Issue

  1. [Redacted] (the Student) commenced a General English and IELTS Preparation course (the Programme) at [Redacted] (the Provider) on 16 March 2020.
  2. The total amount paid for the Programme was $7050.00
  3. The Student gained an interim visa (Student conditions) on 10 March 2020.
  4. New Zealand went into COVID-19 Alert Level 4 on 26 March 2020. All classes by the Provider, a Private Training Establishment (PTE) were delivered via online.
  5. The Provider recommenced face to face classes on 2 June 2020.
  6. The Student attendance record at the programme between 16 March and 29 June 2020 was recorded as 14.8%.
  7. The Student made a formal written withdrawal from the Programme on 23 June 2020.
  8. The Student made an enquiry to iStudent Complaints on 8 July 2020 and iStudent Complaints informed the Provider on 16 July 2020.
  9. iStudent Complaints attempted to resolve the complaint through facilitation. The Provider refunded a partial refund of $2833.30 to the Student on 2 September 2020.
  10. While the Student accepted the partial refund, the Student believes they are entitled to a greater refund amount. The Student declined mediation on 9 October 2020, and requested an adjudication through iStudent Complaints for the remainder of the fee paid for the Programme.

Background

  1. The following sequence of events in this matter is a summary of the Student’s and Provider’s submssions to the International Student Contract Dispute Scheme. All submissions have been considered whether they are mentioned or not. 
  2. The Student entered New Zealand on a Visitor Visa. It was valid between 6 August 2019 and 6 August 2024. The conditions of the visa meant that the Student could undertake study in New Zealand but must not study for more than 3 months/12 weeks in every 12 months of the visa term.
  3. A letter of offer was made to the Student for the Programme on 6 January 2020.
  4. A fee receipt for the Programme was issued to the Student for $7500 on 8 January 2020.
  5. The start date for the Student commencing the programme was delayed on 30 January 2020 due to delays in the Student’s Visa processing.
  6. New Zealand Immigration received the Student’s application for a Student Visa on 5 February 2020.
  7. The start date for the student to commence the programme was delayed for a second time on 3 March 2020 due to Visa processing delays.
  8. The Student was granted an Interim Visa with Student conditions on 10 March 2020. This allowed them to study any course, at any education provider in New Zealand.
  9. The Student signed the registration form and enrolment contract on 16 March 2020.
  10. The Programme commenced on 16 March 2020.
  11. Orientation took place at the Provider’s campus and the Student undertook Placement Testing on 16 March 2020.
  12. Immigration New Zealand (INZ) corresponded with the Student on 18 March 2020 regarding INZ’s concerns that the Student did not have sufficient funds available to maintain themselves while studying. They requested more information from the Student.
  13. New Zealand went into COVID-19 Alert Level 3 on 22 March.
  14. The Student had a telephone call with her first Agent and received a follow up email from the Agent on 24 March 2020. It advised her, and provided her the contact details of an immigation lawyer.
  15. New Zealand went into COVID-19 Alert Level 4 on 26 March 2020.
  16. On 30 March 2020 the Provider’s withdrawal policy timeframe to receive a full refund of fees paid for the Programme minus a deduction of up to 25% expired.
  17. The Registry Office emailed the Student on 30 March 2020 to enquire about her safety and ask her for information so that her Student’s profile could be completed.
  18. The Student replied to [27] “Thanks for your email, I wanna stop the study” on 1 April 2020.
  19. The Student and the Chinese Market Manager conversed on WeChat on 2 April 2020 about the Student’s health and the Student getting a COVID test.
  20. The Student and Chinese Market Manager conversed on WeChat on 8 April 2020 about the Student’s health, and the Student’s negative COVID test result.
  21. The Provider’s Academic Operations team member emailed the Student on 29 April 2020 and requested the Student to confirm her study plans. They provided the Student with the withdrawal forms to complete and urged the Student to return them as soon as possible.
  22. The Student sent messages on WeChat to the Chinese Market Manager on 29 April. The subjects included the Student’s Visa application, the Student’s problems with attending online classes due to her living conditions and that the school had been in contact with her and that “he let me contact you.”
  23. The Provider’s Academic Operations team member emailed the Student on 5 May 2020 requesting the Student to update them regarding her withdrawal from the Programme, alerting the Student that their attendance was being recorded, and that INZ might need to be notified of her attendance record.
  24. The Student sent messages on WeChat to the Chinese Market Manager on 26 May 2020. The subjects included the Student’s visa application, the information from her immigration consultant, dropping out of the Programme, the student’s attendance record and that she felt depressed.
  25. The Student and the Chinese Market manager conversed on WeChat on 2 June 2020. The subjects included the resumption of face to face teaching, whether the student was continuing with the Programme, her attendance record, and Visa application.
  26. The Student and the Chinese Market Manager conversed via WeChat on 4 June 2020 about arrangements to meet at the Chinese Market Manager’s office the following day.
  27. The Student and the Chinese Market Manager had a prolonged conversation via WeChat on 5 June 2020. The subjects included problems regarding transport to the proposed meeting with the Chinese Market Manager on June 5, the one on one meeting with the Chinese Market Manager on Orientation day March 16, withdrawing from the Programme, continuing the Programme, the refund policy and where to find it on the Provider’s website, the correspondence from Student Services to the Student, the Student’s visa application, the Agent’s advice, the Student’s attendance, the student’s mental and physical health, the Student returning to China, and border closures.
  28. The Student attended a meeting with the Chinese Market Manager and the Pastoral Care representative on 8 June 2020 where her enrolment status and the consequences of her non attendance at the Programme were explained.
  29. An email was sent on 9 June 2020 from the Chinese Market Manager to the Registry which updated them on [38]. The Registry responded with advice that the Student needed to fill in the withdrawal form so that the unconsummed fee could be processed. The Chinese Market Manager replied that if the Student was reluctant to withdraw then the Provider could start the termination of enrolment process.
  30. The Student provided additional financial information to INZ on 12 June 2020, as requested in [22].
  31. The Student submitted the withdrawal application on 23 June 2020.
  32. The Student obtained a medical certificate on 23 June 2020. It was backdated from 1 March 2020 to 1 October 2020, and stated that the Student was “medically unfit for school”.
  33. The Student Attendance Record dated 29 June 2020 recorded the Student had 14.8% attendance between 16 March 2020 and 29 June 2020.
  34. The Student made an enquiry to iStudent Complaints on 8 July 2020.
  35. The Student was declined a Student Visa on 6 August 2020. The Student had 21 days to leave the country.
  36. The Interim Visa expired on 27 August 2020.
  37. The Programme concluded on 28 August 2020.
  38. A partial refund based on the unconsumed weeks post the Student’s request to withdraw [41] was granted to the Student from the Provider on 2 September 2020. The total was $2833.30.

