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International Education

National Code Part D, Standard 8

Complaints and appeals

Explanatory guide for Standard 8

Please note this explanatory guide applies to the National Code 2017 and will not apply after 1 January 2018. Factsheets on the National Code 2018 are available here.

Frequently asked questions on this page:

Student appeals
Processes
External processes
Student dissatisfaction
Immigration complaints and appeals
Independent and external.

Registered providers’ complaints and appeals processes are independent, easily and immediately accessible and inexpensive for the parties involved.

This standard ensures international students have a fair, inexpensive complaints and appeals process that includes access to an independent external body if necessary. Providers must make prompt decisions as a student’s visa will restrict his or her length of stay in Australia.

Key requirements for all sectors

The provider must have an internal complaints and appeals process that:

requires a written record if the complaint or appeal cannot be resolved informally
provides a student with the opportunity to formally present his or her case at minimal or no cost
allows the student to be assisted or accompanied by a support person
provides a written statement of the outcome, including details and reasons for the decision; and
requires that processes begin within 10 working days of the provider receiving the formal written lodgement of the complaint or appeal.

The provider must maintain the student’s enrolment while the complaints and appeals process are ongoing. This does not necessarily mean that a student must remain in class.
The provider must have arrangements in place for an independent external person or organisation to hear the complaints or appeals where the provider’s internal process has been completed and the student remains dissatisfied.

The student must be granted immediate access to the provider’s complaints and appeals process. The process must begin within 10 working days of the formal lodgement of the complaint or appeal.
The provider’s documented internal complaints and appeals process must include provision of a written statement of the outcome including details and reasons for the decision.

If the outcome of a student’s appeal through a provider’s internal or external complaints and appeals handling process is favourable to the student, the provider must immediately advise the student of this and implement any decision and/or corrective and preventive action required.

Terminology

The formal complaint or appeals process outlined in Standard 8 is the process which takes place if a grievance cannot be resolved informally (for example, through affected parties discussing the matter).
In some institutions, the words ‘complaints’ and ‘appeals’ have different meanings and result in different processes. The National Code 2007 allows the provider to differentiate between these terms and resulting processes, as long as the minimum requirements of Standard 8 are met and the differences are clearly explained in the provider’s policies and procedures.

8.1	The registered provider must have an appropriate internal complaints handling and appeals process that satisfies the following requirements, or can use its existing internal complaints and appeals processes as long as it meets these requirements:
	a.	a process is in place for lodging a formal complaint or appeal if the matter cannot be resolved informally, which requires a written record of the complaint or appeal to be kept
	b.	each complainant or appellant has an opportunity to formally present his or her case at minimal or no cost to him or herself
	c.	each party may be accompanied and assisted by a support person at any relevant meetings
	d.	the complainant or appellant is given a written statement of the outcome, including details of the reasons for the outcome; and
	e.	the process commences within 10 working days of the formal lodgement of the complaint or appeal and supporting information and all reasonable measures are taken to finalise the process as soon as practicable.

Standard 6 (Student support services) requires that students are given information about the complaints and appeals processes during their orientation programme.
The process must begin within 10 days of receipt of the formal complaint. It must be completed within a reasonable timeframe which takes into consideration the length of a student’s visa and the student’s enrolment in future subjects and/or courses.
The complaints and appeal process must give the student the opportunity to:

formally present his or her case; and
be accompanied or assisted by a support person.

It is important for the provider to make the objective of the process clear in its policies and procedures. For example, is the objective to reach a mediated resolution or is it for the internal complaints and appeals processes to reach a determination? Generally, a mediated solution will be inappropriate when the issue is whether or not the institution followed its own policies and procedures.
While Standard 8 requires the provider to have arrangements in place for complaints or appeals, it does not prescribe the type of appeals process. An institution may use different processes for different types of complaints. When considering which processes are suitable, the provider should bear in mind the appropriateness of the process for the particular kind of complaint as well as accessibility, timeliness, cost and procedural fairness.

8.2

The registered provider must have arrangements in place for a person or body independent of and external to the registered provider to hear complaints or appeals arising from the registered provider’s internal complaints and appeals process or refer students to an existing body where that body is appropriate for the complaint or appeal.

