Issue/Summary of Complaint
- The Student was accepted into the Diploma in [Course One] (the “Programme”) with the Provider.
- The Student paid his tuition fees to the Provider on 14 April 2016.
- The Student started studying with the Provider in Semester 2 2016.
- The Student was contacted in August 2016 by the Provider regarding concerns over his non-attendance at classes.
- The Student responded to the Provider saying that he was attending classes and completed semester 2 in 2016.
- The Student submitted an application on 16 January 2017 to enrol in Semester 1 2017 in a Bachelor of [redacted] (Bachelor).
- The Provider issued an offer of place to the Student 2 days after he applied for the Bachelor programme.
- The Provider placed the Student’s enrolment in the Bachelor programme on hold on the 9 February 2017 while they clarified if the Student was wanting to change over from the Diploma programme or remain on the Diploma programme.
- The Student confirmed on the 14 February 2019 that he would be continuing with the Diploma programme.
- The Provider contacted the Student on the 15 February 2019 to request that he select classes for his second semester in the Diploma programme to allow enrolment to be actioned.
- The Provider enrolled the Student into 4 papers for the Diploma programme Semester 1 2017.
- The Provider noticed that an internal error had occurred on the 8 March 2017 which resulted in the Student’s selected 4 papers for the Diploma programme being incorrectly dropped by a staff member.
- The Provider re-enrolled the Student in the 4 dropped Diploma papers on the 28 March 2017.
- The Provider, in reviewing the 4 dropped Diploma papers observed that the Student had not been attending his classes.
- The Student presented to student services on 5 April 2017 to advise the Provider that he was not able to attend his classes as he was unable to ascertain where and when his classes were being held.
- The Student was not allowed to attend lectures as the lecturer would not allow him to join the class. The Student presented student services to provide an explanation.
- The Provider wrote to the Student on the 12 April 2017 informing him that he had been withdrawn from his programme of study. The Provider confirmed in the letter that there will be no cash refund of the Student’s tuition fee but that they would transfer the tuition fee from Semester 1 2017 to Semester 2 2017.
- The Provider also included in the communication dated 12 April 2017 advice for the Student that the Provider will inform Immigration NZ to cancel his student visa. The Provider advised the Student to apply for a visitor visa to allow him to remain in New Zealand legally before a new student visa is approved. In this communication, the Provider asked the Student to reply to the communication confirming that he would like to defer his study to Semester 2 2017.
- The Provider created a new application on the 16 May 2017 for the Student to return to the Diploma programme in Semester 2 2017. An offer was sent to the Student from the Provider on this day.
- The Provider withdrew the offer which was made to the Student to continue on the Diploma programme on the 7 July 2017.
- The Student applied on the 2 October 2017 to study on the Diploma in [Course Two] programme in Semester 1 2018.
- The Provider sent a communication to the Student on 17 October 2017 requesting confirmation of the Student’s residency and asking if he had returned home or whether he was still in New Zealand. The Provider advises that they require confirmation from the Student in order to issue an offer.
- The Provider communicates with the Student on the 24 November 2017 that the Student’s application to study has been withdrawn as they have not received a confirmation from the Student.
- The Student applied for a refund on 20 January 2018.
- The Provider responded to the request for a refund on 31 January 2018 outlining the reasons why the Student would not be receiving a refund.
- The Student applied for a refund in August 2019. The Provider did not realise this was an additional request for a refund.
- The Student applied for a refund in person in September 2019. The Student also submitted refund request.
- The Student and the Provider met in mediation on 21 October 2019 in an attempt to reach agreement. The Provider and the Student were unable to reach agreement and the matter has now been referred to adjudication.
- The Student submitted a refund request on 20 January, 2018.
- The Student begins his request for a refund by discussing his attendance on the programme “I did my 1st semester with your college, after completion of my first semester I enrolled myself to 2nd semester.”
29. The Student submitted a refund request on 20 January, 2018.
30. The Student begins his request for a refund by discussing his attendance on the programme “I did my 1st semester with your college, after completion of my first semester I enrolled myself to 2nd semester.”
31. The Student described how he was removed from the programme “I got dropped out from the course for 2 times” so I decided to go the international branch to know what’s going on but they either don’t had any clue and they told that they will be going to investigate my case but after sometime I got a mail from international office that I already missed my so many classes so their a huge change of failing the semester”.
