Kerala

Idukki

CC/120/2020

Boban C Tom - Complainant(s)

Versus

Boban Noyasis - Opp.Party(s)

12 Jan 2023

ORDER

 

DATE OF FILING : 17/09/2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 12^th day of January 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.120/2020

Between

Complainant                          :  Bobin C.Tom & Leena Mathew (W/o)

                                                  Chukkananickal House, Muthalakkodam P.O.,

                                                 Thodupuzha, Idukki District, Pin – 685 605.  

                                                           And

Opposite Party :                      :   1 . Boban,

                                                         Noaisys Immigratin Consultancy,

                                                         Near Seemas Wedding Collections,

                                                         Thodupuzha.

                                                    2 . Jemini Boban,

                                                         Noaisys Immigratin Consultancy,

                                                         Near Seemas Wedding Collections,

                                                         Thodupuzha.

                                                   3 . Simon Chelattu,

                                                        Noaisys Immigratin Consultancy, Suit 209 6958,

                                                        Nickolsons Road Delta British Colombia,

                                                        Canada V4EIZ7.

 

O R D E R

SRI.AMPADY K.S., MEMBER

 

Complainants filed this complaint raising the following allegations against opposite parties and prayed for the reliefs hereinafter mentioned.

 

1 . First complainant is working as Software Programmer.  He contacted the Noaisys office at Thodupuzha in November 2013.  They told him that if he pay   Rs.1,75,000/-   (Rupees One Lakh Seventyfive Thousand only)  as

(Cont.....2)

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consideration, they offered him arrangement of visa for Canada within 6 months.  Based on this, he paid Rs.10,000/-(Rupees Ten Thousand only) at the office of opposite parties and second opposite party who received the amount had obtained certain papers signed by the complainant.  Thereafter, he returned to Italy for job.  As per opposite parties directions, $1910/- (Rs.97410/-) and $910/- (Rs.46410/-) was transferred to the account of consultancy of opposite parties on 16/05/2013 and on 13/11/2013 respectively.  Till December 2016, they told him that visa was in processing stage.  At that time, a son was born to him and for including his new born child for the visa they demanded further amount of Rs.52,000/- (Rupees Fifty two Thousand only) towards updation and he gave the amount through DD of Axis Bank in December, 2016.  Besides, Rs.40,000/- (Rupees Forty Thousand only) was also obtained by them towards translation fee, process charge.  Due to non receipt of clear reply from them he lost many job offers.  They have not done anything offered by them.  They have not refunded the amount though he demanded the same.  He filed complaint before Thodupuzha police  but no action was taken by them. Alleging deficiency in service  they filed this complaint praying for the following reliefs.

 

1  . A Direction may be issued to opposite parties for refund of Rs.2,40,410/-

      paid to the agency of opposite parties.

2 . Allow litigation costs of Rs.20,000/-.

3 .  Interest Rs.1,50,000/- may be ordered.

 

Opposite parties filed written version as follows.

 

 Their institution named Noaisys is engaged in arranging visa process for permanent residence and education to Canada and it is done based on the criteria fixed by immigration department for eligible applicants.  The above institution has been functioning from 01/12/2011 at Thodupuzha.  NOAISYS IMMIGRATION INC  is having head office at Vancoover in Canada and offices at various places in Kerala, Chennai, Dubai etc., Sri.Simon Chelattu is the CEO and president and he has passed the immigration law and having

 

(Cont.....3)

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membership in Immigration Canada Consultancy Regulatory Council (ICCRC).   Sri.Simon Chelattu is a relative of first opposite party and he is  Canadian Citizen.  He was working in Navy and after voluntary retirement from the post of Chief Engineer, he has been working as immigration consultant as above. 

 

Second opposite party is a retiree from Grater Cochin Development Authority (GCDA) and thereafter he joined in the institution conducted by his wife, who is the first opposite party. As Smt.Leena Mathew was holding B.Sc.Nursing  degree and she was eligible for permanent residence.  Noaisys CEO, Sri.Simon Chelattu  entered into agreement with said Leena Mathew for visa processing.  As per this, there are conditions regarding duties of consultant and professional fees.  As said Leena Mathew is eligible as mentioned above for permanent residence, her husband Sri.Bobin C Tom (1^st complainant) was also included in the application.  Canadian Doller  CAD 4000/- being professional fee had to be paid in four instalments as per  agreement.  Rs.10,000/- only was received at Thodupuzha office and receipt thereof was also given.

