DR. INDER JIT SINGH, MEMBER

1.         The present Revision Petition (RP) has been filed by the Petitioners against Respondents as detailed above, under section 21(b) of Consumer Protection Act, 1986, against the order dated 08.02.2016 of the State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 47/2016  in which order dated 28.12.2015 of District Consumer Disputes Redressal Forum, Chandigarh (hereinafter referred to as District Forum) in Complaint (CC) No. 252/2015 was challenged, inter alia praying for setting aside the orders passed by the State Commission and District Forum.

2.         While the Revision Petitioners (hereinafter also referred to as Opposite Parties) were  Appellants before the State Commission and Opposite Parties before the District Forum and the Respondents (hereinafter also referred to as Complainants) were Respondents before the State Commission and Complainants before the District Forum.

3.         Notice was issued to the Respondents on 06.05.2016.  Parties filed Written Arguments on 15.02.2022 (Petitioners) and 14.10.2020 (Respondents) respectively. 

4.         Brief of the case, as presented by the Complainant is that the Complainant-1/Respondent-1 herein had applied for Canadian – PR under skilled worker category for betterment in Canada through the OPs/Petitioners herein, who are doing a profession of providing immigration and education services in the name and style of Genesis Immigration and Education for different countries like Canada, Australia, New Zealand, UK and USA. OPs are also processing applications for permanent residency for Australia and Canada under different categories like skilled workers and trade persons. The OPs retained complainant No.2 first time on 27.01.2014 for Australian Immigration and received the application processing fee of Rs.12,500/- excluding IELTS Test Coaching Charges of Rs.6500/- .  The OPs had applied to VETASSES before filing the Immigration to Australia for the complainants and got positive result from VETASSES for complainant No. 2 on 12.06.2014.  The OPs charged Rs.48,300/- as fee of VETASSES body from the complainants.  After that, when the OPs failed to proceed with the application of complainant No.2 for the Australian Immigration, then the  OPs assessed profile of complainant No.1 (wife of complainant No.2) as a principal under skilled worker category for Canada and started to proceed with this application under Skilled worker Category.  The complainant had spent Rs.17,300/- on her Credential Authentication for Canadian-PR, which was the first step to apply for Canadian-PR.  Both the complainants had taken the IELTS test and deposited their IELTS test fee @Rs.9800/- per candidate.  During preparation of IELTS test both the complainants dropped their job duties and also appointed a care taker for their little daughter.  All the documents required for applying under skilled worker category as per the checklist issued by the OPs, were provided by the complainants to the OPs.  The complainant had spent Rs.25000/- approx. to complete and provide all the documents like Marriage Registration certificate, Transcripts of the School and College Certificates, Translations of all the documents, which were not in English Language, Notarized all the documents, Exchange charges from Rupees to Dolars for making Embassy Fee Drafts etc. to the OPs to prepare their PR application and courier it to Canada.  The OPs sent the application vide AWB No. N95407712 on 24.09.2014, which was delivered at Canada on 01.10.2014.  The OPs assured the complainants that their application had been fully processed and OPs would get the unique application number, which would be issued by Canadian Embassy.  The OPs received the incomplete file along with rejection letter from Canada.  The OPs were lingering on the matter and commented ‘wait’.  The complainants had enquired number of times for the status of their file from the OPs from January 2015 to March 2015, but OPs never told the complainants exact status of their application, and the OPs had always said wait.  On 01.04.2015 the OPs  called the complainants and informed that their application packet had been returned by the Canadian Embassy and had received that day by the OPs due to non-attachment of Birth Certificate of Spouse (Tarun Kinger) in the application packet.   However, the OPs received the rejection letter in the month of December 2014 from Centralized Intake Unit.  After three months of rejection, the OPs had informed the complainants about their application status. The OPs intentionally and deliberately withhold the most important information from the complainants because OPs knew that it was their fault and further mischievously and fraudulently retained this information from the complainants.  The complainants spent Rs.6,48,700/-. The OPs approached the office of OPs for refund of their money, but the office staff had not responded well and lingered on the matter due to non-presence of owner in the office.  The complainants again called the OPs office on 03.04.2015 and the staff replied that the owner was not in the office and the same day, when complainants reached at OPs’ office, the owner and OP-2 were present in the office.  OP-2 used rash language with the complainants and signed a document from the complainants and refunded only a cheque amounting to Rs.12,500/- as processing charges.  The OPs assured that they would refund the total expenditure incurred by the complainants, provided the complainants will not report the matter to the police and the Media people.  As per commitment the complainants neither reported the matter to the police nor to the media person, but despite the facts the OPs have not refunded the actual expenditure incurred by the complainants to get the Canadian-PR.  The OPs instead of paying back whole loss of the complainants, kept lingering on the matter on one pretext or the other.  Hence, filed complaint before the District Forum.

