STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Harpreet Kaur, D/o Sh.Manjinder Singh, r/o H.No.B-XXIX-1706/573, St.No.12, Preet Nagar, Chimny Road, Shimlapuri, Ludhiana.

……Appellant/Complainant

V e r s u s

1.  M/s Foreign Horizons(A unit of T & A Overseas Consultants Pvt. Ltd.), S.C.O. 126-127, Basement, Sector 8-C, Madhya Marg, Chandigarh, through its Prop./M.D./Authorized Representative.

2.  Mr. Arvind Ashat, Director, M/s Foreign Horizons(A unit of T & A Overseas Consultants Pvt. Ltd.), S.C.O. 126-127, Basement, Sector 8-C, Madhya Marg, Chandigarh

....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

              SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by: Sh. Harish Sharma, Advocate for the appellant.  

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 08.02.2012, rendered by the District Consumer Disputes Redressal Forum-II,  U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint filed by the complainant (now appellant).

2.               The facts, in brief, are that, the complainant was interested in immigration to Australia. She approached the Opposite Parties, who were experts, in providing guidance to the people, interested in migration to Australia. It was stated that all the required documents for processing the immigration case of the complainant, were submitted by her. It was further stated that the Opposite Parties, for processing the  case of the complainant for immigration to Australia, obtained the requisite fee of Rs.25,000/-, on 30.12.2008, Rs.49,999/- on 07.01.2009 and Rs. 1 lac on 09.03.2009. It was further stated that the complainant was assured by the Opposite Parties, that, in case, the visa was not granted to her, the entire amount would be refunded. It was further stated that a demand draft in the sum of Rs.15,700/-, as visa fee, in favour of Australian Embassy, was also handed over to the Opposite Parties. It was further stated that the Opposite Parties, informed the complainant, that her case had been rejected by the Australian Government, due to some technical problem. It was further stated that the complainant was again made to deposit another demand draft dated 26.06.2009, for Rs.15,700/-, as a new processing fee. It was further stated that, thereafter, a lot of correspondence was exchanged, between the Opposite Parties and the complainant, but they  (Opposite Parties) were not able to arrange visa for the complainant. The complainant also filed a Criminal Complaint against the Opposite Parties, before the Senior Superintendent of Police, Chandigarh, on 7.10.2009. She also served a legal notice upon the Opposite Parties, through her Advocate on 3.8.2010. It was further stated that since the Opposite Parties, were not able to arrange immigration for the complainant to Australia, she asked for the refund of the entire amount, paid by her, but they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.               Opposite Party No.1 and 3, in their joint written version, pleaded that the complaint had been filed, just with an object to defame and extract money from them. It was further pleaded that infact the case of the complainant was rejected by the Australian Govt. twice firstly, on 11.05.2009 vide Annexure R-1 and on the second occasion, on 24.08.2009 vide Annexure R-2. It was stated that the first rejection letter aforesaid stated that the complainant was not seeking a genuine entry to Australia, as the documents provided by her, showing her financial capacity and sponsorship evidence, when verified by the Australian Govt., were found to be fraudulent. The second rejection, aforesaid, was, on the ground, that the complainant had no genuine intention of entry and stay as a student in Australia. This conclusion was arrived at, by the Australian Govt., on the basis of the answers given by her (complainant), to the questions, put to her, during the course of interview. It was admitted by the Opposite Parties, that they were only to facilitate the immigration of the complainant to Australia, after she had cleared her Student Course/Programme, as a Registered Nurse in Australia.  It was further stated that after completion of all necessary formalities, and attachment of all relevant documents, the visa file was prepared by the Opposite Parties, and was deposited by the complainant, herself, with the Australian Embassy.  The payments received from the complainant, were as per the payment plan. It was further stated that the total amount payable was Rs.4,00,000/-, out of which Rs.25,000/- constituted as processing fee and documentation charges. It was further sated that the amount of Rs.50,000/-, was non-refundable, as the same was the fee of the Nursing Board Australia, for registration and to verify the complainant’s qualification certificates from the Nursing Board Punjab.  It was further stated that the third installment was to be paid as initial fee, to the Institute, and the balance fee of Rs.2,25,000/-,  was to be paid by the complainant, after grant of visa, by the Australian Embassy. It was further stated that it was made clear, on the very first day, to the complainant, that the Embassy and visa fees and charges for Chartered Accountant’s report, would be directly paid by her. It was further stated that the letter dated 11.5.2009, was directly sent to the address of the complainant,  by the Australian Embassy. It was further stated that both the complainant and her father, were guilty of providing forged and fake documents to the Opposite Parties, as well as the Australian Embassy, due to which her visa application had been rejected twice. It was further stated that, infact, it was the complainant, who had been harassing the Opposite Parties,  by sending threatening e-mails and filing false & frivolous complaints, before the Police Authorities at Ludhiana and Chandigarh. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.               During the pendency of the complaint, the Counsel for the complainant, made a statement that Opposite Parties No.2,4 and 5, be deleted from the array of the parties. Accordingly, the names of Opposite Parties No.2,4 and 5, were deleted, from the array of the Opposite Parties.

