THE UNIVERSITY OF AUCKLAND V THE INTERNATIONAL EDUCATION APPEAL AUTHORITY AND ANOR HC AK CIV 2006-485-000063

THE UNIVERSITY OF AUCKLAND V THE INTERNATIONAL EDUCATION APPEAL AUTHORITY AND ANOR HC AK CIV 2006-485-000063 21 December 2006FILE NOT TO BE SEARCHED WITHOUT LEAVE OF A JUDGE OF THIS COURT ˝ IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-485-000063UNDER the Judicature Amendment Act 1972 IN THE MATTER OF the Education Act 1989 BETWEEN THE UNIVERSITY OF AUCKLAND Plaintiff AND THE INTERNATIONAL EDUCATION APPEAL AUTHORITY First Defendant AND LISA ANN SUMMERS Second Defendant Hearing: 19 September 2006 Appearances: D J Neutze/Ms V T Bruton for Plaintiff J Oliver for First Defendant G M Illingworth QC as Amicus Judgment: 21 December 2006 at 3.00 p.m.JUDGMENT OF VENNING J7KLVMXGJPHQWZDVGHOLYHUHGE\PHRQ'HFHPEHUDWSPSXUVXDQWWR5XOH  RIWKH +LJK&RXUW5XOHV 5HJLVWUDU'HSXW\5HJLVWUDU 'DWH«««««Solicitors: Brookfields, Auckland Crown Law Office, Wellington Marshall Bird & Curtis, Auckland Copy to: G M Illingworth QC, Auckland P A Cunningham, AucklandIntroduction[1] The plaintiff University seeks to quash the adverse findings by the first defendant, The International Education Appeal Authority (IEAA) concerning the treatment by the plaintiff of the second defendant together with the sanctions imposed by the IEAA on the plaintiff.Background[2] In February 2004 the second defendant applied for a placement in a graduate teaching programme run by the Auckland College of Education. Her application was processed and approved within a very short time frame. She was enrolled for a 36 week teaching course to commence 1 March 2004, ending November 2004. The second defendant arrived in New Zealand just before the course was to start. [3] In September 2004 the Auckland College of Education amalgamated with the plaintiff. [4] The second defendant failed to meet course requirements. The plaintiff terminated her enrolment in the graduate diploma of teaching course on 8 September 2004. [5] On 23 November 2004 the second defendant made a complaint to the IEAA through counsel. [6] The IEAA is a statutory body established under the Education Act 1989 with power to investigate and determine complaints from international students in respect of alleged breaches of the code of practice for the pastoral care of international students, as revised in December 2003 (the Code).[7] On 28 October 2005 the IEAA completed a preliminary assessment in respect of the complaint and called for further submissions from the parties. [8] The plaintiff made further submissions on 21 November 2005. [9] On 23 December 2005 the IEAA issued a final report in respect of the second defendant's complaint. [10] The IEAA found that the plaintiff had breached the code in a number of respects. [11] The IEAA directed the plaintiff to refund the tuition fees of $17,500.00 together with interest down to the date of payment and to pay $2,000.00 towards the second defendant's legal costs. In default of payment the IEAA directed that the plaintiff's name was to be published in connection with any report of the case and also that non payment would result in the matter being referred to the International Education Review Panel. [12] The International Education Review Panel has power, under s 238G of the Education Act 1989, to either remove or suspend the plaintiff as a signatory to the code.Representation[13] The IEAA is represented by counsel from Crown Law. Mr Oliver confirmed that the IEAA would abide the decision of the Court but counsel appeared to assist the Court. During the hearing Mr Oliver made submissions in support of the IEAA's position. [14] The second defendant was not represented at the hearing but Mr Illingworth QC was appointed as amicus curiae to assist the Court. In his very thorough submissions Mr Illingworth set out all arguments that could, in his view, have been responsibly and properly advanced on behalf of the second defendant if she had played an active role in the proceedings.Jurisdiction for review[15] All parties accept that through her investigation and report under the Education Act 1989 the IEAA was exercising statutory powers of decision as defined in the Judicature Amendment Act 1972.Legislative background[16] The position of international students is provided for in Part 18A of the Education Act 1989. The code is established under s 238F. Unless they are a signatory to the code an education provider may not enrol an international student. The IEAA was also established under s 238F (2). Section 238F, as relevant reads:(1) The Minister may publish a code of practice that provides a framework for the pastoral care of international students. (2) Without limiting subsection (1), the code may include provisions for all or any of the following purposes: (e) establishing the IEAA to investigate and determine complaints from international students about alleged breaches of the code, after all internal grievance procedures have been exhausted, and to refer appropriate cases to the review panel; setting out rules of procedure or empowering the IEAA to regulate its own procedure; and, subject to section 238G, specifying the remedies and sanctions it may impose: The complaint[17] The second defendant's complaint identified the following issues as matters of concern to her: (1) Provision of inadequate or misleading information relating to living and course related costs. (2) Lack of advice about refund provisions.(3) Failure to appropriately assess accommodation recommended by the plaintiff or to provide safe accommodation. (4) Failure to provide adequate induction into the programme. (5) Failure to provide information and advice regarding harassment and failure to provide appropriate counselling services. (6) Placing the second defendant at a school where she was physically assaulted. (7) Failure by the plaintiff to provide adequate support and/or advocacy at the review meeting. (8) The manner in which the decision was made to exclude the second defendant was substantively and procedurally unfair. (9) Failure to provide information about the code of practice and the plaintiff's internal grievance procedures. (10) Failure to advise the second defendant of the designated person responsible for pastoral care of international students.The second defendant's background[18] To put the second defendant's complaint and the subsequent investigation and findings by the IEAA in context the following further detail is relevant. The second defendant is a Canadian citizen. At the time of her application to the plaintiff the second defendant was 30 years old. She held degrees in law and political science. The second defendant had experience of living overseas. Between 1994 and 1995 when she was 21 to 22 she spent a year in France working as an au pair. Whilst studying law she had a two month internship with the United Nations in Geneva in 1999 and 2000 when she was 26. After completing her law degree she also studied Spanish in Peru for a time in 2000. The second defendant also hadsome, albeit limited, experience with teaching. In support of her application for enrolment she noted that she had worked as a teaching assistant with primary school children, had worked with grade 7 and 8 students, and had been a youth counsellor with teenagers during summer school.The findings[19] In the report which is subject to review, the IEAA found the plaintiff was in breach of the code in the following eight respects: (1) Neither the College nor its agent provided the second defendant with adequate information about the cost of tuition and all other course related costs in written or in electronic format prior to her entering into any commitment, in breach of cl 4.2.1 of the code. (2) In providing information which was likely to mislead the second defendant about the cost of living and studying in New Zealand the plaintiff by its agent failed to conduct its contractual dealings with the second defendant in a fair and reasonable manner in breach of cl 13.2 of the code. (3) In failing to provide the second defendant with information about its refund conditions in written or electronic format before the second defendant entered into a commitment the College was in breach of cl 4.2.4 of the code. (4) In failing to advise the second defendant as to whom all inquiries about pastoral care should be made the plaintiff was in breach of cl 15.1 of the code. (5) In failing to designate an appropriate person for all inquiries about pastoral care from international students the College was in breach of cl 15.1 of the code.