The Student’s Position

  1. The Student’s submissions to the International Contract Dispute Resolution Scheme are dated 17 November 2020 and 23 November 2020 and are summarised below. Additional information was requested by the writer of both parties and was received on 15 January 2021.
  2. The Student is not satisfied with the partial refund of her fees as she submitted that the contract is an invalid legal contract. She submitted that it included a clause that contained standard clauses and was not negotiated directly with the Student.
  3. The Student submitted that there was “no orientation, only suspicious documents needed to be signed. The stuff asked everyone to sign, and she explained that the paper will protect student’s rights and fees.” The person the Student describes as “she” was not identified in the submission.
  4. The Student submitted that at the time of her signing the contract she was suffering from a mental illness and therefore was not fit to sign the contract. She provided a medical certificate [42].
  5. The Student submitted she did not know what the contract was, that her English proficiency was low and that no one explained what she was signing. She submitted she was not given a copy of the contract.
  6. The Student submitted she paid $7500 for a programme which would be provided in person and instead she was provided an online programme after only five days of the Programme. She understood that this was due to the Level 4 COVID Alert Level in New Zealand.
  7. The Student submitted she explained to the Chinese Market Manager her situation through their conversations on WeChat. [34][35][36][37] The Student was dissappointed that she was not provided a solution to her problems by the Provider at this time. She used this form of communication, and did not respond to the email [33] from the Provider because
    1. her English proficiency was poor
    2. her computer was broken.
  8. The Student submitted she could not undertake online classes because
    1. she was unwell
    2. there were animals at her accomodation that could not be disturbed
    3. her computer was broken
    4. she did not have the internet.
  9. The Student submitted she told the Chinese Market Manager that she wanted to “suspend school” and then was later told by the Chinese Market Manager that this was not possible as the Programme was not a professional course. No material was provided in the Student’s submission to support this statement. The Student was upset to hear that her absenteeism had been recorded [37].
  10. The Student submitted she felt pressured and confused about what to do in regards to her Student Visa application and the consequences of withdrawing from her course during that process. She felt that the Provider forced her to withdraw from the course. She was frightened that she would be detained by the police and be deported.
  11. The Student never obtained a Student Visa which she submitted the Provider promised they would. She paid money to two different Agents to assist her to obtain a Student Visa, and felt they were unscrupulous and defrauded her of money. She submitted she felt the Provider should have come forward to help her get a Student Visa.
  12. The Student submitted that the pressure of the her situation became too much for her and she found it difficult to concentrate and she became easily irritated. She was under financial pressure and found it difficult to get treatment for her mental health as she could not afford it.

