Lin v American International Assurance Company (Australia) Pty Ltd (EOD)

[2007] NSWADTAP 9

Appeal Panel - Internal

CITATION:	Lin v American International Assurance Company (Australia) Pty Ltd (EOD) [2007] NSWADTAP 9
PARTIES:	APPELLANT Ping Lin RESPONDENT American International Assurance Company (Australia) Pty Ltd
FILE NUMBER:	069050
HEARING DATES:	23/01/2007
SUBMISSIONS CLOSED:	23 January 2007
DATE OF DECISION:	27 February 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	costs - fail to make decision - leave to extend to the merits - procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	031102
DATE OF DECISION UNDER APPEAL:	08/02/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 K v K [2000] NSWSC 1052 S v S [2001] NSWSC 146 Re R [2000] NSWSC 886
REPRESENTATION:	APPELLANT In person RESPONDENT C Ronalds, SC
ORDERS:	1. Mr Lin’s application that American International Assurance Company (Australia) Pty Ltd not be legally represented is refused.; 2. Mr Lin’s application for the appeal to be extended to a review of the merits of the Tribunal’s decision is refused. ; 3. The appeal is dismissed.; 4. American International Assurance Company (Australia) Pty Ltd’s application for costs is refused.

Introduction

1 Mr Lin was born in China and migrated to Australia in 1989. In 1997 he began working as a commission agent for American International Assurance Company (Australia) Pty Ltd (AIA), selling insurance policies. He alleged that AIA discriminated against him on the ground of his race and then victimised him because he complained. The Tribunal dismissed both complaints. Mr Lin has appealed to the Appeal Panel against those decisions.

Legal representation

2 Mr Lin was legally represented in the proceedings before the Tribunal, but was not legally represented on appeal. He has asked the Appeal Panel to refuse to give AIA permission to be legally represented in the appeal proceedings. Under s 98 of the Anti-Discrimination Act 1977 (AD Act) a corporation, such as AIA, is entitled to “appear by a director, the secretary, or an agent of the corporation”. An “agent” includes a legal practitioner: AD Act, s 87. If a party is not a corporation, he or she needs the Tribunal’s permission or “leave” before it can be represented by an agent.

3 While s 71 of the Administrative Decisions Tribunal Act 1997 (ADT Act) allows the Tribunal to restrict lawyers to presenting written submissions only, that discretion does not apply to proceedings before an Appeal Panel of the Tribunal: ADT Act, s 71(5). Consequently AIA has an unqualified right to be represented by lawyers in these proceedings and Mr Lin’s application that they not be represented is refused.

4 Mr Lin has requested that, due to his ill health, the appeal be determined “on the papers” in accordance with s 76 of the ADT Act. In our view, the appeal can be adequately determined in the absence of the parties and that is the course we have adopted.

Appeal Panel’s jurisdiction

5 Mr Lin is entitled to appeal against the Tribunal’s decision on any question of law. With the leave of the Appeal Panel, the appeal may extend to a review of the merits of the appealable decision: ADT Act, s 113 (2) and Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. While it is not clear from the material filed by Mr Lin whether he has applied for leave to extend the appeal to the merits of the decision, we have assumed that he has done so.

Background

6 AIA appointed Mr Lin as a commission agent in March 1997. His task was to sell insurance policies and to recruit new agents. Most of AIA’s clients in Australia are Chinese and the remainder are from other Asian backgrounds. About 75% of AIA’s agents were born in China. When appointed as a commission agent, Mr Lin signed an agency agreement which set out, among other things, that agents are required to bring in a certain number of new policies each quarter, and that a certain percentage of existing policies should be renewed each quarter. AIA also produced Guidelines which set out minimum standards of performance for promotion. Mr Lin’s initial performance exceeded the minimum standards and he was promoted to Agency Organiser on 1 June 1998.