(6) In enrolling the second defendant in a course lasting longer than three calendar months in circumstances where she did not hold a current student permit the plaintiff was in breach of cl 10.1 of the code. (7) In offering a place to the second defendant the plaintiff failed to exercise reasonable care in assessing the extent to which the proficiencies and career intentions of the prospective international student were matched by the education opportunities offered by the plaintiff in breach of cl 7(1) of the code. (8) In failing to make an adequate assessment of the second defendant's suitability for the course and the likely impact on her ability to settle without an adequate lead in time the plaintiff failed to conduct its contractual and financial dealings with the student in a fair and reasonable manner in breach of cl 13.2 of the code. [20] The findings at 7 and 8 were supported by earlier conclusions of the IEAA that:• it was possible the short-time frame in which the second defendant was recruited and commenced her course and the lack of time she had to adjust before the course commenced meant she was unable to successfully complete the course;• it was possible the second defendant was not a suitable candidate for teacher training; and• the plaintiff had failed to exercise reasonable care in the recruitment and enrolment of the second defendant. [21] The IEAA then imposed the sanctions referred to at [11] and, in addition, made a number of recommendations. [22] The findings of the IEAA can be grouped into a number of general categories.• 1 and 2 find failure in relation to the provision of information as to the cost of the course and the cost of living in New Zealand.• 3, 4, and 5 are findings the plaintiff failed to formally provide information such as refund options and who was responsible for pastoral care.• 6 is a finding the plaintiff breached the code by enrolling the second defendant in a course when she did not hold a current student permit.• The principal adverse findings made by the IEAA are findings 7 and 8. They are that the plaintiff failed to exercise reasonable care in assessing whether the second defendant was suitable for the course. Neither of those allegations were raised or pursued by the second defendant in her complaint to the IEAA. [23] In the course of the investigation and preparation of the report the IEAA received evidence from a number of parties. That evidence is reviewed at pages 2 to 38 of the decision. The relevant provisions of the code are then set out. The decision follows at pages 40 to 55. It is of note that approximately one third of the reasoning for the decision itself, from pages 51 to 55, is focused on the issue of the recruitment and suitability of the second defendant for the course when that issue was not advanced as a complaint by the second defendant. [24] In support of the application for judicial review the plaintiff has filed affidavits by a number of people including Messrs Holloway and Wills, the director for international students and executive officer of the University respectively; Mr Johnson, a director of Can Teach which acts as agent for various teacher training institutions both in New Zealand and overseas and who was the second defendant's first point of contact; Mr Robin McGill, a counsellor employed by the plaintiff; Associate Professor Seymour, head of the Department of Psychology and a practising clinical psychologist; Ms West, an artist; and Mr Niven, a solicitor, both of whom purchased cheap motor vehicles; and Ms Symes, deputy principal at Otahuhu College and the practicum co-ordinator at the College who dealt with the second defendant during her time at the College. Affidavits have been sworn onbehalf of the second defendant including an affidavit by Mr McLeod, an immigration lawyer. The IEAA has also filed reports for the purposes of this hearing. [25] Mr Illingworth submitted that much of the affidavit evidence presented on behalf of the plaintiff was inadmissible. He submitted the evidence was objectionable as:• a debate over the merits of the decision;• opinion evidence as to the ultimate issue for the Court;• no more than legal submissions;• an ex post facto challenge to the competence of a professional witness; and• an infringement of the principle referred to by the President of the Court of Appeal in Roussel Uclaf Australia Pty Limited v Pharamaceutical Management Agency Limited [1997] 1 NZLR 650:What is under review is a challenge to the integrity of the earlier decision- making process, on which the new material does not impinge in any significant way. New opinion evidence, not presented to the decision maker, can seldom help to demonstrate that a decision on what is essentially an evaluation exercise was unreasonable when made. It is not appropriate to allow in this material which was not before the decision maker, and was largely brought into existence after the impugned decision was made, and to do so essentially for the purpose of casting doubt on the substantive reasonableness of the decision. (per Richardson P) (p 658)[26] While acknowledging the general principles that Mr Illingworth referred to as to the admissibility of evidence in judicial review proceedings, I do not accept that all of the additional evidence provided for the purposes of this application for review is inadmissible or irrelevant. The initial affidavit of Mr Wills annexes a number of relevant documents and sets the historical background to the application for review. To that extent it is unobjectionable. Aspects of the affidavit then appear to be submission but those aspects were directed at the University's request for interim relief, which was granted.[27] Mr Wills' second affidavit does contain a significant amount of submissions as Mr Illingworth observed. But there are other aspects of the affidavit that refer to passages of relevant evidence and the submissions made to the IEAA by the University. As such they are largely unobjectionable. It is a matter of the weight to be put on the matters that are identified by Mr Wills. [28] I accept passages of Mr Johnson's affidavit are argumentative and amount to submission. However, again there are significant passages of the affidavit that are unobjectionable and provide references to the relevant emails, all of which were available to the IEAA. [29] The evidence of Mr Holloway deals with the immigration issue. Mr Holloway's evidence is largely an attempt to explain the approach the University takes to immigration and the way it has developed its procedures for enrolling overseas students. In large part the issues that Mr Holloway referred to were addressed in the University's submission. Mr Holloway's affidavit was responded to by Mr McLeod. Mr McLeod's affidavit clarifies the issue from the point of view of the second defendant. [30] The evidence of Ms West and Mr Niven as to the price of a second-hand car is new material. Although the plaintiff made submissions about the issue, the affidavits were obtained for this hearing. The evidence is not admissible. [31] The evidence of Ms Symes, who was interviewed by the IEAA in the course of her investigation, is relevant and admissible to the issues before the Court. [32] The evidence of Associate Professor Seymour is of relevance to the reliance placed on a medical report by the IEAA. But at the end of the day the IEAA did not, in my view, place particular weight on that medical report so that the evidence of Professor Seymour is of limited assistance to the Court. [33] In summary, while I accept that certain of the evidence objected to by Mr Illingworth is inadmissible, there are also a number of admissible passages ofevidence in the affidavits before the Court. In a number of instances the issue is not so much the admissibility, but rather the weight to be given to the evidence.The grounds for review and the approach to review[34] The plaintiff says that the decision should be set aside on the grounds of unfairness as the IEAA had apparently predetermined the matter and was apparently biased against the plaintiff. In addition the plaintiff says that the IEAA made a number of errors of law in coming to her decision, that she failed to take into account relevant considerations, took into account irrelevant considerations and acted ultra vires. Finally the plaintiff submits that the IEAA decision and sanction was unreasonable and disproportionate to the findings and that no reasonable Authority could have made the findings. [35] The grounds of challenge in this case fall under all the three heads identified by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service[1985] 1 AC 374, 410 (HL) as illegality, irrationality and procedural impropriety. [36] Although the plaintiff has identified a number of separate grounds of challenge to the findings, it must be acknowledged that in applications for judicial review the grounds routinely overlap and there is no fine distinction between them, as was recognised by Lord Cooke in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544:The remaining grounds contain a good deal of overlapping, as is often the case in administrative law In various ways they amount to claims that the Minister was in breach of his duty to act fairly, reasonably and in accordance with the law.