Summary of Complaint

  1. The Student, (Redacted), was accepted into the New Zealand Graduate Diploma in (Redacted) (the “Program”) with (Redacted), the Provider.
  2. The Student was issued with an invoice for the payment of fees dated 4 February 2020. 
  3. The Student confirmed that she had paid the full amount of the Provider invoice, communicated via email dated 2 March 2020.
  4. The Student’s fees are currently being held with the Public Trust.
  5. In the months between when the Student enrolled on the Program and paid the full amount of the Provider invoice and when the Student notified the Provider of her decision to withdraw from the Program, the COVID-19 pandemic had affected the world.  Internationally, countries closed their borders to non-citizens and non-permanent residents.[1]  This has had a profound effect on both education providers as well as international students. 
  6. The Student sent an email on 21 April 2020 to the Provider expressing concern about the course commencement.
  7. There were numerous emails exchanged between the Student and the Provider.
  8. The Student sent a notification of her intention to withdraw from the Program on 27 May 2020.
  9. The Student asked the Provider about her options if she couldn’t start onshore (in NZ).
  10. The Student requested in her email dated 27 May 2020 about the procedure to receive an absolute and complete refund.
  11. The Provider in an email titled Appeal to deduction of fees dated 8 June 2020 outlines the breakdown of the Provider’s deduction of a $500 refund based on the Student’s intention to withdraw plus $66.70 fee insurance which was incurred when paying the tuition fee to Public Trust account.
  12. There was an exchange of emails between the Student and the Provider relating to the fee of $566.70.
  13. The Student raised a complaint with the New Zealand Qualifications Authority (NZQA) and was referred to iStudent Complaints on the basis that there was a financial dispute between the Provider and the Student.
  14. The Provider was notified by the Student on 3 August 2020 that they wanted the dispute decided by adjudication.

Background

  1. The Student made enquiries about applying for the Program from Chile which is her country of residence for the last 20 years.
  2. The Student signed an Offer of Place for International Student (“Offer”) with the Provider for the Graduate Diploma in (Redacted) dated 13 February 2020. 
  3. The Student signed the page of the Offer which contains clause 7 that is titled ‘Withdrawals and Refunds’. A link on the page provides details of the Withdrawal and Refund policy.  
  4. The Student paid her full fees as indicated by email confirmation dated 2 March 2020 which amounted to NZ$30,570.70. This consisted of tuition fees ($29,500.00), Student fee insurance ($66.70), Student card fee ($30.00), Police vetting fee ($25.00) and Medical insurance (18 months) ($949.00). 
  5. The Student applied to Immigration New Zealand direct and had a Student Visa approved on 3 March 2020.
    1. The Student Visa details advised:
    2. The start date of your visa is: 20 March 2020.
    3. You must arrive in New Zealand before: 20 May 2020.
  6. The NZ border was closed by the NZ government with effect from 19 March 2020 “This will stop tourists or temporary visa holders, including students and temporary workers from coming to and entering New Zealand.”
  7. A replacement Offer was issued to the Student by the Provider on 3 April 2020.
  8. The Program was originally due to start on 20 April 2020.
  9. The Student sent an email to the Provider expressing her concerns about the course commencement, the email was dated 21 April 2020,

“I am writing to ask about what is really going to happen about my course given that the way things are looking, the July intake doesn’t seem like it is going to happen particularly because borders won’t open before that (and not only NZ, also other countries). I have also been following the news closely and there is quite a lot of confusion going on with (Redacted) and particularly the (Redacted) sector.  Additionally, it would be impossible for overseas students to get jobs to sustain themselves or even do the practical component of the course properly this year.  Could you please let me know how the college plans to proceed if international students can’t make this in July?  What happens to my fees if my classes don’t begin this July either? How long should either party wait? I haven’t contacted the immigration for my visa extension yet. Please advise.”

  1. The Provider sent an email response to the Student dated 22 April 2020,

“If for any reason borders do not open for July 2020 intake, we can defer you for Oct 2020 intake.  I suggest we wait till 1st week of June to understand the scenario…There is still plenty of shortage in (Redacted) sectors for (Redacted).  You would be able to do practicum when you come to NZ as it will be safe to open borders then.”

