Issue

1. The Student was accepted into a Program with the Provider.
2. The Student found her studies challenging.
3. The Student was under emotional and financial stress due to her personal circumstances.
4. The Student did not pass one of her two courses in Semester 1.
5. The Student requested that the Provider waive the cost to re-sit this on compassionate grounds.
6. The Student then elected to withdraw from her program of study and requested a refund of the balance of her fees paid on compassionate grounds.
7. The Provider declined both requests.
8. The Student raised a complaint with the New Zealand Qualifications Authority (NZQA) and was referred to iStudent Complaints on the basis that there was a financial dispute between the Provider and the Student.
9. The Provider was notified of the Student’s complaint on 21 February 2019.
10. The Student and the Provider met in mediation on 2 May 2019 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.
 

Background

11. The Student’s Program of Study began on 16 July 2018 and Orientation took place between 9 and 13 July 2018.
12. The Student was unable to join the Program on the above dates and was granted an extension by the Provider of 2 weeks.
13. The Student and her family relocated to New Zealand from (home country) and she began her studies on 20 July 2018 and was provided Orientation at this time.
14. The Student found her studies challenging and was required to resubmit her assessments for two papers.
15. The Student’s submission is that the direction given to her by the on-campus lecturer for one assessment was in conflict with the feedback she received from the marker.
16. The Student successfully completed both resubmits.
17. However, the Student failed the final assessment for one paper and was not given an opportunity to resubmit.
18. The Student was also under personal pressure due to her husband’s injury on 1 September 2018 and subsequent surgery on 6 September 2018. This resulted in him being unable to work and needing her to care for him while he was on bed rest until the end of November 2018.
19. The Student also sustained an injury in early October which impeded her ability to type and write for at least two months.
20. The Student submits that the above “took a toll on her nerves and adversely affected (her) studies resulting in a Fail in the subject.”
21. The Student raised a complaint with the Provider on 24 November 2018 regarding the level of support provided to her for the two papers and the decision of the Provider to not give her the opportunity to resubmit her final assessment.
22. The Provider investigated the Student’s complaint and responded as follows:

“Upon review of the situation it is clear that you were given very specific guidance and feedback throughout your first semester of study, including through your orientation, program tutorials, online discussion forums as well as both the assessment coversheet and the in-text comments on the assessment, when your assessments were returned.”

23. The Provider also advised that resubmit opportunities are “not given as a right for all assessments that do not meet the passing standard” and that a student will not be eligible for a resubmit “if the work submitted does not reflect a genuine attempt to address the assessment tasks and course learning outcomes”, as was the case for the Student.
24. The Student then wrote to the Provider on 15 December 2018 requesting that the Provider waive the fee to re-sit the paper.
25. The Student again wrote to the Provider on 27 January 2019 and advised them that due to the emotional stress she and her family were under, they had decided to return to (home country) during the semester break. The intention behind this visit was to rest and recover so that she could return to New Zealand and continue with her studies in Semester 2.
26. Despite being back in (home country) and having the support of her family, the Student still felt “mentally and emotionally stressed because of the unexpected circumstances, which were beyond my control, I had to face while in (location), and it weighed heavily on my health.”
27. As a result, she consulted a medical professional who prescribed medication and advised her “not to proceed to continue my studies in the near future, til I recover completely.”
28. She also underwent (medical procedure descriptions).
29. In addition, she advised that her husband was still not fully fit to return to his job in New Zealand.
30. On this basis the Student advised the Provider that she would not be able to return to continue her studies in February 2019 for Semester 2.
31. She further requested that the balance of her fees be refunded on “Compassionate/ Health/ Humanitarian grounds and the recommendation of the doctors”.
32. The Provider considered the Student’s request and responded on 31 January 2019.
33. In response to her request to waive the fees to re-sit the paper, the Provider advised that “…upon review of the evidence which has been provided by you, the support given to you during the semester including receiving extensions for assessments, and the reasons for the fail grade given for (the paper), it appears that the compassionate grounds given when requesting the fee waiver were not the reasons why you failed the course. Therefore your request for a waiver of resit fees is declined”.
34. The Provider confirmed their acceptance of the Student’s request to withdraw from her studies.
35. The Provider also advised that as the Student’s request for a refund was outside of the first 10 days of her enrolment, it did “did not fall under the refund regulations of the Education Act 1989” and would therefore be a request for a refund on compassionate grounds.
36. The Provider declined the request for a refund on compassionate grounds on the basis that “Upon review of the evidence which has been provided, it appears that you may be able to return to your studies in the future”.
37. The Provider also advised the following:

37.1 The Provider would hold the balance of the fees in credit for the Student.
37.2 The Student would be required to pay to re-sit any failed courses.
37.3 The Student would be required to complete her program of study within 4 years of her initial enrolment.
37.4 The Program could be completed in New Zealand or offshore “meaning that you are able to study from your home country if you choose do so”.

