1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 09.10.2017 of the State Consumer Disputes Redressal Commission Delhi (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.1125 of 2012 in which order dated 16.05.2012 of District Consumer Disputes Redressal Forum X Govt. of NCT of Delhi (hereinafter referred to as District Forum ) in Consumer Complaint (CC) no. 199 of 2010 was challenged, inter alia praying for setting aside the order dated 09.10.2017.

2.       While the Revision Petitioner (hereinafter also referred to as OP) was Respondent and the Respondent (hereinafter also referred to as Complainant) was  Appellant in the said FA No.1125 of 2012 before the State Commission, the Revision Petitioner was OP and Respondent was Complainant before the District Commission in the CC No. 199 of 2010.

3.       Notice  was  issued   to   the   Respondents   on   16.02.2018.    Parties filed Written  Arguments/Synopsis  on  31.10.2023 (Petitioner )  and  23.10.2023 ( Respondent) respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Complainant approached the OP for her immigration to Australia alongwith her family.  The OP offered a package called ‘gold package’ and an agreement dated 26.03.2007 was entered into between the parties.  The   Complainant made the payment on various heads like   payment   made   in  favour  of DEWR ( Department of Employment and Workplace Relations ) etc.  The Complainant submitted all the required documents including educational certificates of her family members.  It is the case of the complainant that OP had given her a guarantee for immigration and she was assured that the entire process would be completed within a period of 18 months.  The Complainant visited the office of the OP several times to know the status of her case and on 23.09.2008 she was informed that her application had been rejected on 05.092008.  The complainant wrote a letter dated 11.10.2008 to the OP seeking refund of the amount of Rs.2.3 lacs and also sent legal notice.  Complainant wrote letter to the Indian High Commission, Australia.  She also wrote letter to Laurie – Fergusun ( MIP) Australian Parliament House for redressal of her grievance from where she received a response informing her that the OP was an unregistered immigration agent.  She was further informed that Australian Government was not aware of any avenue for redressal of her grievance against the unregistered agent.  Being aggrieved, the Complainant filed a CC before the District Forum and District Forum vide order dated 16.05.2012 passed an order for refund of amount.  The OP being aggrieved of the ex parte order dated 16.05.2012, filed RP before this Commission and this Commission vide order dated 11.12.2012 dismissed the RP reserving liberty with the OP to file the appeal before the State Commission.  The OP filed an appeal before the State Commission and State Commission vide order dated 24.10.2016 dismissed the appeal of the OP.  The OP being aggrieved of the order of the State Commission dated 24.10.2016 preferred RP before this Commission and this Commission vide order dated 18.05.2017 dismissed the RP of the OP. 

Complainant not being satisfied with the relief granted preferred an appeal before the State Commission and State Commission vide order dated 09.10.2017 allowed the Appeal of the Complainant.  Therefore, OP is before this Commission now in the present RP.

5.       Petitioner has challenged the said Order dated 09.10.2017of the State Commission mainly on following grounds:

1. State Commission exceeded in its jurisdiction in allowing the appeal filed by the respondent.  Relief sought by the respondent is beyond the scope of the Consumer Protection Act.

2. State Commission committed illegality while allowing the appeal of the respondent in as much as the same was not in consonance with the relief sought in the complaint.  The respondent in the complaint had sought refund of the amount of Rs.2,02,832/-, whereas in the appeal the respondent has sought direction against the petitioner to pay a sum of Rs.4,00,000/- in all. 

3. State Commission failed to appreciate that decision in the case of World Wide Immigration Consultancy Services Ltd. ( WWICS) vs. Manohar Singh Randhawa which held that the payment made to third company is not liable to be recovered from the petitioner company.  The complainant had paid an amount of Rs.50,000/- only to the petitioner whereas an amount of US$ 1400 has been paid by the complainant to M/s ‘Global Strategic Business Consultancy (GSBC). Dubai with whom the complainant had entered into a separate contract.  The said company is a separate and distinct legal entity and no liability can be fastened on the petitioner with respect to the amount paid by the complainant to the said company.  Even M/s GSBC, Dubai was not arrayed as a respondent in the complaint.
4. State Commission failed to appreciate that the application for migration of the respondent was filed on the basis of authorization under the exempt agent category.  It is not in dispute that any person applying through agent in Australia has to be registered under Migrants Agents Registration Authority ( MARA). The Petitioner is not a company registered in Australia and can apply on the basis of Form No.956 and same is acceptable to the Australian Agency. 

5. State Commission failed to appreciate that visa was not refused on the ground that the Petitioner was not a MARA registered agent.  The same was refused by Visa Authority on the ground that positive skills assessment from TRA were not sufficient to demonstrate that an applicant has satisfied the requirement of migration regulation. 

