Summary of Complaint

  1. Mr [Redacted] (The Student) wanted to complete the [Redacted] (Level 5) [Redacted] at [Redacted] (The Provider).
  2. The Student enrolled in the [Programme] and was given an Offer of Place on 25 March 2019 by the Provider.
  3. The Student applied for his New Zealand Student Visa and this was declined twice by Immigration New Zealand as the Student did not meet the [Redacted] required IELTS test score of 5.5.
  4. The Student was issued a Student Visa by Immigration on 11 October 2019 and arrived in New Zealand on 22 October 2019.
  5. On 23 October 2019, the Student began class, the Student was enrolled in six papers; of the six papers he passed two papers. The Student states “Within a span of ten days, I had to appear for two [Redacted] exam papers and six exam papers within seven weeks.”
  6. On 24 December 2019, the Student had two [Redacted]s cancelled, the Provider states one was cancelled due to [Redacted] and the other due to the Student not being prepared for the [Redacted]. The Student states “this was deliberately done to humiliate me in front of all the [Redacted]] Students and further pressurize and demoralize me”.
  7. The Student states they believed they were discriminated against because he was not a “[Redacted] Student”.
  8. The Student and his parent received memorandums from the Provider regarding his performance and consequences of lack of performance which the Student advises placed him under huge mental pressure.
  9. The Student’s parent requested that the Provider to arrange extra tuition and received no response.
  10. The Student withdrew from [Programme] and requested a full refund of his tuition fees.
  11. The Provider refunded the remaining tuition fees.
  12. On 20 April 2020, the Student raised a complaint with the International Student Contract Dispute Resolution Scheme.
  13. The Student and the Provider were unable to resolve this issue at facilitation and on 26 August 2020 the Provider declined to participate in mediation and the matter proceeded to Adjudication.

Background

  1. The following sequence of events in this matter is a summary of the Student and the Provider’s submissions to the International Student Contract Dispute Resolution Scheme. All submissions have been considered whether they are mentioned or not.
  1. The Student states that he “had high dreams of becoming a [Redacted]” and enrolled into the [Programme] as [Provider] appeared to be “professionally managed and high standards of training.”
  2. The Student received an offer letter on 25 March 2019.The offer letter notes.

“10. English Language Proficiency: International students must have a pass in IELT’s with a minimum academic score of 6.0 with no band score lower than 5.5.”

  1. It also declares the Student has an assessment “undertaken to ensure that he is able to participate effectively in the course, and the course offered meets his prospective proficiencies and career intentions.”
  2. The Student applied for his visa and provided the Letter of Offer dated 25 March 2019 to Immigration New Zealand with his application.
  3. The application was rejected by Immigration as the Student’s IELTS score did not meet the [Redacted] criteria and [Provider] were notified. The Student submits that a further “revised” Offer Letter was provided by the Provider and once again Immigration New Zealand rejected his visa as his IELTS score was insufficient.
  4. The Student re-sat IELTS in August 2019 and gained the required score and his visa was issued on 11 October 2019. The Provider acknowledges in their submissions the administrative error around the offer of place.
  5. The Student arrived on 22 October 2019 and his first class started on 23 October 2019. The Provider states that “[Student] was advised before he left India that he would need to join the class the day after he arrived.”
  6. Upon reaching [Provider] the Student states he was not provided with sufficient pastoral care with no food provided or heating. The Provider did not ask after his needs and his father advised he had never left home for more than four days.
  7. The Provider advises that the Student was picked up by the Pastoral Care officer and provided with his uniform, an information pack including emergency numbers, pastoral care phone number and was left to sleep after a long flight.
  8. He states his orientation programme was provided however “no [Redacted]s were shown to me. I was not introduced to any of the Teaching Faculty.”

He also notes “I was made to sign the orientation programme form, which I readily and happily did.”  The manager ticked the Orientation Form boxes which is also confirmed by the Provider stating, “the Office Manager ticked the boxes when explaining/checking through the Orientation Form together with [Student] at the time he signed it.”