7 Mr Lin then sought promotion to the role of Agency Supervisor. The Guidelines for promotion set out the following standards for promotion to that role:

Minimum Standards of Performance...Agency Organiser to Agency Supervisor

A. Minimum of 10 newly created Agents of which 3 are full time.

B. $60,000 paid FYP [full year premium] and 40 paid cases (minimum 50% FYP from new agents). 1 year MDC [Million Dollar Club] qualifier would be preferred.

C. Nomination in writing by Agency Leader.

D. AIA final approval.

8 In March 1999 Mr Lin said that he told his supervisor, Mr Cheung, that he had met the standards listed in A and B above and was eligible for promotion to Agency Supervisor. He said that Mr Cheung refused to promote him because if he did, he would no longer be entitled to a share of Mr Lin’s commission. Mr Lin then said that Mr Cheung promised that if he waited another six months he would be promoted.

9 Mr Lin complained to the State Manager, Katie Lin (no relation) and to the National Director of Agencies, Mr Carl Gustini, that he was being discriminated against on the ground of his Chinese ethnicity. Mr Lin claimed that if he were not Chinese he would have been promoted.

10 During the second half 1999, after his request to be promoted to Agency Supervisor had been refused, the Tribunal found that the number of sales achieved by Mr Lin and his team plummeted. He failed to reach the targets for Agency Organisers and, in December 1999, he was demoted to Agent.

11 On 20 February 2000 Mr Lin lodged a complaint with the Anti-Discrimination Board. AIA terminated Mr Lin’s contract by letter dated 16 May 2000 citing “failure to achieve the minimum contract requirements as set out in your contract.” Mr Lin says that one of the reasons AIA did not promote him and then demoted him and terminated his engagement, was because he is Chinese. In support of that contention, Mr Lin alleged that non-Chinese agents were promoted and/or were not demoted, despite their failure to meet the targets.

Mr Lin’s complaint before the Tribunal

12 Mr Lin alleged that he was a commission agent, that is “an agent who is remunerated by commission” (AD Act, s 4) and that AIA had breached s 9(2) of the AD Act which states that:

It is unlawful for a principal to discriminate against a commission agent on the ground of race:

(a) in the terms or conditions which the principal affords him or her as a commission agent,

(b) by denying him or her access, or limiting his or her access, to opportunities for promotion, transfer or training, or to any other benefits associated with his or her position as a commission agent, or

(c) by terminating his or her engagement or subjecting him or her to any other detriment.

13 The four alleged acts of discrimination were:

(a) refusing to promote him to Agency Supervisor;

(b) refusing to promote him to Associate Agency Supervisor;

(c) terminating his Agency Organizer contract; and

(d) terminating his Agency contract.

14 He alleged that contrary s 9(2)(b) and (c) of the AD Act, AIA had denied him access, or limited his access to opportunities for promotion, had terminated his engagement and subjected him to another detriment, namely demotion.

15 Mr Lin says that those acts amounted to “direct” discrimination as defined in s 7(1)(a). That provision states that:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race

16 Mr Lin also said that each of the four alleged acts of discrimination were acts of victimisation on the ground that he had made allegations of discrimination. Section 50 states that:

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

17 Legal test. The Tribunal correctly pointed out at [34] and [35], that in order to succeed in his complaint of direct race discrimination Mr Lin must establish two things. First, that he was treated less favourably than a non-Chinese person was or would have been treated in the same circumstances or in circumstances which were not materially different (“differential treatment”). Secondly, that one of the reasons for that treatment was his race ("causation"). The Tribunal then examined each of the four alleged acts of discrimination.

18 Failure to promote to Agency Supervisor. Mr Lin submitted to the Tribunal that the only criteria for promotion to Agency Supervisor were those set out in the Guidelines (see [7] above). Mr Gustini’s evidence was that other ‘non-quantifiable’ factors were relevant including loyalty, commitment and leadership skills, as well as meeting the requirements of the Validation Override Plan (the Plan). The Plan provided that if an Organiser and their team achieved specific recruitment and sales targets over a twelve month period, the Organiser would receive additional commission. Mr Lin said that the Plan was not an additional requirement for promotion.