6. State Commission erred in holding that the Petitioner was not authorised to file the case of the respondent.  State Commission lost site of the fact that if the Petitioner was not competent to file the case then the Visa Application would have been dismissed / rejected on that ground only and no assessment as required under laws would have been made by the Visa Authority.

7. State Commission failed to appreciate that Australian Government, Department of Immigration and Citizenship Authority recognizes three modes of agents i.e. Migration Agent, Exempt Agent and Authorised Recepient.  The case of the respondent was submitted as an ‘Authorized Recepient’ and his case was presented by the Petitioner as an ‘Authorised Recipient’ by filing a copy of Form 956 before DIAC Australia by the petitioner Company.

8. State Commission erred in not applying the principles of decision of Hon’ble Supreme Court passed by Constitution Bench in the case of Central Board of Dawoodi Vohra Community Vs. State of Maharashtra and decision of SI Rooplal Vs. Lt. Governor through Chief Secretary.  Therefore, the view taken by the National Commission in case of Manohar Singh Randhawa is binding on two Judges Bench unless the same is varied, overruled by bench of three or more Judges. 

9. There is no substantial logic or basis for awarding punitive damages and that State Commission erred in holding that case of WWICS Vs. Reena Kumari Dhawan shows that several other similar complaints have come to the Court against the petitioner including the case of Manohar Singh Randhawa, Rajinder Singh Jabbal and Aditya Kumar.  The facts of these cases were totally different. 

10. Complaint of the Complainant is liable to be dismissed as complainant has concealed material facts and has misled the District Forum by alleging that she has engaged unregistered migration agent. 

11. State Commission failed to appreciate that case of complainant was rejected on the ground that she does not meet the regulation 136.213 (1) (A) of Migration Regulation.

6.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.1     Counsel for the Petitioner argued that Department of Immigration and Citizenship Australia refused to grant skilled Independent Visa to the respondent as she did not meet the regulation of migration.  Further, it is argued that respondent filed complaint against the Petitioner only.  The Petitioner could not defend the said complaint for the reason that they  had shifted out of the previous address to the new address and during the shifting process the notice of hearing got misplaced.  Counsel further argued that order of State Commission is against the settled law as held by this Commission in WWICS Vs. Manohar Singh Randhawa which held that GSBC was a separate entity and the amount paid to the said Company cannot be recovered from the petitioner. 

6.2.    It is further argued that State Commission relied upon other decision of National Commission passed subsequently  holding that GSBC was a front company of the Petitioner  passed by Two Judges Bench and was prior in time.  The earlier judgment has to be treated as precedent and must be followed by all concerned unless upset by referring the matter to a larger Bench.  Thus, in view of  the decision of the Constitutional Bench, the law settled in the case of Manohar Singh shall prevail.

6.3.    Counsel for the Respondent argued that all amounts paid by the Respondent ( whether to Australian Immigration Authorities or in favour of GSBC) were paid on the instructions of the officials of the Petitioner.  The said pleading has never been controverted by the Petitioner.   GSBC is nothing but the Petitioner himself and no separate contract was executed and rather a single consolidated package was offered by the Petitioner under ‘Gold Package’.  The contracts ( so called through are single contract) were executed and signed on the same day i.e. 26.03.2007 in the office of WWICS though GSBC is claimed to be based in Dubai.  Even the Authorised Signatory in both contracts is the same as is evident from the signatures.  Counsel further argued that payment of USD 1400 made by the Respondent in favour of the ‘Global Strategic Business Consultancy’ has been issued by the Petitioner only and from the said receipt it is apparent that it is the Petitioner which is the head office of GSBC.  Further, argument of WWICS and GSBC being separate agencies has come up for consideration before National Commission in various cases and it was held that GSBC is a front company of the Immigration Agency. 

6.4.    Counsel further argued that entire payment made by the Respondent are against the same contract under which Petitioner had undertaken to render services to the respondent.  There was no question of execution of a separate contract with GSBC.  The Petitioner took money for pre-landing and post-landing services under the garb of assurance of immigration and has enjoyed the money paid in USD for more than 15 years without any corresponding service being provided.  The Petitioner has created a web of entities, all under its control and taking money in the name of one or the other to fraudulently escape liabilities.  Counsel has relied on the following judgments of National Commission :

a.       WWICS Vs. Rina Kumari Dhawan - RP No. 1820 of 2015  decided on 31.03.2016.

b.       WWICS Ltd. Vs. Paramjit Nigah – RP No. 160 of 2013, decided on 13.03.2013.

c.       WWICS Vs. Manohar Singh Randhawa-RP No. 3334 of 2010 and WWICS Vs. Suresh Kumar-RP No.3335 of 2010, decided on 08.03.2011

d.       WWICS Mohali and Anr. Vs. Gurjinder Singh Jabbal – RP No. 2557 of 2012 decided on 07.02.2013.