  1. The Orientation form provided shows all the boxes are ticked including “review the Student Orientation and Handbook with the student, answer any questions”. The form is signed by the Student on 5 November 2020.
  1. The Student submits that he had to appear for two exams 10 days after arriving in New Zealand compared to [Redacted] students were “allotted [Redacted]” and “did not have to appear for any exams” allowing them time to settle in.
  2. Within seven weeks the Student was required to sit six papers of which the Student passed two.
  3. The Provider advises that the students sit theory classes for the [Redacted] and [Redacted]. Two subjects run simultaneously as the [Redacted] and [Redacted] content are essentially the same with the [Redacted] more in-depth. The examinations are completed at the end of two weeks. International students can start when a [Redacted] class begins and if they arrive in between the start of classes they may [Redacted] until the next [Redacted] class begins.
  4. The Student submission is that the students who enrolled through [Redacted] were given preferential treatment from the Provider because “the owner of [Redacted] owns a couple of [Redacted] at [Provider]” The bias towards the [Redacted] students is outlined by the Student as follows:
  • Not uploading his photo on [Provider] Social Media
  • One pillowcase was not given to him.
  • No mug with his [Redacted] was provided.
  • His [Redacted] not being placed in the cabinet.
  • [Redacted] students being given more allotted [Redacted].
  • [Redacted] students not having to appear for exams before [Redacted].
  • No obligation for [Redacted]] students to maintain [Redacted].
  • No obligation for [Redacted]] students to re-sit classes only re-sit exams

No documents have been provided by the Student in support of the above.

  1. The Provider states:
  • “[Redacted] in India does not have an interest in [Provider]; our business is 100% owned by the [Redacted].”
  • “At the time that [Student] was at the academy, 41% students were recruited via [Redacted], the rest via another agent or no agent.”
  1. On 24 December 2019, the Student presented for his pre-[Redacted]. Mr [Redacted] “abruptly” cancelled his [Redacted] in front of [Redacted] students. The Student believes this was done deliberately to humiliate him in front of the [Redacted] students.
  2. The Provider states the [Redacted] was cancelled at short notice but not “abruptly” as the Student needed to complete further groundwork. The Provider advises that this is to “save the Student’s funds... as the [Redacted] would need to be [Redacted] ".
  1. Further he advised he felt he was deliberately harassed by the Provider when he was given a problem to solve on a white board and Mr [Redacted] advised he will come back and check the answer. However, Mr [Redacted] left without informing the Student. The Provider advised the question was to focus the Student on his studies. The Provider denies harassing or humiliating the Student and further advises that the swipe card access shows the Student left at 17:45 at the same time the Provider left at which time the problem remained unanswered. No evidence has been provided by either party supporting this.
  2. On 30 December, the Student’s [Redacted]] was aborted. The Student states:

“[Redacted]”.

  1. The Provider states:

      “[Redacted]”.

  1. On 7 February 2020, the Instructor cancelled the Student’s [Redacted]. The Provider states the [Provider] Instructor, [Redacted] cancelled the Students [Redacted] as students are required to attend 30 minutes prior to a [Redacted] to complete the pre-[Redacted] routine. The Student attended four minutes before the allotted [Redacted] time.
  2. The Student submits that there was no transport available and he arrived with his colleagues who were [Redacted] students whose [Redacted] was the same allotted time. The student advises they were four minutes late and the Student was prevented from [Redacted]. The Student claims the [Redacted] students were allowed to [Redacted]. No documents have been provided in support of this.
  3. Upon failing four subjects the Student advises he was placed on the “Critical Assessment List” and his exams were restructured until June 2020. The Student states memos threatening to expel him from [Provider] were sent to him and his father which he advises was “Pure Mental Torture”. Meetings were held between the Student and Provider regarding his performance.
  4. The Student’s father [Redacted] requested extra tuition classes from [Provider], however did not receive a response.
  5. The Provider submits that the Student was offered as extra tuition, full class re-sits free of charge.
  6. The Student and his father decide to withdraw from [Provider] and request a full refund.
  7. The Provider provided a refund of the remaining unused tuition fees in the amount of $12,608.93.
  8. On 20 April 2020, the Student raised a complaint with the International Student Contract Dispute Resolution Scheme and requests.

“I request you for the refund of my fees.

