A New Zealand couple have won permission take a racial discrimination case against ANZ and OnePath to a hearing of the NSW Civil and Administrative Tribunal.

Charles and Judith Cairns took their complaint to an administration hearing of the tribunal after it was dismissed by the Anti-Discrimination Board last year.

The tribunal judgement says OnePath cancelled their policy after a number of years, claiming they were not permanent residents of Australia.

The Cairns had lived in Australia since 2004 and were granted a special-category visa to remain.

In 2005 ANZ sent the couple a marketing letter offering life cover underwritten by ING Life. It stated the cover was available to permanent residents, although no definition of this requirement was provided in the product disclosure statement (PDS).

In March last year the Cairns’ financial adviser noted a PDS dated November 2006 did provide a definition: an Australian citizen or holder of a permanent resident visa.

The adviser wrote to OnePath – formerly ING Life – stating this definition did not cover the Cairns. They were advised to cancel their cover, and all premiums would be refunded.

In its response to the Anti-Discrimination Board last year, OnePath argued the letter offering cover did not say Mr Cairns met eligibility criteria.

The insurer argued the Cairns would have known if they met the policy criteria, because their visas were not permanent. The insurer offered replacement cover and waived a pre-existing condition exclusion because Mr Cairns had suffered a stroke since taking out the original policy. The couple did not accept this offer.

In its decision, the tribunal says the Cairns were never covered, despite paying premiums.

And they were not sent details of the policy until after ANZ agreed to cover them, so would not have known of exclusions at the time of purchase. Because the pair held ANZ bank accounts, all details about their residency status were on file.

The tribunal says, as a result, the Cairns were treated less favourably due to their nationality.       

“The tribunal considers there is an arguable case that the first respondent [ANZ] has aided and abetted that discrimination by assisting in the offer of insurance services,” it says.

“It is by no means certain that the applicants will succeed in substantiating their complaints. However, it cannot be said that the complaints lack substance.”