7.       We have carefully gone through the order of the State Commission, District Forum, other relevant records and rival contentions of the parties.  In particular, we have perused the following documents :

a.       Reply of Australian Government, Department of Immigration and Citizenship ( Ex. CW1/10 before the District Forum) addressed to Mrs. Sudha Babbar

          Extract of this letter is reproduced below :

“Thank you for your correspondence on 23 and 31 March 2009 to the Minister for Immigration and Citizenship, Senator Chris Evans and the Parliamentary Secretary for Settlement and Multicultural Affairs, Mr. Laurie Ferguson MP, concerning your application for permanent residency.  I have been asked to respondent on behalf of the Minister and Parliamentary Secretary.

On 29 August 2007 you lodged a valid application for a Skilled – Independent (Subclass 136)  visa with the Adelaide Skilled Processing Centre. On 5 September 2008 your application was refused because the decision-maker was not satisfied that you had worked in your nominated occupation during the required period at the necessary skill level.  You now seek assistance in obtaining a refund of the money you have expended on the application.

I regret that a refund of the visa application charge is not possible in your circumstances as a valid application was made and the decision to refuse your application was lawful and correct.  I appreciate that you are trying to obtain a refund, of fees from your migration agent.  Our records indicate that you engaged an unregistered migration agent from your home country to assist you with your application.  I am not aware of any avenue through which you might pursue a complaint against an unregistered agent.  Migration agents operating in Australia are required by law to be registered with the Migration Agents Registration Authority ( MARA). Had you obtained the services of a registered agent in India and were dissatisfied with the advice or services provided, you could have made a complaint to the MARA. Should you wish to engage the services of a registered migration agent in the future, please visit www.themara.com.au.”

8.       A perusal of above shows (i) the application filed was a valid one, (ii) it was refused as the competent authority was not satisfied that she had worked in her nominated occupation during the required period at the necessary skill level. Hence, the Petitioner is right in its contention that application was not refused on the ground of Petitioner not being a MARA registered agent and / or the Petitioner was not competent to file the application. We are of the considered view that grant of Immigration / Visa / permanent residency is a sovereign function of the concerned Government.  Hence, no agent howsoever competent / experienced, whether registered or unregistered, can guarantee a successful grant.  He / it can only facilitate the prospective applicants by way of proper filing of applications compliant with rules and regulations of the concerned Government / Authority, deposit of fee, follow up and providing such other miscellaneous connected services. If any agent guarantees a successful grant, he is making a false statement and misleading his clients.  If the Complainant is able to establish such a wrongful act on the part of agent, either directly or indirectly or through circumstantial evidence, such agent can be held liable for unfair trade practice.  In the present case, the Complainant’s contention is that the agent gave her a guarantee for immigration and also ensured that the entire process would be completed within 18 months.  The Complainant, in  her complaint has sought a direction to respondent ( Petitioner herein) to refund Rs.2,02,852/- and also to pay compensation of Rs.2,80,000/- and litigation cost of Rs.10,000/-.  On account of absence despite notice, Petitioner herein was proceeded ex parte before the District Forum. District Forum on considering the letter dated 15.04.2009 from the Australian Government addressed to the Complainant ( referred to above in para 7 ) observed that respondent Company is not a registered migration agent.  In this regard, extract of relevant para of orders of District Forum is given below :

“It was also mentioned therein that she had engaged an unregistered Migration Agent.  Thus, the respondent Company entered into a contract to provide services to the complainant even when it was not a registered agent and in the circumstances, we are of the opinion that the respondent is guilty of unfair trade practice and is liable to refund the amount paid by the complainant to them which comes to Rs.50,000/- as per pleadings (  Rs.30,000/- vide cheque dated 26.3.07 and Rs.20,000/- vide cheque dated 21.8.07).  The other amount in Dollars was remitted by the complaint directly to different Foreign Authorities.  Resultantly, we direct the respondent to refund the said amount of Rs.50,000/- to the complainant and also to pay a compensation of Rs.25,000- ( including cost of litigation) within one month of the receipt of this order.  The complaint stands disposed of accordingly.”