[37] Mr Neutze referred to a number of authorities and submitted that a "close- look" approach should apply to the review in this case. [38] I accept that the Wednesbury test of unreasonableness is no longer automatically to be regarded as the invariable or universal test in New Zealand public law and that the intensity with which an administrative body's decisions are to be scrutinised will vary according to the subject matter in hand: A v Chief Executiveof the Department of Labour & Anor (unreported, HC Auckland, CIV 2004-404- 6314, 19 October 2005, Winkelmann J); Wolf v Minister of Immigration [2004] NZAR 414; Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17;Progressive Enterprises Limited v North Shore City Council [2006] NZRMA 72. In a helpful and instructive article in Administrative Law [2006] New Zealand Law Review Professor Taggart extracted and identified a range of approaches to judicial review from the cases. Professor Taggart categorised them as running from correctness review at the one end to non justiciable matters at the other. He identified the range as:• Correctness review;• Anxious scrutiny;• Proportionality review – hard look doctrine;• Reasonableness simpliciter (Canada); or intermediate/sliding Wednesbury reasonableness review;• Logically fallacious;• Outrageous/patent unreasonableness (Canada) or super-Wednesburyunreasonableness)• Bad faith, fraud or corruption;• Non justiciable. [39] Mr Neutze referred to the following factors as supporting a close-look approach in this case:• The potential significance of the adverse decision for the plaintiff.• The potential for recommendation of suspension or removal as signatory to the code.• The fact the impugned decision raised issues of natural justice, procedural fairness and apparent predetermination. (I record that Mr Neutze clarified that the plaintiff did not allege actual bias, but rather alleged apparent bias or apparent predetermination).• There was no hearing as such.• The potential for the IEAA's procedures and decisions to cut across the principles of academic freedom and institutional autonomy provided for in ss 160 and 161 of the Education Act. [40] I am not able to accept Mr Neutze's submission that the case requires a "close look". I agree with Mr Illingworth's submission that in this case the appropriate test is the traditional Wednesbury approach. The case does not raise issues of human liberty, human rights or matters of high constitutional importance. While on one view it could be said the findings could have a serious potential impact on the plaintiff, the most serious outcome is suspension or removal from the code. The plaintiff is not in present danger of that. It could address that issue by payment of the monies directed by the IEAA. I am content to deal with the matter on the basis of a reasonableness simpliciter or intermediate/sliding Wednesburyreasonableness review. [41] In the alternative Mr Neutze submitted that even if the Wednesbury test were applied the decision was so flawed in this case that it could not stand on the basis that no reasonable authority could have made the findings that the IEAA did in this case.Discussion – Findings 7 and 8[42] While the plaintiff challenges all the adverse findings against it by the IEAA, the most serious findings and the primary justification for the sanctions imposed are the findings at 7 and 8 that in offering the place to the second defendant the plaintiff was in breach of cl 7.1 of the code and in failing to make an adequate assessment of her suitability for the course the plaintiff was in breach of cl 13.2 of the code. Inshort, the IEAA considered the second defendant was not suitable for the course and the plaintiff should not have enrolled her. [43] Clause 7.1 of the code provides:7. Accepting international students for enrolment 7.1 Offers of course placement by a signatory to an international student must be based on an assessment of the extent to which the proficiencies and career intentions of the prospective international student are matched by the educational opportunities offered by the signatory.[44] Two preliminary points can be made in relation to finding 7 that the plaintiff was in breach of cl 7.1. First, the second defendant did not allege as a complaint against the plaintiff that she was not suitable for acceptance into the graduate teaching programme and should not have been accepted for it. Second, all that cl 7.1 requires is that there be "an assessment" of the match between proficiencies and career intentions and the educational opportunity offered. [45] Returning to the first point. The second defendant's list of complaints, as forwarded through her counsel was an extensive list. The list did not, however, include any complaint by the second defendant that she should not have been accepted into the course or was otherwise unsuitable for it. Indeed in the course of correspondence between the second defendant's solicitor and the authority her solicitor advised, in a letter of 29 March 2005:I think it is accepted by both parties that Ms Summers was an appropriate candidate for enrolment in the secondary teaching diploma course. In fact, based on Ms Summers credentials, one would have expected her to have been a high achieving student.[46] Despite that the IEAA went beyond the second defendant's complaint and pursued her own inquiries into whether the plaintiff should have accepted the second defendant into the course. The IEAA justifies expanding her inquiry in that way by reference to s 238F(2)(e) of the Act which provides the code may include provisions to establish the IEAA to "investigate and determine" complaints from international students. The reference in that section can be contrasted with the only expressreference in the code to the role of the IEAA in relation to complaints which appears at cl 25.1 and provides that the IEAA: is established to receive and adjudicate on complaints received from international students and their authorised agents/representatives, or referred by the Administrator, concerning alleged breaches of the Code. (emphasis added)[47] The role of the investigating body will vary depending on the relevant statutory, and in this case, code, terms: Furnell v Whangarei High Schools Board[1973] AC 660,680. [48] Despite the difference in wording between the statute and the code, there may be little difference in practice. To adjudicate on the complaint that she has received, the IEAA will be required to consider and look into the complaint, i.e. to investigate the complaint. The Act and code contemplate a process pursuant to which, on receipt of a complaint, the IEAA will call for a response to the complaint from the educational institution, will make that available to the complainant and his or her advisors and then will make whatever other inquiries in relation to the complaint are necessary to determine the particular complaint. In her further report for the hearing, the IEAA confirmed the terms of the memorandum of understanding between her and the Ministry are that she will investigate complaints by "obtaining evidence which supports or refutes the claim of either the student or signatory. There will not be a formal hearing ". To that extent, the IEAA will necessarily investigate the complaint. But the complaint(s) must define the extent of the investigation. Any investigation by the IEAA must be informed by the particular complaint. It is not a case of the IEAA having to approach her task "with blinkers on" as Mr Illingworth suggested would be the result of such approach. There must be some latitude to enable the IEAA to properly determine the complaint, but the IEAA can not effectively create or state a fresh complaint of her own and then investigate it. That is not her role. Her role is to adjudicate on complaints that she has received. That that is the correct approach is supported by the provisions of the Act and the code. The complainant has resort to the IEAA only once he or she has exhausted the institution's internal grievance procedure (s 238F(2)(e) of the Act, cl 25.5 of the code).[49] The IEAA fell into error in the present case by going beyond the ambit of the areas of complaint raised by the second defendant. As noted, despite the acknowledgement by the complainant's solicitor that the second defendant was a suitable candidate for the course, the IEAA has gone on to spend a considerable amount of her decision on that issue. That misdirection seems to arise out of the misapprehension by the IEAA that her role is to:consider what might amount to "best practice" in a particular facet of the recruitment, welfare and support of international students.as referred to in the report by the IEAA of June 2006 for the purposes of this proceeding. That can be contrasted with the discussion document issued by the Ministry of Education in 2003 which referred to the purpose of the code as being:fundamental in supporting New Zealand's export education industry and protecting international students in New Zealand. In particular it advances minimum standards and introduces a benchmark for good industry practice.