Summary of Complaint

1. The Student enrolled In the a foundational Programme with Provider for the 2021 Academic Year.

2. The Student withdrew from the course in June 2021 and requested a refund for the fees paid to the Provider for Semester 2.

3. The Student’s refund request was declined by the Provider.

4. The Student’s position is that he is entitled to a refund for the fees for the Second Semester 2021 (12 July 2021 – 3 December 2021) due to exceptional circumstances created by the ongoing COVID-19 pandemic and resulting border closures.

5. The Provider’s position is that the Student is not entitled to a refund on the basis of
exceptional circumstances eventuated by the ongoing COVID-19 pandemic as such
circumstances were ‘no longer unforeseen'.

6. The Student and the Provider were unable to resolve the dispute through consensual
means and the matter was referred to adjudication on 18 February 2022.

Background

7. The following is a summary of the submissions made by the Student and Provider.

8. The Student’s long-term academic goal was to study (redacted) with the Provider and further, to do so in person at the Provider’s campus, commencing in Semester 1, 2022.

9. In support of this goal the Student applied for and was accepted into the Provider’s Programme as an offshore student for Term 2, 3 and 4 of the 2021 academic year (19 April 2021 – 03 December 2021). The Student was also successfully awarded a scholarship of
NZ$5000.00.

10. The Programme was delivered by a subgroup, on behalf of the Provider.

11. On 30 November 2020 the Student received an email from the subgroup advising him that the (redacted) class was no longer being offered in Term 2, 2021 (April intake) and was only being offered in Term 1 or Term 3. Further, the Student was advised that the (redacted) class was essential for students who intended to obtain a degree in (redacted) and encouraging him to enrol from Term 1.

12. The Student elected to enrol from Term 1 and received an updated Offer of Admission from the Provider dated 14 December 2020.

13. The Offer included the ‘Terms and Conditions for International Students’, and specifically the Provider’s ‘Refund and Deletion Policy’ at clauses 8 and 9.

14. The Student accepted the offer from the Provider, paid the tution fees and commenced his studies on 15 January 2021 with the “100% hope that he will be travelling to NZ to join the Studies in person from February 2022”.

15. During the first half of 2021 the Student stayed abreast of developments as to when international students would be able to obtain visas to study in New Zealand. His submissions are that in June 2021 he heard that Immigration New Zealand had extended the suspension on visa processing to 6 February 2022, with the result that the Student would not be able to commence in person studies in February 2022 at the Provider’s campus. (The Student’s submissions include a screenshot from the Immigration New Zealand website confirming this).

16. As a result of this and the continued uncertainty created by the COVID-19 pandemic, the
Student reviewed his options as follows:

16.1 The Student wanted to study (redacted) in person and believed that in person studies would provide him with the best opportunity for learning and academic success.

16.2 The Student would not be able to commence his in person studies with the Provider in 2022 as planned.

16.3 The Student could commence in person studies for (redacted) at a provider in his home country.

16.4 The course offered by the institution in his home country commenced in July 2021 with the next intake only occurring in July 2022.

16.5 The Student made the decision to withdraw from the Programme and commence his (redacted) studies in July 2021 in his home country.

17. On 30 June 2021 the Student’s agent advised the subgroup that due to the continued uncertainty and the unlikeliness of the Student being able to commence in person studies in February 2022, the Student wished to withdraw from the remainder of the Programme and further, enquired as to whether the Student would be entitled to a refund.

18. The Provider’s submissions are that the subgroup responded to the Agent on 1 July 2021 and advised that the refund period for the Programme had lapsed, that no refund was available and that it would be better for the Student to “complete the Foundation programme and postpone the future degree programme until the borders open”.

19. On examination of this email there is no record that this was sent to the Agent and was rather only sent internally to other subgroup staff, as were additional internal emails supplied dated 6 July 2021 and 7 July 2021.

20. However, a further email dated 6 July 2021 which was also sent to the Agent did reference that the Refund Policy was on “page 4-5-6 of offer letter”.

21. This was followed up on 8 July 2021 with an email informing the Agent that they would notify the Provider of the Student’s intention to withdraw and that the Provider would contact the Student directly regarding the refund process.