9.       Dissatisfied with the order dated 16.05.2012 of District Forum, the Complainant ( Respondent herein) filed an appeal before the State Commission, seeking enhancement of relief granted to her by the District Forum, which was disposed off vide impugned order dated 09.10.2017.  Earlier, the OP ( Petitioner  herein) also preferred an appeal against the said order dated 16.05.2012 of District Forum ,which was dismissed by the State Commission vide order dated 24.10.2016 and revision filed against the said order of State Commission was also dismissed by this Commission vide order dated 18.5.2017.

10.     Appeal before the State Commission was filed by the Complainant, interalia on the ground that amount paid by the Complainant in dollars, which in Indian Currency comes to Rs.4,00,000/-, has not been allowed to be refunded.  State Commission has summarized the total payment made by the Complainant to the OP in para 6 of its order as follows:

11.     Only the amount shown at Sr. No.1 and 5 in the above chart was ordered to be refunded by the District Forum.  Amount at  Sl. No.4 above i.e. 1400 US$ ( INR 68,600) was paid by Demand Draft in favour of GSBC, which according to Complainant is a Front Company of OP.  The Complainant relied upon decision dated 31.03.2016 of this Commission in RP No. 1820 of 2015 in Rina Kumari Dhawan ( supra).  In this case too, the issue was whether GSBC was a Front Company of WWICS. The National Commission in this case overruled the case of WWICS Vs. Manohar Singh Randhawa  ( RP No. 3334-3335 of 2010 decided on 08.03.2011) and held that GSBC was nothing but a Front Company of the WWICS.  The OP contended before the State Commission that decision of Manohar Singh Randhawa was given by a two judge Bench and was prior in time, the earlier judgment could be upset only by referring to a Larger Bench.  State Commission observed that finding of National Commission to the effect that GSBC was a Front Company of WWICS was a question of fact only and this observation did not lay down the proposition of law, hence observations given by  National Commission in its order dated 31.03.2016 hold the ground and the payment made by the Complainant to GSBC has to be considered as a payment made to WWICS  i.e. OP, thereby making Complainant entitled to refund of said amount of Rs.68,600/- also.

12.     As regards payment of Sr. No.2 and 3, which were made to the immigration agencies of Australian Government, State Commission taking note of the letter dated 15.04.2009 referred to above, wherein it is stated that OP was an unregistered agent in India and that Complainant had to suffer disappointment and frustration solely because of unfair trade practices committed by the OP, in the absence of assurance from OP for sending her and her family abroad, there was no question of making any payment to immigration agencies in Australia, hence OP is responsible for unwanted payments having been made to the immigration agency, hence the Complainant is entitled to recovery of said amount from OP above.  Accordingly, State Commission directed the OP to pay to Complainant sum total of payment at Sl. No. 1 to 5.  While passing orders on relief to Complainants in para 12 of its order, which is reproduced below, State Commission further observed in para 13 of its order ( reproduced below) that OP has succeeded in committing a fraud on large number of gullible intending immigrants  Hence, State Commission burdened the OP with punitive damages of Rs.20 lakh to be deposited in the Consumer Welfare Fund of State Commission :

“12.    Summarizing the abovesaid position, OP is directed to pay to the complainant the sum total of the payment at serial no.1 to 5 given in the above chart above.  The payments at serial no.1 and 5 have already been directed to be made by the Ld. District Forum against which no appeal is preferred.    OP   is,   therefore,   directed  to   pay   to the complainant further  a   sum    of Rs.1,52,852/- ( 10710+73542+68600) alongwith interest @ 18% p.a. from the date of filing of the complaint i.e. w.e.f. 01.04.2010 till the date of its realization.

13.  OP has succeeded in committing fraud on a large number of gullible intending immigrants.  Perusal of the judgment dated 31.03.2016 passed by the Hon'ble National Commission in the case of M/s Worldwide Immigration Consultancy Service Ltd. v. Rina Kumari Dhawan (supra) shows that the several other similar complainants have come to the courts of law against the present OP. Some such names of the complainants are Manohar Singh Randhawa, Gurjinder Singh Jabal and Aditya Kumar. Statistics have shown that in India only 0.3% of the aggrieved consumers approach the courts of law. Further a lesser number of the such persons is able to litigate upto the level of Hon'ble National Commission and the Hon'ble Supreme Court. Broadly the illegal business carried on by the OP is writ large from the cases referred. The case of Rina Kumari Dhawan (supra) goes to show that the directions of the court from time to time have not deterred the OP from indulging in a fraudulent activity and committing an unfair trade practice in terms of the consumer law. The case, therefore, deserves punitive damages. For these reasons OP is burdened with punitive damages to the tune of Rs. 20,00,000/- (Rs. Twenty lacs) and the same to be deposited by the OP in Consumer Welfare Fund of the State maintained by this Commission. Appeal is accordingly disposed of.”