[50] There is a ready distinction to be made between the concept of "minimum standards and a benchmark for good industry practice" referred to by the Ministry as the objective of the code and the view of the IEAA that the code provides an opportunity for the IEAA to consider what might amount to "best practice" in a particular facet of the recruitment, welfare and support of international students. The code, which is itself published by the Minister, does not make reference to that or support the IEAA's view. The stated purpose of the code itself is to "provide a framework for education providers for the pastoral care of international students". Further, the wording of particular clauses of the code are not supportive of a "best practice" approach. The code uses such phrases as "reasonable grounds", "assessment", and "fair and reasonable manner". [51] The view of the IEAA as to her role to advance "best practice" is apparent from the exchange of email between the Authority, the IEAA and the University on this issue. It is sufficient to refer to the following passage by email of 23 September 2005 to Mr Wills of the University. The IEAA stated:I think I should say at this point to both yourself and Mike that the complaints mechanism under the code is not just about dealing with a students grievance. It is also about providing an opportunity to gain someinsights as to how education providers can improve their systems for dealing with international students.[52] However, absent express authorisation in the code to that effect there is no basis for the best practice approach referred to by the IEAA in the report for this hearing or her comments in the email which show her intention. The concerns of the IEAA are provided for in other clauses of the code – for example cl 30 which provides for the Administrator (not the IEAA) to establish and implement procedures for monitoring compliance. The "best practice" approach by the IEAA is also likely to lead to conflict with the specific provisions of ss 160 and 161 of the Education Act 1989 which provide inter alia:160 ObjectThe object of the provisions of this Act relating to institutions is to give them as much independence and freedom to make academic, operational, and management decisions as is consistent with the nature of the services they provide, the efficient use of national resources, the national interest, and the demands of accountability.161 Academic freedom(1) It is declared to be the intention of Parliament in enacting the provisions of this Act relating to institutions that academic freedom and the autonomy of institutions are to be preserved and enhanced. (2) For the purposes of this section, academic freedom, in relation to an institution, means— (c) The freedom of the institution and its staff to regulate the subject-matter of courses taught at the institution: (d) The freedom of the institution and its staff to teach and assess students in the manner they consider best promotes learning:[53] The significance of ss 160 and 161 and the constraints they place on another party such as an Ombudsman (or in this case the IEAA) were emphasised in the case of Grant v Victoria University of Wellington [2003] NZAR 185. [54] It follows that I accept the submission for the plaintiff University that the IEAA has misconstrued her role in this case which is to receive and adjudicate on complaints from students and I find that the IEAA's power does not extend to investigate possible breaches of the code outside the ambit of the complaint itself, with a view to improving best practice. The position is even a fortiori in the presentcase where the complaint created and investigated by the IEAA was contrary to the statement of the complainant's own lawyer. [55] The second issue is the nature of the requirement under cl 7.1 of the code for an assessment of the match between the proficiencies and career intentions of the second defendant and the educational opportunity offered by the signatory. The IEAA found the plaintiff failed to take reasonable care in assessing that match. According to the Oxford English Dictionary an "assessment" is, in relation to educational matters;5b The process or means of evaluating academic work; an examination or test.[56] Clause 7.1 requires the plaintiff to consider whether the proficiencies and career intentions of the second defendant were matched by the course proposed by the plaintiff. It requires no more than a good faith assessment or evaluation by the education provider as to the suitability of the applicant for the course. The mischief it is directed at is to ensure that the provider does not put someone into a course for its own economic benefit without considering whether there is a match between the student and the course. The wording of cl 7.1 can be contrasted with cl 6.1 of the code which provides for the situation of a course requiring a level of English oral and written competency. Section 6.1 requires a signatory to assess and be satisfied on "reasonable grounds" that the competencies are met before offering a place or accepting a student. There is no such requirement for a "reasonable grounds" assessment in the case of the match under s 7.1. [57] Even if there were a requirement for a reasonable grounds assessment, the plaintiff would have satisfied the test in the present case. The plaintiff was faced with an application by a mature English speaking student who had shown proven academic ability in obtaining the two degrees she had already obtained. The plaintiff through Ms Baddiley then conducted an interview with the second defendant to consider her suitability before offering her a place in the course. The IEAA recorded the second defendant's view of the interview in the following way:She recalled the interview was about half an hour long. She spoke to Ms Baddiley about her experience in teaching. Her recollection was that theyhad discussed why she wanted to pursue a career in teaching and other questions but she could not recollect what those questions were. Ms Summers said that she had told Ms Baddiley that she had always enjoyed teaching. She wanted to get her teaching qualifications and that study in New Zealand would be a great cultural experience for her. She did not recall telling Ms Baddiley of her concerns as to whether she would be able to teach high school students. Ms Summers noted in this regard that whilst it was an initial concern, it was not a concern based on previous experience.[58] The IEAA recorded Ms Baddiley's evidence as inter alia:The College makes two decisions. The first is whether or not the applicant has met the requirements for admission into the institution. This would include holding a degree. The College then makes a selection decision. In Ms Summers' case there was no difficulty about admission to the institution because she already had a degree. The College then concentrated on the issue of selection into the programme international students are interviewed by telephone [Ms Baddiley] interviewed Lisa Summers by telephone. She completed an assessment of Ms Summers' suitability for the course based on that interview and the application faxed to the College by Ms Summers. The assessment showed Ms Summers scored 23 out of 30 points in the interview. The requirement is that the students score at least 20 out of 30 points to come on to the programme. Ms Summers' score of 23 is a very healthy mark. Generally speaking the marks do not fall into a wide range. Anything from 20 to 23 is probably about normal. Anything over 23 is relatively unusual. The score of 8 given for communication indicates that Ms Baddiley was impressed with Ms Summers' levels of communication. Ms Baddiley said To get a score of 8 under the heading "personal attributes" means that Ms Baddiley thinks this person might be a really compelling teacher. The third issue considered is involvement/experience in New Zealand. Ms Summers was awarded 7 for this category. This is a fairly average mark Overall Ms Summers impressed Ms Baddiley when she was interviewed as being someone who is able to present well, who had the potential to come here and be a very strong teacher. Ms Baddiley said she did not have any reservations about Ms Summers' ability to meet the criteria.[59] The IEAA then noted in the course of the report reservations the second defendant had expressed in an email to Mr Johnson of 23 February 2004:To be honest with you, I have had my fill of the ESL so it's definitely not something I would want to teach anymore after a B Ed – I was hoping for Social Sciences, French or English. I also would have preferred teaching grades 4 and 5 – is there any way to do a combined programme or is it just too late? I was a bit divided anyway – I just know that Junior High is too much for me to handle!. And I am very petite so the High School students might be intimidating but I suppose, perhaps more interesting at that level.[60] Ms Baddiley was not aware of those comments, but said that if she had been: the comments may suggest a misconception on the part of Ms Summers but would not be a barrier to her being selected for training.[61] The IEAA then records that:Ms Baddiley said that there was no information available to her that Ms Summers wanted to select primary teaching. Ms Baddiley said that had she had been aware of the email, she would probably have taken a reassuring approach. She has seen some very tiny secondary school teachers who do not have issues with high school students because of their professional manner and the way related to those students.[62] In fact Mr Johnson had responded to the second defendant's email to confirm:Your teaching degree is for grades 7-13 here which would qualify you to teach Elementary Junior, Junior and Senior High School. The hiring district would make the final decision of where you would be working. There is going to be a shortage of Senior High Teachers, not Elementary. I help you apply for your NZ teaching cert and then back to ON. I get you all those details just before you are done your program.