22. The Agent confirmed by email dated 9 July 2021 that the Student did wish to withdraw and that they should advise the Provider of this.

23. The Agent followed up with the subgroup on 12 July 2022.

24. The subgroup requested that the Student complete the “course termination and withdrawal forms” in order for the request to be submitted to the Provider.

25. The Student’s submission include a Course Alteration Form (AS-70) withdrawing from the programme dated 7 July 2021. The Student’s signed declaration confirms that the Student has “read and understood the (Provider)’s policy on deletion, withdrawal and the refund of fees, as described in the Enrolment and Programme Regulations in the (Provider) Calendar”. Further information is also provided for ‘Late Deletion’ and that should a student be unable to continue a course due to “serious circumstances beyond your control” they may be eligible for a late deletion and partial refund of fees.

26. The email from the Student’s agent to which this was attached included the statement that the Student would expect a refund as this was an “unexpected circumstance”.

27. The Course Alteration Form was received by the Provider on 13 July 2021.

28. The Agent followed up with the subgroup again on 19 July 2021.

29. The Provider advised the subgroup on 19 July 2021 that the Student’s withdrawal request was now completed, that the Student would receive ‘W grades’ for the Programme courses and that the Student “would not be refunded for all associated fees”.

30. On 2 September 2021 the Student submitted a Late Application to Delete Courses (AS-47) form to the Provider along with a Cover Letter outlining the basis for his request for a refund for Term 3 and 4 of 2021 as per [15] and [16]. Further, the Student’s view is that while the Student understands that in a ‘normal situation’ he would not be entitled to a refund, it is his view that the “unusual and unpredictable circumstances” created by the COVID-19 Pandemic qualify him for a refund.

31. On 24 September 2021 the Provider advised the Student that the refund request was
declined.

32. The Student made a complaint to the International Student Contract Dispute Resolution Scheme (iStudent Complaints) on 23 November 2021.

33. The Student and the Provider were unable to resolve the dispute through consensual means and the matter was referred to adjudication on 18 February 2022.

34. The Student’s position is that he is entitled to a refund for the fees for the Second Semester 2022 (12 July 2021 – 3 December 2021) due to exceptional circumstances created by the ongoing COVID-19 pandemic and resulting border closures.

35. The Provider’s position is that the Student is not entitled to a refund on the basis of exceptional circumstances eventuated by the ongoing COVID-19 pandemic as such circumstances were ‘no longer unforeseen”.

Positions of the parties

Student’s Position

36. The Student’s position is summarised as follows:

36.1 It was always the Student’s intention to study the programme in person and it is the Student’s belief that in person studies provide him with the best learning opportunities.

36.2 Due to the extension of the suspension of visa processing by Immigration New Zealand to February 2022, the Student would not be able to commence his in person studies with the Provider in Semester 1, 2022 as planned.

36.3 That this necessitated the Student withdrawing from the Programme in order to be able to commence alternative academic opportunities in his home country.

36.4 That continued impact of the COVID-19 Pandemic has created an “uncontrollable and unpredictable situation” which meets the refund criteria for ‘Late Deletion’.

36.5 That the “uncontrollable and unpredictable” nature of the current situation is further evidenced by the Provider “closing the April 2021 intake” (detailed in [11]) and the New Zealand government’s ongoing uncertainty as to when the borders would open for international students.

36.6 That on this basis the Student’s position is that his circumstances are an “exceptional circumstance” and that he should be granted a refund.

36.7 That the Provider, by refusing to consider even a partial refund, “has no sympathy in helping in this situation”.

Provider’s Position

37. The Provider’s position, set out in their submissions dated 25 April 2022 and further submissions dated 15 May 2022, is that the Student is not eligible for a refund:

37.1 The Admission Offer accepted by the Student clearly outlines the Provider’s refund policy.

37.2 This is further set out in the Provider’s Enrolment and Programme Regulations which confirm that the deadline for courses which run for 39 weeks or more is 31 days from the course start date and that after this time “there is no refund or credit of any fees or charges for the withdrawn course.”