5.         Vide Order dated 28.12.2015 in the CC No. 252/2015, the District Forum partly allowed the complaint and directed the OPs to refund jointly and severally 810$ (equivalent value in rupees, on the date of filing of the complaint) to complainants towards processing fee to VETASSES.  The District Forum also directed the OPs to pay Rs.25,000/- on account of deficiency in service and causing mental and physical harassment to the complainants and Rs.10,000/- as costs of litigation. The OPs were directed to comply with the order within 30 days of its receipt by the OPs, thereafter, they shall be liable for an interest @12% per annum on the amount of compensation and charges towards deficiency in service (except for litigation costs).

6.         Aggrieved by the said Order dated 28.12.2015 of District Forum, Petitioners appealed in State Commission and the State Commission vide order dated 08.02.2016 dismissed Appeal No.47/2016. 

7.         Petitioners/OPs have challenged the said Order dated 08.02.2016 of the State Commission mainly on following grounds:

(i)      Both the Fora below failed to appreciate and given findings on the law point regarding the complainants, not falling within the purview of definition of consumer under the provisions of Consumer Protection Act.  The petitioners had raised specific objections regarding the same in their preliminary objections in the written statement.  Respondent-1 had never availed the services of the OPs and hence on no account the Respondent-1 can be regarded as Consumer of the services of the Petitioners.  Only Respondent-2 had availed the services of Petitioners and paid Rs.12,500/- for immigration to Australia which was also eventually refunded on the request of Respondent-2 on compassionate grounds, however, petitioners were never bound to do so. No charges were ever paid by Respondent-1 for processing her application for immigration to Canada.  Hence, the services of the petitioners with respect to immigration for Canada were availed by the Respondents without any consideration without which the respondents will not be covered within the ambit of the definition of ‘consumer’ under the provisions of the Consumer Protection Act, 1986.  Respondents have failed to place any document on record showing any payment given to petitioners on behalf of Respondent-1.

(ii)    Both the fora below failed to take cognizance of the fact that the respondents had concealed and misrepresented various facts before the Fora below and hence, complaint deserved to be dismissed on the ground that the complainants have not approached the Forum with clean hands.  Respondent-2 had apparently concealed before the Forum that he was not able to meet the required English language threshold in the form of IELTS test course as per their requirements of Australian Embassy.  The fee of 810$ claimed to be paid to the Petitioners was not charged by the Petitioners at any point but was rather paid to VETASSESS, an Australian Government body.  Respondent-2 made payment of Rs.12,500/- for which a proper receipt was issued and refunded later on compassionate grounds on 3^rd April 2015.

(iii)   Both the fora below failed to appreciate the fact that the birth certificate of Mr. Tarun Kinger who was dependent applicant in the application of Respondent-1 had a discrepancy as the name was mentioned as Tarun Kumar instead of Mr. Tarun Kinger as mentioned on his passport.  Respondent-1 was advised to get name of her spouse rectified in his birth certificate before finally applying to the Embassy. But Respondent-1 insisted that she did not have time to get the birth certificate corrected and hence, his matric certificate may be used as a proof of date of birth.  It was only on the insistence of Respondent-1 that the certificate of matriculation was annexed instead of birth certificate so as to avoid any objection from the Canadian Embassy with respect to the name Mr. Tarun Kinger.  The Fora below failed to appreciate the fact that till date, Rspondent-2 has not got his name rectified on the birth certificate which clearly shows his name different than as mentioned on all his other identity and educational documents.  No consideration was paid to the OPs for rendering their professional services for Canadian immigration and no document has been put up by Respondent-1 to prove her claim that any money was paid to petitioners.

(iv)   The Fora below also failed to appreciate the fact that the usual time taken by the case file to be received back from Canadian Embassy is 3 to 4 months.  The case file was returned by the Canadian Embassy which was further delayed due to winter vacations in Canada in the month of December.  Hence, the case file of the Respondents was received in the office of OPs in February, 2015 because file was returned by Canadian authorities using ship mail and not Air mail.  The Respondents accordingly informed the return of their case file but the complainants were callous regarding their case file and came to the office of the OPs in the month of March, 2015.

(v)     Both the Fora below ignored the fact that the fee charged by the Petitioners for immigration services for Australia amounting to Rs.12,500/- was refunded to the respondents on considerate grounds, which the respondents themselves have admitted in their complaint. No charges were given by the Respondents for availing services for immigration to Canada.