[63] The IEAA seems from the reasoning in her decision to have come to the view that the College was focussed on obtaining Ms Summers' enrolment more than ensuring that she had reasonable prospects of completing the course and obtaining teacher registration. The IEAA supports that reasoning in a number of ways. [64] First the IEAA makes the point that cl 7.1 requires consideration of proficiencies, which is not limited to qualifications relied on to gain admission. But Ms Baddiley's evidence, as referred to by the IEAA makes it clear that the formal requirement for admission, i.e. the holding of a degree is only the first consideration. There is then a selection decision. During the selection decision the applicant's proficiencies are considered, as they were in this case. There is no evidence to the contrary. Next, the IEAA refers to the email of 23 February and says the plaintiff should have been aware of those comments. However, again Ms Baddiley's evidence to the IEAA answers that issue. Ms Baddiley was not aware of the comments. But even if Ms Baddiley had been aware of those comments, it would not have led her to consider the second defendant was unsuitable. Again, this evidence is not challenged. The IEAA does not deal with Ms Baddiley's response in her decision. Significantly, the IEAA records that the second defendant did notrecall telling Ms Baddiley of her concerns as to whether she would be able to teach high school students and that while it was an initial concern it was not a concern based on previous experience. Also, as noted, Mr Johnson responded to the second defendant on this issue. But in any event, the second defendant's concerns are more than addressed by the scores that the second defendant achieved during the formal assessment carried out by Ms Baddiley. The overall score of 23 was regarded by Ms Baddiley as a very healthy mark. The applicant was assessed as having a score of 8 for communication and a score of 8 under the heading of personal attributes. That led Ms Baddiley to consider the second defendant might be a really compelling teacher. It cannot seriously be suggested, as the IEAA does, that at the interview in 2004 Ms Baddiley should have explored with the second defendant the apparent gap in her education from 1995 to the fall/winter term of 1996. [65] The IEAA then refers to the facts that the second defendant:• did not complete the official college application form, which included a declaration relating to health;• did not provide a police vet check;• was not asked to provide confidential referees; and• did not provide the personal statement usually provided for in the official application form in support of the finding the plaintiff did not properly assess the second defendant's suitability. [66] However, these matters were all subsequently attended to satisfactorily. Ms Summers confirmed in the application form that she ultimately completed that her health was good. The references supplied were supportive of her. There was no reason for the plaintiff to have gone behind those references in the circumstances of this case. The offer of placement was made conditional, inter alia, on a satisfactory police check.[67] Next, the IEAA noted that the interview was conducted only by Ms Baddiley rather than by a committee. However, it seems the interview took half an hour as compared to 10 minutes for domestic students and it followed the structured format and assessment that the plaintiff had developed to assess an applicant's proficiencies. It must also be borne in mind the second defendant had some experience of teaching. [68] The IEAA also referred to and relied on Ms Symes' comments to support her finding of breach. Ms Symes supervised the second defendant at her practicum. On 8 April Ms Symes had said that:I believe that Lisa needs to seriously consider the wisdom of pursuing teaching as a career path.[69] The IEAA places some weight on the fact that Ms Symes expressed that view within five weeks of the second defendant commencing study. But Ms Symes confirms in her affidavit that when she dealt with the IEAA, she also made it clear that when she spoke to the IEAA she made the further comment:Whilst it is important for an education provider to have a robust selection process, I don't think this can ever be perfect. Some people who are not suited to teaching will inevitably be selected and providers can't be criticised too heavily for that. What is really important and absolutely the responsibility of the provider is that unsuitable people are, through the course of study, identified and not allowed to get through, i.e. graduate. In my view [the plaintiff] was right not to allow Lisa to graduate (I also understand that this view does not help your case). (emphasis added)[70] The finding of the IEAA is equivalent to saying that every student who fails a course should not have been admitted to it in the first place. Ms Symes' evidence does not support that conclusion. Also, in her affidavit Ms Symes has confirmed that she made the last comment (I also understand that this view does not help your case) because:I felt quite strongly during our discussion about the responsibilities of education providers in this field, that [the IEAA] was suggesting that [the plaintiff's] selection process should have identified unsuitable persons at entry.And that her comment was:A direct reply to a comment [the IEAA] had made in her discussion with me regarding the action that Lisa Summers was taking against [the plaintiff]. I recall [the IEAA] made a comment to me which indicated that [the IEAA] felt a better case could be made by looking at the selection process and arguing that Lisa Summers shouldn't even have been selected in the first place Because of this exchange, I was actually left with the impression that [the IEAA] was counsel for Lisa Summers, even though this was never stated in our conversation. This is why I consider that my comments in the email would not help the case that [the IEAA] appeared to be seeking to argue, namely that Lisa Summers should never have been selected for entry to the course in the first place. (emphasis added)[71] In conclusion on finding 7 in my judgment the IEAA made the following errors of law:• investigating and adjudicating upon an issue which did not arise from the complaints made by the second defendant, and which was contrary to her solicitor's express statement, and• importing into consideration of cl 7.1 (and to the code generally) a "best practice" requirement that she was not entitled to do, and• importing the requirement of reasonableness into the assessment under cl 7.1 of the code. [72] I also find that in concluding that the plaintiff failed to exercise (reasonable) care in assessing the extent to which the second defendant's proficiencies and career intentions were matched by the place offered by the plaintiff the decision of the IEAA was not one that a reasonable decisionmaker, having regard of all the relevant evidence, could have come to. Finding 7 can not stand. [73] I do not consider that it could be said the IEAA was apparently biased or had apparently pre-determined the matter. In my judgment Ms Symes' evidence and the impression she gained of the IEAA's role more accurately reflects and confirms the error that the IEAA fell into in the approach she took, by pursuing a line of inquiry, outside the complaints made by the second defendant.[74] The related finding in finding 8 that by failing to make an adequate assessment of the second defendant's suitability for the course and the likely impact on her ability to settle without an adequate lead in time the plaintiff failed to conduct its contractual and financial dealings with the student in a fair and reasonable manner must also be set aside on the basis that that finding was based on the IEAA's conclusion in finding 7 the plaintiff had failed to make an adequate assessment of the second defendant's suitability for the course. [75] Further, in my judgment the IEAA also fell into error in finding that 13.2 applies in such circumstances. Clause 13.2 provides that:All contractual and financial dealings between signatories or their agents and international students must be conducted in a fair and reasonable manner.The contractual dealing was the dealing leading to the offer of the place to the second defendant. Contractual dealing of that nature does not readily lend itself to the interpretation placed on it by the IEAA, that it requires consideration of a lead-in time to the course. I have already concluded the only decision available to the IEAA on the evidence was that the plaintiff made a (more than) adequate assessment of the second defendant's suitability for the course. [76] While the timeframe between the second defendant's application, assessment and acceptance and the course start date of 1 March was tight, the second defendant was not a naïve 18 year old straight out of school for whom English was not the first language. The second