5.               The Parties led evidence, in support of their case.

6.               After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order.

7.               Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

8.               We have heard the Counsel for the appellant, and, have gone through the evidence and record of the case, carefully. 

9.               The Counsel for the appellant, submitted that no doubt, the amount of Rs.49,999/- and Rs. 1 lac, were paid to M/s T & A Overseas Consultants Pvt. Ltd. He further submitted that M/s T & A Overseas Consultants Pvt. Ltd., a Consultancy Company, is a unit of M/s Foreign Horizons (Opposite Party No.1). He further submitted that, as such, the amounts aforesaid, having been paid to M/s T & A Overseas Consultants Pvt. Ltd., would be deemed to have been paid to M/s Foreign Horizons (Opposite Party No.1). He further submitted that, even no objection was taken by Opposite Parties No.1 and 3, in their written reply that M/s T & A Overseas Consultants Pvt. Ltd., had not been impleaded, as a party, and, as such the complaint was not maintainable. He further submitted, that since, the services of the Opposite Parties, were hired by the complainant, for the purpose of her migration to Australia and the amounts were paid,  once the visa was not granted to her, they were liable to refund the same to her. He further submitted that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice, but the District Forum was wrong, in coming to the contrary conclusion. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

10.            After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded, hereinafter. Undisputedly, the services of the respondents/Opposite Parties No.1 and 3, were hired by the complainant, for processing her case, for migration to Australia. Her case was processed by the respondents/opposite parties No.1 and 3, and they charged Rs.25,000/-, as processing fee, and for completing the  documentation. The documents, as provided by the complainant, for processing her case, were duly submitted to the Australian Government. Annexures R-1 and R-2, are the letters of rejection of the Australian Government, Department of Immigration and Citizenship, which were sent directly to the complainant, at her address. Annexures R-1 and R-2, are reproduced as under:-

 “Annexure R-1 ( Dated 11th May, 2009)

I wish to advise you that the application for this visa has been refused. After careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.

Comments: You have provided evidence of sponsor relationship in your application as part of your evidence to meet the financial capacity requirement. The relevant authorities have verified that this evidence is fraudulent. As you have provided fraudulent information regarding your financial capacity in your application I am not satisfied that you have the financial capacity to undertake a course of study in Australia without contravening a condition of the visa relating to work. I am not satisfied that you meet clause 570.223(2)(i)(B) and clause 5A205.

This application for a student visa has also been assessed against the requirements of the other sub-classes relating to the Student (Temporary) (Class TU) visa. I find that you do not meet the requirements for these subclasses either.

As I am not satisfied that you meet the requirements for grant of a Student (Temporary) (Class TU) visa, this application must be refused under Section 65 of the Migration Act. Please note that this decision is final and there is no right of review. There is no refund of the visa application charge”

“Annexure R-2 ( Dated 24 AUG 2009)

This letter refers to the application for a Student (Temporary) Class TU subclass 570 visa, which was lodged at New Delhi on 29.06.2009.

I wish to advise you that the application for this visa has been refused. After careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.

Comments: You have been interviewed in relation to the proposed course of study in Australia and on other information relating to this application. The answers provided in response to these questions were such that concerns were raised as to your genuine intention to undertake this course of study and to comply with any conditions subject to which any visa granted would be subject. As such I am not satisfied that you are a genuine applicant for entry and stay in Australia.

This application for a student visa has also been assessed against the requirements of the other sub-classes relating to the Student (Temporary) (Class TU) visa. I find that you do not meet the requirements for these subclasses either.

