Chi v Technical and Further Education Commission

In *Chi v Technical and Further Education Commission*, the appellant, a student at TAFE, alleged that he was refused enrolment in certain course modules due to a complaint he had made about the conduct of TAFE staff. The appeal to the Court of Appeal of New South Wales was confined to a question of law, specifically whether the alleged conduct complained of "would amount to" a contravention of the prohibition on racial discrimination.

The central legal issue before the court was whether the alleged conduct of a teacher stating to the appellant, "You could not read English," constituted racial discrimination. To determine this, the court had to consider whether this alleged conduct, when compared to conduct that would have been engaged in towards a member of a relevant comparator group, amounted to discrimination. The comparator group was defined as students perceived by the teacher to be unable to read English, where such inability did not stem from their race, ethnicity, or national origin. The court also had to determine if the question of whether conduct contravenes a statutory prohibition is a question of law.

The court reasoned that for the alleged conduct to amount to racial discrimination, it must be shown that a person of a different race, ethnicity, or national origin, who was similarly perceived by the teacher to be unable to read English, would not have been subjected to the same statement. The court found that the appellant had not established that the statement was made because of his race or national origin, nor had he demonstrated that a comparator student, not of his race or national origin, would have been treated differently. The court concluded that the question of whether conduct contravenes a statutory prohibition is indeed a question of law.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.