First installment                                  NZ $22,719.41

Hostel Fees ($640 x 4 months)          NZ $2,560

Visa Fees (3 times)                            NZ $1,060

Air Fare                                               NZ $4,100

Total                                                    NZ $30,439.41

Part Refund received                          NZ $12,608.93

Refund due to me                               NZ $17,830.48

 

  1. The Student’s Father raised a complaint with New Zealand Qualifications Authority (NZQA). On 28 July 2020, the following findings were made as seen in the letter from NZQA:
    1. Complaints issue 1. On the basis that the Student received unfair treatment from [Provider], “the NZQA finds there is insufficient evidence to support the allegation that [Provider] failed to comply with 5.1.5b of the Private Training Establishment (PTE) Registration Rules 2018 (‘The registration rules’).”
    2. Complaints issue 2. On the basis that the Student was given a Letter of Offer despite having an International English Language Testing System (IELTS) score that was too low to meet the [Redacted] and NZQA requirements. The NZQA found [Provider] in Breach of Clause 16 of the Education (Pastoral Care of International Students) Code of Practice 2016 for issuing a letter declaring it had undertaken an assessment when it had not.
    3. Further “By failing to detect that the student’s IELTS test was not the academic version and did not meet the minimum score as per the approved entry requirements, NZQA finds that [Provider] is also in breach of Rule 18.1.a of the Approval and Accreditation Rules.
    4. Complaints issue 3. On the basis that the prices for the Student’s accommodation changed upon arrival at [Provider], changing from $150 to $160 on arrival, the NZQA found “in failing to provide up to date information to the student, prior to their second enrolment,  NZQA finds [Provider] in breach of Rule 5.1.4a of the Registration Rules.
    5. Complaints issue 4. On the basis “the Complainant claims he requested extra tuition for his son to support his educational achievement but received no response from [Provider].” The NZQA finds “By meeting with the Student on multiple occasions to discuss his progress, and arranging the exams, NZQA finds that [Provider] is compliant with Rule 5.1.5e of the Registration Rules.”
    1. Complaint issue 5. The Student was not given a proper orientation. The NZQA found “The [Provider] international student induction checklist covers these requirements, and therefore NZQA finds [Provider] is compliant with Clause 20.1 of the international Code.
  2. The Student and the Provider were unable to resolve this issue at facilitation and on 26 August 2020 the Provider declined to participate in mediation and the matter proceeded to Adjudication.

The Student’s Position

  1. The Student’s submissions to the International Contract Dispute Resolution Scheme are dated 11 September 2020 and 14 September 2020.
  2. Through reviewing the Student’s submissions and documents I have understood the following as their position.
  3. The Student submits that the Provider issued a faulty Letter of Offer twice which was rejected by Immigration New Zealand twice and therefore caused a monetary loss for the Student in having to re-apply for his visa three times.
  4. The Student submits that he was given insufficient pastoral care and states “I reached the academy after 36 hours of travel. The Pastoral Care Officer, Ms [Redacted], wife of Mr [Redacted] showed me my room and left. She did not care about my needs.”
  5. The Student submits that he was harassed and discriminated against by the Provider with preferential treatment given to [Redacted] students. He believed the [Redacted] students were given more [Redacted] and were not required to appear for exams.
  6. Further he states that “the sole existence of [Provider] depended upon [Redacted] Students” as “[Redacted] has a stake in [Provider] and are owners of some [Redacted]s.”
  7. The Student also advises that he found the study load heavy and challenging to complete “Within a span of seven weeks, I had to appear for six papers. I cleared two papers.”

The Provider’s Position

  1. The Provider’s submissions to the International Contract Dispute Resolution Scheme are dated 10 September 2020 and 17 September 2020.
  2. The Providers position is that the Student struggled with his studies and was unable to obtain the required pass marks in his theory papers. The Provider argues this was due to the lack of commitment the Student showed to studying for the theory examinations.
  3. Furthermore, full class re-sits were offered to the Student at no cost as this was deemed by the Provider as “[Student]’s results were at a level where full class re-sits were his best option for success.”
  4. The Student was provided with adequate pastoral care which the Provider argues the Student was provided with an information pack on arrival as well as the Pastoral Care Officers contact details in case the Student had need. This was further supported with the Student completing the orientation where they signed the “induction form.”
  5. The Provider states all students were afforded the same level of “personal programme management” regardless of how they entered into the programme.
  6. The Student was provided high quality training and invoiced accordingly and therefore a refund of the fees that have been used is not justified.