38. Correspondence from the Student dated 12 February 2019 and the Provider’s submitted Timeline indicate that the cost to study offshore was less than the cost to study in New Zealand.
39. As a result, the Student requested that the balance of her fees ($12,000.00) be used to cover the cost of the two remaining courses as well and the cost to re-sit the paper. She also advised that she would not be returning to New Zealand to continue her studies.
40. The Provider advised the Student that the cost of study was determined by the original location of study at enrolment.
41. The writer’s understanding of this is that the cost of the outstanding two courses would be based on the cost to do these in New Zealand while the cost to re-sit one paper would be the cheaper Offshore cost.
42. As such, the Provider declined the Student’s request in [39].
43. The Student then raised a complaint with the New Zealand Qualifications Authority (NZQA) on 13 February 2019.
44. On the basis that the Student was requesting a refund of the second semester fees, NZQA advised “NZQA cannot award a refund or require an education provider to do so when a student’s refund period has passed, even if compassionate circumstances exist”.
45. The NZQA also advised that after reviewing her complaint, “NZQA has not identified any breaches to NZQA rules or the Education (Pastoral Care of International Students) Code of Practice 2016 by (Provider name) when addressing your concerns.”
46. Further, “NZQA also considers (Provider name) to have acted reasonably in offering to hold your programme fees in credit, which will allow you to complete your studies in your home country should you wish to do so”.
47. As such, the NZQA determined the Student’s complaint to be financial and referred her complaint to the International Student Contract Dispute Resolution Scheme operated by iStudent Complaints on 19 February 2019.
48. The Student’s complaint was acknowledged by iStudent Complaints on 21 February 2019 and the Provider was advised of this on the same date.
49. The Student and the Provider met in mediation on 2 May 2019 in an attempt to reach agreement on the above issue. The matter was referred to adjudication on 4 June 2019 and the Student and the Provider have now had the opportunity to make their submissions.

 

Student’s Position

50. The Student’s submissions to the International Contract Dispute Resolution Scheme are dated 10 June 2019 and 12 June 2019.
51. The Student has responded to the Provider’s position that she is not entitled to a refund of fees on compassionate grounds as she is able to continue her studies in New Zealand or Offshore as follows:

51.1 The Student originally elected to study in New Zealand as her husband was able to obtain a work visa enabling her children to attend school at no cost. Immigration New Zealand have now changed the rules relating to this and her husband is no longer entitled to work in New Zealand and nor are her children able to attend school for free. As such she is unable to return to New Zealand to continue with her studies.
51.2 Her reason for studying in New Zealand rather than in (home country) or online was because she believes this is the preference of prospective employers and will therefore create better employment opportunities going forward. It is the writer’s understanding that on this basis she does not believe that Offshore studies will be worthwhile.
51.3 A further hindrance to returning to returning to New Zealand is the threat of a Trespass Notice against the Student, issued by her landlord in (location). The Student further submits that she is unsure why this has occurred as the they left on good terms with the landlord and even entrusted him to sell their car on their behalf. They have not received the proceeds from this to date. This has caused her further stress and anxiety.

52. The Student also refers to the Provider’s refund policy and that “a refund may be applied for on compassionate grounds” and “may be granted at the discretion of the chief executive” and after the “Student Refund Form has been completed and signed”.
53. The Student states that her request was made by email and she did not submit this form as it was not available online. She further confirms that her request was accompanied with a full explanation of the grounds for her application and medical evidence supporting her claims and detailed in [14] to [30] above.
54. She has also submitted a medical certificate from her medical professional dated 30 April 2019 who concludes that “she is not fit to return to (location) to continue the course”. 
55. The Student submits that she “became the victim of unforeseen hazards while in New Zealand which compelled me and my family to go back to our home country for 12 weeks semester break, to have some rest at home, refreshes and return to (location) to continue my course”. However, once home the mental stress which she had been under in New Zealand escalated and affected her health with the result that she has had to remain under the treatment of a doctor and psychiatrist. The Student is unsure when her physical and mental health will allow her to resume her studies but states that the psychiatrist has advised her to remain under his treatment “for a considerable time in the future too”.
56. The Student’s position is therefore that she is entitled to a refund on compassionate grounds and rejects the Provider’s response that she will not be granted a refund as she is able to continue her studies Offshore.
57. Her further submissions summarise her position as follows:

“If (Provider name) does not accept the compelling grounds of my request and medical certificates as evidence to support a refund, I see it as if (Provider name) want to keep my money held by them on the baseless excuse, untrue assumptions or mala fide intention or whatever the case may be, they will not return my money kept with them. I wonder what else could be the case of a refund on compassionate grounds than my case!”

