MRS. NEENA SANDHU, MEMBER

1.       This is an appeal filed by the OPs against order dated 30.9.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) in complaint case No. 876 of 2009.

2.       Briefly stated, the facts of the case are, that the complainant wanted to migrate to Australia and to work there. The OPs are professional service providers and they provide service with respect to preparation and submissions of immigration applications. The complainant approached the Ops for migration to Australia for employment under the Skilled Independent Regional (Provisional) VISA Scheme called ‘SIR’. It was submitted that after detailed discussion, the complainant was assured of his eligibility for the chosen/permissible occupation of a Marketing Specialist. It was submitted that the OPs were required to submit his application for migration to Australia after comprehensively assessing his qualifications and experience. An agreement was entered into between the complainant and the service provider on 2.1.2007. The skilled migration assessment as marketing specialist (ASCO Code : 2221-13) about the eligibility of the complainant was also got done on 22.1.2007 by the Ops through Mr.Sue Hamilton, Manager Qualification Unit – “VETASSESS”. The complainant was assessed suitable and eligible as Marketing Specialist for the said migration purpose. It was on the basis of declaration made by the complainant, to migrate and live in South Australia for at least 2 years, his sponsorship for the said VISA ‘SIR’ was also approved by the Government of South Australia. The prescribed application form, duly having been filled in, by the complainant, was checked and forwarded to the department concerned by the Ops. It was further submitted that Mr.Sandra Shephard of the Department of Immigration and Citizenship of Australian Government addressed a letter dated 17.12.2007 to the Ops informing therein that the complainant was not granted visa for Australia and a copy of the letter alongwith its enclosures containing “decision records” was handed over to the complainant in March, 2008 when the complainant visited the office of the Ops. It was next submitted that on personal queries from Ops about VISA refusal, the complainant was informed by OPs that official of Embassy had picked up wrong category of profession. The Ops started giving assurance to the complainant for again taking up the matter with the concerned Embassy by exercise of the ‘Review Rights”.  The complainant made several visits to the office of the Ops to know about the progress of “Review Rights” but the OPs failed to give any positive response. It was submitted that the OPs refunded a sum of Rs.20,000/- through cheque No.083062 dated 30.9.2008 drawn on Punjab National Bank, Chandigarh with an understanding to return adequate compensation in the near future but the complainant failed to receive the refund of the money later and he served a legal notice dated 31.3.2009 upon the OPs requesting them to refund Rs.2 lacs along with interest but to no effect. It was further submitted that the complainant spent Rs.2,50,000/-. It further stated that the complainant suffered because of the wrong and negligent handling of the submission and processing of the prescribed application form, which the Ops had forwarded to the Australian Government/Embassy under ‘SIR’ category. The above said act of Ops amounted to deficiency in service and unfair trade practice and hence, the complaint was filed.

3.       Reply was filed by the Ops and pleaded that the complainant represented as an Insurance Adviser with the LIC of India and as Financial Planning Consultant with Aviva Life Insurance Co. Pvt. Ltd.  It was further pleaded that he had submitted an experience certificate issued by the LIC of India dated 8.8.2007 besides giving a statutory declaration dated 16.5.2007 evidencing that he was working as Financial Planning Consultant with Aviva Life Insurance Co. Private Ltd.   It was next pleaded that on processing the claim, it was found by the Ops that duties being performed by him had direct and more nexus with the duties attached to the category of Insurance Agent and not of Financial Planning Adviser, for which post he had given his experience certificate and the category of Financial Planning Adviser included in the skill in Occupational List (SOL), however, the category of Insurance Agent fell under category 59993-11, which is not included in SOL and, as such, his claim was rejected by the Department of Immigration, Australia. It was further pleaded that the complainant informed the OPs that he was no more interested in applying afresh and, as such, out of the total amount of Rs.27,000/-, a sum of Rs.20,000/- was refunded to him, vide cheque dated 30.9.2008 after retaining Rs.7,000/- as per the terms and conditions of the agreement. All other allegations leveled by the complainant in the complaint were denied. It was further pleaded that there was no deficiency in service on the part of Ops.

