Wednesday, 24 October 2007

A Phonecall from the APO

They have no record of me giving them my corrected Citizenship certificate back in September last year. *SIGH*

They were also suprised to hear that I hadn't been given a refund. "It has already been processed" they said. They said they'd look into it.

I pointed out to them that if they checked the data from Immigration - something they are empowered to do under the Australian Passports Determination 2005 (No 4) they would have seen that my records had been corrected over a year ago. I told them that there was no way I was going to put in another application: my position is that the original one should never have been refused.

I also told them exactly where they had fallen down regarding the Administrative Appeals (Judicial Review) Act, exactly the extent of their maladministration (that is, apart from the refund and them losing the record of citizenship change) and that the AAT would at the very least remit the matter to them for re-consideration. Which on the evidence they had available to them as of today, would mean them granting me a passport at last, something they'd already agreed with. They didn't contest my assessment of the AAT's likely ruling either. Given the facts, that shouldn't be surprising. Not being lawyers, they couldn't give an official view either way, but some things are too obvious to gainsay.

My offer was for them to give me a full refund, and also a new passport. Then I wouldn't claim for the additional expenses involved in getting an Australian Declaratory Visa due to their maladministration, nor damages. I'd still be out of pocket by a small amount, but the sheer inconvenience and stress of a court case is a penalty I'll try to avoid if I can. To give me compensation for the ADV would be difficult, but there's existing provision for waiving fees in exceptional circumstances. The fees are comparable. It seemed a reasonable compromise.

The person on the other end obviously wasn't empowered to say Yea or Nay. Given that all Government Departments will be in "Caretaker mode" shortly due to the election, I told them that I'd leave off any legal action until the new year. To give them a reasonable time to think about it.

The recent decision by the AAT has put the APO is a very invidious position. OK, their own fault, but still Not Good. Essentially, they must "second guess" the Family Court on the matter of exactly what someone's Sex is, in case the documentation is at all inconsistent with the simplest of cases.

I proposed that they just go by what Medicare Australia says, the biological and medical facts. This way they can say that they are acting in accordance with the AAT's ruling that they should go by the Reality of the situation, and not pay too much attention to official records that are demonstrably incorrect. More to the point, it would be someone else's problem.

Medicare Australia only changes gender on their records due to gender reassignment surgery, or in case of Intersex conditions. Although not perfect - some Intersexed people can be male for some purposes, female for others - it's as good as we can get as a general rule. Exceptional cases that don't fit should always be booted upstairs, past "Policy" to the Minister. That will happen once every alternate blue moon, as it should.

This way, people with 5ARD, 17BHDD or other apparent sex-changing Intersex conditions can at least get a passport with minimal problems. For them, and for the APO.

Hopefully this message will be transmitted upstairs. OK, I'm an optimist.

Right now, I'm really fed up though. My Blog has a record of me constantly trying to get them to act within the law, and see reason. If there's any cavil at my offer, one predicated on them not causing any more distress and suffering than they already have, it's off to the AAT. This can't go on. I have enough on my plate without it, but if they insist on being bloody-minded, I'll cooly extract as much monetary compensation for their actions as the law will allow. Cooly? Not exactly, Right now I can hardly stop the tears. I'll just get lawyers to act for me, I'm too upset.
This should never have happened.

OK, Zoe, get yourself together, you have a son to parent and a PhD to complete.


mythusmage said...

Girl, you light a fire under their ass. We've got a few you could borrow. :)

Tex said...

Isn't there an ombudsman you could complain to?

Zoe Brain said...

Tex - tried that. But until all avenues have been exhausted under the Administrative Appeals (Judicial Review) Act have been exhausted, the Commonwealth Ombudsman is powerless.

They're the next step between the AAT and the High Court.

BTW - any chance of a pre-election RWDB lunch? TurkOz in Dickson do a terrific banquet, Turkish Pizza etc for a very low price.

Tex said...

Lunch? Of course it's possible. We've only been trying to organise it for three years or so.

Don't like Turkish food though. Be happy with anything else. Especially Indian (inserts Homer drooling noises)

BTW, you gonna vote for me? I'm the LDPs senate candidate....

Zoe Brain said...

Indian - great.

And as a matter of fact, I will be voting for you.