  1. The replacement Offer was signed by the Student on 8 May 2020.
  2. The replacement Offer altered the original start date of the Program to 6 July 2020.
  3. The Student sent an email to the Provider dated 8 May,

“My last day for entering NZ is this week if I’m not mistaken according to my visa document.  I still haven’t applied for the extension based on the last letter you sent.  I am quite sure July won’t be possible because India is not even the slightest bit ready to open international travel yet.  My state has said they will continue lockdown till June.  So my question to you is: If I start in October, it would mean that by the time I settle in and start, it would be barely a few weeks of class before the Christmas/summer break starts again, yes? I want to weigh all my options given that there is also a chance that even if NZ opens it borders this year, international students may not realistically be able to leave their own country because international flights won’t have started operations… I am getting a bit nervous about the delays and changes, and I want to know where I stand and inform the immigration department so they don’t make me go through a new visa Application process again.”

  1. The Provider responded on the same day and advised the Student that,

“We are still awaiting further information when borders will be open to assist you with queries...I can only suggest you to PLEASE forward July 2020 offer letter asap to INZ.  Keep me posted.”

  1. There was an exchange of emails between the Student and the Provider on 12 May and 13 May 2020 discussing the Student’s attempt to make contact with Immigration New Zealand but not being able to contact them,

“I tried sending the new offer letter to NZ immigrations, but their system doesn’t let me.  I called them and the pre-recorded audio said that all student visas expiring after April 1 are automatically going to be extended till September…Is it possible somehow for you to verify that my visa is good until September?”

  1. The Provider sent a reply email on 13 May 2020 “Please try calling them tomorrow as NZ will move to level 2.  INZ would be back to functioning as almost normal."
  2. The Provider sent an email to the Student on 22 May 2020 requesting, “Please can you forward above offer letter as signed asap.  We need to update our records.”
  3. The Student sent a reply email on 27 May 2020, “Here you go…Hope you can access it.”
  4. The Provider responded on the same day “I cannot access it. Please send me as pdf copy as attachment.”
  5. The Provider sent an email to the Student on 27 May 2020 advising of the opportunity to begin studies offshore,

“I have good news to tell you.  NZQA and (Redacted) approved for students like you who received (Redacted) student visas to start Graduate Diploma in (Redacted) program in your home country.  You complete some courses online first.  Then you come to NZ and complete the remaining courses and finish 14 weeks of full-time field practice as required by (Redacted).  Please read and sign back to the attached addendum as soon as possible.  We can organise an orientation program for you through Zoom next week.  Then let’s decide when you want to start GD program.  Could you please send your e-student visa to us as well along with offer letter as signed for July 2020 intake?”

The Student responded to the Provider via email dated 28 May 2020 advising,

“Unfortunately, I do not consider this as good news as this is not what I signed up for. The entire reason for me not taking an online option was to make use of my 20 hours work permit and get hands on practice WHILE studying from home.  I know the practical component happens later, but that is not the format I agreed to… I applied to (Redacted) based on the concept of block classes, group work, access to libraries, working while studying etc… At this instance, I would like to kindly request you to explain to me the procedure whereby I will be able to receive an absolute and complete refund given that I am not in a condition to start this course offshore nor can I keep waiting past July for borders to open as I have a loan to pay back in a period that I have committed to. I have already spent a lot of money and time, and if I can’t start onshore in the June/July intake, then I am afraid it hurts my work commitments and financial planning big time.” 

  1. The Provider provided a response on the same day by sending the link to the ‘Refund policy document’ and advising:

“If you are unwilling to start online, you have the option of start when borders open to study in New Zealand. We would deduct 25% of your tuition fees + $600 as admin costs before start of your enrolment. Attending orientation would not cost you anything as its free.” 

  1. The Student sent a response on the same day advising her concerns about the deduction of fees and costs:

“I am very concerned at the way this document has been presented, and unfortunately I would have to appeal to this policy of a 25 percent + 600 dollars deduction which was nowhere mentioned at the time I paid or enrolled.  On the contrary, I have spent money on paperwork and have done more admin work plus currency exchange plus bank charges plus loan interest commitments myself which I would have lost and won’t get back… Besides The link never worked, I asked you about the refund policy some weeks ago too, and didn’t receive this link…I am afraid I am unwilling to agree to anything less than a 100 percent refund… It is my hope that you will extend to me the courtesy and the use of my right to refuse to accept new terms and conditions at this stage.”