19 The Tribunal found that the written documentation provided to Agency Organisers did not fully disclose the criteria on which decisions regarding promotion would be based. In particular, the Tribunal concluded that there was an expectation that Agency Organisers seeking promotion would have met the requirements in the Plan. The Tribunal found that before March 1999 Mr Lin had been a highly successful agent. After that time his performance, and that of his team, declined significantly. In the six months from December 1998 to May 1999, he sold 21 new policies. During the following six months he sold only 7. At the same time the performance of his team also declined.

20 Mr Lin compared the performance of all Agency Organisers promoted to Supervisor in the period March 1997 to May 2000. He identified five “non-Chinese” agents who did not meet the criteria set out in A and B of the Guidelines. He compared those people with “Chinese agents” who were promoted during that period, all of whom met the criteria in A and B of the Guidelines. He also said that while six Chinese Organisers were demoted during that period, no non-Chinese Organisers were demoted even though some had not met the targets in the Guidelines.

21 The Tribunal found at [73], in accordance with Mr Lin’s submission, that non-Chinese agents were not required to comply with the criteria in A and B of the Guidelines in the same rigorous way as Chinese agents were required to comply. However, the Tribunal found that, for the purpose of determining whether AIA treated Chinese agents less favourably than non-Chinese agents, the non-Chinese agents nominated by Mr Lin were not in the same circumstances, or circumstances which were not materially different, to him. The Tribunal said that, “Critically, while Mr Lin’s annual figures were better than all five agents, none suffered from the sustained inactivity that characterised his team throughout the second half of 1999.” Alternatively, the Tribunal said that if a hypothetical rather than an actual comparator were used, it would have been unlikely that AIA would have promoted a non-Chinese person who had the same history of performance as Mr Lin. On the balance of probabilities the Tribunal decided that the first part of the test for discrimination (differential treatment) had not been satisfied. On the question of causation, the Tribunal concluded that while there was some evidence of non-Chinese agents receiving more favourable treatment from AIA in other contexts, it could not be inferred that one of the reasons Mr Lin was not promoted was his race.

22 Failure to promote to Associate Agency Supervisor. Mr Lin claimed that in December 1999 Ms Lin refused to promote him to the position of Associate Agency Supervisor, despite the fact that she had promised to do so. The Tribunal found that even if Ms Lin had made that promise, Mr Lin’s race was not one of the reasons for not honouring it.

23 Terminating Agency Organiser Contract. As to his demotion to agent, the Tribunal found at [84], that even if the Plan was not a contractual requirement for Agency Organisers, Mr Lin’s overall performance was the real reason for his demotion, not his race. The Tribunal added that, “Given the probationary status of the Organizer position demotion was the logical next step following a decision not to promote.”

24 Terminating Agency contract. The Tribunal was satisfied that Mr Lin’s subsequent termination in May 2000, was because “Mr Lin’s performance had virtually come to a standstill”. He had only sold one policy since December 1999. In those circumstances the Tribunal was not satisfied that race played any role in the decision to terminate his contract.

25 Victimisation. Mr Lin alleged that he was victimised because he complained to AIA and the Anti-Discrimination Board that he had been discriminated against. The Tribunal concluded that while AIA did not welcome Mr Lin’s complaints, and rebuked him for disloyalty, the promotion and demotion decisions were so clearly related to Mr Lin’s performance that it could not be inferred that his complaints had a real causative effect on those decisions. The Tribunal dismissed both the discrimination complaint and the victimisation complaint.

Approach to grounds of appeal

26 Rather than addressing Mr Lin’s grounds of appeal in the order in which he presented them, we have chosen to categorise them in the following way:

(a) procedural matters which are not relevant to the appeal;

(b) grounds which do not arise from the decision;

(c) grounds which arguably raise a question of law;

(d) grounds which challenge findings of fact and which may relate to an appeal on the merits if leave is granted.