58. The Student further submits that it is the right of a student to elect whether to complete studies in New Zealand or Offshore and that the Provider has “no right to compel a student” in this regard.
59. As such, the Student requests a refund of the unused portion of the fees she has paid to the Provider in the amount of $12,000.00.

 

Provider’s Position

60. The Provider’s position is detailed in their submissions dated 6 and 11 June 2019 and we summarise these below.
61. The Provider has fulfilled its obligations to provide the Student with Academic and Pastoral support:

61.1 “(Provider name) provided extensive academic and pastoral support to (Student name) during her study. (Student name) was provided with a full orientation and at the time received the Mental Health Association of  New Zealand's guidelines for students in (location).
61.2 (Provider name)'s Pastoral Support team's engagement with (Student name) was extensive (Document Q).
61.3 (Student name) failed her final assessment for a course (Timeline).
61.4 (Student name) spoke to the marker who discussed the reasons for the fail. (Student name) appealed and the fail grade was upheld on appeal. (Student name) received detailed feedback on why she had not passed the assessment.
61.5 NZQA in their letter to (Student name) on 19 February 2019 stated, "NZQA has not identified any breaches to NZQA Rules or the Education (Pastoral Care of International Students) Code of Practice 2016." NZQA Rules include fair and reasonable marking and assessment appeal and complaint processes. The Code of Practice covers all aspects of the pastoral support of international students including the mental wellbeing of students.”

62. The Provider has met the statutory refund requirements:

62.1 “(Student name)'s application for refund falls outside the refund periods stipulated by the Education Act (1989), Education (Refund Requirements for International Students) Notice 2012.
62.2 (Student name)'s refund then is at the discretion of (Provider name) as per the NZQA Student Refunds and Withdrawals — International Students, which states, "From the eleventh working day, any refund is to be at in accordance with the PTE's own refund policy.”

63. The Student is not entitled to a refund on compassionate grounds:

63.1 “(Provider name) considered (Student name)'s request under the college's Withdrawal and Refund Policy (International). (Provider name) did not grant (Student name) a refund as (Provider name) did not have evidence that (Student name) would be unable to continue her studies based on the health concerns presented to the college.
63.2 (Student name) presented evidence of a dislocated finger, which would not have prevented study in the future (Document G). (Student name) provided medical evidence of her husband's injury (Document H). Again (Provider name) did not consider his (injury description) as a reason for (Student name) not to be able to undertake study in the future.
63.3 (Student name) cites stress around her fail but again failing a course is not grounds for a refund, and academic and pastoral support was provided by the college. (Student name) did not it seems reach out for support through the Mental Health Association of New Zealand, an option presented to her at orientation in September 2018.
63.4 (Provider name) agreed to (Student name) completing the two remaining courses for which she had paid, in New Zealand or offshore (Document l) to support her.
63.5 The Postgraduate Diploma in (Program) is approved by NZQA to be delivered offshore.
63.6 NZQA notes in their letter of 19 February 2019 that, ‘NZQA also considers (Provider name) to have acted reasonably in offering to hold your programme fees in credit, which will allow you to complete your studies in your home country should you wish to do so.’”

64. The Provider further submits:

64.1 “There seems to be a fundamental misunderstanding of the (Provider name) refund policy by (Student name). She is not eligible for a refund under statutory conditions outlined in Education (Refund Requirements for International Students) Notice 2012. It is then at (Provider name)'s discretion whether its own refund policy applies. (Provider name) has made the decision that (Provider name)'s refund policy does not apply. To support (Student name), (Provider name) made the offer for (Student name) to complete her studies offshore. This offer was not in lieu of, or in any manner, a "refund". It was offered as a gift of support for (Student name) to complete her study goals.”
64.2 The Provider is not compelling the Student to complete her studies Offshore. This is one option which has been offered to her.
64.3 The Student opted not to continue with her studies in Semester 2 resulting in her visa being cancelled.
64.4 She is able to apply for a new visa so that she can return to New Zealand to complete her studies.
64.5 The fact that Immigration New Zealand have changed the visa requirements is not the Provider’s responsibility.
64.6 Nor are the injuries suffered by her husband or the trespass notice issued on the Student.
64.7 The Provider does not accept the grounds submitted by the Student for a refund.
64.8 It is the Student’s choice to remain in (home country) due to family circumstances.
64.9 The Student has submitted that her stress levels increased on her return to (home country). However, there is “no evidence the stress levels impacted on her ability to write and submit her assessments”.
64.10 Regarding the failed assessment, the Provider states the following:

“(Student name) passed one course and failed the second. For the failed assessment, she met the word count required for the assessment, and she spent time in (Provider name) online working on her assessment, both of which are evidence (Student name) made a genuine attempt to complete the assessment. (Student name) did not address the question in her assessment and thus failed. This is an academic issue addressed by the marker, the Academic Dean and the college's Appeal Against Grade Process.