 13.    We have seen the contract of engagement dated 26.03.2007 signed between the Complainant and OP, which lists the duties of the Company ( OP) and Client ( Complainant ) as well as other conditions, fee details etc.  On behalf of Company, this contract has been signed by one ‘Rajan’.  There is another contract of engagement dated 26.03.2007 ( i.e.same date as above contract), signed between the Complainant and GSBC.  This contract is also signed by same ‘Rajan’, as authorized signatory of GSBC, who has signed the other contract as authorized signatory of WWICS on the same day.  This contract shows the address of GSBC at Dubai ( UAE) while the earlier referred contract of WWICS shows the address at Chandigarh.  A glance look at both the contracts show that these have been drafted on similar lines.  This clearly establishes the contentions of the Complainant that GSBC is a Front Company of WWICS, a fact which has been upheld by this Commission earlier in the case of Rina Kumari Dhawan ( supra).  Further, the contract signed with GSBC has many references to WWICS, e.g. “accommodation booked through WWICS”, “approval for refund obtained from WWICS Head Office etc.” which shows both WWICS and GSBC worked as Associate / Companies of each other in very close coordination. Hence, we are in agreement with the findings of State Commission in this case that observations of this Commission in Rina Kumari Dhawan ( supra ) hold the ground and the payment made by the Complainant to GSBC has to be considered as payment made to WWICS i.e. OP, entitling the Complainant to refund of said amount.

14.     However, as regards payments made to immigration authorities of Australian Government ( Sr. No.2 and 3 AUD 300 and AUD 2060 respectively), which have also been ordered to be refunded by OP on the ground that OP was an unregistered immigration agent in India and Complainant had to suffer disappointment and frustration solely because of unfair trade practices committed by the OP, as already stated under para 8 above, the grant of Immigration / Visa / permanent residency is a sovereign function of the Government.  Hence, no agent howsoever competent / experienced, whether registered or unregistered, can guarantee a successful grant.  He / it can only facilitate the prospective applicants by way of proper filing of applications compliant with rules and regulations of the concerned Government / Authority, deposit of fee, follow up and providing such other miscellaneous connected services. If any agent guarantees a successful grant, he is making a false statement and misleading his clients.          Hence, it is essential to see, whether in the present case, was it essential for OP to be operating from India to be a registered agent of MARA, was OP as unregistered agent / duly authorized to file requisite application with the immigration authorities of Australian Government, did OP mislead the Complainant by giving a false guarantee of successful grant of application, knowing well that he cannot determine the final outcome of such application, did OP resort to unfair trade practices to entice the complainant to engage OP and its Front Company GSBC for obtaining immigration visa.

15.     We have perused the communication from Department of Immigration and Citizenship, Australian Government addressed to the OP regarding decision on application of Complainant.  Relevant extract is reproduced below :

“The application for Class BN,136 Skilled – Independent visa by Mrs.Sudha has been refused, and none of the persons included in the application, and named in the attached decision record, have been granted a visa for Australia.

This decision has been made on the basis of the information and claims made in the application and the requirements of the Migration Act 1958 and the Migration Regulations 1994.

I have enclosed with this letter a decision record explaining the reasons for the decision.

Please note that there is no right of review in respect of a decision to refuse an application for a Class BN, Subclass 136 Skilled-Independent visa.”

16.     Relevant extract of Decision  Record accompanying the above stated communication, which is a 5 page detailed document, is also reproduced below:

“The visa application has been assessed against criteria set out in the Migration Regulations for a Skilled-Independent ( Migrant) Class BN visa.  The Class BN consists of two subclasses:

Subclass 136-Skilled – Independent

Subclass  137 – Skilled –State / Territory-nominated Independent.

xxxx

The applicant has provided evidence of having a positive skills assessment as a Hairdresser from Trades Recognition Australia ( TRA).

This assessment is not sufficient in itself to determine the applicant’s ability to meet Regulation 136.213 (1) (a).  In order to meet this requirement, the decision maker must be satisfied that the applicant has performed the full range of duties at a skilled level of a skilled occupation for the period of time specified by this regulation.  This requirement is separate from the  need to have a positive skills assessment.

xxxx

With regard to this application, it is noted that the applicant has not presented any documents to demonstrate completion of an apprenticeship in accordance with the Apprentices Act  of India.  Nor has any evidence been produced of completion of any formal training with a suitable external training provider or accredited training organization.