37.3 That this applies to the Student’s Programme and that the Student withdrew after the 31 days deadline.

37.4 That the Student was made aware of this again by the subgroup in their email dated 1 July 2021 and detailed in [18].

37.5 Further, in response to the Student’s submission that they are eligible for a refund due to extenuating circumstances resulting from the ongoing New Zealand border closures, the Provider has responded as follows:

37.5.1 The Provider considered the COVID-19 pandemic and New Zealand border closure to be “extenuating circumstances beyond a student’s control” in March 2020 and as such extended the late deletion deadlines and provided students with refunds for fees paid for Semester 1, 2020.

37.5.2 That in December 2020 when the Student received his offer and in January 2021 when he commenced his studies, the Provider’s view was that “Covid-19/border closure(s)” were no longer “extenuating circumstances” as these were “no longer unexpected and there was no guarantee” that international students would be able to study in New Zealand in 2021.

37.5.3 As such, requests for late deletion in these circumstances were not approved by the Provider as they were not considered to be “extenuating circumstances beyond the student’s control” and requests for refunds were declined.

37.5.4 That the Student commenced his studies in January 2021 when the New Zealand borders were closed and there was no guarantee as to when they would reopen.
37.5.5 That this created the possibility that “his full programme may need to be taught online”.

37.5.6 That the Student went ahead with his withdrawal application despite being advised that no refund would be given.

37.5.7 That the Provider “genuinely sympathises with the difficulties the Covid-19 pandemic, and subsequent border closures, has had on the lives of students and their families”.

37.5.8 Further, that the Provider understands that there has been costs incurred and stress caused for the Student and his family and thei reasoning for applying for a refund.

37.5.9 However, the Provider is also tasked with being “fair and consistent at all times to all students” and therefore must follow the regulations.

37.5.10 As the Student’s circumstances did not meet the Provider’s requirements for
a refund in this situation, the refund was declined.

Discussion

38. The question which the International Student Contract Dispute Resolution Scheme must determine:

38.1 Is the Student entitled to any refund of the fees paid for Semester 2 of the Programme?

39. 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.”

40. To determine [38.1] above, consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds.

41. The Provider is a Tertiary Education Institution (TEI) as defined in the Education and Training Act 2020.

42. As a TEI, the Provider’s Council may make its own statutes and regulations.

43. The Provider’s Fees Statute 2001 provides that the Council may, in accordance with the Education and Training Act 2020, prescribe “(a) the circumstances in which Domestic Students and International Students are or may be entitled to a refund or credit of all or any part of the Tuition Fees and General Fees paid or payable to the Council and (b) the quantum of those refunds”.

44. The Provider’s Enrolment and Programme Regulations make specific provisions which will be discussed further at [57].

45. In terms of the Provider’s contractual obligations, a Contact of Enrolment was entered into between the Provider and the Student as evidenced by the Student’s acceptance of the Provider’s Offer of Admission dated 14 December 2020 and the Student’s subsequent payment of the fees. The existence of a valid contract is not disputed by either party.

46. The Provider’s refund policy is clearly set out in the Admission Offer accepted by the Student and is further detailed in the Provider’s Enrolment and Programme Regulations which confirm that the deadline for a change of enrolment or deletion for courses which run for 39 weeks or more is 31 days from the course start date and that after this time “there is no refund or credit of any fees or charges for the withdrawn course.”

47. Both the Student and the Provider have submitted that the Student withdrew from the Programme after the 31 day deadline and as such, in accordance with the the Provider’s refund policy and the contract entered into between the Student and the Provider, no refund is due on this basis.

48. Further, as the Student has not challenged the validity of this or claimed a refund on this basis, no further discussion of this is needed here.

49. It is however relevant to refer to the Provider’s submissions at [18] which state the Student was again referred to the refund policy and advised that no refund would be given should the student withdraw.

50. Further, the Provider’s submissions are that this offers additional support to their decision not to grant a refund.

51. I note at [19] that I was unable to ascertain that this email dated 1 July 2021 was in fact shared with the Student’s agent.

