Complaint and Conduct Decisions Appeal Procedure

Effective from 01/01/2023

Intent

This Procedure supports James Cook University’s (“the University”) Student Review and Appeals Policy (Policy) and details the process for a student to appeal decisions concerning student complaints, misconduct, suitability to continue in a course and other decisions related to student conduct or their experience at the University (Complaint and Conduct Decisions).

Scope

Unless stated otherwise in a policy or procedure of the University, students may appeal Complaint and Conduct Decisions pursuant to this Procedure, which include, but are not limited to, the following:

• decisions made in response to a student complaint;
• decisions that a student has engaged in misconduct, including general misconduct, academic misconduct, research misconduct and professional misconduct;
• decisions that a student is not suitable to continue in a course of study (including higher degree by research courses).

This Procedure does not apply to the appeal of Academic Decisions or Statutory Decisions as specified in the Policy; review or appeals of those decisions are governed by the Academic and Statutory Decisions Review and Appeals Procedure.

Any ambiguity or dispute about whether the Procedure applies to a determination of an Original Decision Maker will be resolved in accordance with the Policy.

Definitions

Unless specified below the terms used in this procedure have the same meaning as established in the Policy Glossary and the Policy.

Balance of Probabilities - This standard of proof requires the decision maker to be satisfied, based on the evidence, that the occurrence of an event was more likely than not.  The strength of evidence necessary to establish the occurrence of an event on the balance of probabilities may vary according to the seriousness of the issues involved: the more serious the issue, the stronger the evidence required in order for the decision maker to be satisfied that the event occurred.

Legitimate Grounds of Appeal - Grounds on which a student may appeal a determination of the Original Decision Maker, comprising one or more of the following:

a. There is new and compelling evidence, which was not available to the student at the time of the determination by the Original Decision Maker, that could alter the outcome, penalties applied and/or conditions imposed;

b. The penalties applied or conditions imposed were not reasonable or proportionate in the circumstances presented to the Original Decision Maker;

c. There was a denial of Procedural Fairness by the Original Decision Maker in arriving at the determination, and the denial may have made a difference to the outcome, penalties applied and/or conditions imposed;

d. There was a failure to follow policy and/or procedure that may have made a difference to the outcome, penalties applied and/or conditions imposed.

Special Circumstances - means an unforeseen event or experience, beyond a student’s control, which demonstrably impacts their ability to submit an application on time.

Procedure

1. Appeal

1.1 A student may lodge an application to appeal a determination from an Original Decision Maker within scope of this Procedure, provided there are one or more asserted Legitimate Grounds of Appeal (Appeal Application).

1.2 An Appeal Application must be made within 20 University Working Days after the determination is sent to the student’s JCU email account, using the University's Appeal Application form (available from: https://www.jcu.edu.au/students/student-forms and accompanied by sufficient evidence to demonstrate there are one or more Legitimate Grounds of Appeal.

1.3 A late Appeal Application may be accepted at the discretion of the Director, Student Services, where it can be demonstrated that Special Circumstances prevented an Appeal Application being made within 20 University Working Days of the determination.  If the Director, Student Services was the Original Decision Maker, the DVC, Education will determine whether the late Appeal Application is accepted.

1.4 A student may withdraw an Appeal Application at any time.

2. Preliminary assessment by the Student Matters team and the Director, Student Services

2.1 Upon receipt of the Appeal Application, the Student Matters team should within 5 University Working Days assess the Appeal Application for compliance with paragraph 1.2 above and may do one or more of the following:

2.1.1 If the Student Matters team considers that the Appeal Application is not complete, the Student Matters team may invite the student to complete the Appeal Application within a further 5 University Working Days; or

2.1.2 Recommend the Appeal Application be dismissed by the Director, Student Services as the Appeal Application:

a. fails to demonstrate one or more Legitimate Grounds of Appeal;

b. is frivolous, vexatious, or otherwise an abuse of process;

c. is out of time and the student failed to demonstrate that Special Circumstances prevented an Appeal Application being made in time; or

d. is incomplete and the student has not provided the information requested in the required timeframe under Clause 2.1.1; or

2.1.3 Recommend to the Director, Student Services that the Appeal Application may contain Legitimate Grounds of Appeal, and should be referred to the University Appeals Committee.