  1. There was an exchange of emails between the Student and the Provider on 28 May 2020 to set up a zoom meeting.
  2. The Student sent an email on 28 May 2020 requesting that her attendance at orientation be placed on hold pending her decision of whether to start the course with the online component:

“I just received another mail regarding orientation today. I would like that to be put in hold till we don’t resolve this matter at hand please. I am absolutely certain I am unwilling to start this course on the existing terms as already expressed.  Of course, we can talk more about it tomorrow.”

  1. The Provider acknowledged the Student’s email and replied on 29 May 2020:

“Let me know if you are willing to start your course in New Zealand when borders open? You do not need to start studies online if this is not the option you are looking at.”

  1. The Student and the Provider exchanged emails about the Student attending the orientation session which was held on 2 June 2020.
  2. The Student sent an email to the Provider on 3 June 2020 advising:

“Thank you for letting me attend the orientation yesterday.  There was a lot of information shared which is why I asked them if we could get a recording of the same, but was told that the session isn’t being recorded.  Either way, despite having met the wonderful staff and classmates, I am convinced that I do not wish to accept the new terms and conditions not start the coursework online from offshore, and will need to go ahead and seek a full refund as discussed in my zoom meeting with you last week.  May I please have a copy of the Student Handbook to see the formal procedure of application for refund that I need to follow? I think I saw somewhere that I need to write to the Registrar, but I may be wrong.  Thank you for all your service and help, and I hope if the situation reverts to go back to normal next year or in the future, I can reapply to your situation.”

  1. The Provider sent an email to the Student dated 3 June 2020 clarifying if the Student wanted to defer the start date for the Program,

“Before I send you the withdrawal and refund form, I wanted to check with you as discussed that you do not want to wait till July 2020 intake to see the situation of borders opening?”

  1. The Student replied to the Provider’s email on the same day,

“I definitely don’t want to study online with a vague schedule or an open contract because of the uncertainty of when or how long it will be before I am able to experience the cultural experiences of living, working while studying in New Zealand that can only happen onshore. 

My July intake offer letter which starts on July 6 is only 4 weeks away.  Do you earnestly believe that the above circumstances give any hope that I will be able to fly out in the next two weeks, do my quarantine, and be able to start on the intake date in July? 

…If things change next year, I know eyes closed that (Redacted) is a place I can count on to come back because of the fantastic service and flexibility it has provided and for its wonderful staff who I met today, but for now, it is only fair that I receive a full and fair 100 percent refund of 30807.70 NZD that I am entitled to - with zero deductions or fees of any kind - since my case does not apply to the general policies of withdrawal mentioned in your offer letter (and which as a side note was never available online due to the broken link which I already expressed to you about).  Notwithstanding the fact that it was always there as you claim it, it still does not apply or hold weight at all in the current case and context anyway because it is me withdrawing BECAUSE there is a modification in the mode of delivery OR let’s say a temporary non ability of (Redacted) to comply with the original conditions and schedules before the contract was signed and therefore I should not be taken undue advantage of.

I request you therefore, to please resolve my request promptly and positively without pushing this issue to turn into a plethora of email exchanges of negotiation or alternate settlements to which I won’t agree at all.

On the contrary, it will only push me to seek assistance in other more favourable forums which I plan to reach out even 100 dollars is deducted from my total amount.

I sincerely thank you for all your help and professionalism in this entire process, and regret that our hard work did not bear fruit this time, but it will at another.”

  1. The Student’s complaint was shared by iStudent Complaints with the Provider on 23 June 2020.
  2.  The matter was referred to adjudication on 3 August 2020 and the Student and the Provider have now had the opportunity to make their submissions.

Student’s Position

  1. The Student’s submissions to the International Contract Dispute Resolution Scheme are dated 25 August 2020.
  2. The Student has set out the events which resulted in her decision to seek a full refund:
    1. “On March 19, 2020 – an entire month before my course starting date, New Zealand closed its border to all foreigners due to the fear of the spread of COVID-19.”
    2. “On April 3, 2020, a new offer of place for the exact same course was issued by (REDACTED) and eventually signed by me on May 8, 2020.”
    3. “The course start date was 06/07/2020.”
    4. “The course end date was 05/11/2021.”
    5. “A month later, on April 21, 2020” in an email sent to the Provider “I expressed my concerns about the course commencement”:

“Hope you are well and staying safe. I am writing to ask about what is really going to happen about my course given that the way things are looking, the July intake doesn’t seem like it is going to happen particularly because borders won’t open before that (and not only NZ, also other countries). I have also been following the news closely and there is quite a lot of confusion going on with (Redacted) and particularly the (Redacted) sector.  Additionally, it would be impossible for overseas students to get jobs to sustain themselves or even do the practical component of the course properly this year.  Could you please let me know how the college plans to proceed if international students can’t make this in July?  What happens to my fees if my classes don’t begin this July either? How long should either party wait? I haven’t contacted the immigration for my visa extension yet. Please advise.”

