Summary of Complaint
- [Redacted] represented by his parent [Redacted] (The Student) wanted to complete a four-week study placement consisting of English Language Programme (1 week) Tuition (3 weeks) at [Provider] (The Provider).
- The Student was accepted into a three-week English Language Programme (the Programme) starting on 3 February 2020 and confirmed their arrival into New Zealand to be 2 February 2020.
- In January 2020 due to the outbreak of Covid-19 in Wuhan city, China, the Provider notified the Student on 28 January 2020 that student’s “must have been in New Zealand for 14 days, from the date of arrival, before attending [Provider]”.
- On 1 February 2020, The Provider advises the Student that the “Ministry of Health and the Ministry of Education have advised that anyone who has recently arrived from China must quarantine themselves for at least 14 days”.
- On 4 February 2020, the Provider asked the Student’s Agent [Redacted], an Education Consultant from [Redacted] (The Agent), to confirm if the Student had arrived in New Zealand. The Agent contacted the Provider and confirmed that the Student will not be attending the February term and requested options for deferring study or a refund of tuition fees.
- In March 2020, the Student requested to delay the Student’s study until 2021. The Provider advised the board of trustees would meet and make a decision regarding deferment.
- On 19 March 2020, New Zealand went into a nation-wide lock-down and the meeting did not take place.
- The decision of the Provider on 17 April 2020 was to offer a refund of the insurance premium and the uniform fee, a deferment of studies was not available at that time.
- The Student requested to postpone their studies until term 1 2021 or to have a full refund of their tuition fees. They declined the refund proposal offered by the Provider.
- On 8 June 2020, the Student raised a complaint with the International Student Contract Dispute Resolution Scheme.
- The Provider offered a study deferment for the Student up to and including 2022. The Student declined this option.
- The Student and Provider met in mediation on 28 August 2020 in an attempt to reach agreement on the above issue. The Provider and the Student were unable to reach agreement and the matter has now been referred to adjudication.
- 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 although they may not be mentioned in this adjudication.
- On 24 May 2019, [Redacted] an Education Consultant from [Redacted] (The Agent) contacted the Provider advising that the Student “want to have a 4-6 week’s study from Feb 2020” and submitted a signed application form with a copy of the Student’s passport.
- On 27 May 2019, the Provider confirmed availability for “one week’s English Language Programme, followed by three week’s mainstream classroom study”.
- The Student states:
“Our family booked the flight tickets, signed the application and hand in all the tuition fees in advance through the agent on 28th May 2019”.
- The Provider submits that the Student by signing the ‘International Student Enrolment Application’ (Enrolment application) “agree and accept the conditions of enrolment and refund conditions for [Provider]”.
- Furthermore, the declaration in the Enrolment Application states:
“I have sighted the International Policies and Guidelines on [Redacted] and agree and accept the conditions of enrolment and refund conditions for [Provider].” also “We accept the authority of [Provider] and the provisions as set out in the International Policies and Guidelines”.
- The Provider has submitted the ‘[Provider] International Student Policies and Guidelines’ and states that:
- “The Client signed contracts with the School declaring that he had read and understood their content and effects, had the opportunity to seek legal advice and agreed to be bound by their terms and conditions in their entirety.”
- Number 4 of the Refund Policy states. “Students must notify the School at least four weeks prior to the course commencing that they do not intend to start their course.”
Further, “If an International Student withdraws from the course after the start of their enrolment, and is in the first half of the course, a refund will be provided less a minimum
of ten weeks tuition fee, Government levies due, any commissions that has been paid and the non-refundable fees outlined in this policy.”
- The Provider submits that International Student Application form and Enrolment Agreement “clearly states the start date of the programme as 3 February 2020”.
- On 11 December 2019, in an email exchange between the Provider and the Agent, the Provider requests the date of departure from the Agent to which the Agent advises “They will arrive in New Zealand on 2nd Feb 2020”.
- The Provider submits a letter dated 28 January 2020 was provided to the Agent regarding the Covid-19 outbreak advising:
“Any Student or Staff member who has recently travelled to or through China must have been in New Zealand for 14 days, from the date of arrival, before attending [Provider].”
“Students may extend their Study period to cover the number of weeks in their Offer of Place. Students may also postpone their study placement.”
- The Student submits WeChat records from the Student to the Agent dated 28 January 2020.
“Then please help me cancel the trip first and communicate with the school. Could you please refund us both the school fees” “After you give me an accurate reply, I will consider whether to refund the air ticket and hotel, or we will continue to go.”