 

As per the said agreement Smt.Leena Mathew (2^nd complainant) had given a DD for CAD 1000/- on 18/07/2013 in the name of Noaisys Canada.  In addition to CAD 4000/- towards consultant fees, she had to remit CAD 750/- and for the dependant husband CAD 160/- in the name of Quebec Government and the same was remitted by DD dated 13/11/2013.  As per clause “C” of the agreement she had to pay applicable government fees and attendant expenses regarding collection of documents attached to application.

 

She had received letter on 08/04/2014 from Quebec government regarding receipt of the application and the concerned file number.  Mail in French language and its translation is produced.  On receipt of file number she had paid second instalment CAD 1000/- on 12/11/2014 as per the said agreement.  As per immigration procedure of the Quebec government if any change like marriage, birth of child, address etc., occurred during the processing of the application, those have to be informed within 60 days.

(Cont.....4)

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Complainant’s child was also included in the application.  CAD 750/- for including a child and government fees CAD 166/- totalling to CAD 916/- were paid on 04/03/2016 as per DD. As per direction from Quebec Immigration Department to produce documents for selection certificate from Quebec, it was informed to second complainant Leena Mathew on 13/05/2016 and other dates.  Said documents were given by her with a delay of two months that also after sending 4 reminders.  For the translation of documents from other languages to English she had directly paid the expenses thereof.  They have only introduced translating agency to the complainant from Thodupuzha office.  Fees for translation was only nominal and it was paid by second complainant.  During the progress of immigration process first  complainant informed Noaisys CEO, Sri.Simon Chelattu that, he has no intention to continue the immigration process as time has lost, he wanted refund of amount paid.  He was not a party to the agreement mentioned above.  His wife was working in Gulf Country.  Sri. Simon Chelattu had given reply on 28/12/2017 to the mail sent by first complainant.  As per clause 4 of the agreement the procedure for withdrawal of application was mentioned.  As per clause 5 consultant has no responsibility for delay in government steps.  Consultant is liable to refund professional fee only if any lapse on the part of him for not submitting proper documents in time and therefore application is rejected.  The fee paid by second complainant is for the work done by opposite parties and it is as per the agreement.

 

In January 2018, first complainant filed complaint before Thodupuzha Police and in the light of documents opposite parties  have explained the matter to Sub Inspector in the presence of first complainant and his mother.  That may be the reason for not receiving further communication from the police.  In February 2018 Quebec Government has made amendment regarding point system for immigration criteria with retrospective effect which caused shadow  on more than 16,000/- applicants who had applied for Quebec Residence Permission. Hence it was informed that second complainant was not eligible for the residence visa through letter on 14/02/2018.  A time limit of 90 days was given for re-examination of

 

(Cont.....5)

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application.  In response to said information, Sri.Simon Chelattu sent letter to second complainant on 14/03/2018.  On getting approval from Leena Mathew, letter for re examination of application was given.  This was done after filing the above police complaint.  The criteria for eligibility prevailed in 2013 and 2017 was explained by opposite parties.  They have also produced the copy of criteria prevailed in 2013 and point grid of 2017.  Though opposite parties had filed letter to immigration department  stating that after receiving the application on the basis of point grid existed in 2013, and the amendment with retrospective effect is unilateral and denial of justice, it was rejected and said letter was received on 23/05/2018.  Thereafter further time of 90 days was given for filing explanation and any further matters and explanation was prepared and sent for approval to second complainant, but she had not co-operated with the same.

 

As the point grid was changed with retrospective effect,  about 16000 applicants from various countries had to suffer and government had decided to refund 25% of government fee and it was sanctioned by Canadian Court.  Accordingly, it was informed to second complainant and other 6 persons from Thodupuzha office.  It was also informed about filing of application and said fee was received by the applicants.

 

As stated above, opposite parties have implemented the bilateral agreement dated 20/06/2013.  Second complainant had paid total CAD 2750/- towards consultant fee and CAD 1076/- for government fee. Rs.10,000/- was received in Thodupuzha office towards registration fee. These were approved in agreement and no other amount was received by them.  No amount was received by contesting opposite parties towards affidavit, notarised certificate and translation fee.

 

During the period from 05/2013 to 07/2019, several communications were done with second complainant and offices at Canada & Thodupuzha.  Above complaint is filed against the terms of agreement without considering the efforts made by opposite parties.

 

(Cont.....6)

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As per clause 5 of agreement, it is mentioned that, if the application is rejected due to the fault of consultant, fee would be refunded.  As per clause 5(4) (J), it is shown that, if the application is rejected due to reasons beyond the control of consultant, they are not liable and in the instant case, it was happened due to policy change of above government.