    1. “(REDACTED) replied to my concerns: “If for any reason borders do not open for July 2020 intake, we can defer you for Oct 2020 intake.  I suggest we wait till 1st week of June to understand the scenario.”
    2. “In another mail (REDACTED) replied: “We are still awaiting further information when borders will be open to assist you with queries as below.”
    3. “Then on May 27th – about six weeks before the July start date stated on my offer letter, (REDACTED) offered me to do 4-5 courses online and complete the rest later on.”  Reference is made to the email dated 27 May 2020 at [33].”
    4. The Student states:

“Feeling cornered and confused upon seeing no mention of neither the NZQA nor the (Redacted) in the addendum sent by them, nor any formal evidence of their aforementioned official ‘approval’, anywhere, on May 27, 2020 I replied to (Redacted) stating I did not want to accept this new mode and asked for a complete refund informing them about the broken link to the refund rules page.”  Reference is made to the email dated 27 May 2020 at [34].

  1. The ‘Terms and Conditions for International Students Addendum’ states:
    1. “These terms apply to all international students holding a current (Redacted) student visa wishing to commence their studies in the following programs of study (as per their visa) while located outside of New Zealand:
  • Bachelor of (Redacted)
  • Graduate Diploma of (Redacted)

7. Withdrawals and Refunds

7.1   A student may request a refund of tuition fees prior to or at any time during their enrolment according to (Redacted)’s Withdrawal and Refund Policy. (link included)

                        Acceptance:

To accept this addendum to your original offer of place, please sign below, initial each page and return to: (Redacted) by scanning and emailing to (Redacted)

Declaration:

I accept the addendum to the terms and conditions offered to me in the offer of place.  I confirm I wish to commence my program of study offshore before completing my practicum requirements in New Zealand. I confirm I have read the (Redacted)Terms and Conditions for International Students and understand the study requirements of my chosen program and mode of delivery. (link included)

  1. The Student states “I then had a zoom call with (Redacted) to explain my concerns as well as attended the orientation on June 2.  The following day when asked once again if I would like to wait until July to decide, I sent (Redacted) the following reply”.  Reference is made to the email dated 3 June 2020 at [43].
  2. “The very next day on July 4[2], (Redacted) sent a refund form for me to sign and send back. To my disbelief, instead of refunding the entire 30,807 NZD that I had paid, I was being refunded 30,241 NZD and 566.70 NZD was being deducted to pay to the provider.
  3. “On July 4th, I refused to accept the refund amount with deductions and appealed once again to which (Redacted) sent me a breakdown (set out in email dated 8 June 2020):

“The breakdown of the (Redacted) deduction includes the $500 refund back to (Redacted) due to your withdraw and $66.7 fee insurance which was incurred when you paid the tuition fee to Public Trust account.”

  1. “On June 9, (Redacted) agreed to wait for the complaint process to take its course”.  The Student included an email dated 9 June 2020,

“I reported your case to our General Manager.  Meanwhile, we wait for NZQA’s complaint process because you filed a complaint already.

By the way you signed and accepted our offer of place twice (attached). In Clause 7, you may see the refund policy.

Our (Redacted)’s business was affected hugely by the Covid-19 because the border closed.  We cannot provide details to you due to confidentiality.”