(vi)   Both the Fora below have committed error while holding that the Petitioners are liable to refund 810$ to the complainants which was paid towards processing fee to VETASSES by the respondents themselves directly to VETASSES, which was some company in Australia, hired by the petitioners for the services of immigration of the respondents, the State Commission has also misconstrued the statutory body of VETASSES to be some kind of company in Australia.  VETASSES is a statutory government body of Australia and all the applications are mandated by Australian Embassy to get their profile assessed by VETASSES before being forwarded to the Australian Embassy.  The processing fee of 810$ was paid directly by Rspondent-2 to the VETASSES.  No document has been placed on record by the Respondents that this fee was ever paid to the petitioners.  No contention or any kind of objection was made by the complainants that they were forced to pay to some unknown company in Australia. The respondents were well aware that VETASSES is a statutory body and the respondents are liable under the Australian legal norms to pay the requisite fee to VETASSES.

(vii)  The Fora below have on their own derived at an unreasonable and wrong conclusion that VETASSES was some kind of company in Australia and the petitioners have unnecessarily involved the respondents into an agreement with some unknown party.  Both the courts failed to appreciate the fact that because of efforts of petitioners, Respondent-2 was able to get approval from VETASSES which was compulsory first step to migrate to Australia, thus payment of 810$ paid to VETASSESS were not wasted, rather they resulted in positive outcome of immigration profile due to efforts of petitioners. It was the fault of the Respondent-2 that he could  not attain the required IELTS score for immigration to Australia due to which he had to make Respondent-1 as main applicant for Canada Immigration as Respondents-1 & 2 desperately wanted to migrate to Canada or Australia.   (Relied upon the judgment of this Commission in the case titled as Rimwea Career Forum Ltd. and Ors. Versus Palwinder Kaur (2013 (1) CLT 425).

(viii) Both the Fora failed to appreciate the fact that the complaint of the respondents was not sustainable in view of the facts that the respondents are still eligible to apply for Canadian Immigration and can still use the same fees returned to them to apply for immigration for Canada.  It was specifically mentioned in the written statement filed by the petitioners before the District Forum as well as in the Appeal filed before the State Commission that thee was no material irregularity in the returning of the case of the respondents as the respondents were still eligible to apply for Canadian as well as Australian Immigration.  The respondents instead of rectifying the documents or getting an appropriate score in IELTS deliberately chose to file a complaint against the Petitioners.  Both the Fora below have relied on the contentions of the respondents which have not been supported by any cogent proof or evidence.  Both the Fora below have apparently jumbled up the facts of both the immigration services i.e. for Australia and Canada availed by the respondents and therefore derived at a blatantly wrong conclusion of petitioners being deficient in services.

(ix)  Both the Fora below ignored the fact that the petitioners waived off Rs.50,000/- as total fee of processing the application for Canada as well as cost of courier of documents to Canada.  The respondents filed the complaint just out of frustration of their own faults and now want to extort money from the petitioners to solve their financial problems by frivolously resorting to legal remedies before this Commission.     