Discussion

  1. The questions which the International Student Contract Dispute Resolution Scheme must determine:
  2. Has there been a breach of the enrolment contract signed in 2019 between the Provider and Student and if so, is the Student then entitled to a refund of his tuition fees, four months accommodation fees, visa fees and airfares?
  3. To determine whether the Student should be paid a refund of his tuition fees, four months accommodation fees, visa fees and airfares, consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds. Consideration must also be given to the facts and information provided by the Student and the Provider.
  4. Section 9 of the International Student Contract Dispute Resolution Scheme Rules 2016 state 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.”
  5. Neither the Student nor the Provider has given a copy of the signed enrolment contract to International Student Contract Dispute Resolution Scheme, as such iStudent is unable to determine whether a breach of the contract has occurred.
  6. The Provider has submitted two “Offer of Place International Student” (Offer letter) letters dated 25 March 2019 and 21 August 2019 . These documents are not signed by either party and are the documents the Student used to apply for his student visa. In (17) the “Offer Letter” contains a declaration that the Provider has undertaken an “assessment” to ensure he can participate effectively in the course.
  7. The Student states in (19) “my visa was rejected twice” by Immigration New Zealand, as he did not meet the requirement of having an IELTS band score of no less than 5.5. The Student paid for two visa applications before Immigration New Zealand detected the issue.
  8. NZQA investigated and found in (44.2) the Provider breached “Clause 16 of the Education (Pastoral Care of International Students) Code of Practice 2016 for issuing a letter declaring it had undertaken an assessment when it had not.” NZQA also noted that the responsibility of the Provider to ensure the Student met the eligibility criteria before issuing an offer letter.
  9. I consider the NZQA decision holds considerable weight and therefore find that the “Offer Letter” by the Provider directly led to the Student’s visa application being rejected by Immigration New Zealand twice. As such the Provider is responsible for the cost of the two failed visa applications.
    1. The Student states that he was not made aware of the increase of student accommodation costs until he arrived [Provider]. The amount changed from $150 per week to $160 per week. [Provider] has acknowledged that the Student was not informed of the cost increase.
    2. In (44.4) the NZQA found “in failing to provide up to date information to the Student, prior to their second enrolment, NZQA finds [Provider] in breach of Rule 5.1.4a of the Registration Rules. As both parties agree the Student was not made aware of the contractual change to the accommodation costs, the Provider is therefore required to honour the original agreement and provide a refund of the difference in cost.
  10. In absence of the Enrolment Contract I turn to the Providers refund policy for consideration.
  11. The Provider and Student confirm a refund of the unused tuition fees in the amount of NZ$12,608.93 was given to the Student upon his withdrawal. The Providers refund policy states:

“The statutory refund/withdrawal period for international students is ten working days after commencement of the course. If an international student withdraws within the refund period, [Provider] retains the right to charge up to 25% of course fees paid, provided the Company can justify costs incurred for the course. After the refund period, withdrawal and costs will be discussed with each student.”

Further:

“Circumstances where refunds will also be made are:

• Where we are unable to offer a programme

• Non-extension of visa

• Compassionate grounds

• Transfer to another provider.”