  1. The Student remarked “In my several mails to (Redacted) which have received the above responses, I have argued that I am entitled to a full refund of a 100% of whatever I have paid, and that now I should only be made to pay the bank transfer costs for initiating the refund, based on the following grounds:
  1. The provider is unable to provide the original course as contracted with me.  This included a) determined starting and ending dates that were acceptable by me b) access to campus facilities c) block courses d) paid (or voluntary) 16 hours weekly work experience  throughout the program d) field practice e) (Redacted) based first semester etc etc conditions that were acceptable to me and which is what I signed up and paid for. The new course format is different to my expectations and causes grave concerns as it does not even meet the threshold for onshore university experiences that is about more than just content learning. What’s more, it strips me of enriching experiences like building networks through socialization! 
  1. My withdrawal is based purely on the provider’s inability to keep up to his contractual obligations. It is not a voluntary withdrawal where I am doing so because of my personal health, or family issues etc. As a matter of fact, I am not withdrawing from the course or conditions that I have agreed or contracted.  There is no breach of contract from my end. I simply believe my enrolment has ceased to become valid and should be cancelled.
  1. There isn't any certainty around time frames and process offered in the alternative mode offered by (Redacted) so that I can plan accordingly. Being an international student, it has taken me more than a year to make appropriate arrangements to take up this course. Giving up my stable job in Chile, letting go of my house, support system, income and a comfortable lifestyle there, getting a huge loan which is only accumulating interests, and right now being stranded in a different country en route to NZ are actions based on nothing but my reliance on attending this course on the dates in the offer letter. Living, working AND studying onshore in NZ for 1.33 months is the experience I paid 30,000 plus NZD for, and I cannot be further punished by deducting costs from what I paid, for no fault of mine. In fact, I should be the one to be paid over and above the fees I have already paid for all the paperwork that I had to do ONLY to meet (Redacted) admission requirements, and which cost me over a 1000 NZD (NZQA assessment, visa application, international bank transfer, currency exchanges etc etc).
  1. (Redacted) has acted unfairly and been dishonest by interpreting and applying the legislation around refunds to a context that is penalizing me for not wanting to start studies offshore as they would conveniently wish for me to do. This is not the context the legislation was written for. I should not be treated like a cash cow nor be charged the obscene amount of 566.65NZD to back-fill any losses the PTE is making. (Redacted) in their mails show they are doing me a favor by not deducting 25% of the total fee. This is absolutely misleading pretext and intimidating for international students and should not be accepted.
  1. (Redacted) has informed they will deduct 500 NZD as admin charges and 66.70 NZD as student insurance fees none of which are justified as explained in the last paragraph above. Not only does their invoice NOT show admin fee breakdown, but also upon calling up Public Trust, I learned that international students are not required to pay anything to the trusts. It is our privilege and right to have our full funds safeguarded in the trusts. Thus, I cannot take any responsibility for (Redacted)'s loss or business decisions. Besides, being a business means they will make up the few hundred dollars easily any time. Onshore international students and businesses are already receiving funds from the government which is something else I have been deprived of. Either way, there is absolutely no need for (Redacted) to squeeze it out of students whose contract moreover has been breached. 
  1. The Student has provided iStudent Complaints with a copy of a letter dated 17 July 2020 in which the Provider has addressed the complaint.  The conclusion of the letter states,

“(Redacted) could, under the (Redacted) International Student Withdrawal and Refund Policy, which complies to the Notice, hold up to 25% of your fees, based on expenses related to your enrolment.  However, under (Redacted)’s COVID-19 dispensation, (Redacted) will hold a minimum amount of fees.

You are entitled to a refund under the Education (Refund Requirements for International Students) Notice 2012, covering refunds for international students.  (Redacted) will hold $566.70 of your fees and will refund the balance of $30,241.00.”

  1. The Student has included as part of her submissions an Immigration New Zealand update, 31 July 2020.
  2. The Student has included a screen shot of an immigration.govt.nz page which states “If you choose to study online in your home country first a future post-study work visa application may be affected.”
  3. The Student has included a copy of the letter dated 3 August, 2020, ‘Response to (Redacted)’ reply to my complaint’.
  4. The Student has provided additional submissions on 1 September 2020 as permitted as a part of the iStudent complaint process. The Student has referred to the submissions provided by the Provider and included additional information labelled as ‘exhibits’.
  5. The Student has provided a response to the Providers submissions dated 25 August 2020,

“(Redacted) keeps reminding everyone of the terms and conditions and the withdrawal policy that is specifically mentioned in the contract, that bears my signature and to which I am bound, no questions asked.  Nevertheless, despite my raising the issue a couple of times now, not once has he addressed about (Redacted)’s obligations to come through with their promise of delivery of the conditions that bind them too and that are laid out in the very same contract.”