8.         Heard learned Counsel for both sides. It is the case of Petitioners/Opposite Parties that initially Respondent-2 had availed the services of Petitioners on 27.01.2014 for migrating to Australia, for which Respondent-2 had paid Rs.12,500/- as service charges.  The Petitioners had procured positive outcome (approval) of the profile of the Respondent-2 from VETASSES, which is an Australian statutory body for assessing the profile of the applicants before the final approval by Australia Embassy/Govt. He was eligible for immigration subject to condition of passing IELTS exam with 6 bands each, which he could not achieve.  Petitioner contended that fee of Australia $810 (Rs.40,300/-) was not charged by the Petitioners, it was the processing fee of Australian Govt.’s statutory body VETASSES, and was non-refundable.  This was paid by Complainant/ Respondent-2 directly using his Credit Card and not to OPs.  Respondent-2 was not able to meet basic criteria for immigration to Australia in terms of required IELTS score, hence Complainant asked for alternative options from the Petitioners. When Canada was suggested as alternate option, Respondent-2 requested the Petitioners to make his wife/Respondent-1 as the main applicant for Canada immigration because Petitioner told Respondent-2 that he does not qualify for Canadian immigration.  The Respondents did not pay any fee for services relating to Canadian immigration, and promised to pay the same later on.  Fees of Rs.17300/- was paid to WES, a body of Canadian Embassy directly by Respondent-1.  Petitioner(s) processed the case of Respondents in good faith without charging its fees. The case of Respondents/Complainants was not rejected as averred by the Respondents but was rather ‘returned’ by the Canadian Embassy along with fees paid, with the objection that birth certificate of applicant dependent was not supplied.  Respondent-1 was informed before sending the documents that name of her spouse (Respondent-2) in the birth certificate was mentioned as ‘Mr. Tarun Kumar’, instead of  ‘Mr. Tarun Kinger’ as mentioned in the passport.  Respondent-1 was advised to get Respondent-2’s name rectified in his birth certificate before finally applying to Embassy but Respondent-1 insisted that as she does not have time for correction, spouse’s matric certificate may be used as proof of date of birth.  Hence, instead of birth certificate, matriculation certificate was annexed.  There was no material error in the file or its preparation which is evident from the letter dated 26.11.2014 sent by Canadian Authorities citing non-inclusion of birth certificate of spouse as reason for return.  The Petitioner also submitted that they have even refunded the fee of Rs.12,500/- charged by them on considerate grounds. On the other hand the Respondents have contended that due to negligence and blunder, the petitioners had wrongly assessed the profile of Respondent-2 and could not succeed to proceed the application of Respondent-2.  It is further contended that the petitioners in the meantime mislead the Respondent-2 to apply for Canadian PR by making the Respondent-1 (wife of Respondent-2) as the principal applicant under skilled worker category as she met all the eligibility factors needed for Canadian PR and whereby the petitioners again charged Rs.12,500/- as application processing fee and further respondents had to spend Rs.17,300/- for their Credential Authentication for Canadian PR., Rs.7000 for IELTS Test Coaching, Rs.9800/- per Respondent for IELTS examination and Rs.25,000/- for preparing their file for application to Canadian embassy.  It is further contended that the allegation of the petitioners that Respondent-2 was not able to meet the required English language threshold in form of IELTS test course as per requirements of Australian Embassy are vague and false. When Respondent -2 received his positive approval from VATASSESS, the complainant started preparing for his IELTS examination and at the same time the petitioners started processing the profile of respondent-1 for Canadian PR as Skilled Worker and further misguided the respondents to continue for processing the profile of Respondent-1 for Canadian PR alongwith family.  The petitioners completely ignored the profile of Respondent-2 which was fit for Australia and diverted him as a dependent spouse of Respondent-1.  Respondent-2 is well-educated and graduate and had scored overall 6 bands in IELTS exam and had he not been diverted to rely upon application of Respondent-1, he was also eligible for his Australian PR.  The petitioners had mislead the Respondent-2 to pay an amount of Rs.48,300 for evaluation of his certificates to VATASSESS on 12.06.2014 prior to clearing of his IELTS exams and prior to assessing his file on their own. 

9.         We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties.  In this regard, extract of relevant paras of orders of District Forum is reproduced below:

“10. So far as the payment of processing fee of 810$ by the Complainant no.2 is concerned, it is the responsibility of the Opposite Parties to prove that how the Complainant No.2 offered money to a Company in Australia. Pertinently, the Complainant No.2 did not go to Australia for getting the contract entered into with the unknown party (VETASSES) at Australia. This shows that the Opposite Parties have created another shield for their own benefit. If the Opposite Parties themselves were not competent enough to proceed with the case of the Complainant No.2 to the Australian High Commission, then there was no reason for them to get into any kind of contract/ agreement with the Complainant No.2. This act of involving its innocent Clients unnecessarily into Agreement with unknown parties for their own selfish motive proves deficiency in service on the part of the Opposite Parties. We feel that throughout the entire process of immigration the Opposite Parties did not support the Complainants nor performed their duties upto the level as expected from them. Even after spending huge amount, energy and precious time, the Complainants had to face the failure of their attempt to settle aboard. Ultimately, by giving great harassment to the Complainants, the Opposite Parties refunded meagre amount.

11. In view of the above discussion, we are of the opinion that the present complaint should succeed. The same is accordingly, partly allowed. The Opposite Parties are, jointly and severally, directed:-

[a] To refund 810$ (equivalent value in rupees, on the date of filing of the complaint) to the Complainants paid towards processing fee to VETASSES.