The Provider’s Position

  1. The Provider’s submissions to the International Contract Dispute Resolution Scheme are dated 17 November 2020 and 23 November 2020 and are summarised below. Additional information was requested by the writer of both parties and was received on 15 January 2021.
  2. The Provider submited that there was a valid contract signed by the Student.
    1. The Student is not a minor.
    2. The Student and her Agent were provided the contract as part of the letter of offer pack [13] and the Student had the opportunity to gain the advice of her Agent before signing the Contract.
  3. That the Student was not impaired when she signed the contract.
    1. The Student did not disclose any medical conditions when she signed the Contract.
    2. The medical certificate that the Student provided when she submitted her withdrawal application was backdated [42] and that they do not accept backdated medical certificates.
  4. The Provider submitted that their communication was proactive in contacting the Student regarding her studies and her possible withdrawal and refund.
    1. The information provided to the Student at Orientation [21] included the English Student Handbook, the Enrolment Contract, New Student Registration form, IT Form, NZQA Complaint Guide, International Student Code of Practice, and information pamphlets e.g: orbit insurance and AT HOP etc. A Powerpoint presentation was given of a condensed version of the information. The Provider submitted that this included the Provider’s policy on holiday leave and withdrawal from the Programme.
    2. The Withdrawal and Refund Policy was made explained  in a separate meeting with the Chinese Market Respresentative in Chinese at Orientation [21] [37].
    3. Communication with the Student was challenging in COVID 19 Alert Level 4 Lockdown which made face to face engagement more difficult in the early stages of the Programme.
    4.  All Students were supported during the COVID 19 Alert Level 4 Lockdown and throughout the delivery of the Programme. The Student did not respond to attempts from the Academic Operations Staff to make contact with her [31][33].
    5. Chinese speaking staff were available to assist communication with the Student.
    6. The Student was represented by an Agent who could have contacted the Provider anytime.
    7. The Academic Operations, Chinese Operations Manager and teaching staff communicated on many occaisions with the Student [11][17][19-22][23][24-27][28][29].
  5. The Provider submitted that at no stage did they stand in the way of the Student withdrawing. In their view, the Student simply needed to follow the formal written process and that the Student deliberately delayed the formal written process.
  6. The Student first stated her intention to stop studying on 1 April 2020 which was one day outside of the refund period for Programme.[18] The Student did not formally withdraw until 23 June 2020 [31].
  7. While the processing of the Student’s Visa worried the Student, the Provider submitted that the Student had a valid Visa for the entire timeframe of her programme [8].The Provider suggested that the Student’s concern that a formal withdrawal application received by the Provider meant they were required to notify New Zealand Immigration caused the delay by the Student to make the formal application.
  8. The Provider submitted that they chose to exercise discretion in granting a refund to the Student and refunded in excess of eligibility and irrespective of the delay in her formally withdrawing from the Programme.
  9. The Provider submitted that they believe they have dealt fairly and generously with the Student in this matter.