The applicant’s claims to be working at a skilled level in  their occupation are based predominantly on the documentation provided by their employer and without any suitable independent corroboration by the accredited trade authority in India or any other externally verifiable source.

xxxx

Decision

As the applicant does not meet the requirement of either of subclasses 136 or 137, I have decided to refuse to grant a Skilled-Independent ( Migrant) ( Class BN) visa to the applicant and all dependents included in this application.”

17.     We have also perused letter dated 12.02.2009 from Department of Immigration and Citizenship, Australian Government, relevant extract of which is given below:

“I am writing in response to your client’s correspondence of 9^th February 2009 regarding the decision to refuse her application for a Class BN 136 Skilled-Independent visa and the request that this decision be set aside.

I  have reviewed the information your client has provided regarding the procedure she undertook to obtain her skills assessment.  She states that  her application was rejected despite the fact that she obtained a positive skills assessment from Trades Recognition Australia ( TRA).

xxxx   

In this particular case, the decision maker was satisfied that there was sufficient information upon which to make a determination.  A decision was taken to refuse the application as a result of the decision maker’s assessment that the applicant was not employed at the level required for an occupation on the Skilled  Occupation List in the relevant period.

Having considered the matters raised in your client’s correspondence, I am satisfied that the decision to refuse her application was made in accordance with the relevant legislation policy, and procedures.”

18.     Earlier, this Commission, while considering RP No. 3901 of 2016 filed by the OP WWICS against the order dated 24.10.2016 in Appeal No. 1139 of 2012 of State Commission, which was against the same order dated 16.05.2012 of the District Forum, as is involved in the present case, observed as follows:

“7.       It is also observed from the material on record that the complainant was made to pay a sum of more than Rs. 2 lakhs on the premise that immigration shall be arranged for her to Australia by the OPs. She paid different amounts in foreign currency as well to the agencies at Australia and also paid 1400 US dollars to Global Strategic Business Consultancy, Dubai, which seems to be an associate of the petitioner/OP. The District Forum, vide their order dated 16.05.2012, has allowed only a sum of Rs. 50,000/- alongwith compensation of Rs. 25,000/- to be refunded to the complainant, saying that the amount of Rs. 50,000/- was directly received by the petitioner/OP. It is also stated that the petitioners/OPs were found to be unregistered migration agent from a letter dated 15.04.2009, sent by the Government of Australia. It is clear, therefore, that the complainant had to suffer a huge financial loss due to the act of the petitioners/OPs, who were not even an authorised migration agent for Australia.”

19.     During the hearing, counsel for the Petitioner contended that the Registration of agents for immigration assistance in Australia is mandatory only for agents operating from within Australia  and any agent operating from outside Australia, including India, need  not be registered.  In support of his contention, he drew our attention to Form 956 of Department of Immigration and Border Protection, which states that this form can be used by the Registered migration agents and non registered migration agents and an exempt person. This form is to be used to notify the Department of Immigration and Border Protection (the department) that the person has been appointed by a client ( for example a visa applicant) to provide immigration assistance with matters under the Migration Act, 1958 and if applicable, to receive documents on their behalf.  This form defines Immigration Assistance as ‘a person gives immigration assistance if he or she uses, or claims to use, his or her knowledge or experience in migration procedure to assist a person with matters related under the Migration Act, 1958.  This form further states that a Registered migration agent is a person who is registered with the office of Migration Agents Registration Authority ( Office of the MARA) to provide Migration Assistance, stating further if operating in Australia, migration agents must be registered with the office of MARA.  This form further states that migration agents operating outside Australia do not have to be registered with the Office of MARA.  The department may issue offshore agents with an identification number for administrative purposes only.  This number does not mean that the agent is registered and it does not represent endorsement of the agents by the Australian Government.  In the present case, the complainant M/s Sudha Babbar did fill form 956 meaning thereby authorizing the OP WWICS for the Immigration assistance.  However, the OP has not stated categorically whether any identification number has been issued by the Department, if so, copy of the same.  Further, the OP could not state categorically whether for operating as such agent in India for providing immigration services to Indian citizens for other countries, whether he requires any license / approval of any authority within India.

20.     A perusal of the orders of the Australian Government Authorities, referred to above, shows that case of the complainant herein was duly considered on merits but rejected.  The rejection was not on account of any defect with OP status being unregistered status of MARA or any procedural reasons like defective application etc.

21.     Now the question arises is whether Petitioner or its Front Company GSBC gave any assurance to the Complainant for granting immigration either directly or indirectly, as has been contended by the complainant and whether the OP studied the case of Complainant properly to satisfy itself, as an experienced agent in the field, whether the Complainant fulfilled all the eligibility criteria and have good chance of success on merits and gave her a correct advice in this regard.  For this purpose, what needs to be seen are the two contracts signed by the complainant, one with WWICS and second with GSBC.  These documents contain the duties of the Company as well as services included under the ‘Gold Package’ for which complainant has been charged.