  1. In the additional submissions dated 1 September 2020, the Student makes reference to the addendum which she states she “refused to sign”,

“(Redacted) can only but try to offer me a new alternate mode of online/offshore delivery with the delayed practicum as an option to salvage their business since NZQA and the (Redacted) approved of this option in June AFTER my signing of the original contract for an onshore delivery.  But (Redacted) needs my approval and consent to be onboard too which is why I was sent the Off shore addendum to my contract which I refused to sign.”

  1. The Student does not agree with the new format of the program,

“There is no doubt that for certain international students who are offshore and desperate to start non practical requirements with a NZ education provider no matter what, or for those who do not think through or research the long-term implications and challenges these changes may have on their careers, the change that (Redacted) is offering is a wonderful and flexible option.  I am not one of them, and I will not be forced to accept it or instead be punished by losing 600 NZD which is an awful lot of money for a jobless student like me in these times.”

  1. The Student responds to the Provider’s comment about “the program is consistent with non- practical requirements for students studying in NZ at the moment.”

“Why, of course they are, but I insist that for these domestic students or even international ONSHORE students, it doesn’t make a difference because they are not having to deal with student visa nightmares, they still able to do their practical component in NZ WHILE doing the theoretical component.  They don’t have to ‘wait for borders to open’ and delay their practicum till the end of the program (and God alone knows when that may be”.  They know exactly what the finishing date of their program is…They have the possibility to seek work experience in (Redacted) which is a requirement of your course, and probably even get hired by one of them.  They are still able to network and complete their education goals while building a path for their post study employment.  In contrast, I stand to lose all of this; the change [in] conditions is simply not working for me.  It is nothing but detrimental to me in every way.  (Redacted) needs to acknowledge that they are unable to uphold their commitment in the terms specified in the original contract, accept my decision gracefully and do what is right and fair – return ALL my money.”

  1. The Student asserts that the contract had “no legal standing”,

“This contract has no legal standing even if I have signed it because by law Tertiary Providers cannot extend a Final Offer of Place unless they make sure I have a valid student visa.  At the time this Offer letter was sent, I did not have a valid student visa that allowed me to enter NZ on the 6th of July 2020.  (Redacted) has a copy of my visa and it clearly states that the last day to enter NZ (for the first time) was 20th May, 2020.  I also specifically conveyed this to the Marketing Manager via mail, but clearly he did not think much about it and went ahead and issued the offer letter doing nothing more than adding to unnecessary ‘admin costs’ to slap me with.”

  1. The Student provided an email dated 10 June 2020 from Immigration NZ advising that her visa had not been extended,

“As you are not in New Zealand, your visa has not been extended, this was only for people who were in New Zealand.  I understand how frustrating this is.  We do not have a process for your situation yet, however there are many people in a similar situation and we are working on a solution.  The best way to stay updated regarding this is via our website, this is where all updates will be posted once we have solutions to these issues.”

  1. The Student’s position is therefore that she is entitled to a full refund and rejects the Provider’s response that she will not be granted a full refund as (Redacted) will hold a minimum amount of fees under (Redacted)’s COVID-19 dispensation.
  2. As such, the Student requests a full refund of the fees she has paid to the Provider.