While Standard 8 requires the provider to have arrangements in place for external complaints or appeals, it does not prescribe the process of the external appeal. An institution may use different processes for different types of complaints.
In most cases, the purpose of the external appeals process is to consider whether the provider has followed its policies and procedures – it is not to make a decision in place of the institution. For example, if a student appeals against his or her subject results and goes through the provider’s internal appeals process, the external appeals process (if accessed) would look at the way in which the internal appeal was conducted; it would not make a determination as to what the subject result should be.
The person or body which hears the external complaint or appeal must be independent of, and external to, the registered provider. In order to be considered independent and external, the person or body would generally:

be separated in structure from both parties involved in the complaints and appeals process
have no personal or professional interest in the outcome of the complaints or appeals process
have no influence on the policy setting of the provider
be financially and administratively independent of the provider; and
not have the same directors or managers as the provider.

When reviewing their external complaints handling process, a provider should ensure it is confident of its impartiality and that its procedures are fair and open.
Examples of an external or independent body or person may include:

private conciliators or dispute resolution counsellors
a complaints and appeal body established by a peak industry body
representatives of Commonwealth and state or territory government departments including the Office of the Training Advocate; or
Commonwealth and state or territory offices of the Ombudsman may be the appropriate body for a public provider.

Note: Standard 8 requires the provider to have arrangements in place for external complaints or appeals, and while it does not prescribe the process of the external appeal, institutions should have in place arrangements which are appropriate to their own institution and allow for the timely reporting of students in compliance with student visa provisions.

8.3	If the student is not satisfied with the result or conduct of the internal complaint handling and appeals process, the registered provider must advise the student of his or her right to access the external appeals process at minimal or no cost.

If the student is not satisfied with the outcome or conduct of the internal complaint handling and appeals process, the provider must be able to supply information to the student on how to pursue the appeal through the external appeals process. There should be no charge for advising students of their rights to access an external appeals process. The external appeals process to which the student is referred should be at minimal or no cost.
While not limiting a student’s access to an external appeal process, providers should take measures to work through the issues that are most appropriately dealt with at an internal level prior to referring students to an external appeal body.

8.4	If the student chooses to access the registered provider’s complaints and appeals processes as per this standard, the registered provider must maintain the student’s enrolment while the complaints and appeals process is ongoing.

Until the complaints and appeals process is completed, the provider must maintain the enrolment of the student. To ‘maintain the student’s enrolment’ means the provider does not notify the Department of Education of any change to the student’s enrolment status through the Provider Registration and International Student Management System (PRISMS).
The provider must maintain the student’s enrolment throughout the internal appeals process for all types of complaints or appeals. However, whether the provider must maintain the enrolment throughout an external appeals process depends on the type of appeal.

If the appeal is against the provider’s decision to report the student for:

Unsatisfactory course progress (see Standard 10)

Unsatisfactory attendance (see Standard 11).

The provider must maintain the student’s enrolment (i.e. not report the student for unsatisfactory progress or attendance) until the external complaints process is complete and has supported the provider’s decision to report.

The provider must wait for the outcome of the external process in this case as reporting a student for unsatisfactory progress or attendance may result in cancellation of the student's visa.

If the appeal is against the provider’s decision to:

defer or suspend a student’s enrolment due to misbehaviour

to cancel the student’s enrolment (see Standard 13).

The provider only needs to await the outcome of the internal appeals process (supporting the provider) before notifying the Department of Education through PRISMS of the change to the student’s enrolment.

Once the Department of Education has been notified of a deferment, suspension or cancellation of a student’s enrolment, the student has 28 days in which to:

leave Australia
show the Department of Immigration and CitizenshipBorder Protection (DIBP) a new Confirmation of Enrolment (CoE)

or
provide DIBP with evidence that he or she has accessed an external appeals process.

See Standard 13 (especially Question 23) for further details.

Standard 8 does not require providers to continue to offer learning opportunities throughout the complaints or appeals process. Each provider must decide whether it will continue to offer learning opportunities throughout any appeals process. For example, some providers may decide to exclude a student from attending classes, but continue to provide work to complete outside of the classroom environment. Providers should consider that to deny students learning opportunities throughout the appeals process may disadvantage the students in their subsequent studies should the appeals process find in their favour. If students have missed a few weeks of studies, it may be difficult for them to catch up on this work.

8.5	If the internal or any external complaint handling or appeal process results in a decision that supports the student, the registered provider must immediately implement any decision and/or corrective and preventative action required and advise the student of the outcome.

If a student takes the complaint or appeal to the external process, the student must be informed promptly of the decision reached by the external body.
The provider should update the student’s file to record the outcome, and any subsequent actions.