- The Student states in their submissions “a large epidemic outbreak in Wuhan, China, and swept across the whole world quickly…Considering the safety of our family, we have to make the decision to cancel the trip the same day we were told.”
- On 2 February 2020, the Provider sends a further letter dated 1 February 2020 to the Agent extending student’s study period to cover the number of weeks in their Offer of Place.
- The Provider states that no notice was given to the School that [Redacted] would not be attending class. On 4 February 2020, “after the start date of the study” the Provider emails the Agent asking, “Can you please confirm if … [Redacted] are in NZ and going to study after their quarantine period”.
- On 4 February 2020, the Agent advises the Provider the Student will not be attending in the February term and requesting what options were available either cancelling study or deferring their study.
- On 25 February 2020, the Agent requests a refund of the tuition fees.
- On 9 March 2020, the Agent advises that the Student agrees to delay their study until February 2021.
- On 28 March 2020, The Provider advises the Agent that New Zealand has gone into lockdown and discussions regarding deferment of studies and refunds have been postponed.
- In subsequent email exchanges the Provider offers the Student:
“As per agreed contractual terms and conditions you are not owed a refund of the boy’s tuition fees. However, I am able to refund the $140 insurance premium and 290 uniform fee to you.”
The Agent states, “[Redacted] … would like to postpone their study to Term 1 of 2021”.
The Provider advises the Agent “we are not in a position to offer a postponement of the student’s study”.
- On 8 June 2020, the Student raised a complaint with the International Student Contract Dispute Resolution Scheme and requests either a deferment of studies until 2021, 2022 or a full refund of tuition fees.
- On 12 June 2020 in an email the Provider offers the Student a deferment of their studies until 2021, 2022 or a refund of their uniform and insurance. The Student declines the proposal.
- The parties met in mediation on 28 August 2020 in an attempt to reach agreement. The matter was referred to adjudication and the parties had an opportunity to provide their submissions.
- The Student submits that due to the Covid-19 pandemic the decision was made to cancel their travel plans for the safety of their family.
- The Student states that they notified the Provider of their cancellation on the date they were advised of the isolation requirements.
- Their request for a refund was made in a timely manner through their agent.
- The Student states “On the grounds of force majeure, both parties of the contract are unable to perform the contract, and there is no breach of contract. Now I apply to terminate the contract.”
The Providers Position
- The Provider submits that the Student did not attend classes on the start date of the course and did not give advance notice that he would not be travelling to New Zealand or attending class.
- That the Student breached the refund policy which requires students to “notify the School at least four weeks prior to the course commencing that they do not intend to start their course” furthermore:
“If an International Student withdraws from the course after the start of their enrolment, and is in the first half of the course, a refund will be provided less a minimum of ten weeks tuition fee”.
Notice to cancel was only provided by the Agent on 4 February 2020, the day after the course start date.
- The Provider submits that the Student signed the International Student Application form and Enrolment Agreement. By signing this contract, he was declaring that he had read, understood, and agreed with the terms and conditions of enrolment including the Providers refund policy.
- The Provider states that the “School made an Offer of Place to the Client and, at all times, carried out the Programme exactly to expectations”.
- The Provider submits they made fair and reasonable offers of resolution once the cancellation notice was received including:
- “Extend their study period to cover the number of weeks stated in their Offer of Place or postpone to Term 2 2020”.
- “Offer of postponement option of over 2.5 years (end 2022).”
- The Provider states that “No party to the agreement if liable to the other for failing to meet its obligations to the extent the failure was caused by an act of God or other circumstances beyond its reasonable control.”
- The Student chose not to attend the course, the New Zealand border was not closed at that time and the Provider allowed an extended time period to allow the Student to complete the course.
- The questions which the International Student Contract Dispute Resolution Scheme must determine:
- 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?
- To determine whether the Student should be paid a refund of his tuition fees, 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.
- 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.”
- The Provider has submitted a copy of the International Student Application form and Enrolment Agreement. The document shows the start date of study as 3 February 2020.
- This document has several provisions as follows:
- Part two of this document advises: “The terms and conditions appended to this application, form and govern the student’s tuition at the school. By signing below the school and the parents or legal guardian agree to those terms and conditions. Please ensure the terms and conditions are read carefully.” This page is initialled by the parent.
- Under ‘General Matters’ item 33 and in (44) it states. “No party to the agreement is liable to the other for failing to meet its obligations to the extent the failure was caused by an act of God or other circumstances beyond its reasonable control.”
- Under “Key Terms: This contract of Enrolment includes provisions…that control and limit the Student’s rights of refund when Enrolment ends early”.
- The document is signed by [Redacted] (Principal) and [Redacted] (Parent of [Redacted]) and dated 24 September 2019.