It does not appear that other mitigating circumstances interfered with her ability to complete the assessment. (Provider name) provided extensions for both her assessments on the basis of her sprained finger.”

64.11 Further in this regard it is the Provider’s opinion that “She did not raise concerns until she had exhausted the academic appeal processes, which indicates (Student name) was seeking any means to avoid paying for and re-siting the course she had failed. (Student name) decided to not return to New Zealand thus voiding her air ticket and her student visa. (Provider name) is not compelling (Student name) to study offshore. She is welcome to return to her studies in New Zealand under a new visa, should it be granted by Immigration New Zealand.”

65. On this basis the Provider’s final position is as follows:

65.1 They reject the Student’s allegation that they did not provide adequate academic and pastoral support.
65.2 The Student’s “health issues do not appear permanent and do not prevent her from completing her studies in the future”.
65.3 As such, the student does not qualify for a compassionate refund.
65.4 The Provider “cannot pass students who do not meet the requirements of their assessments and is not under a statutory obligation to provide free study to students who fail.”
65.5 The Provider has offered to hold the Student’s fees in credit and enable her to complete her studies in her home country.
 

Discussion

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

66.1 Is the Student entitled to a refund of the unused portion of the fees paid on compassionate grounds.

67. 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.”
68. To determine the above, consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds.
69. The Provider in [35] states that as the Student’s request for a refund was outside of the first 10 days of her enrolment, it did “did not fall under the refund regulations of the Education Act 1989” and would therefore be a request for a refund on compassionate grounds.
70. This 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 course of study of three months duration or more, will be eligible for a refund for fees paid should they withdraw from the course within 10 working days of the commencement of the course
71. It is accepted by both the Provider and the Student that she is not entitled to a refund on this basis.
72.The Provider’s refund policy states that “Refunds on compassionate grounds may be granted at the discretion of the Chief Executive”.
73. As such, there is no contractual obligation on the Provider to grant a compassionate refund and further, if they elect to do so, this will exceed the statutory requirements for refunds referred to in [70].
74. From the submissions, the Provider has declined the Student’s request for such a refund on the basis that the Student’s “health issues do not appear permanent and do not prevent her from completing her studies in the future”.
75. Regardless, the jurisdiction of the International Student Contract Dispute Scheme is limited to financial or contractual matters as determined by the Education Act 1989 and an examination of the reasoning for not granting such a refund in this matter is beyond the jurisdiction of iStudent.
76. However, the International Student Contract Dispute Scheme may consider whether it would be fair and reasonable for the Student to be given a refund as per [67].

77. In this regard the writer’s findings are as follows:

77.1 The Student found the Program challenging.
77.2 The Provider gave reasonable academic and pastoral support to the Student during her studies as described in [61].
77.3 The Provider considered the personal circumstances of the Student and in support of this, gave her extensions as described in [64.10].
77.4 While the Student can make decisions and take appropriate action regarding what she considers necessary for her health and family circumstances, and in fact did so by withdrawing from the course and remaining in (home country), it does not follow that this automatically qualifies her for a refund on compassionate grounds.
77.5 The Provider has enabled the Student to complete her studies by providing the opportunity for her to do so  Offshore and has given her up to four years (from her initial enrolment) to do so and will hold her fees in credit for that period.
77.6 The fact that this does not facilitate the Student’s original objective to gain a New Zealand qualification through study in New Zealand detailed in [51.2] is not sufficient basis to lead to a determination that the Provider’s decision was not reasonable.
77.7 Further, while the evidence regarding her mental health submitted by the Student in [54] indicates that at present she may be unable to return to New Zealand to study, it does not follow that she will never be able to do so.
77.8 Regardless, she is able to complete her studies Offshore once she feels well enough.
 

Proposed Decision

78. The proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint be dismissed.
79. Both parties now have a final opportunity to provide further submissions before a final decision from the International Student Contract Dispute Scheme is issued.

 

Final Decision

80. The parties were invited to provide any final comments on the proposed decision issued 28 June 2019.
81. No further comments have been received from the Provider.
82. The Student has indicated that she disagrees with the findings of the adjudicator based on her original submissions set out above.
83. As these have already been considered, the proposed decision of the International Student Contract Dispute Resolution Scheme is confirmed, and the Student’s complaint is dismissed.


Dated:  23 July 2019  
Samantha deConing
Adjudicator
International Student Contract Dispute Resolution Scheme