52. However, a further email dated 6 July 2021 which was also sent to the Agent did reference that the Refund Policy was on “page 4-5-6 of offer letter”.

53. Further, the Course Alteration Form (AS-70) dated 7 July 2021 and signed by the Student confirms that the Student has “read and understood the Providers policy on deletion, withdrawal and the refund of fees, as described in the Enrolment and Programme Regulations in the provider Calendar”.

54. For clarity, these provisions are referred to in [25] above.

55. As such it is clear that the Student was aware of the Provider’s refund policy.

56. Further, as the Student withdrew after the 31 day period, the Provider is not contractually obligated to provide the Student with a refund.

57. The Provider’s Enrolment and Programme Regulations further set out the requirements for Deletions, the deadline for deletions and at 48 and 49 of the Regulations, provides the circumstances under which the Provider “may grant an exemption from additional fees” and that “in emergency situations, the Director, Student and Academic Services (or delegated authority) may waive fees for late deletions for a defined period of time and/or for nominated group of students”.

58. This is further detailed in the ‘Late Application to Delete Courses’ form completed and signed by the Student and dated 1 September 20201 and which further outlines the ‘Exceptional Circumstances’: “If you are unable to continue with your enrolments due to exceptional circumstances such as illness, injury or events beyond your control and can supply supporting evidence of those circumstances, you can apply for late deletion.” “A decision will be made to approve or decline your application. If your application is approved, you may be eligible for a partial refund of fees where the application is received early in the semester. However, there will be no refund of the Student Services Fee”.

59. It is clear from the above that any such refund is at the discretion of the Provider and there is no contractual obligation on the Provider to provide a refund in these circumstances.

60. The Provider, in exercising its discretion, has declined the Student’s application.

61. Regardless, the jurisdiction of the International Student Contract Dispute Scheme is limited to financial or contractual matters as determined by the Education and Training Act 2020 and an examination of the reasoning for not granting such a refund is beyond the jurisdiction of iStudent.

62. However, as per [39] iStudent Complaints, when adjudicating a complaint, must act in accordance with what is fair and reasonable in all the circumstances is required to, when making a determination as to whether to uphold a student’s complaint, to determine the dispute according to the substantial merits and justice of the case.

63. In making this decision, I have carefully considered both the Provider and Student’s submissions in this regard.

64. I understand that the ongoing Covid-19 pandemic and resulting uncertainty caused by continued border closures in New Zealand have created stress for the Student and his family.

65. I appreciate that the Student began his academic journey with the Provider with the specific goal of enrolling in the Provider’s (redacted) degree and that is was important to the Student that he be able to study in person at the campus.

66. However, my view is that it was uncertain whether this would be possible when the Student made the decision to enrol with the Provider in December 2020 and when he commenced his studies in January 2021.

67. This is further supported by the Student’s own submissions which state that it was his “hope” that he would be travelling to New Zealand in February 2022 and that he continued to monitor the situation in New Zealand during the first half of 2021.

68. As such, the Student’s decision to withdraw from the Programme and embark on a new course of studies in his home country was as a result of a continuation of existing circumstances rather than a new event which would equate to an “exceptional circumstance” which would impact the Student’s ability to complete his Programme with the Provider.

69. Further, while it is for the Student to decide what would best support his academic goals, the writer has also considered that other options were available to the Student which would not have resulted in a financial loss.

70. These options included completing the Programme and delaying his studies in his home country or alternatively, commencing his studies online with the Provider in February 2022 and transferring to the Provider’s campus when international students were able to return to New Zealand.

71. On this basis it is my view that it would not be fair and reasonable to grant the Student a refund in these circumstances.

Proposed Decision

72. The proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint be dismissed.

73. Both parties now have a final opportunity to provide further submissions before a final decision from iStudent Complaints is issued.

Final Decision

74. The proposed decision as set out above has been provided to both the Student and the Provider.

75. No further submissions have been received from the Student or Provider.

76. In the absence of any further evidence or submission, the reasoning and proposed decision to this complaint as set out above are confirmed.

77. The final decision of the International Dispute Resolution Scheme is that the Student’s claim is dismissed.