27 AIA alleged that Mr Lin failed to serve the Notice of Appeal. Mr Lin says that he did serve the Notice. Eventually, the Tribunal provided AIA with a copy of the Notice of Appeal. Whether or not Mr Lin served the Notice of Appeal or not makes no difference to any issue which the Appeal Panel needs to determine.

Grounds which do not arise from the Tribunal’s decision

28 Introduction. Some of Mr Lin’s purported grounds of appeal do not relate to issues which the Tribunal had to decide. Those grounds either relate to matters which were not pleaded in Mr Lin’s Further Amended Points of Claim or matters which the Tribunal decided in separate decisions either before or after the decision under appeal. For example, the Tribunal had decided, in a previous decision, that an application made by Mr Lin for a fresh summons to be issued on AIA for the production of documents should be refused: Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59. The Appeal Panel refused Mr Lin leave to appeal against that interlocutory decision: Lin v American International Assurance Company (Australia) Ltd (EOD) [2005] NSWADTAP 30. In addition, after the decision which is under appeal was given, the Tribunal handed down a separate decision dismissing AIA’s application for costs: Lin v American International Assurance Company (Australia) Pty Ltd (No 3) [2006] NSWADT 347.

29 Below is a list of the grounds of appeal that fall into this category together with a short explanation as to why they are not relevant:

(a) that non-Chinese sub-agents in other teams were treated more favourably than the sub-agents in Mr Lin’s team and that his complaints relate to all people of Chinese background, not just him - the only complainant was Mr Lin - he did not complain on behalf of anyone else;

(b) that the Tribunal gave AIA an opportunity to apply for costs - making directions in relation to the filing of an application is not an appealable decision under s 112 of the ADT Act;

(c) that the Tribunal misinterpreted or ignored the fact that Mr Lin was not an employee of AIA - the Tribunal determined Mr Lin’s complaint on the basis on which it was argued, that is, that he was a commission agent;

(d) that the Tribunal did not make a finding about whether AIA had discriminated “indirectly” against Mr Lin as provided by s 7(1)(c) of the AD Act - Mr Lin withdrew his claim of indirect discrimination;

(e) that the Tribunal’s decision ignores the fact that the AD Act was amended to change the time period for lodging complaints - the President of the Anti-Discrimination Board, not the Tribunal, made the decision to refuse Mr Lin’s request to accept allegations which were out of time;

(f) that the Tribunal ignored the fact that AIA had not complied with summonses for the production of documents- the issue of whether Mr Lin should be permitted to issue a fresh summons on AIA was dealt with by the Tribunal in a previous decision; and

(g) that Mr Lin should not be bound by what his legal representative said or did before the Tribunal – if Mr Lin has a complaint about his legal representative, it is not for the Appeal Panel to comment on or determine that complaint.

30 Introduction. Unsurprisingly, given that he was not legally represented on appeal, Mr Lin did not always describe his grounds of appeal using terminology that applies to an appeal on a question of law from a decision of the Equal Opportunity Division of the Tribunal. Rather than going into detail about why labels such as ‘jurisdictional error’ and ‘relevant/irrelevant considerations’ are not the correct labels for Mr Lin’s grounds of appeal, we have framed Mr Lin’s grounds in accordance with our understanding of the question of law, if any, that they raise.

31 Identification of the complaint – the “Challenges”. Mr Lin submitted that the Tribunal failed to determine whether the “Challenges” breached the AD Act. He said that allegations about the “Challenges” were part of his original complaint and the Tribunal should have made a decision about whether they were lawful or unlawful. The mixed question of fact and law is whether, contrary to the Tribunal’s finding, AIA’s conduct in relation to “the Challenges” formed part of Mr Lin’s complaint. If it did, and the Tribunal failed to exercise its jurisdiction in relation to that part of the complaint, then that may constitute an error of law.