Provider’s Position

  1. The Providers position is detailed in their submissions dated 25 August 2020 as summarised below.
  2. The Contract between the Student and the Provider – course closure:
    1. “The Graduate Diploma in (Redacted) program has not been “closed” as per New Zealand Qualifications Authority (“NZQA”) definition of course closure.”
    2. (Redacted) is continuing to deliver the Graduate Diploma in (Redacted) program as approved by the (Redacted) and NZQA.”
    3. “The non-practical requirements of program, delivered offshore, are consistent with the non-practical requirements for students studying in New Zealand.”
    4. “The practical requirements are delayed until students are able to enter New Zealand on Immigration New Zealand approved visas.  Temporary COVID-19 program changes covering this delay are approved by the (Redacted) and NZQA.”
    5. “The (Redacted) Graduate Diploma in (Redacted) program does not include paid employment.  Ms (Redacted)’s concern then that she cannot take up paid employment in New Zealand is not related to the (Redacted) Graduate Diploma in (Redacted) program.”
    6. Ms (Redacted) is able to attain her education goals, including eligibility to attain (Redacted) registration and certification in New Zealand, upon successful completion of her (Redacted) Graduate Diploma in (Redacted) program.
    7. As Ms (Redacted)’s case does not fall under course closure, her refund request is covered by the legislative requirements of Withdrawals and Refunds.
  3. The Contract between the Student and the Provider – Withdrawal and Refund conditions:
    1. Ms (Redacted) withdrew from the (Redacted) Graduate Diploma in (Redacted) program on 03 June 2020.
    2. (Redacted)’s International Student Withdrawal and Refund Policy governs Ms (Redacted)’s withdrawal.  The (Redacted) policy complies to the Notice issued under the authority of the Acts and Regulations Publication Act 1989 and in accordance with sections 235A (4) and 235B (2) of the Act.
    3. The Act clause 235A (4) states that the “refund period means the period that begins when the Student’s fees are paid to the private training establishment”.
    4. Ms (Redacted) is entitled to a refund of fees (clause 4 of the Notice). (Redacted) has discretion to withhold 25% of those fees to recover overhead costs such as marketing, recruitment, and agent’s commissions “that the establishment recovers through fees” according to clause 7(2) of the Notice.
  1. The Contract between the Student and the Provider – Acceptance of (Redacted) Withdrawal and Refund terms and conditions:
    1. “Ms (Redacted) accepted the (Redacted) withdrawal and refund terms and conditions in her application for study.
    2. “Ms (Redacted) subsequently signed the legally binding Offers of Place with (Redacted) on 13 February 2020 and 08 May 2020.
    3. “Under the Acceptance section of the Offers of Place, there is a stipulation that the offer is subject to the Terms and Conditions for International Students.
    4. “Upon signing and returning the Offers of Place she became legally bound to the Terms and Conditions for International Students.”
    5. Ms (Redacted) initialled against clause 7 of the Offers of Place Withdrawals and Refunds referring her to the (Redacted) International Student Withdrawal and Refund Policy.
    6. The policy states that for students who have yet to commence study, 25% of fees could be withheld “based upon specific costs incurred.”
  2. The refund amount following the Student’s withdrawal from the course – Specific Costs incurred by (Redacted):
    1. (Redacted) undertook substantial work in the recruitment and enrolment of Ms (Redacted) for the Graduate Diploma in (Redacted) program.  (Redacted) incurred costs in the following areas:
  • Application processing
  • Extensive communication
  • Required documents processing
  • Selection interview
  • Full selection processing
  • Offer and invoice dated 13 February 2020 processing
  • Returned offer processing
  • Payment processing
  • Receipt processing
  • eVisa processing
  • Deferred Offer of Place for July intake processing
  • Returned deferred Offer of Place processing
  • Orientation
  • Processing request for withdrawal and refund forms”
    1. “The recruitment and enrolment involved over 100 emails and a zoom meeting exchanged between (Redacted) and Ms (Redacted) from 7 January 2020 to 03 June 2020.”
  2. The refund amount following the Student’s withdrawal from the course – refund amount:
    1.  “During COVID-19 and border closure, any (Redacted) international student who is offshore and withdraws from their (Redacted) progam of study while holding a valid visa, is eligible to receive a full refund of fees excluding an administration fee of $566.70.”
    2. “The administration fee does not cover all the expenses related to the enrolment of Ms (Redacted).  It is a nominal amount to cover some (Redacted) expenses incurred during the application, enrolment and orientation of Ms (Redacted).“
  1. The Provider - conclusion:
    1. “(Redacted) could, under the (Redacted) International Student Withdrawal and Refund Policy, which complies to the Notice, retain 25% of Ms (Redacted)’s fees, based on expenses related to her enrolment.  However, under (Redacted)’s COVID-19 dispensation, (Redacted) will refund the majority of her fees, with a normal deduction.”
  1. On this basis the Provider’s position is as follows:
    1. They reject the Student’s assertion that a full refund is payable.
    2. The Provider maintains that “Ms (Redacted) is entitled to a refund under the Education (Refund Requirements for International Students) Notice 2012, covering refunds for International students.”
    3. The Provider seeks to retain $566.70 of the Student’s fees and will refund the balance of $30,241.00”