2.2 The Director, Student Services will either dismiss the Appeal Application or refer it to the University Appeals Committee.  Where the Director, Student Services was the Original Decision Maker, the decision under this paragraph will be made by the DVC, Education.

2.3 If the Appeal Application is dismissed pursuant to clause 2.2 above, the Student Matters team will notify the student at their JCU email address, which will contain the following information:

2.3.1 the reasons why the Appeal Application has been dismissed;

2.3.2 the evidence considered in arriving at this decision;

2.3.3 a statement that the decision to dismiss the Appeal Application is final and there is no further right to internal appeal within the University; and

2.3.4 the student's right to lodge a complaint or appeal through an external body as per clause 6 of the Policy, if they remain dissatisfied with the University’s decision.

2.4 If the Appeal Application is referred to the University Appeals Committee pursuant to clause 2.2 above, the Appeal will be heard and determined in accordance with clause 3 below.

3. Final determination by the University Appeals Committee

Constitution

3.1 Upon receipt of the referral pursuant to clause 2.2 above, the Student Matters team should notify the student of the constitution of the University Appeals Committee to hear the Appeal Application within 5 University Working Days.

3.2 The student may request a change of membership of the University Appeals Committee within 5 University Working Days, if they can provide reasons for a concern of actual or perceived bias in relation to one or more of the members.  This request will be considered by the Director, Student Services, whose decision as to final membership of the University Appeals Committee for the hearing will be final and binding.

The Appeal Book

3.3 Upon receipt of the referral pursuant to clause 2.2 above, the Student Matters team should also prepare the documents for the hearing (Appeal Book) of the Appeal Application within 5 University Working Days, comprising:

3.3.1 the determination of the Original Decision Maker;

3.3.2 the Appeal Application and any supporting documents provided by the student; and

3.3.3 any briefing document approved by the Director, Student Services, containing information on the applicable policies and procedures and the Legitimate Grounds of Appeal included in the Appeal Application.

3.4 The Appeal Book will be provided to the University Appeals Committee and the student.

3.5 At any time prior to the determination of the Appeal, the Chair of the University Appeals Committee or the Director, Student Services may supplement the Appeal Book with additional documents they consider to be relevant, provided that the student is given a reasonable opportunity to make submissions and provide material in response.

3.6 For the purpose of supplementing the Appeal Book, the Chair of the University Appeals Committee or the Director, Student Services may direct the Student Matters team to seek copies of additional documents and/or information from staff of the University or the student.  The Student Matters team does not have any power to compel the provision of documents or information, but shall report to the Chair of the University Appeals Committee and the Director, Student Services any refusal or failure for requested documents and/or information to be provided, which may be taken into account by the University Appeals Committee in determining the Appeal Application.

3.7 The Appeal Book shall contain the documentary evidence for the hearing.  No further documentary evidence will be considered at the hearing except with the Chair’s express permission.

Notice of hearing

3.8 In consultation with the Chair of the University Appeals Committee, the Student Matters team should set a date, time and location for the hearing of the Appeal Application.  Where possible, the hearing should be scheduled within 10 University Working Days of the Appeal Book being provided to the student.

3.10 The Chair of the University Appeals Committee may adjourn the hearing to a later date by notification to the student, including (without limitation) in response to a request from the student or to permit time for the processes referred to at clauses 3.5 and 3.6 above.

Hearing

3.11 The hearing of the Appeal Application will proceed in the way the Chair decides, subject to what follows.

3.12 The student will be given the opportunity to be heard by the University Appeal Committee.  That opportunity may be provided in person, or by phone, video conference, additional written submission or by other means of communication approved by the Chair.

3.13 The student will be present only for such time as is necessary for them to be heard by the University Appeal Committee.