32 Tribunal’s finding re the “Challenges”. The Tribunal’s findings in relation to the “Challenges” are set out in [22] and [62]-[63]:

22 Allegations of Discrimination Mr Lin claimed that in or about November 1998 he raised with Mr Cheung his concern that AIA’s regular in-house competitions, referred to as "Challenges", discriminated against "Chinese-speaking agents". Mr Lin claimed he was told this was not his business. The following month, Mr Lin again raised these concerns with Mr Cheung and continued to do so throughout 1999.

...

D. The Challenges

62 AIA held regular in house competitions for agents known as "the Challenges". It is common ground that lower sales targets were set for non-Chinese agents in these competitions. Mr Gustini asserted that the reason for this was because non-Chinese agents operated in a fledgling market where it was more difficult to meet the sales targets set for the Challenges. He claimed that the reason for the differential target was to "level the playing field". He also claimed that it was only in this area where different performance criteria was applied.

63 While the Challenges do not form part of the complaints we are required to determine they indicate that in one area at least, AIA used "race" to assess and reward performance. Whether that practice was reasonable is somewhat beside the point. The issue is whether that allegedly discriminatory practice (which is not conceded) was confined to this area.

33 Pleadings. The Tribunal found that the Challenges did not form part of the complaint it was required to determine. That conclusion is supported by what appears in the Further Amended Points of Claim, the fact that the period of the complaint was limited and by what appears in the transcript. At para 12 of the Further Amended Points of Claim it is alleged that:

From 14th May 1997, the respondent established a series of sales “promotions” and sales “challenges”: in which rewards and prizes were given to agents meeting certain sales criteria:

Particulars:

a. The November 1998 Challenge,

b. The State Convention Challenge announced on 15 December, 1998

c. The Seoul – Sydney Excellency Challenge,

d. The Eng Sion Liau Challenge of 22 March, 1999

e. The Leadership Camp Challenge – 1 March 1999- 30 April, 1999

f. New Millennium Challenge – 1 February 2000 to 29 February 2000

The “Promotions” and “Challenges” contained sales criteria which were higher and/or more difficult to attain for persons of Chinese national original or ethnicity, than they were for persons of other races within the meaning of the Anti-Discrimination Act, 1977 (the Act)

From November 1998 the applicant advised the respondent that the criteria for the sales Promotions and Challenges were in breach of the Act, were unfair and that they discriminated against the applicant as a person of Chinese ethnicity and Chinese national origin.

34 The Tribunal found at [39] that the complaints referred by the President of the Anti-Discrimination Board spanned the period 29 August 1999 to 16 May 2000.The President of the Board had refused Mr Lin’s request to accept those parts of his complaint which occurred before 29 August 1999. Consequently, the only allegation involving “Promotions” and “Challenges” over which the Tribunal potentially had jurisdiction was the “New Millennium Challenge”. However, for reasons which we set out below, Mr Lin was not alleging that the “New Millennium Challenge” was a discrete act of discrimination.

35 It is apparent from the Further Amended Points of Claim, particularly paragraph 50, that Mr Lin’s complaint, was a complaint of discrimination and victimisation in relation to the four decisions about promotion and demotion. Mr Lin did not seek a remedy in relation to the “New Millennium Challenge”. Furthermore, the transcripts of proceedings on 7 September 2005 and 26 October 2006 makes it clear that Mr Lin was not pursuing the “New Millennium Challenge” as a discrete act of discrimination. Complaints to AIA about the “Challenges” were merely one of the triggers for his complaint that he had been victimised, contrary to s 50 of the AD Act. We agree with AIA’s submission that Mr Lin cannot alter his complaint on appeal even if he disagrees with the way his legal representative characterised his complaint.

36 Procedural fairness. Mr Lin submitted that the Tribunal had failed to afford him an opportunity to be heard in relation to “the Challenges”. Mr Lin was not able to persuade us by any reference to a specific act or omission of the Tribunal, that he was denied procedural fairness in relation to these allegations. He was represented by counsel at the hearing and had a reasonable opportunity to present his case.

