rights (1980 ATS 23, Article12) as clarified by the The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity Principle 22.

I was born overseas, and the DIAC (DIMIA as was) records indicated that I was female at the time of your letter. I had supplied the APO with evidence of that in the form of a new Citizenship certificate (something only issued for a gender change), so the APO knew, or should have known, that fact. I applied for a passport in a female gender, so to say that I am "transgendered" under the definition of para 89 of the Notes would be a difficult assertion to substantiate.

Recent DFAT statements have been made asserting that the DIAC record is legal recognition of gender.

"The Department of Foreign Affairs and Trade said the purpose of the amendment was to "strengthen the integrity and security of Australian passports", arguing that only the State and Territory Registrars of Births, Deaths and Marriages and the Department of Immigration and Citizenship have the legislated power to amend records when people have satisfied their requirements to record a change of gender.

"It would be inconsistent ... for the Department to continue to issue passports, albeit limited in validity, to persons in a sex other than that shown in the records held by the State or Territory BDM Registrar or the Department of Immigration and Citizenship," a spokesperson told SX."

2. Can I assume then, that the Minister believes my travel should be restricted? If so, could you please explain why, in a manner that would convince the AAT that such a belief was reasonable?

3. I would appreciate you telling me the exact portion of the Manual of Australian Passport Issue, that states that persons born overseas (I must emphasise that) in this situation must be unmarried to gain a passport.

DFAT already has in its possession and in my file a statement by the Hon Phillip Ruddock to the effect that valid same-sex marriages can exist under the Marriage Act if, and only if, one partner changes legal gender. Leaving aside the issue that it is not for DFAT to make up rules to enforce it's own peculiar and contra-legal interpretation of the Marriage Act, as far as I'm aware, the rules at the time did not require an overseas-born applicant to be unmarried.

It is my contention that I should have been issued a passport last year. Since according to Medicare Australia I was biologically female (more female than male, anyway), and since according to DIMIA (as was) I was legally female, no Sex Reassignment Surgery from Male to Female was legally or medically possible. I did have reconstruction in that area subsequent to my application, and according to my gynecologist, look normally female there at last. But the reconstruction was Gender Affirmation, rather than Re-assignment, and arguably would not count under the exact letter of the law. I was medically and legally female before it.

4. Since the recent amendments to the Australian Passport Determination 2005 (no 4), it is now clear that the record of gender for those born overseas is the DIAC record according to section 7.2. I would appreciate a statement as to the likelihood of a further passport application with exactly the same data supplied succeeding.

As I am on a fixed income, a subsistence level scholarship, I cannot afford to keep on making applications that get knocked back for reasons unclear to me, and possibly without legal foundation. Contrary to your letter of October last year, I still have not received any form of refund, although I'm given to understand that this may be forthcoming at some future time.

So in summary:

1. Please tell me the legal basis for refusing my application last year.
2. If the Minister believes my travel should be restricted, could he tell me why?
3. Where does it say that I have to be unmarried?
4. Would an identical application succeed now?

Yours Sincerely,

Zoe E Brain