22.     First of all, these two documents do not contain any disclaimer that Petitioner or its Front Company GSBC does not guarantee immigration and its role is limited to providing immigration assistance and that final decision to grant immigration / visa or not rests with the concerned authorities of the Australian Government.  Further, these documents do not contain any statement that OP, as an experienced agent in the field, have examined the case of Complainant in the light of requirement under the Australian Government Laws and is of the view that Complainant has a good chance of success on merits.  A perusal of the agreement signed with GSBC, for whom we have already held that it is front Company of the Petitioner WWICS, show that following services were included under the ‘Gold Package’ opted by the Complainant.

Post-Landing Services, In Canada or Australia

(i)        Settlement Services ( To name a few)

Pick up from the International Airport in case accommodation booked through WWICS Guest House Apartments OR refund of one taxi fare in case of self arranged accommodation, either actual or CAD / AUS $ 30.00 whichever is less, on production of taxi fare receipt provided the approval for this refund was obtained from WWICS Head Office before leaving for Canada / Australia

• Assistance in applying for SIN card in Canada or Tax File Number & Centerlink in Australia, as applicable.

• Assistance in applying for PR card
• Assistance in applying for Ontario Public Health Insurance Card in Canada or MEDICARE in Australla, as applicable.
• Information  on  Healthcare schemes.
• Information  on Child and Social Welfare schemes.
• Assistance in searching for Accommodation
• Information on the prevailing rentals and prices
• Information on documentation for renting or purchasing accommodation
• Information on various modes of transportation
• Information on ticketing and passes
• Information on maps and how to use them
• Information on bus/train routes and how to follow directions
• Assistance in opening of Bank account
• Assistance in applying for Credit/Debit/ATM cards
• Information on usage of Credit Cards
• Information on issues related to Credit Rating
• Information on Walk-in clinics and hospitals;
• Information on how to use the medical services
• Information on places for shopping for daily needs
• Information on religious places for worship
• Information on schools and other educational institutes
• Assistance in buying phones, mobiles and calling cards.
• Information on use of communication services
• Assistance in applying for Driving License
• Information on traffic rules and regulations
• Major English/language newspapers and how to order for them
• Various community centers close to WWICS arranged Guest House Apartments and other places
• Various public libraries located close to WWICS arranged Guest House Apartments and other places
• Usage of "911" Emergency Importance and Caution
• Introduction to Canadian/Australian Tax System
• Internet-Importance and various Internet Service Providers
• Various other services to ensure smooth re-settlement of  the client

(Il) Placement Assistance Services

1. Personalized sessions by the Senior Employment Counsellor to cover

a) Profession wise workshops covering Interaction with the industry representatives, listing of the business units

b) Information on relevant education and professional courses to be taken and other related details like costs and duration of the courses

c) Reviewing of individual action plan prepared in India (If client attended ERC) and fine tuning the same as per the available placement prospects in Canada or Australia, as applicable.

2. Assistance by senior job developers in finding transitional / temporary jobs in view of skills, aptitude, computer knowledge, oral skills and recommendations of the settlement counsellor.

3. Assistance in enhancing skill and taking courses to find a job in own profession.

4. Referring of resumes to the potential employers.

5.  Assistance in placement and providing update on the job market.

6.  Giving job leads through group networking

7. Free access to various job banks and potential employers

NOTE: Although the Company provides full range of services related to assistance in settlement and placement services and would help the Client to prepare for the job market and assist in finding temporary / transitional job, the Company however does not guarantee a job as it depends on the preparation of the Client, job market scenarios in the respective country and the personal stability of the client.

xxxx”

23.     Further, the said agreement contains fee of the Company under various payment plans and the complainant opted for Special Spot Payment Plan, under which following charges were payable:

“PAYMENT PLAN-II

SPECIAL SPOT PAYMENT PLAN FOR CAN* / AUS*

                                                          Gold                     Bronze

CANADA  CHC File No.                 US$ 1400             US$600

AUSTRALIA – Skill Assessment     US$1400              US$600

* The client shall ensure that he / she gets her immigration case / application for skill assessment, as the case may be, filed within 60 days from the date of signing of this agreement.”

24.     The said agreement contains following refund clause, which reads as under:

“8. Refund:

“The Company undertakes to provide full refund to the Client of the fee paid by the Client to the Company in the event the Visa Officer rejects Client's case and the Company and its associates are unable to revert such decision by any means which may include Judicial Review / Re-filing of the case etc.