 

In the light of above circumstances, it is clear that fee was received for their service and it was done properly and demand for refund of the same is illegal and violation of the agreement.  It is not correct to believe that amount paid was high while considering the exchange rate.  Besides, expenses for functioning office at Canada and membership fee payable to government, salary of staff etc is very high also.

 

Third opposite party is a member of Canadian Consultants of Canada Regulatory Council (ICCRC) and it is shown in clause 1(i) of the agreement.  If any default is occurred on the part of consultant, complainant can file complaint before ICCRC and this is also mentioned in above clause.

 

As per clause (m), disputes relating to agreement are subject to laws of British Columbia, Canada.

 

Due to change of policy of Quebec Government, opposite parties have also suffered along with second complainant and other applicants and this has resulted in dissatisfaction and obstruction from applicants for no fault  of theirs.  Above opposite parties have prayed for dismissal of complaint.

 

Notice to opposite parties  1and 2 served and filed written version.  As the complainant had not taken steps for service of notice to 3^rd opposite party at Canada address, he was struck off from party array.  There was no representation for the Complainants from 20/05/2022  onwards.   He is not vigilant in prosecuting the matter.  He filed copy of DD No.031567/- dated 13/11/2013 of Indusind bank Ltd., Mumbai for $ 910 favouring Ministry of Finance, Quebec.  Certificate dated 16/12/2015 of SBT, Ettumanoor regarding existence of FD in the name of 2^nd complainant, and letter issued by Ministry of Immigration of Quebec regarding dossier.

(Cont.....7)

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Opposite parties 1 and 2 produced copy of 27 documents which were marked as Ext.R1 to R27.  Opposite parties were heard.

 

We have examined the pleadings of both sides and perused the copy of documents produced.  On an analysis of the same, following points arise for consideration.

 

1 . Whether there is deficiency in service on the part of opposite parties?

2 . If so, for what reliefs the complainant is entitled to?

 

Point No.1

 

On going through the complaint, it is seen that 1^st complainant has gone to Italy. 2^nd complainant is also not appeared before this Commission.  Complaint does not mention anything about the deficiency in service or unfair trade practice against the opposite parties.  Inaction on the part of complainants to proceed with the complaint shows that they have nothing to establish their case.  On the other hand opposite parties have produced several exhibits.  Certain exhibits seem to be in French language and its   English translation is not produced.  Hence those documents cannot be considered.  With regard to other documents and the written version, it is seen that opposite parties have admitted the payment of amount by complainants.  The reason for rejection of the application and subsequent review application are stated to be due to the change in point grid adopted by Quebec Government and opposite parties have stated that they have made strenuous efforts for getting the immigration.  They have also stated that as per the decision of Quebec Supreme Court, applicants whose applications were rejected is entitled to certain portion of the fee remitted.  On going through category mentioned Ext.R26, it is seen that 2^nd complainant is entitled to 25% of the fee remitted.  It is not ascertainable from the pleadings of both sides, whether said amount is refunded to the complainants.  So no order with regard to this can be passed.

 

(Cont.....8)

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With regard to consultant fee remitted, it is seen that the major portion of funds were transferred from Mumbai to Canada.  The 1^st payment of Rs.10,000/- is admitted to be made at Thodupuzha office by 1^st and 2^nd opposite parties.  Thodupuzha office is a branch of Head Office situated in Canada which is seen admitted by opposite parties 1 and 2 in the written version filed.  On going through the documents in English, it is seen that opposite parties have performed their responsibilities by filing necessary applications given by the complainants.  As  per Ext.R2, duties and responsibility of both parties are mentioned.  On scrutiny of clause H of Ext.R2, it is seen that the consultant is not responsible for any change in Immigration Act, Regulations, delay by Authorities etc,.  It is mentioned in Clause I of the said exhibit the methods of settlement of dispute wherein it is mentioned  that the applicants shall make complaint to the consultant.  The consultant shall respond to the substance of the complaint within 30 days.  It is also stated that if the dispute is not so settled, applicants shall file complaint to ICCRC on their website.  It is mentioned in clause 5 of B that, if the application is denied because of an error or omission on the part of RCIC or professional staff, the RCIC shall refund all professional fee collected.  The complainants have no case that there was deficiency in service or unfair trade practice on the part of opposite parties.  Complainants have not attended the Commission also.  No steps were taken to prove the contentions.

 

On an entire analysis of the documents produced by opposite parties, it is found that deficiency in service or unfair trade practice cannot be attributed on the part of opposite parties.  It is the duty of complainant to prove the deficiency in service occurred from the side of opposite parties.  Here, complainants have failed to do so.  In these circumstances, we are of the considered view that the allegations raised by the complainants are having no merits.  Hence we find that the complaint is not sustainable in the eye of law.  So the complaint is found to be liable for dismissal.  Therefore we do so.  Point No.1 is answered as above.