32. The Student was advised by the Provider “…they need to cancel my current visa and I need to go back to my country and need to apply back again from my home country. So I decided to ask my remaining fee they told me that they will not going give to me but going to transfer my tuition fees to next semester”.
33. The Student was seeking a refund of his full tuition fees “So, kindly I want to inform you that I am writing this to the NZQA that everything happened to me because of you guys. I request you please return my whole tuition fees, so I can continue my studies in other college.”
34. The Provider acknowledges receipt of the refund request from the Student on 24 January 2018 and advises the course of action to be taken “I will email you through today a time line of your history with us around your refund complaint in question and also our refund policy and we can go from there.”
35. The Provider sent a follow up communication to the Student on 31 January 2018 advising “I have been investigating your complaint and also reviewing any emails, notes on your file. We conducted an investigation into your refund request last year also.”
36. The Provider offered to the Student an explanation regarding the previous request for a refund “My understanding is that last year our previous General Manager of International approved outside of our refund policy as you didn’t meet the criteria for a refund due to missing too many classes in semester 1 2017. We do not refund for missed classes or failing any courses…Our previous General Manager did in good faith go outside of our refund policy and allow you to have your fees deferred to another semester so that you could continue your studies with us, however you are not to be refunded.”
37. The Provider ended the communication by stating “As I mentioned we can’t refund people for not attending classes. I do acknowledge that in our notes there was some issues with your enrolment, however our Academic Leaders have said that it was your choice not to attend classes.”
38. The Student’s complaint was acknowledged by iStudent Complaints on 19 July 2019 and the Provider was advised of this on the same date.
39. The Student and the Provider met in mediation on 21 October 2019 in an attempt to reach agreement. The matter was referred to adjudication on 21 October 2019 and the Student and the Provider have now had the opportunity to make their submissions.
40. The Student’s submissions to the International Contract Dispute Resolution Scheme are
dated 30 October 2019.
41. The Student has provided a copy of emails between himself and the Provider dating from 4 April 2017 to 22 January 2018. The emails will be set out in chronological order.
42. Email dated 4 April 2017 at 3.11pm. The Student is at student services and the email outlines:
42.1 The Student “was incorrectly drop from his classes early the semester and was not able to go to any of the classes as he had no idea where and when his classes are happening.”
42.2 “It was only until last week that we found out that he was mistakenly withdrawn from the papers and have since enrolled him back into his semester 1 papers.”
42.3 “However, due to his absence from the classes, the lecturer is not allowing him to come into class. He would like to speak with you in person to explain the situation, and is currently on his way to your office.”
43. Email dated 4 April 2017 at 5.01pm. The email referred to the visit by the Student, “Student [redacted] came to see me today as he has started classes this week. Student services seems to have withdrawn him from his classes. I think that it is too late now that we are in week 6 for him to catch up and success.” Advice was sought by the staff member about “what he can do about this semester.”
44. Email dated 5 April 2017 at 12.47pm. The Provider sends an email to the Student advising they have been attempting to contact the Student via telephone “Kia ora [redacted], we are working on your case and would like to know more details from you, however cannot reach you over the phone after five attempts so far. Please advise a good time for us to contact you ASAP as this may impact your study, visa and insurance accordingly.”
45. Email dated 12 April 2017 at 2.06pm. The Provider writes to the Student to outline the decision that had been made about the Student’s ability to continue to study on the programme:
45.1 “Unfortunately, after consulting with the academic leader from your faculty, you cannot continue your study for this semester as you have missed majority of your classes and the chance of failure will be very high therefore we will inform Immigration NZ to cancel your current student visa.
45.2 “We would be happy to transfer the tuition fee you’ve paid for semester 1 2017 to semester 2 2017 so you can continue your study from next semester on (class start on 24th July 2017), please note that there will be no cash refund to you.”
45.3 “If you want to stay in New Zealand legally before your new student visa is approved, you will need to apply for a visitor visa during the interim on your own.”
45.4 “Please reply to confirm if you want us to defer your study to next semester. I will then be able to issue you a new offer of place, you can also contact our visa and insurance advisors copied in this email if you have questions.”
46. A Provider internal email dated 20 April 2017 at 4.16pm discusses the reasons why the Student wasn’t allowed to continue on the programme but also outlines the error in ‘dropping’ the Student by the Provider.
46.1 “The Student missed way too many classes this semester and the AL won’t take them back this semester.”
46.2 “There were issues where we were wrong first – e.g. dropped the Student completely out of the programme and that was a mistake but the student stopped going to class on his own choice too.”