The Discussion

  1. The question which the International Student Contract Dispute resolution Scheme must determine:
    1. Has the Provider breached it’s contractual obligations to the Student?
    2. Is the Student eligible for a greater refund than what they they have received from the Provider?
  2. 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 circumstance, 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 determinethe 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.”
  3. To determine the above, consideration must be given to the relevant statutory and contractual obligations on the Provider to refunds.
  4. Before discussing the submissions of the parties, the writer wishes to highlight that the WeChat messages which were the majority of the Student’s submissions are translated into English by WeChat Translation. While the translations provide the writer with a good understanding of the topics of the discussions it is difficult to gain a full understanding of every message sent in the discussion due to the accuracy of the translation. The conversation on 5 June 2020 provided the most relevant information [37].
  5. The Provider stated that the contract which was signed by the Student on 16 March 2020 was valid [62].
  6. The Student in their submission questions the validity of their contract with the Provider. The Student submitted it was a standard contract between the Provider and replicated with each Student, rather than negotiated directly with each Student individually.
  7. The Provider is a Registered Private Training Establishment in accordance with the Education and Training Act 2020[1] and has been assigned a Provider Catergory 2 rating after an external evaluation and review by NZQA. The catergories are 1 (highest) to 4 (lowest) and provides an indication of  the level trust in the Provider by NZQA.
  8. The Provider as a signatory to the Education (Pastoral Care of International Students) Code of Practice 2016 (The Code) Outcome 3: 15 (b) must ensure that International Students have the information required to understand their interests and obligations before entering into a legally binding contract with a the signatory and ensure that proper documentation is kept and provided to international students.
  9. The Student was 20 years old when she signed her contract and the enrolment documents included confirmation that the Student had read, understood, and accepted the Terms and Conditions of their Enrolment [19].
  10. The Student confirmed in the Student Undertaking/Declaration which they signed on 16 March 2020 that her physical and mental condition was satisfactory, that she could participate in the Programme and that she had disclosed on the registration form any relevant medical conditions that she had [19].
  11. A Medical Cerificate was provided by the Student which certified that she was not fit to attend school from 1 March 2020 [42]. It did not exist at the time of signing the contract [79] as it was only produced on 23 June 2020 when the Student made their formal application for withdrawal from the Programme [41].
  12. The Student Handbook states that if a Student is not at school because they are unwell then they must provide a medical certificate. If they do not then they will be marked absent.
  13. The writer concludes that the Student as an adult, was able to make her own decisions with the information presented to her. That she was well enough at the time of signing to enter into a contract with the Provider. The Student’s Medical Certificate was provided retrospectively and does not alter this conclusion. The Provider did negotiate a contract with the Student through the Offer [13], the Enrolment and Contract documentation [19]. The Contract was a proforma contract which is industry practice.
  14. The Code outlines in Outcome 5 Orientation 20 1(a) that the Provider must ensure that it’s orientation programme provides students with full information and advice on all relevant institutional policies.
  15. The Student submitted that she did not receive an orientation, however she does say she attended the Campus on 16 March 2020, and undertook the English Proficiency test. She also submitted that the staff provided documents to sign.  The Student also submitted that “she explained that the paper will protect students rights and fees.” The writer considers that this description is most probably to be a description of the Student’s one to one meeting with the Chinese Market Advisor in [21]. [37]
  16. The Provider outlined in their submission what they did to inform and assist the Student to understand their obligations while undertaking the programme.
    1. The Student confirmed in the Student Undertaking/Declaration which was signed by the Student on 16 March 2020 that she understood that the Provider and [Redacted] expected 100% attendance for all classes and that she would notify [Redacted] Staff if she was unable to attend [19].
    2. The Provider provided the Student with the Student Handbook which included the Refund Policy and Withdrawal Policy [19].
    3. The Provider presented a Power Point of a condensed version of the information in the handbook including the Refund and Withdrawal Policy [19].
    4. The Provider’s employee had a separate meeting with the Student to explain the Withdrawal policy [19][37].
    5. In the WeChat discussion between [37] the Student and the Chinese Market Manager, the Manager makes reference to their meeting at orientation and about the refund policy, informs where to find the refund policy on the website, and makes reference to Student Services sending the Student the withdrawal form.
  17. It is the Writer’s findings that there was a valid contract between the Student and the Provider and that the Provider has not breached their obligations to inform the Student of their obligations in entering the Contract.
  18. The Student enrolled for an in person programme, but five days after the Programme commenced New Zealand went into Lockdown. The Student submitted she did not enrole for an online course and that taking part in the online programme was not possible for her [56].
  19. It was beyond the Provider’s control to continue an in person programme due to the decisions made by the New Zealand Government COVID 19 Response (Urgent Management Measures) Legislation Bill Section 479.[2] The Secretary of Education closed educational entities and allowed them to provide education through online learning.