defendant's age, cultural background, educational background and previous life experiences and the steps taken by the plaintiff to assess her, all suggest that she was a suitable candidate for the course. She made the choice to accept the place offered. There is no evidence of pressure by the plaintiff or Mr Johnson. Further, as the IEAA herself accepted, on the first day at campus the second defendant was introduced to Ms Gemmell who gave her a tour of the campus and used an orientation programme she had used in the past to introduce the second defendant to the campus. She also pointed out places of interest in the process of taking the second defendant to hostels over the next few days. In my judgment the plaintiff was entitled to take the view the second defendant, who wanted to join theprogramme at short notice would be able to cope with the programme given all that was known to the plaintiff in February 2004. [77] If reference is to be had to subsequent evidence, (which was not available to the plaintiff when it accepted her application) such as the report from Ms Marieskind, then reference should also be made to Mr Cutting's evidence, who the second defendant stayed with, within a short time of arriving in New Zealand. He described her as a delightful home guest who fitted in readily. He said there was nothing to suggest she was "shell shocked" or "suffering from culture shock following her arrival in New Zealand anymore than anyone else". [78] There is no basis in the evidence for the finding that in its assessment of the second defendant and her ability to settle the plaintiff conducted its contractual dealings in an unfair or unreasonable manner. [79] In conclusion on finding 8, I find that the IEAA fell into error by:• investigating and adjudicating on an issue not raised in the complaint; and• importing a concept of lead-in time as part of the contractual dealing under cl 13.2. [80] I also conclude that the decision of the IEAA that the second defendant was not suitable and by failing to consider the impact of the short lead-in time the plaintiff failed to conduct its contractual dealings with the second defendant in a fair and reasonable manner in finding 8 was not one that a reasonable decision-maker having regard to all the relevant evidence could have come to.Finding 1[81] Finding 1 is a breach of cl 4.2.1 of the code. Clause 4.2.1 reads:Signatories or their agents must provide the following information to prospective international students before students enter into any commitments.4.2.1 Cost of tuition and all other course-related costs, so that there are no substantial hidden costs.[82] The IEAA found the plaintiff had failed to provide adequate information about the cost of tuition and all other course related costs as required. She dealt with the matter in the following way:4.9 In my view s 4.2.1 of the Code requires education providers to provide two types of costs. Firstly it requires the provider to provide the cost of tuition and secondly it requires the provider to provide information about course related costs. It requires that information be provided to the extent that there are no substantial hidden costs. I do not think that it can be said that the addition of the words "if (sic) so that there are no substantial hidden costs" means the education provider is only required to provide information about course related costs if they are substantial. The words "so that there are no substantial hidden costs" are in my view a guide to what should be included in the information given about course related costs. The University state that the figure of $10 per week included in the budget of $280.00 was for course related costs. This may well be a good estimate of the course related costs in this case and had that information been given to the student in written or electronic format I would have been satisfied that the College had met its obligations. However the evidence available does not suggest that the information was given in written or electronic format.[83] That followed her earlier comment that:There appears to have been no advice about course related costs such as textbooks, stationery, internet fees, expenses associated with Practicums and photocopying either in written or electronic format.[84] The evidence before the IEAA established that the second defendant had been provided with information concerning the cost of tuition ($17,500) and a number of course related costs including the cost of a visa ($170), the cost of insurance ($600), and the cost of having her qualification assessed ($450). This information was provided by email. The IEAA seems to accept that in relation to this complaint the only issue is whether the general course related cost of $10 per week was provided to the second defendant. [85] The budget that the agent Mr Johnston had prepared with Ms Jury of the plaintiff included a $10 per week allowance for email/photocopying. The university submitted in response to the preliminary assessment that the budget was discussed with the second defendant. However, in her final report the IEAA found that therewas no evidence that the budget was ever provided to the second defendant. Given that finding, which was open to the IEAA on the evidence there was a breach of cl 4.2.1 of the code. But, accepting that the matter in issue is a sum of $10.00 per week the breach is very much in the nature of a minor breach.Finding 2[86] Finding 2 is that the plaintiff provided information which was likely to mislead Ms Summers about the cost of living and studying in New Zealand by its agent and as such the plaintiff failed to conduct its contractual dealings with the second defendant in a fair and reasonable manner in breach of cl 13.2 of the code. For convenience I set out cl 13.2 again:13.2 All contractual and financial dealings between signatories or their agents and international students must be conducted in a fair and reasonable manner.[87] The reasoning leading to the conclusion of a breach in relation to finding 2 is found in the IEAA's decision:Mr Johnson endeavoured to deal with the issue of costs by providing a global cost of studying and working in New Zealand for the academic year. The submissions from Ms Summers and the University state that the figure given was $27,000. This information was provided verbally and there is now some dispute as to whether the figures quoted were in New Zealand or Canadian dollars and the exchange rate. At that date [23 February 2004] a student transferring $27,000 Canadian dollars to New Zealand could have expected to receive a maximum of $29,408 New Zealand dollars. From that amount insurance of $600, Qualifications Authority fees of $450, tuition fees of $17,500 and a homestay placement fee of $225.00 (figure quoted by Mr Johnson) needed to be paid leaving at most $10,633 for living expenses and course related costs other than tuition fees. Spread over 40 weeks this would have given the student an average of $265 per week for living and course related costs. After deducting $180 per week for homestay fees a student would have been left with $85 per week to pay for transport, course related costs, snacks, clothing, entertainment, toiletries, and other incidentals such as the hairdresser and dentist. A student who has previously been in employment or an international student with an expectation of a higher standard of living than a student might expect in New Zealand would have difficulty living on $265 per week. It appears to me that the figure quoted was a bare minimum. It certainly would not have allowed for participation in student life or life in New Zealand. Nor would it cover a significant drop in the exchange rate. (emphasis added)Later:In my view the provision of the figure of $27,000 (Canadian) without qualification, (e.g. that it was a bare minimum) or the provision of more detailed information about the cost of living in New Zealand was likely to mislead Ms Summers as to the true cost of living and studying in New Zealand for a year. In my view given Ms Summers' express request for information about the cost of living and studying in New Zealand the provision of inadequate and therefore information likely to mislead was a breach of section 13.2 of the Code of Practice.