Extension to the merits

37 Introduction. The majority of Mr Lin’s grounds of appeal challenge findings of fact made by the Tribunal. Findings of fact do not generally raise a question of law unless there was no evidence for the finding. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 the Court of Appeal made it clear that even if a finding of fact is “perverse” or “contrary to the overwhelming weight of evidence” or that “no reasonable person could have made it” it will not amount to an error of law. As an example, Mr Lin submitted that the Tribunal accepted Mr Gustini’s evidence in circumstances where he says that evidence was dishonest, inconsistent and in conflict with the evidence of other witnesses. In the absence of any evidence to prove dishonesty, that submission does not raise a question of law. In addition, although Mr Lin submitted that there was no evidence for some of the Tribunal’s findings, that was not the case.

38 The findings of fact made by the Tribunal in relation to the complaint of race discrimination which Mr Lin challenged, but which do not raise a question of law, include:

(a) that the criteria AIA had for determining whether a person should be promoted and/or demoted, included non-quantifiable factors and other factors which were not recorded in guidelines or contracts; (at [54] to [56])

(b) that periods of time other than a full year were relevant when comparing Mr Lin’s performance with that of other agents; (at [74], [76], [92] and [94])

(d) that the decision to demote Mr Lin was the next logical step after it had been decided not to promote him; (at [84])

(e) that there was an expectation that Organisers seeking promotion would have met the requirements in the Validation Override Plan; (at [56])

(f) that when comparing the treatment afforded to non-Chinese agents the circumstances of those agents were not comparable to Mr Lin’s circumstances; (at [74]) and

(g) that AIA’s treatment of Mr Lin was driven by factors other than his race or his allegations of discriminatory conduct; (at [98] to [103]).

39 The findings of fact in relation to the complaint of victimisation, which Mr Lin challenged, but which do not raise a question of law, include:

(a) that none of his complaints to AIA or the Anti-Discrimination Board had a causally operative effect on any of the decisions not to promote or to demote him; (at [102])

(b) that it is unlikely that AIA would have welcomed public allegations of discrimination on the grounds of race; (at [99]) and

(c) that AIA valued unity and loyalty as evidenced by the words of the AIA song; (at [98]).

40 The Appeal Panel has an unfettered discretion to extend the appeal to a review of the merits of the appealable decision. A reading of Mr Lin’s submissions makes it clear that he is asking the Appeal Panel to revisit the Tribunal’s findings of fact because he disagrees with those findings. He says that if the decision of the Tribunal is allowed to stand it will undermine Australia’s reputation as a fair and just society and will have serious consequences in terms of the treatment of ethnic minorities in Australian society. He fears that companies will view the decision as granting permission to induce and mislead people with limited English, like him, into entering into agreements which they do not understand.

41 There is no guidance in the ADT Act as to the matters that are relevant when deciding whether to grant leave to extend an appeal to the merits of the Tribunal’s decision. However, the Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpreted s 67 of the Guardianship Act 1987 which allows appeal to the Supreme Court as of right, on a question of law or by leave of the Supreme Court on any other question. In K v K, Young J observed at [10] that “it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67”, but went on to make a number of observations on this point at [10]-[15). After considering the relationship between the Court and the Tribunal, Young J observed at [15] that:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

42 Leave refused. There is nothing in the Tribunal's reasoning or findings of fact which raise “broad questions of administration and policy and the applicability of policy to individual cases”. Nor are there “clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.” The Tribunal accepted on the basis of all the evidence that AIA had adopted a ‘somewhat gentler approach to the promotion and demotion of "non-Chinese" agents’ but found in relation to Mr Lin’s complaint that the treatment he had been afforded was not based on his race but on his lack of performance. That finding was open on the evidence even if Mr Lin disagrees with it. We understand that Mr Lin has concerns about the manner in which other agents were treated and the message that the Tribunal’s decision may send to companies such as AIA. Nevertheless, the Tribunal’s powers only extend to making findings about how Mr Lin was treated, not about how other agents were treated. The AD Act does not allow the Tribunal to make general findings about the policies, procedures or conduct of AIA which fall outside the parameters of the complaint. Consequently the Tribunal cannot address Mr Lin’s broader concerns and there would be no point extending the appeal to the merits of the Tribunal’s decision for that purpose.