46.3 “[Redacted] has agreed that the Student can defer as a course credit but if he doesn’t show up or ask for his money back next semester, it’s a No.”
47. The Student writes to the Provider on 9 May, 2017 at 4.55pm enquiring about visa cancellation and offer letter “hello [Student officer] Just waiting for your reply from so long what’s going on about visa cancellation and my new offer letter and can I get an appointment with you guyz about more information on this topic.”
48. A Provider email replying to the Student dated 11 May 2017 at 11.56am reiterates the Provider’s decision “Our decision remains the same as my email indicates. We will issue you a new offer of place for semester 2 2017, and to do this, we will drop your enrolments and inform Immigration NZ to cancel your visa today.” The Provider offers to meet with the Student “You are more than welcome to book an appointment with us, please let me know your available time and I will liaise to make sure our manager can meet with you as well.”
49. A Provider internal email dated 12 May 2017 at 9.32am confirms the transfer of tuition fees “to semester 2”.
50. The Student writes to the Provider on 19 January 2018 at 6.37pm requesting a refund and advising he intends to lay a complaint with NZQA.
50.1 “Hi, I hope you guys doing well. I am writing this email to acknowledge you guys that I want my full refund of my fees.”
50.2 “And also I am launching a complaint to NZQA about my situation what happened with me, got dropped from course for no reason and when I came to you guys you put everything and blamed me that it’s all my fault.”
51. The Provider responds to the Student’s email of 19 January 2018 on 22 January 2018 at 11.30am “Thank you for your email. We have escalated your complaint to senior managers at International Office and will be back in touch shortly.”
52. As such, the Student requests a full refund of the fees he has paid to the Provider.
53. The Providers position is detailed in their submissions dated 1 November and 8 November 2019 as summarised below.
54. The Provider’s position is that the Student is not entitled to a refund of his 2017
54.1 “[Redacted] has a number of policies and procedures which form part of the contract of enrolment between [Redacted] and each student. Prospective students have the opportunity to review [Redacted]’s terms and conditions before they submit an application to enrol at [Redacted].”
54.2 “The purpose of [Redacted]’s policies and procedures is to ensure that there is clarity between staff and students alike as to how decision making should be carried out at [Redacted]. The policies ensure that all students are treated equally (with provision being made for exceptional circumstances).”
54.3 “[Redacted]’s international fees refund policy is that students who apply for a place in a course or programme remain liable for fees unless they withdraw prior to the 10% Date. The 10% Date means the date which is 10% of the way through the class duration.”
55. Chronology of events from 2016 to 2019:
55.1 Semester 2 2016: The Student was enrolled in Provider’s [Course One] programme. The timetable for the course was emailed to the student.
55.2 August 2016: The Student is contacted by the Provider with concerns over his nonattendance at classes. The Provider asks the Student if he would like to defer to Semester 1 2017. The Student claimed that he was attending classes (2 classes missed) and completed the semester.
55.3 Semester 1 2017: The Student is enrolled. There were some issues during Semester 1 2017 with the Student’s attendance, and also some administrative issues on the part of the Provider as the Student applied to enrol in a different programme (Bachelor).
55.4 February 2017: The Provider asked the Student to select classes for his second semester.
55.5 14 February 2017: Internal confirmation to enrol the Student on his second semester of Diploma programme. The Student is no longer interested in being enrolled on the Bachelor programme.
55.6 15 February 2017: The Provider emailed the Student requesting him to select classes for their second semester so that enrolment can be actioned.
55.7 28 February 2017: The Student enrolled into 4 papers for the Diploma semester 1.
Note: Each of the 4 papers selected by the Student commenced on 27 February 2017.
55.8 Early March 2017: The Student had the ability to access the course timetable via the Provider’s student online system.
55.9 8 March 2017: The Student’s selected 4 papers for the Diploma programme are incorrectly dropped by staff member.
55.10 28 March 2017: The Provider re-enrolled the Student in the 4 dropped Diploma papers.
55.11 12 April 2017: The Provider informed the Student that he could not continue his study as too many classes had been missed. In the same communication, the Provider offers to transfer the Student’s tuition fee to Semester 2 2017 and informs the Student that there will be no cash refund of fees paid to the Student by the Provider. There is a request from the Provider to the Student to confirm deferring the study to the following semester.
55.12 May 2017: The Student’s enrolment was varied and his tuition fees were deferred to Semester 2 2017 (as a matter of good faith).