Discussion

  1. The questions which the International Student Contract Dispute Resolution Scheme must determine:
    1. The contract between the Student and the Provider; and
    2. The refund amount following the Student’s withdrawal from the course.
  1. Section 9 of the International Student Contract Dispute Resolution Scheme Rules 2016 states that an adjudicator is required to act in accordance with “what is fair and reasonable in all the circumstances, have regard to the law, the relevant good practice, the code, and other Government policies.”  Further, “The adjudicator is not bound by either the rules of evidence or previous decisions and is required to determine the dispute according to the substantial merits and justice of the case, and in doing so is not bound to give effect to strict legal obligations or to legal forms or technicalities.”
  1. To determine the contract between the Student and the Provider and the refund amount following the Student’s withdrawal from the course in this dispute, consideration must be given to the facts and information provided by the Student and the Provider.
  1. The Student provided submissions for consideration on 25 August 2020, the Student has written as stated at [48.9] “Feeling cornered and confused upon seeing no mention of neither the NZQA nor the (Redacted) in the addendum sent by them, nor any formal evidence of their aforementioned official ‘approval’, anywhere, on May 27, 2020 I replied to (Redacted) stating I did not want to accept this new mode and asked for a complete refund informing them about the broken link to the refund rules page.”
  1. As stated at [52] the Student stated that she “refused to accept the refund amount with deductions and appealed once again to which (Redacted) sent me a breakdown (set out in email dated 8 June 2020).”
  1. To determine the refund of paid tuition fees less the deducted amount of $500 plus $66.70, consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds.
  1. The Student paid her full fees as confirmed by email dated 2 March 2020 referred to at [18] this invoked Clause 235A.4 of the Education Act (1989), “refund period means the period that begins when the student’s fees are paid to the training establishment (or paid directly to the independent trustee) and ends on the date specified in the notice made under section 235B” referred to at [64.2] and [64.3].
  1. The Provider has remarked at [65.5] that “Ms (Redacted) initialled against clause 7 of the Offers of Place Withdrawals and Refunds referring her to the (REDACTED) International Student Withdrawal and Refund Policy.”
  1.  The Provider has further remarked at [65.6], “The policy states that for students who have yet to commence study, 25% of fees could be withheld “based upon specific costs incurred.”
  1. The Provider states at [66.2] that “If an international student withdraws from a programme or training scheme of 3 months’ duration or more within the refund period, the maximum percentage of the payment, or payments, that the private training establishment may retain is 25% of the fee total.”  This is set out in the New Zealand Government Education (Refund Requirements for International Students) Notice 2012 (the “Notice”).
  1. The Provider states at [64.4] that (Redacted) has discretion to withhold 25% of those fees to recover overhead costs such as marketing, recruitment, and agent’s commissions “that the establishment recovers through fees” according to clause 7(2) of the Notice.”
  2. The Student asserts that the contract had “no legal standing” referred to at [64].  The Student’s visa was not extended as outlined in the email sent by Immigration NZ on 10 June 2020 referred to at [65]. 
  3. The jurisdiction of the International Student Contract Dispute Scheme is limited to financial or contractual matters as determined by the Education Act 1989.
  4. In this regard the writer’s findings are as follows:
    1. The Student and the Provider were both affected by circumstances beyond their control caused by the Global COVID-19 pandemic.
    2. There were attempts by both the Student and the Provider to navigate through the uncertainty created by the COVID-19 pandemic to find a resolution. This included the Provider offering the Student alternatives to the planned course. Due to the particular circumstances of the Student, those alternatives were not suitable to her.
    3. The email of 10 June 2020 by Immigration NZ states that the Students “visa has not been extended”.
    4. As the Student did not hold a valid visa, she could not pursue her program with the Provider which had a start date of 6 July 2020.
    5. The Student was not in a position to know when her visa would be made available as the letter from Immigration NZ stated “We do not have a process for your situation yet.” 

Proposed Decision

  1. The proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint be upheld and that the Student receive a full refund of her fees paid.
  2. In the circumstances, and despite the administrative cost to the Provider in dealing with applications and refunds, I find that it is reasonable for the students to receive a full refund of fees paid to the Provider.
  3. Both parties now have a final opportunity to provide further submissions before a final decision from the International Student Contract Dispute Scheme is issued.

Final Decision

  1. The parties were invited to provide any final comments on the proposed decision issued 30 October 2020.
  2. No further comments have been received from the Provider.
  3. The Student has indicated that she agrees with the findings of the adjudicator, and that she has received the paperwork from the Provider to receive her full refund.
  4. The final decision of the International Student Contract Dispute Resolution Scheme is that the Student’s complaint be upheld.

 

Adjudicator
Christina Tay
2 November 2020

[1] Information obtained via the Immigration New Zealand website.

[2] The Student Refund Form carries a Date of withdrawal as 03 Jun 2020.