 

 

 

(Cont.....9)

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Point No.2

 

Considering the facts and circumstances of the case, there will be no order as to costs.  Point No.2 is answered accordingly.

 

In the result, complaint is dismissed however, without costs.

 

Extra copies to be taken back by parties without delay.

 

 Pronounced by this Commission on this the 12^th day of January, 2023.

 

                                                                                  Sd/-

                                                                        SRI.AMPADY K.S., MEMBER

                                                                                           Sd/-

                                                                  SRI.C.SURESHKUMAR, PRESIDENT

                                                                                  Sd/-

                                                                         SMT.ASAMOL P., MEMBER  

                                                                                                                                                                                                                                                                                                                                                                                                                                  

APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

 

1 . Ext.R1 – Membership of Canadian Immigration Consultant.

2 . Ext.R2 – Retainer agreement between complainant and 3^rd opposite party Simon John Chelattu in the name of Noaisys.

3 . Ext.R3 – DD No.026327 dated 18/07/2013 of HDFC Bank Ltd., favouring Noaisys Immigration Inc. For $ 1000/-.

 

 

(Cont.....10)

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4 . Ext.R4 - DD No. 031567 dated 13/11/2013 of Indusind Bank Ltd., Mumbai, favouring Ministry of Finance, Quebec for $ 910/-.

5 . Ext.R5 – Fees and payment method for processing immigration applications.

6 . Ext.R6 – Letter regarding dossier dated 08/04/2014 of Ministry of Immigration, Quebec addressed to 2^nd complainant.

7 . Ext.R7 – DD No.037753 dated 12/11/2014 of Indusind Bank Ltd., Mumbai favouring Noaisys Immigration Inc. For $ 1000/-.

8 . Ext.R8 – E mail communication dated 03/12/2015 from Noaisys, Thodupuzha  to 2^nd complainant regarding updation of file by adding child & IT details.

9 . Ext.R9 – Retainer agreement dated 01/02/2016 between Noaisys  rep. Simon John Chelattu and 2^nd complainant.

10 . Ext.R10 – Application for adding dependant child

11 . Ext.R11- DD No.044468 dated 04/03/2016 for $ 916 of Indus Ind Bank, Mumbai favouring Noaisys Immigration INC.

12 . Ext.R12 – Letter dated 09/05/2016 containing proposal to reject application for immigration and to provide further documents, if any for updation.

13 . Ext.R13 – E mail dated 13/05/2016, 27/05/2016, 17/06/2016, 22/06/2016 sent by Noaisys, Thodupuzha intimating 2^nd complainant Leena Mathew for required documents to update application.

14 . Ext.R14 – Application for selection certificate – skilled worker.

15 . Ext.R15 -  Mail from Noaisys, Thodupuzha to 2^nd complainant stating the acknowledgement of letter sent from Head Office.

16 . Ext.R16 – E mail dated 15/11/2017 sent by complainant to simon@noaisys.com  stating that “ they are not looking forward please refund our money.....we lost our time.”

17 . Ext.R17 – E mail dated 28/12/2017 sent by Simon Chelattu to 1^st complainant stating among other things that no refunds will be allowed in the light of retainer agreement.

18 . Ext.R18 – Refusal letter dated 14/02/2018 from Quebec Government.

 

(Cont.....11)

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19 .  Ext.R19 – E mail dated 08/03/2018 sent by Noaisys Thodupuzha to 2^nd complainant to attend the Thodupuzha office for getting the attestation in reply letter to be filed before Quebec Government.

20 . Ext.R20 – Letter dated 14/03/2018 Addressed to Director, Immigration Canada to reconsider the application.

21 . Ext.R21 – Quebec Point Grid 2013

22 . Ext.R22 – Quebec Point Grid 2017

23 . Ext.R23 – Refusal letter dated 23/05/2018 in respect of review application.

24 . Ext.R24 – E mail dated 24/07/2018, 06/08/2018 with application for administrative review sent by Noaisys Thodupuzha to 2^nd complainant.

25 . Ext.R25 – Legislation of Quebec for cancellation of application  mentioning the compensation for rejected applicants.

26 . Ext.R26 – Copy of CIC News  dated 22/07/2019 regarding court order for refund of fees paid with certain criteria.

27 . Ext.R27 – List of approved and rejected applicants.

 

 

                                                                                               Forwarded by Order  

 

 

                                                                                          ASSISTANT REGISTRAR