[b] To pay Rs.25,000/- on account of deficiency in service and causing mental and physical harassment Complainants;

[c]  To pay Rs.10,000/- as costs of Litigation:”

Extract of relevant paras of order of State Commission is also reproduced below:

“12…….However, no written objection was raised by the Opposite Parties for the lack of any document. We are of the view that the Forum rightly stated that complainant No.2, who was spending huge amount out of his hard earned money and was doing all possible efforts for his settlement aboard must have given reasonable answer/solution for the objection. if any, in case the same was raised by the Opposite Parties. In the present case, there is no such authentic document on the file to show that the Opposite Parties at any stage objected to any of the documents filed by complainant No.2. Regarding payment of processing fee of 810$ by complainant No.2 is concerned, the Forum rightly held that it is the responsibility of the Opposite Parties to prove that how complainant No.2 offered money to a Company in Australia. Moreover, complainant No.2 did not go to Australia for getting the contract entered into with the VETASSES at Australia, which shows that the Opposite Parties created another shield for their own benefit. We are of the view that the Forum rightly stated that this act of involving its innocent clients unnecessarily into Agreement with unknown parties for their own selfish motive proves deficiency in service on the part of the Opposite Parties. The Forum rightly held that throughout the entire process of immigration, the Opposite Parties did not support the complainants nor performed their duties upto the level, as expected from them. Thus, the order of the Forum, being legal and valid, is liable to be upheld.”

10.       It is to be noted that grant of VISA, PR (Permanent Residency), immigration etc. are the sovereign functions of the receiving country and no Immigration Agency like the Petitioner(s) in the present case can guarantee grant of VISA or PR or immigration to any applicant.  They can only guide and facilitate the applicants in terms of rules and regulations for such activities, filing of applications/documents and coordination with concerned Agencies of the receiving country etc.  The receiving country has their own set of guidelines, terms & conditions, which have to be met, and they have constituted various agencies for performing such functions.  VETASSES[1] in Australia and WES[2] in Canada are examples of some such agencies of the receiving countries.  Fee paid to such agencies for VISA/PR/Immigration etc. is generally non-refundable, even if the applications are rejected. In the present case, both District Forum and State Commission wrongly assumed as if VETASSES in Australia is some Company/unknown party.  If anyone wishes to get PR/Immigration to a particular country, obviously such applicants have to pay the requisite fee to such agencies.  In case their application does not succeed, they cannot blame the immigration agency for such rejection unless they prove with cogent and reliable evidence of any deficiency in service on the part of the immigration agency or that such immigration agency has indulged into any unfair trade practice.  For providing their facilitation/consultation services, such immigration agencies charge their fee, which is over and above the requisite fee payable to concerned agency(ies).

11.       For the reasons stated hereinabove and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned counsel for the parties, we are of the view that there is no deficiency in service on the part of Petitioners in providing their services to Complainant-2/Respondent-2 for immigration to Australia or to Complainant-1/Respondent-1 for immigration to Canada.  The application for immigration to Australia got rejected on account of Responding-2 not having the required IELTS score of 6 in each band and application for immigration to Canada got retuned on account of non-submission of birth certificate of the spouse of Resspondent-1 (i.e. Respondent-2).  It is not disputed that name of Respondent-2 on birth certificate and passport was not same, hence the contention of Petitioners/Opposite Parties that instead of birth certificate, matriculation certificate was enclosed with the application on the insistence of Respondents, appears correct.  Petitioners have already refunded the fee of Rs.12,500/- on considerate grounds, charged from Respodnent-2 in connection with immigration application to Australia, although they were not bound to do so as there was no guaranteed outcome in terms of immigration, nor such a guaranteed outcome could have been promised.  The Petitioners did succeed in getting a positive outcome of profile of Respondent-2 from VETASSES.  State Commission and District Forum went wrong in observing as VETASSES was some unknown party or Company in Australia and that Complainant-2 did not go to Australia for getting contract entered with the unknown party VETASSES and that Opposite Parties created another shield for their own benefit.  VETASSES (Vocational Education and Training Assessing Services) is a skill assessment authority in Australia and is an authorized agency of Australia Govt. for such purposes.  Applicants intending to have immigration to Australia have to deposit requisite fee with this agency for skill test/approval etc.  The applicant need not go to Australia to have any contract signed with such an Agency.  Fees are paid online these days, and such fee is non-refundable even if applications are rejected due to any reason.  Service providers like Petitioners in the present case cannot be held responsible in case the rejection is on account of non-fulfilment of mandatory conditions/criteria, as is the reason in the present case, for which they are not responsible.  Hence, such service providers cannot be held liable to refund the fee paid to such agencies.  The District Forum went wrong in ordering a refund of Australian $810 (equivalent value in rupees on the date of filing of the complaint) and State Commission went wrong in upholding the order of the District Forum, hence, orders of State Commission and District Forum cannot be sustained.  Both the orders are hereby set aside and complaint is dismissed.  Revision Petition is allowed accordingly.  Both sides to bear their respective litigation costs.

12.       The pending IAs in the case, if any, also stand disposed off.