[88] In essence this finding of the IEAA is that the plaintiff through its agent Mr Johnson misled the second defendant as to the actual cost of living in New Zealand for the 40 week course and so the plaintiff, through its agent did not conduct its contractual dealings in a fair and reasonable manner. [89] As noted by Mr Neutze in submission the code does not require signatories or their agents to provide estimates of living costs in New Zealand. Clause 4 of the code requires the educational institution to provide the cost of tuition and all other course related costs – 4.2.1 and realistic estimates of the cost of accommodation on and off campus – clause 4.3.2. With the exception of the provision of information as to the additional general course related costs of $10 per week (finding 1) the plaintiff satisfied these obligations. [90] There is good reason why the code does not require an educational institution to provide an estimate of living costs. A person's living costs will be dependent on their own lifestyle and choices. It will be impossible for the institution to provide such information other than as in this case, on the basis of an estimate. [91] By providing an estimate of living costs when it was not required to provide such information, and when the adequacy of the costs will depend on the lifestyle and expectation of the individual student, can not sensibly amount to a breach of the requirement the plaintiff conduct its contractual negotiations fairly. [92] The basis for the finding that the $265 was not a realistic balance for living costs seems to be the IEAA's view that the plaintiff, through its agent should have considered the fact the second defendant had previously been in employment or hadan expectation of a higher standard of living than a New Zealand student might have had. [93] The IEAA's approach to this issue is a further example of the IEAA taking the opportunity to promote what the Authority considers to be "best practice" rather than focusing on whether there has been a breach of the code as such. On this issue, the plaintiff in fact went further than it was required to do in terms of the information provided to the second defendant. If the IEAA considered misleading information had been provided, she should have referred the matter to the Commerce Commission for consideration under the Fair Trading Act in accordance with cl 25.9. [94] I find that the IEAA erred in law by effectively requiring the plaintiff to disclose an estimate of living costs tailored to the second defendant when such was not required by the code. In addition I find the IEAA's finding 2 that the information was likely to mislead the second defendant was unreasonable and not one that was open to it on the evidence.Finding 3[95] Finding 3 is also based on the requirement to provide information, in this instance, about the availability of refund conditions. Clause 4.2.4 of the code provides:4. Provision of information to prospective international students 4.1 All information provided under this part must be either in writing or in an electronic format. 4.2 Signatories or their agents must provide the following information to prospective international students before students enter into any commitments: 4.2.4 Refund conditions[96] The IEAA held that the clause requires providers to "actively supply" a copy of the refund conditions to the student before he or she enters into a commitment by paying fees. She did not accept the plaintiff's submission that the availability of that information on a document posted on the internet satisfied the requirements of theclause. The IEAA concluded that the refund provisions must be expressly drawn to the attention of the student in writing. [97] Clause 4.2 of the code provides for a variety of information to be provided. Some of the information could be quite extensive and detailed information that sensibly could not be expected to be actively supplied to all prospective students, e.g. the information on courses/qualifications and facilities, equipment and staffing. Such information is readily available on the provider's website, in electronic format. [98] In this case the information in issue, the refund conditions was also available on the college's website, in its calendar section. The evidence confirmed that Mr Johnson's Can Teach website provided links to the college's calendar. The second defendant herself confirmed in an email to the IEAA that she (and her parents) did look at the college's website. [99] The issue is whether it can be said the information is "provided" if it is available for access on the college or university's website. Reference can be made to the case of Finch v Telegraph Construction and Maintenance Co [1949] 1 All ER 452. A factory workman injured his eye. He should have worn goggles. Section 49 of the Factories Act 1937 required the employer to provide goggles. [100] Devlin J held there was a breach of the statutory duty to provide goggles when they were not in their usual place and the majority of workmen did not know of their whereabouts. In the course of his decision the Judge said:Of course, goggles would be "provided" if they were given to each man individually. I do not think that is the only way in which they could be "provided," but, in my view, in order to "provide" them within the meaning of the Act it would be necessary either that they should be put in a place where they come easily and obviously to the hand of the workman who is about to grind, or, at the very least, that he should be given clear directions where he is to get them.[101] In the 21st century, in my judgment information concerning enrolment facilities, equipment, qualifications and refund provisions can be said to be provided in written or electronic format if it is available on the provider's website. It is the type of information that any prospective student would expect to find on auniversity/teaching college website. The information on the website is easily and readily available to the prospective student. In my judgment the IEAA fell into error in concluding that the provision of the information on the website was not sufficient compliance with cl 4.2.4. [102] In my view, this conclusion is supported by the later provisions of cl 4.2. Where something more than provision of the information by way of making it available by website is required then that is provided for, e.g. cl 4.2.9 which reads:Information and advice on the types of accommodation applicable to students. (emphasis added)[103] Clause 4.2.9 imposes the requirement there be advice provided as well as information. Where advice is required then something more than provision of bare information on an internet site may be required. The detail of that particular information and advice is set out at cl 4.3. [104] Even if I am wrong in this conclusion and there was a breach of cl 4.2, it was of no practical effect. The university submitted that Ms McGill suggested to the second defendant that if she was having significant difficulties adjusting to living and studying in New Zealand, she would investigate the possibility of having her fees refunded (within the first four weeks) and returning home. There was no contrary evidence. That submission was not dealt with by the IEAA in her decision. [105] I conclude that the IEAA made an error of law in finding that information as to refund conditions was not provided to the second defendant in an electronic format before the second defendant entered into a commitment.Findings 4 and 5[106] Clause 15.1 of the code provides:15. Support Services15.1 Signatories must designate an appropriate person or unit as a resource for all inquiries about pastoral care from international students. The existence and availability of this person or unit must be advised to students on enrolment.[107] The IEAA found the plaintiff in breach of cl 15.1 on the second defendant's complaint that she was not advised who the designated person responsible for the pastoral care of international students was (finding 4) and the IEAA's finding that the plaintiff had failed to designate an appropriate person for all inquiries for pastoral care for international students (finding 5). [108] The IEAA reasoned that bearing in mind the provisions of cl 15.4 of the code the intention of s 15.1 was to ensure there was a single person or entity who had overall responsibility for pastoral care of the providers international students. Clause 15.4 reads:Support services for international students must be tailored to meet the needs of international students.[109] The wording of cl 15.4 does not support the IEAA's conclusion that cl 15.1 of the code requires there be a single person who has overall responsibility for pastoral care of international students. It simply requires that support services for overseas students be tailored to take account of the needs of overseas students. The reference in cl 15.1 itself to "person or unit" confirms that it is contemplated the resource for inquiries can be more than one person. The intention is that there be one point of contact for overseas students, and that point of contact be made known to overseas students. [110] The IEAA seems to consider that the role of pastoral care for international students should be to the exclusion of other roles for that person, or to the exclusion of other persons assisting Ms Leuhrs such as Ms Gemmell and Ms Jury. Again, the reasoning of the IEAA seems to be influenced by her approach to what she considers to be the "best practice". [111] In this case the plaintiff had designated Ms Leuhrs as that point of contact. As noted by the IEAA in her decision the second defendant was advised to contact Maren Leuhrs at the college on her arrival. The student handbook states:Everybody who asks for help at the contact centre is assigned their own consultant to look after their needs. This means students are able to go to the same person for all their administration requirements from the time they visit the campus right up to when they graduate. Our international consultant is Maren Leuhrs.