43 Accordingly, leave to appeal on the additional grounds raised by Mr Lin is refused. It follows from our decision not to give Mr Lin leave that we refuse to admit any fresh evidence that Mr Lin sought to tender on appeal.

Costs

44 AIA applied for costs on the basis that the Notice of Appeal did not disclose any errors of law and Mr Lin has not made out a case for the Appeal Panel to extend the appeal to a review of the merits of the Tribunal’s decisions. According to AIA, the appeal is misconstrued, lacking in substance and without any real prospects of success. Mr Lin opposed a costs order being made.

45 Because the Appeal Panel is part of the Tribunal as a whole, the same costs provision applies on appeal as applied at first instance: Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 at [60]. Consequently, s 110 of the AD Act is the relevant costs provision. That provision states that "each party is to pay his or her own costs" except as provided by s 110(2). Section 110(2) states that: "[where the] Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit".

46 Although Mr Lin’s appeal was unsuccessful, it cannot be said that it had no real prospects of success. He raised two questions of law and numerous questions of fact. He is entitled to appeal on questions other than questions of law even though, in this case, the Appeal Panel has refused leave to hear those grounds. There is nothing about Mr Lin’s appeal, or the way he conducted it, that persuades us that he should pay AIA’s costs.

Conclusion

47 Mr Lin has appealed against a decision of the Tribunal dismissing his complaints of race discrimination and victimisation as a commission agent with AIA. We have refused his application that AIA not be represented by lawyers because we are satisfied that they have an unqualified right to legal representation in appeals. We have granted Mr Lin’s application that the appeal be heard “on the papers”, that is, without the need for the parties to attend and give oral submissions. Mr Lin is entitled to appeal against the Tribunal’s decision on any question of law. With the leave of the Appeal Panel, the appeal may extend to a review of the merits of the appealable decision.

48 Mr Lin raised two questions of law. The first was that the Tribunal failed to make a decision about part of his complaint relating to internal competitions or “Challenges”. We decided that those allegations were not part of Mr Lin’s complaint so the Tribunal did not make a mistake by failing to make findings about whether they were unlawful. The second question of law was that the Tribunal failed to afford Mr Lin procedural fairness because it did not give him an adequate opportunity to be heard about the “Challenges”. Mr Lin was legally represented before the Tribunal and nothing he has submitted satisfied us that this was the case.

49 The majority of Mr Lin’s grounds of appeal related to questions of fact. He pointed to facts which, in his view, demonstrated that AIA treated Chinese agents less favourably than non-Chinese agents. The Tribunal acknowledged that, in certain contexts, AIA’s approach did differentiate between Chinese and non-Chinese agents. But the Tribunal found that AIA did not treat Mr Lin any differently on the ground that he was Chinese when deciding not to promote him, to demote him and eventually to terminate his contract. While we can understand Mr Lin’s point that if AIA was treating Chinese agents differently in other contexts, it was also treating him differently because of his race, the Tribunal found that it was his performance and not his race, or the fact that he had complained, that was the reason for those decisions. That finding was open to the Tribunal on the evidence and leave to appeal against the merits of the Tribunal’s decision has been refused.

Orders

1. Mr Lin’s application that American International Assurance Company (Australia) Pty Ltd not be legally represented is refused.

2. Mr Lin’s application for the appeal to be extended to a review of the merits of the Tribunal’s decision is refused.

3. The appeal is dismissed.

4. American International Assurance Company (Australia) Pty Ltd’s application for costs is refused.