As I am not satisfied that you meet the requirements for grant of a Student (Temporary) (Class TU) visa, this application must be refused under Section 65 of the Migration Act. Please note that this decision is final and there is no right of review. There is no refund of the visa application charge”

11.            A careful perusal of the afore-extracted letters Annexures R-1 and R-2, sent by the Australian Government, directly at the address of the complainant, reveals that the documents provided by her, for grant of visa were found to be inadequate/fraudulent, due to which, her application for visa was rejected. It is further evident from the letter Annexure R-2, that the Australian Government, came to the conclusion, that the answers given by the complainant, during interview, did not show her  genuine intention to undertake the course of study and to comply with the conditions required for the grant of visa, and, as such, her visa application was rejected. In letter Annexure R-2, it was in clear-cut terms stated that there would be no refund of the visa application charges. Since, the visa application of the complainant was rejected twice, as stated above, by the Australian Government, for the reasons, stated in Annexures R-1 and R-2, the letters addressed to her directly, it could not be said that there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 3, in processing her case. Whatever documents were provided by her, were sent by Opposite Parties No.1 and 3, to the Australian Embassy. If the complainant, provided the documents of financial status, which were found to be forged/fraudulent, on investigation, and her intention was not found to be genuine to migrate to Australia, then the Opposite Parties no.1 and 3, could not be held liable for the same.

12.            As stated above, Rs.25,000/-, were paid by the complainant to Opposite Parties No.1 and 3 (now respondents no.1 and 2). This amount related to the processing fee and documentation charges. There is nothing, on the record, to prove that the case of the complainant was not processed by Opposite Party No.1 and 3. On the other hand, it was proved, that her case was processed by Opposite Parties No.1 and 3, in the right earnest. It was at the level of the Australian Government, that her visa application was rejected, for the reasons stated above. Under these circumstances, there was no deficiency, in rendering service, on the part of Opposite Parties No.1 and 3, so far as processing of the visa application was concerned. The complainant, therefore, was not entitled to the refund of amount of Rs.25,000/-.

13.            Now   Coming   to the amounts of Rs.49,999/- and Rs. l lac, which were paid by the complainant, it may be stated here that such payments were admittedly made by her to M/s T & A Overseas Consultants Pvt. Ltd. No doubt, in the heading of the complaint, it was mentioned by the complainant that M/s T & A Overseas Consultants Pvt. Ltd., was a Unit of M/s Foreign Horizons (Opposite Party No.1). However, no document was produced, on record, by the appellant/complainant that M/s T & A Overseas Consultants Pvt. Ltd., was a unit of Opposite Party No.1. Mere writing in the heading of the complaint that M/s T & A Overseas Consultants Pvt. Ltd., was a unit of Opposite Party No.1, did not prove this factum. Since payment of these amounts, was made by the complainant to M/s T & A Overseas Consultants Pvt. Ltd., and, it is not proved, that it was a unit of Opposite Party No.1, it was required of the complainant to implead it (M/s T & A Overseas Consultants Pvt. Ltd.), as a party to the complaint, so that the controversy could be adjudicated upon, effectively and completely. In the absence of  M/s T & A Overseas Consultants Pvt. Ltd., as a party to the complaint, no finding, at their back, against them, could be recorded. The District Forum, was right, in holding, that Opposite Parties No.1 and 3, could not be held liable for the refund of amounts of Rs.49,999/- and Rs.1 lac, referred to above, in this paragraph.

14.            Coming to the amount of Rs.15,700/- each, paid vide Annexures C-3 and C-4, to the Australian High Commission, as visa fee, it may be stated here, that in letter Annexure R-2, it was, in clear cut terms, mentioned that such fee was not refundable. This fee was paid to the Australian High Commission, directly through demand drafts, aforesaid, and not to Opposite Parties No.1 and 3. Under these circumstances, no claim could be made with regard to the refund of this amount, against Opposite Parties No.1 and 3. The District Forum was also right in holding so.

15.            No other point was urged by the Counsel for the appellant.

16.            In view of the above discussion, it is held that the District Forum, was right, in holding that the Opposite Parties, were neither deficient, in rendering service, nor indulged into unfair trade practice. The order of the District Forum, being legal and valid, is liable to be upheld.

17.             The order passed by the District Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

18.            For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

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

20.            The file be consigned to Record Room, after completion

Pronounced.

27.03.2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

[JAGROOP

Rg