- In (40) the refund conditions require four weeks’ notice to be given prior to the start date and if a student withdraws after the start of the course the refund is minus ten weeks tuition. The course was four weeks in length.
- The Student has not disputed the terms of the International Student Application form and Enrolment Agreement.
- In (38) The Student states that due to “Force Majeure both parties to the contract are unable to perform the contract”. This is defined in the Black’s Law Dictionary as “in the law of insurance. Superior or irresistible force.”
Force majeure (French, irresistible compulsion or coercion). A circumstance beyond the control of a party to a contract, which enables that party to escape liability for failing to
perform the contract as a result of the circumstance. Force majeure may include human and natural acts.
- In (51) International Student Application form and Enrolment Agreement has a force majeure clause. This states:
“No party to the agreement is liable to the other for failing to meet its obligations to the extent the failure was caused by an act of God or other circumstances beyond its reasonable control.”
- As such, in the event of the Covid-19 pandemic I consider this clause removes the Providers responsibility to provide the Programme exactly as stated in the International Student Application form and Enrolment Agreement.
- At the time the Student was due to arrive in New Zealand, 2 February 2020, the New Zealand border was open and the Provider in (22) had extended the study period to allow for the self-isolation period of fourteen days. The Student would not have been prevented from flying to New Zealand and completing the Programme.
- As such, not only do the parties have a contractual agreement that neither are liable in circumstances of force majeure, both parties were able to perform the contract.
- To further consider whether the Student is entitled to a refund, I now turn to the Refund Policy which has been agreed to and signed by both parties in the International Student Application form and Enrolment Agreement.
- In (19) the Refund Policy states that to be eligible for a refund, the Student must give the Provider 4 weeks’ notice prior to the start of the course.
- Furthermore, if a Student “withdraws from the course after the start of their enrolment, and is in the first half of the course, a refund will be provided less a minimum of ten weeks tuition fee”.
- The Student submits in (24) that due to the Covid-19 pandemic and for the safety of their family, the decision was made to cancel their trip. The Student submits “we have to make the decision to cancel the trip the same day we were told. Since then, we have timely expressed the demand for refund to the provider through our agent”.
- The Student has provided translated WeChat conversations between the Student and their Agent. Only one conversation is dated – 28 January 2020 11.52 am from the Student to the Agent:
“Then please help me with cancel the trip first and communicate with the school. Could you please refund us both the school fees and the intermediary fees of your company.”
The following WeChat message, sent on the same date and time from the Student to the Agent says;
“After you give me an accurate reply, I will consider whether to refund the air ticket and hotel, or we will continue to go.”
- When reviewing the WeChat conversation, I consider that the conversation neither confirms that the Student had decided to cancel the course or if they would still travel to New Zealand and attend the Programme.
- Furthermore, in an email from the Agent to the Provider on 28 January 2020 at 3:04pm, they pose three questions:
- Will extra fees be charged after the 14-day self-isolation?
- If they change the start date to July 2020 will extra fees be charged?
- Will they receive a refund if they cancel?
This further supports that the Student had not yet cancelled the ‘Programme’.
- In (26) and (27) on 4 February 2020, after the course start date of 3 February 2020, The Providers submissions show the Agent confirms with the Provider by email that the Student is not in New Zealand and will not attend the Programme’.
- As ‘the Programme’ was only four weeks long and notice to cancel was given after the start date, the Provider therefore has no contractual obligation to provide a refund to the Student under the Refund Policy.
- The International Student Contract Dispute Resolution Scheme Rules 2016 may consider whether it would be fair and reasonable for the Student to be given a refund as per (49).
- In this regard, I find as follows:
- The Provider provided the Student up to date information and regular communication.
- While the Student can make a decision for the safety and wellbeing of his family, and in fact did so by deciding not to travel to New Zealand for the Programme, it does not follow that this automatically qualifies him for a refund under ‘force majeure’.
- The Provider offered alternative options to defer study until 2022.
- Several emails between the Agent and the Provider (dated 9 March 2020, 15 May 2020, 19 May 2020, 11 June 2020) show the Student was requesting to either defer their study or receive a refund.
- The proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint be dismissed.
- The parties were invited to provide any final comments on the proposed decision issued 23 November 2020.
- No further comments were provided by the Provider.
- Student responded accepting the proposed decision.
- The final decision of the International Student Contract Dispute Resolution Scheme is that Student’s complaint is dismissed.
 The Student is 11 years old therefore any reference to the Student can be taken to mean both the Student and the parents interchangeably.
8 December 2020