  1. The Provider’s refund policy is consistent with the statutory requirements for refunds as set out in the New Zealand Government Education (Refund requirements for International Students) Notice 2012 (the Notice). This states that an international student enrolled in a course of study of three months or more, will be eligible for a refund for fees paid should they withdraw from the course within ten working days of the commencement of the course.
  2. As the Student withdrew after ten working days, under this refund policy the Student would not be entitled to a full tuition fee refund minus 25%. The Student’s situation does not apply to the above four refund circumstances.
  3. From the submissions, the Provider explains if a Student withdraws after ten working days, their usual policy is to refund the unused tuition fees. They declined a full refund on the basis that “A refund of course fees for a high-quality product already delivered is not considered justified.” As the refund policy does not obligate the Provider to provide any specific refund outside of the ten-working day period, I consider the refund granted by the Provider sufficient.
  4. The Student argues that he requests a refund of his fees on the basis of “monetary loss, harassment, mental torture and discrimination undergone at [Provider].”
  5. While it is difficult to draw a conclusion on whether there has been a breach of the 2019 contract without the contract being provided, International Student Contract Dispute Resolution Scheme may consider whether it would be fair and reasonable for the Student to be given to a refund as per (62).
  6. In this regard the writer’s findings are as follows:
    1. The Student found the theory timetable challenging and only passed two out of six papers.
    2. The Student was offered free class re-sits of the failed papers.
    3. There were several cancelled or aborted [Redacted]s in (31, 34, 36) where the Student argues it was an attempt to humiliate him and discriminate against him. The Provider argues they were cancelled due to insufficient preparation from the Student. No evidence or documents were provided by either party in support of these arguments. By claiming discrimination it does not automatically follow that this opinion can be upheld on submissions alone.
    4. Furthermore, NZQA found in their formal investigation that there was insufficient evidence to support allegations of unfair treatment against the Student.  No further documentation has been provided to International Student Contract Dispute Resolution Scheme and as such I am unable to determine that the Student was discriminated against.
    5. The Student claims that no help was provided to him by the Provider, however I note the following in the submissions provided:
    • In (24, 25) The Student induction checklist which includes meeting with a Pastoral Care Officer and “review the Student Orientation and Handbook with the student, answer any questions” has been signed by the Student.
    • The Provider in (23) states the Pastoral Care Officers contact details were given to the Student on arrival.
    • The Student states he was aware of the Pastoral Care Officer and advises “I did not approach her as it would not be of any help to me”.
    • The Provider placed the student on a Critical Assessment Plan.
    • The Student and Provider both acknowledge that the Student was provided with free re-sit classes for his failed papers.
    • In (38) the Provider and Student acknowledge the Provider kept the Student and his father informed of his performance
    • I consider the Student had sufficient opportunity to understand the Providers pastoral care provisions and how to access these.

Proposed Determination

  1. The proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint be partially upheld.

Has there been a breach of the enrolment contract signed in 2019 between the Provider and Student and if so, is the Student then entitled to a refund of his tuition fees, four months accommodation fees, visa fees and airfares?

  1. The refund already provided to the Student  is consistent with the Provider’s refund policy and in (75.5) gave the Student sufficient educational and non educational access to support. As such Student’s claim for a full refund of his tuition fees and airfares is dismissed.
  2. The Student’s claim for a refund of four months of accommodation fees is partially upheld. As per the findings in the NZQA investigation in (44.4) the Provider is to pay the difference in the amount of $10 New Zealand dollars per week based on four months accommodation.
  3. The Student’s claim for a refund of his three visa applications is partially upheld. The provider is to pay for the two failed visa applications, however the claim for payment of the third visa is dismissed as the Student would have incurred this cost. The Provider is to pay the amount of $706.66 New Zealand dollars.

Final Determination

  1. The parties were invited to provide any final comments on the proposed decision issued on 21 October 2020.
  2. The Provider has provided a response accepting the draft determination.
  3. The Student has indicated that he disagrees with the findings of the adjudicator based on his original submissions set out above. The Student’s further comments have been taken into consideration however the decision remains unchanged.
  4. The final determination of the International Student Contract Dispute Resolution Scheme is that the Student’s complaint be partially upheld.
  5. The refund already provided to the Student  is consistent with the Provider’s refund policy and in (75.5) gave the Student sufficient educational and non educational access to support. As such Student’s claim for a full refund of his tuition fees and airfares is dismissed.
  6. The Student’s claim for a refund of four months of accommodation fees is partially upheld. As per the findings in the NZQA investigation in (44.4) the Provider is to pay the difference in the amount of $10 New Zealand dollars per week based on four months accommodation.

 The Student’s claim for a refund of his three visa applications is partially upheld. The provider is to pay for the two failed visa applications, however the claim for payment of the third visa is dismissed as the Student would have incurred this cost. The Provider is to pay the amount of $706.66 New Zealand dollars.

Adjudicator
Emma Barker
18 November 2020