[112] The plaintiff complied with the requirements of cl 15.1, at least in part. Maren Leuhrs was designated as the international consultant. The plaintiff's submission about that was not contradicted. Implicitly Maren Leuhrs was the appropriate person for all inquiries about care by international students. Finding 5 was not open to the IEAA on the evidence. [113] It is also apparent that Ms Leuhrs' existence was advised to the second defendant as she was advised to contact Ms Leuhrs on arrival. But there is a strict break in the chain to the extent that the evidence does not show the second defendant was expressly advised that Ms Leuhrs was the contact for pastoral care for international students. [114] The IEAA's finding (finding 4) that the second defendant was not advised that Ms Leuhrs was the contact person for pastoral care was therefore strictly open to her on the evidence of the second defendant. The breach is however a very technical breach. The handbook stated that the international consultant was Maren Leuhrs. That followed a passage which referred to the fact that consultants are assigned to look after students' needs. Implicitly Ms Leuhrs was the contact person as the resource for all inquiries about pastoral care from international students. The second defendant was advised to contact Ms Leuhrs. The technical breach would not justify the sanctions imposed.Finding 6[115] Section 10.1 of the code provides:10. Immigration requirements 10.1 A signatory may only enrol a prospective international student for a course lasting longer than 3 calendar months if the prospective student holds:10.1.1 A current student visa or permit [116] The IEAA found the plaintiff was in breach of this provision of the code by enrolling the second defendant in the course when she did not hold a current student permit. [117] In my judgment the IEAA erred in law and acted in excess of her power by raising this complaint as a basis for investigation when it was not a complaint raised by the second defendant. [118] Putting the jurisdiction point to one side for the moment, the IEAA was strictly correct in her finding despite the plaintiff's submission to the contrary. However, it does not follow that the plaintiff was also in breach of s 40(1) of the Immigration Act 1987 as suggested by the IEAA. Section 40(3) of the Immigration Act, for example, provides that a person (the plaintiff) is deemed to know a student is not entitled to be enrolled if they are advised in writing by an Immigration Officer. Also the onus is on the student, not the education provider, to obtain the permit: s 6 Immigration Act. The finding is of no practical significance in any event as the IEAA accepted in the course of her decision that the second defendant did not suffer any result as a loss of the breach. The second defendant was subsequently granted a student permit. [119] The IEAA dealt with the matter by way of a recommendation that the plaintiff take steps to ensure that international students are not enrolled when they do not hold a current student permit at the commencement of their course. That was an appropriate way to deal with the matter, once it came to the attention of the IEAA. There should, however, not have been a finding of breach as there was no jurisdiction to consider the matter in the absence of a complaint.Proportionality[120] Mr Neutze also addressed submissions on the issue of proportionality, particularly in relation to the sanctions imposed by the IEAA.[121] In Wolf v Minister of Immigration [2004] NZAR 414 the Court considered the issue of proportionality and whether it was to be regarded as a separate ground of judicial review. Wild J concluded that:As the law in New Zealand currently stands, I think it best to take the cautious approach of acknowledging that traditional (Wednesbury) grounds of review and proportionality are different, and may therefore produce different outcomes.[122] For present purposes the most helpful authority is that of Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606. In that case the plaintiff sought to challenge a decision by the Ministry of Consumer Affairs to direct the recall with a full refund of 1200 bicycles sold by the applicant as they were considered to be unsafe. The plaintiff challenged the Minister's decision to recall on two grounds, first procedural unfairness and second, unreasonableness. Dealing with the issue of proportionality Tipping J said, after referring to the case of R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052 (CA) (where the Court overruled a Council decision to revoke a vendor's market licence for urinating in a public place on the ground that it was a disproportionate sanction):In truth I do not consider that the so-called principle of proportionality is anything other than a criterion upon which the Courts should consider whether a decision is unreasonable: see R v Secretary of State for the Home Department, ex parte Brind [1990] 1 All ER 469 (CA). Depending on the circumstances the imposition of a sanction or other order grossly disproportionate to the circumstances may well lead the Court to the view that the decision is unreasonable.[123] Given the nature of the breaches of the code that I have found were established, in this case the imposition of the sanction of the refund of fees together with interest and an order for contribution towards the second defendant's legal costs would be, on any view of it, grossly disproportionate to the breaches established and thereby unreasonable.Ultra vires[124] Mr Neutze next submitted that the IEAA had no jurisdiction or authority to make the order for payment of interest and a contribution towards legal costs:Auckland Boxing Association Inc v New Zealand Boxing Association Inc [2001] NZAR 847. [125] The power to award interest (absent a contractual agreement for interest) on a judgment or award is conferred by statute. There is no power at common law:London Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429. By way of examples: s 87 Judicature Act 1908, s 62B District Courts Act 1947 and s 12(b) of the Arbitration Act 1996 provide for interest to be awarded in the High Court, District Court, and by arbitrators respectively. [126] The IEAA's authority comes from the code. Under the code the IEAA has power to:impose an appropriate sanction which may include "a requirement that corrective action be undertaken; publication of the breach; and/or an order for restitution.[127] The issue is whether the award of interest and the contribution towards legal costs comes within the concept of "restitution" in that provision. [128] Restitution is defined in Strouds Judicial Dictionary as:the yielding up again, or restoring, or any thing unlawfully taken from another.[129] In the present case the concept of restitution would apply to and cover the refund of fees paid by the second defendant to the plaintiff. But the concept does not readily extend to include the payment of interest or legal costs. They are not payments made by the second defendant to the plaintiff. If the Minister had intended the IEAA to have power to award interest and legal costs I would have expected that to be expressly spelled out. I conclude that the IEAA does not have power to award interest or legal costs.Result[130] The findings identified as findings 2, 3, 5, 6, 7 and 8 are quashed and set aside. [131] The findings at 1 and 4 stand, but are relatively minor breaches of the code. They can not sustain the sanctions imposed. [132] The IEAA had no jurisdiction to require that interest and costs be paid. [133] All sanctions imposed by the IEAA are set aside. [134] During the course of the hearing counsel addressed the Court on the difficulties that may arise if the Court was to direct that the matter be reheard given the allegation of apparent bias and apparent pre-determination. [135] The result of this judgment is that a number of the findings made by the IEAA are set aside. The principal findings, and the only ones that could support the sanction of the refund of fees, namely findings 7 and 8 were outside the jurisdiction of the IEAA as they were not complaints raised by the second defendant. Finding 6 was also outside the jurisdiction. The remaining findings were open to the IEAA as a matter of jurisdiction. The three remaining that have been set aside, 2, 3 and 5, would not, however, on their own support the sanctions imposed by the IEAA. I do not consider it necessary or desirable to refer the matter back to the IEAA for a rehearing in the circumstances of this case.Interim orders[136] Interim orders were made on this file on 19 January 2006. In light of the above orders, a number of the orders are no longer required. I confirm, however, that for the avoidance of doubt, orders 1 (b), (d) and (e) and orders 2 (c) and 3 of 19 January 2006 remain in force and effect. Orders 1 (a), (b) and 2 (a) and (b) are no longer required given the above orders.Costs[137] The issue of costs is reserved to be dealt with by way of memoranda. If the plaintiff seeks costs it is to file a memorandum by 9 February 2007. Any memorandum in response to be filed and served by 23 February. The file is then to be referred to me for costs to be fixed. __________________________ Venning J