4.       The parties led evidence in support of their case.

5.       The learned District Forum allowed the complaint and directed the OPs to pay a sum of Rs.1,13,845/- to the complainant, Rs.50,000/- as compensation for mental agony and harassment and Rs.5,000/- as costs of litigation. This order was directed to be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which the OPs  were to be liable to refund Rs.1,63, 845/- to the complainant along with penal interest @ 18%  p.a. from the date of filing of the complaint i.e.  22.06.2009 till its realization besides costs of litigation.

6.          Aggrieved by the order passed by the learned District Forum, the OPs filed an appeal. 

7.       We have heard Sh.Anuj Raura, Advocate for the appellants/OPs, Sh.M.L.Batra, Advocate for the respondent/complainant as well as written arguments of the respondent and perused the record carefully.

8.       The learned counsel for the appellants/Ops argued that the OPs efficiently performed their duty by guiding the complainant and submitting his application alongwith the documents, to the concerned authorities for the grant of visa for permanent immigration to Australia under the head ‘SIR’. During the processing of the claim, it was found by the Australian Embassy that the duties being performed by the complainant had direct and more nexus with the duties attached to the category of insurance agent and not that of Financial Planning Adviser, for which he had given the experience certificate.  However, the category of insurance agent is 59993-11, which is not included in SOL. Therefore, the claim of the complainant was rejected by the immigration authorities. It was next argued that as the OPs performed their duty properly and it was the complainant who furnished false certificate to the OPs in order to get visa by hook or crook, therefore, there was no deficiency in rendering service by them qua the complainant. 

9.       The learned Counsel for the respondent/complainant argued that in order to migrate to Australia, the complainant hired the services of the appellants/Ops, the (professional service provider) to get all kinds of assistance/guidance with respect to preparation and submission of immigration application but they without comprehensively assessing his qualifications and experience just forwarded his application to the Australian Embassy with the result that the same for the grant of visa was rejected, vide Annexure P-4, the decision of the Australian Embassy, which is as under :-

“As the applicant does not meet the requirements of subclass 495, I, therefore, refuse to grant a skilled-independent Regional (Provisional) (Class UX) Visa to the applicant.”

Furthermore, the OPs informed the complainant that the official of the embassy had picked up wrong category of profession and assured that the matter will be taken up with concerned embassy by exercise of ‘Review Rights’ but nothing was done by them. Subsequently, the OPs refunded a sum of Rs.20,000/- through cheque dated 30.9.2008 against the total expenses of Rs.2 lacs. Hence, this act of the OPs amounted to deficiency in service.

10.     From the facts of the case, it is clear that the claim of the complainant for migration to Australia was rejected because the OPs after collecting the application alongwith the documents submitted by him, forwarded it to the Australian Embassy, without checking, whether the experience certificate furnished by him (complainant) was upto the mark to make him eligible to get visa under the category of Financial Planning Adviser, which is included in SOL. Had the OPs comprehensively assessed the case of the complainant as per CP1  contract of Engagement and Retainer Agreement they would have arrived at the conclusion that he was not eligible under the Skilled Independent Regional (Provisional) Visa Scheme called ‘SIR’. In that situation, the question of rejection of visa to the complainant would not have arisen.   Moreover, we don’t find any force in the submission made by the OPs that the documents furnished by the complainant were false/misleading. It is proved that there is deficiency in service on the part of OPs by not properly assisting the complainant and by not comprehensively assessing his eligibility for the grant of visa for immigration to Australia in the category called ‘SIR’. In our opinion, the OPs are liable to refund the amount, which they have already received from the complainant. The learned District Forum has committed no mistake by directing the OPs to refund the amount of Rs.1,13,845/- along with Rs.50,000/- as compensation and Rs.5,000/- as litigation expenses.  Hence, the appeal filed by the OPs is liable to be dismissed.

11.     In view of the foregoing discussion, the appeal filed by the OPs is dismissed being devoid of merit and the order passed by the learned District Forum is upheld. The parties are left to bear their own costs.

12.          Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                        

5^th April, 2011