3.14 A student who appears before the Committee may be accompanied and assisted by a support person or student advocate.  The support person must not be a lawyer, unless by prior written approval of the Chair.  Where authorised in writing by the student, the support person or student advocate can assist the student in the presentation of their case.

Deciding the Appeal Application

3.15 In deciding the Appeal Application, the University Appeals Committee will consider the evidence contained in the Appeal Book as supplemented by evidence from the hearing, and determine whether it is satisfied, on the Balance of Probabilities, that one or more Legitimate Grounds of Appeal are substantiated.

3.16 If no Legitimate Grounds of Appeal are substantiated, the Appeal Application will be dismissed.

3.17 If one or more Legitimate Grounds of Appeal are substantiated, the University Appeals Committee will determine the appropriate outcome and may:

3.17.1 confirm or amend the decision;

3.17.2 set aside the decision and substitute its own decision; or

3.17.3 set aside the decision and refer the matter back to be determined again under the relevant policy or procedure of the University, either by the Original Decision Maker or another person or decision making body authorised to determine the matter.

3.18 In determining an appropriate outcome, the University Appeals Committee will consider potential outcomes identified by the student (if any). The University Appeals Committee may also seek written guidance from the Director, Student Services, using the process under clauses 3.5 and 3.6.  For the avoidance of doubt, such guidance can be sought by the University Appeals Committee after it determines that a Legitimate Ground of Appeal has been substantiated, but before determining the appropriate outcome, provided the student is given a copy of the guidance and a reasonable opportunity to respond before the University Appeals Committee determines the appropriate outcome.

Notice of the appeal decision

3.19 The Chair will communicate the outcome of the Appeal Application in writing to the student, Director, Student Services and, if there are academic implications, the relevant College Dean.  Notice of the outcome may be delivered in one or more communications.

3.20 The University Appeals Committee’s decision must record:

3.20.1 the evidence considered;

3.20.2 findings in relation to each alleged Legitimate Ground of Appeal;

3.20.3 reasons for those findings;

3.20.4 the decision as to the appropriate outcome, including any actions to be taken by staff or the student;

3.20.5 reasons for that decision;

3.20.6 a statement that the decision of the University Appeals Committee is final and there is no further right to internal appeal within the University; and

3.20.7 information on the student's right to lodge a complaint or appeal through an external body as per clause 6 of the Policy, if they remain dissatisfied with the University’s decision.

4. Students awaiting the outcome of an appeal

4.1 Until the appeal outcome has been determined, the original decision will not be actioned with the student maintaining the right to:

4.1.1 complete any outstanding assessment from the previous Teaching Period if they were granted a supplementary/deferred exam or an extension;

4.1.2 remain enrolled in their subjects.

4.2 At any time during this process, the DVC, Education may issue a written direction to the student, including (without limitation) to direct a student to leave the University's land or temporarily suspend the student's enrolment, pending the outcome of the Appeal if there is evidence that the student’s continued presence on University land or enrolment has the potential to impact the University’s duties to its students, staff and/or placement agencies or may otherwise adversely impact the wellbeing and safety of members of the University community.

4.3 Where the student is an International Student holding a visa to study in Australia, and the decision impacts the student’s ability to continue in their course, the University will only report to the Department of Education against the student’s ‘Confirmation of Enrolment’ if required to once the University Appeals Committee has notified the student of the outcome. The student will be given 10 University Working Days before notification is made to the Department (if the University is entitled to delay notification), to notify the University that they have submitted an external complaint or appeal.  Where such notification is received, the University will assess whether it is permitted to delay notifying the Department pending the outcome of an external complaint or appeal.

4.4 Where the student is an International Student studying in Singapore, and the decision impacts the student’s ability to continue in their course, the University will only report to the Immigration and Checkpoints Authority (ICA) the students pass cancellation, if required to, once the decision maker has notified the student of the outcome.

4.5 Students retain the right to withdraw from subjects and/or courses or take a leave of absence in accordance with applicable policies and procedures.