  20. NZQA provided temporary approval for online delivery of programmes by PTEs during the Lockdown following an assessment of the PTE’s programme. The Provider gained this approval. NZQA also issued Guidelines for PTE on withdrawals and refunds in that time.[3] In summary NZQA’s guidance to Provider’s was:
    1. If the PTE keeps delivering the student’s course, even if it is delivered online the same refund entitlements as usual apply.
    2. NZQA recommended that PTEs review students’ individual situations and carefully consider whether a refund would be appropriate if a student chose to withdraw.
    3. In particular the PTE should consider the changes made to the course and to what extent the changed delivery meets the contractual obligations that the PTE committed to when the student first enrolled, any barriers to the student fully engaging with the course in its changed format, and changes to the student’s personal circumstances as a result of COVID.
  21. NZQA reminded the PTEs that there was still a requirement for Provider’s to notify INZ if a student withdrew from their programme.
  22. The Student notified the Provider on 1 April 2020, shortly after the refund entitlment period ended of their intention to withdraw from the course [28]. The Student in [37] on 5 June 2020 indicated that they still were undecided whether they did want to withdraw from the Programme.  The Student decided to intiate the formal written withdrawal on 23 June 2020 [41].
  23. The Student expressed in their conversations on WeChat [32] that there were barriers to her fully engaging in the online delivery of the Programme.
  24. The Student was made aware of the Provider and INZ requirement to attend classes in writing [33][34][35] and when she met with the Chinese Market Manager [38].
  25. It is the writer’s opinion that the Provider took into consideration the guidelines given by NZQA when considering the Student’s delayed withdrawal application. While the Student was not entitled to receive a refund according to the Provider’s refund policy [26] they provided a partial refund to the Student [48].
  26. In the Code Outcome 4 Immigration Matters, it states that the Provider must ensure that they do not allow or continue to allow a person to undertake educational instruction if that person is not entitled under the Immigration Act 2009 to undertake educational instruction.
  27. The Provider must also inform INZ when a student does not meet the programme attendance requirements. The Student’s attendance was well below what was required [43] and consideration was given to terminating the Student’s enrolment [39]. If the Enrolment had been terminated the Student would not be eligible for any refund from the Provider under it’s Refund Policy.
  28. The Student had a valid Interim Visa when the Programme commenced [16] and continued to do so until she was declined her Student Visa [45]. Once she was declined a Student Visa she had 21 days to leave New Zealand [46] which meant if she had continued in the Programme she would have had to leave New Zealand one day before the Programme was completed [47]. The writer does not consider this an important piece of information in coming to a decision in this adjudication as the Student had withdrawn from the Programme by this stage.
  29. The Student submitted that it was the Provider’s responsibility to help her get a Student Visa and that they had promised to get her a Student Visa. No information received from either party supports this statement.
  30. The  Student Handbook [11] states that the Provider’s staff are not allowed to give immigration advice. Students who need immigration advice must contact a licensed immigration advisor. A link was also provided in the Handbook. In the WeChat conversation [37] the Provider’s employee did provide immigration advice which may have led to some confusion for the Student.
  31. The Student submitted that her Agents had been unscrupulous and she had been defrauded by them. No evidence was provided in her submission to support this statement.
  32. It is the writer’s opinion that the Provider was not responsible to help the Student get a Student Visa, rather the Provider is responsible to know whether the Student is entitled to undertake the Programme, under the conditions of their Visa.  The Student was entitled to undertake the Programme, when she signed the contract.
  33. The Student’s time in New Zealand between March and June 2020 was obviously distressing and has influenced the decisions she made during that time. Accessing additional devices to undertake the online Programme rather than solely relying on her cell phone, having her computer fixed and finding more suitable living arrangements would have been challenging during the Level 4 Lockdown.
  34. The Provider attempted to check in with the Student and encouraged them to initate the formal withdrawal process however the Student’s communication with them was sporadic, which did not assist the flow of information and timliness of the process.
  35.  While the Student felt that the Provider should have been advocating and assisting them to gain a Student Visa, that was not the Provider’s role, and was not part of the Contract the Provider had with the Student.
  36. When the Student did make a formal written withdrawal from the programme they were out of the timeframe for any refund according to the Provider’s policy. The Provider did make a partial refund, which reflects the guidance given to PTEs by NZQA during 2020.
  37. It is the Writer’s finding that the Student is not entitled to a greater refund from the Provider.

The Proposed Decision

  1. The proposed decision of the International Student Contract Dispute Scheme is that the Provider did fufil their contractual obligations to the Student and that the Student is not entitled to any additional refund from the Provider.
  2. The propsed descion is that the Student’s complaint should be declined.

Final Decision

  1. The parties were invited to provide any final comments on the proposed decision issued 19 January 2021.
  2. Comments were received from both the Provider and the Student.
  3. The Student thanked the International Student Contract Dispute Scheme for their service and expressed their ongoing health and financial difficulties.
  4. The Provider had no further response to the Proposed Decision.
  5. The Final Decision of the International Student Contract Dispute Scheme is unchanged from the Proposed Decision. That is, the Student’s complaint is declined.

 

Adjudicator
Helen Clarke
9 February 2021