However, this clause is not applicable if the rejection is due to misrepresentation, fraud, involvement in criminal case, rejection on account of medical or national security reasons of the destined country, changes in the Immigration rules and regulations due to which the client would no longer qualify under the programme for visa to the destination country and/or because the client failed to comply with the terms and conditions of this Agreement. In such cases, the entire professional fee paid by the client shall be non- refundable. Further, if for any reason whatsoever, the client becomes dis-interested in pursuing his/her case or withdraws his/her case then in such event, the Company shall be entitled to full payment of professional fee.

Further, if a client receives negative skill assessment result from an Australian Skill assessment body, then the complete professional fee paid by the client shall be refunded.”

25.     From the above, it is clear that Petitioner Company WWICS alongwith its Front / Associate Company GSBC did give some sort of assurance of guaranteed migration / visa and which is evident from receiving advance payment with respect to post landing services and the refund clause referred to above.

26.     In view of the above, we are of the considered view that Petitioner WWICS is liable to refund not only the amount it received in their name but also the amounts it received in the name of its Front / Associate Company GSBC.  Hence, the State Commission was justified in ordering refund of amounts under Sl. No.4 as well i.e.US$ 1400 paid to GSBC.

27.     Considering that Petitioner Company WWICS alongwith its Front  / Associate Company have misled the complainant and indulged into unfair trade practices by giving an assurance of guaranteed immigration, which was not authorized  to do and also did not put any requisite disclaimer in the contract(s) signed with the complainant, and not notifying the complainant clearly that no doubt they are unregistered with MARA but still as per the Immigration Laws of Australian Government, having been operating from outside Australia, they are authorized to file application on behalf of complainant with authority under form 956.  Further , they ought to have shared the identification number issued by Department of Immigration and Border Protection, Australian Government, which is issued to non registered migration agent outside Australia.  No doubt, the fee paid to the concerned Australian authorities are not refundable in the event of rejection of application by the Competent Authority, in the instant case, in view of the entire facts of the case, narrated in the preceding paras, we are of the view that as Petitioner has indulged in unfair trade practices and misled the complainant, and keeping in view the refund clause in the contract with GSBC cited, they are liable to make good the loss to the Complainant on account of fee paid to the Australian Authorities by way of compensation.  Hence, State Commission was justified in ordering the OP WWICS to refund the payment under Sl. No. 2 and 3 i.e.AUD 300 ( INR 10,710/-) and AUD 2060 ( INR 73,542/-) respectively.  Accordingly, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission with respect to ordering refund of all the items under Sl. No.1 to 5 of Table in para 10 above in accordance with para 12 of its order which has been reproduced in the preceding paras.

28.     However, as regards order of the State Commission with respect to para 13, wherein the State Commission observed that OP has succeeded in committing fraud on a large number of gullible intending immigrants.  Perusal of the judgment dated 31.03.2016 passed by the National Commission in Rina Kumari Dhawan ( supra) shows that the several other similar complainants have come to the Courts of Law against the present OP.  Some such names of the complainants are Manohar Singh Randhawa, Gurjinder Singh Jabal and Aditya Kumar. Statistics have shown that in India only 0.3% of the aggrieved consumer approach the courts of law.  However, a lesser number of such persons is able to litigate upto the level of National Commission and Hon’ble Supreme Court.  Broadly, the illegal business carried on by the OP is writ large from the cases referred.  The case of Rina Kumari Dhawan ( supra ) goes to show that the directions of the court from time to time have not deterred the OP from indulging in fraudulent activity and committing an unfair trade practice in terms of consumer law and held that case, therefore, deserves punitive damages and for these reasons OP has been burdened with punitive damages to the tune of Rs.20 lakhs to be deposited by the OP in the Consumer Welfare Fund.  The Consumer Protection Act has no such provision for imposition of punitive damages to be imposed on a party to be deposited in Consumer Welfare Fund.  while considering the consumer complaint, appeal, etc. that too based on facts / observations not concerning the case in hand. Hence we are of the view that this part of the order of the State Commission cannot be sustained. Accordingly, we set aside the order of the State Commission in para 13 of its order awarding imposition of punitive damages to the tune of Rs.20.00 lacs on the part of the OP which was to be deposited in the Consumer Welfare Fund of the State Commission.  Rest of the order of the State Commission is upheld. 

29.     Revision Petition is disposed off accordingly with cost of Rs.25,000/- to be paid by the Petitioner herein ( WWICS) to the respondent herein in connection with present RP. 

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