55.13 17 October 2017: The Provider acknowledges an application by the Student to return to study a Diploma (Course Two) programme starting in Semester 1 2018. The Provider informs the Student that they are waiting on confirmation of residency and asks the Student “have you returned home or are you still in New Zealand?”. The Provider advised the Student “Once I have confirmation I will be able to issue your offer.”
55.14 24 November 2017: The Student is informed that his application has been withdrawn as the Provider did not receive a response to their previous two emails.
55.15 2017: The Student applied for a refund in 2017, however his request for a refund was refused.
55.16 20 January 2018: The Student made a further request for a refund.
55.17 31 January 2018: The response by the Provider reiterated the outcome of the investigation into the Student’s previous refund request, “My understanding is that last year our previous General Manager of International approved outside of our refund policy as you didn’t meet the criteria for a refund due to missing too many classes in semester 1 2017. We do not refund for missed classes or failing any courses.” The Provider referred the Student to their refund policy. The Provider confirmed that the Student would not receive a refund “Our previous General Manager did in good faith go outside of our refund policy and allow you to have your fees deferred to another semester so that you could continue your studies with us, however, you are not to be refunded.”
55.18 August 2019: The Student submitted a further request for a refund. The Provider “did not at first appreciate that this was a repeat of a request that had been made previously.”
55.19 September 2019: The Student approached the Provider in person to again request a refund. The Student simultaneously sent a refund application to the Provider.
56. On this basis the Provider’s position is as follows:
56.1 The Student is not entitled to a refund of his 2017 tuition fees.
56.2 “As the Student did not attend classes of his own choice”.
56.3 “The administrative error was recognised and the Student was advised that there would be no cash refund and his fees were deferred to semester 2 2017.”
57. The questions which the International Student Contract Dispute Resolution Scheme must determine:
57.1 Is a refund payable to Student [redacted]?
58. 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.”
59. To determine whether a refund is payable to Student [redacted], consideration must be given to the facts and information provided by the Student and the Provider.
60. To determine the refund of paid tuition fees as requested by the Student in this matter, consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds.
61. The Provider, [redacted] have included in their submissions the criteria for providing a Refund for International Students.
62. The Student paid his tuition fees on the 14 April 2016 referred to at  this invoked Clause 235A.4 of the Education Act (1989), “refund period means the period that begins when the student’s fees are paid to the training establishment (or paid directly to the independent trustee) and ends on the date specified in the notice made under section 235B.”
63. The Provider states at [54.3] that “Students who apply for a place in a Course/programme remain liable for fees unless they withdraw in writing prior to the 10% Date.”
64. The jurisdiction of the International Student Contract Dispute Scheme is limited to financial or contractual matters as determined by the Education Act 1989.
65. In this regard the writer’s findings are as follows:
65.1 Following the enrolment onto the Diploma programme there was some concern by the Provider relating to the non-attendance by the Student at his chosen classes. After having reviewed the available submissions and taken into consideration both the Student and Provider information, the writer finds that the Provider have submitted sufficient information to support their account.
65.2 The Student enrolled on more than one programme of study with the Provider which caused some confusion resulting in a situation where the Student’s selected courses were ‘dropped’ and this was not remedied for almost 3 weeks by the Provider.
65.3 In ‘good faith’ the Provider agreed to transfer the tuition fees for the Student from semester 1 2017 to semester 2 2017 and clearly stated to the Student that the option of a cash refund was not available as referenced at .65.4 While the Student has applied for a refund on several occasions, as stated in the submissions ‘The Provider’s Admission, Enrolment and Fees policy referred to at [54.3] outlines the criteria for Refunds for International Students (2.8.2) “Students who apply for a place in a Course/programme remain liable for fees unless they withdraw in writing prior to the 10% Date”.
65.5 After reviewing the submissions, the writer could not find sufficient support for a tuition fee refund as requested by the Student.
66. The proposed decision of the International Student Contract Dispute Scheme was that the Student’s complaint be dismissed.
67. Both parties had a final opportunity to provide further submissions before a final decision from the International Student Contract Dispute Scheme was issued.
68. The parties were invited to provide any final comments on the proposed decision issued 26 November 2019.
69. No further comments have been received from the Student.
70. No further comments have been received from the Provider.
71. The proposed decision of the International Student Contract Dispute Resolution Scheme is confirmed, and the Student’s complaint is dismissed.
11 December 2019