Compliance tips

For a provider to show it is complying with Standard 8, it may need some of the following as evidence:

a documented complaint handling and appeals policy freely accessible to students
full records of all complaints and appeals and their outcomes
records of corrective and preventative action. Corrective action may include restoring a student’s academic record after an appeal has resulted in a decision in the student’s favour. Preventative action may include introducing a policy that provides more timely feedback to students
evidence of an internal appeals handling process and appeals process that satisfies the requirements listed at 8.1
evidence that the provider has made the student aware of the provider’s obligation to maintain the student’s enrolment while the appeal is ongoing;
a statement of findings in relation to each complaint or appeal that demonstrates the reasons behind the decisions made at each stage of the appeal. Evidence that the statement is issued to the student and a copy retained on the student’s file; and
advice given to students of the independent bodies available to them. Evidence of where a student has accessed an independent body and the outcome of the appeal.

Common questions and answers

Please note: The principles in the questions below can be applied to all sectors.

Q1	Can a student appeal against a provider’s decision not to give a refund?
A	Yes, if the student believes that the provider has not followed the terms of the refund agreement. When writing their refund policies, providers must ensure they are aware of an amendment to Section 28 of the Education Services for Overseas Students (ESOS) Act which commenced on 1 January 2007. This amendment states that if a student is refused a student visa and cannot remain in or commence the course, the refund will be governed by the ESOS Act and not by the provider’s refund policy. The student will be entitled to a refund of all course money calculated in accordance with the ESOS Regulations. Sub-regulations 3.19(2)(a) to (e) allow providers to keep an amount for administrative expenses and a proportion of fees if the student has commenced the course.
Q2	Can a provider have different processes for different types of complaints or appeals?
A	Yes, as long as the processes meet the requirements of Standard 8, and are made clear to students and staff. An institution may use different processes for different types of complaints. When considering which processes are suitable, the provider should bear in mind the appropriateness of the process for the particular kind of complaint, accessibility, timeliness, cost and procedural fairness.
Q3	How many external appeals must be heard before the provider can report the student?
A	If the provider is reporting a student for unsatisfactory progress or attendance, the provider must allow the student to access the external complaints and appeals process. The provider must await the outcome of this process (in favour of the provider) before reporting the student through PRISMS. Under the National Code 2007, providers determine their own complaints and appeals processes in accordance with the requirements of Standard 8. Providers may wish to limit the number of appeals processes through which the student’s appeal may be heard. As long as a provider’s complaints and appeals process allows for an external appeal, it may specify that the student may access and receive the outcome of only one external appeals process before the provider may report the student. By specifying this in the complaints and appeals process, providers will not have to await the outcome of multiple external appeals processes which students may wish to access. Note that this does not stop students from accessing multiple external appeals processes – it just means the provider does not have to await the outcomes of these extra appeals before reporting the student.
Q4	If a student is dissatisfied with the provider’s complaints and appeals processes, what can the student do?
A	The student can contact the Department of Education through the ESOS online enquiry form or through the ESOS helpline 02 6240 5069. The student may send through a complaint at any point, including after he or she has exhausted the provider’s internal appeals process and the external appeals process. The Department of Education will only intervene where the provider’s appeals process was not conducted correctly or if the provider did not make the appeals process available to the student. Good practice would be for the provider to let the student know that help is available from the Department of Education. The student should also be made aware that the Department of Education will only look at whether the appeals process met the requirements of the National Code. The Department of Education will not be looking at whether the outcome of a properly conducted appeal process was right or wrong.
Q5	If the provider’s internal and external complaints and appeals processes support the provider’s intention to report a student for unsatisfactory progress or unsatisfactory attendance, and the provider reports the student through PRISMS, will DIBP hear any further complaints or appeals?
A	Once a student has been reported for unsatisfactory progress or unsatisfactory attendance, DIBP will consider all the information available and if they decide to consider cancellation, DIBP will send a Notice of Intention to Consider Cancellation (NOICC) prior to a decision being made to cancel the students visa. Students will be given an opportunity to respond to the NOICC and explain their situation. The Student does not need to attend a DIBP office.
Q6	How can providers be sure the external appeals processes they wish to use are sufficiently independent and external to meet the requirements of the National Code 2007?
A	Please see the explanatory notes under Standard 8.2. If in doubt, please contact your designated authority.