BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt. Case No : 1362 of 2009

Date of Institution:    06.10.2009

Date of Decision  :    05.09.2010

Deepak Kumar son of Sh.Kishan Kumar, R/o H.No.51-J, Pepsu Bhakhra colony, Model town, Distt. Patiala

……Complainant

V E R S U S

1]        Sunrise Immigration Consultants (P) Ltd., Regd. Office: M-55, M-Block Market, Greater Kailash-II, New Delhi, through its Managing Director.

2]        Sunrise Immigration Consultants (P) Ltd., SCO No.74-75, Sector 8-C, Chandigarh, through its Branch Manager.

.…..Opposite Parties

CORAM:        SH.LAKSHMAN SHARMA            PRESIDENT

                SH.ASHOK RAJ BHANDARI         MEMBER

                MRS.MADHU MUTNEJA                  MEMBER

PRESENT:   Sh.Sanjay Kumar, Adv. for the complainant.

Sh.Sandeep Bhardwaj, Adv. for the OPs.

PER MADHU MUTNEJA, MEMBER

                This complaint has been filed by Deepak Kumar, under Section 12 of Consumer Protection Act, alleging deficiency in service by the OPs.  The complainant has prayed for refund of payments made by him to the OPs as well as compensation.

1]             The complainant had hired the services of the OPs for immigration to Australia.  The parties had entered into a contract as per agreement placed at Ann.C-1.  At the time of contract, the complainant was assured by the OPs that his experience and competence was enough for his case to be cleared for immigration.  The complainant paid an amount of Rs.1,07,000/- to the OPs.  Copies of the receipts have been placed as annexures to the complaint. 

                Further, the complainant also deposited fees for the IELTS  three times with the Ops.  Unfortunately, the Department of Immigration and Citizenship of Australia Government refused the case of the complainant by its letter dated 25.8.2009 (Ann.C-15). The complainant was shocked to receive this letter.  He felt that the OPs had mislead and deceived him and also wasted his money.  The complainant then visited the OPs and asked for the complete refund but they flatly refused to return the money paid by him.  The complainant alleges that when he approached the OPs with the rejection letter, he was told that the earlier contract stood cancelled because of rejection of his documents and if he wished to get immigration to Australia, he would have to enter into another/fresh contract/agreement with the OPs.  Placing reliance on the duties of the OPs and alleging deficiency in service and unfair trade practice against them, the complainant has filed the instant complaint demanding relief and compensation.

2]             After admission of the complaint, notices were sent to the OPs. Both OPs filed joint reply. 

3]             The OPs in their reply have submitted that the process of immigration to Australia consists of 2 steps;

I)         Assessment of qualification/experience by the relevant Assessing Authority in Australia, which in case of Complainant is Trades Recognition Australia, Australia (TRA);

II)        After positive assessment of qualification/experience by the Assessing Authority, filing Application of Complainant for residency in Australia with Department of Immigration and Citizenship, Australia (DIAC). 

                Thus, Trades Recognition Australia (TRA) and Department of Immigration and Citizenship (DIAC) are two arms of the Australian Government.  In the first step, the complainant was to file his application for assessment of qualification/experience with TRA.  In this regard there are two parts:-

i)         No formal training substituted by on job training/diploma followed by experience;

ii)        Formal Apprenticeship Certificate from the Industrial Training Institute followed by experience.   

                The OPs filed the case of the complainant for assessment of his qualifications with TRA.  TRA assessed the application of the complainant successfully vide their assessment report at Ann.OP-4.  A copy of this letter was supplied to the complainant.  The case was then sent to the Immigration Department of Australia.  After assessment and verification by the Team of Officers of Australian High Commission, the case was refused by the Australian Visa Office, after giving detailed observations. Copy of this letter is at Ann.OP-10.  The case of the complainant was refused on account of submission of not genuine/fake/non-bonafide experience certificate from his employer.  This fact according to the OPs clearly brings out that there was no deficiency on their part in getting the case of the complainant submitted and processed with the Australian Authorities.

                The contract of engagement between the complainant and OP No.2 was settled at Rs.59,000/- payable in installments.  This amount was non-refundable.  There was no assurance by the OPs at any time to the complainant about a guaranteed visa.  His case was rejected because of his own fake and incomplete documents.

                The OPs have also given a complete detail of the payment structure and shown that the complainant has so far paid Rs.25,000/- only and Rs.11,000/- & Rs.71,300/- still remain due from him.  Further, the complainant was required to pass the IELTS Test with the required score of 5, which he failed to do during a long span of 3 years.  The Ops in their reply have also reproduced the relevant extracts from the agreement signed between the parties as part of their reply. 

                In view of the above submissions, the OPs have prayed for dismissal of the complaint.

4]             We have heard the ld.Counsel for the parties and have also perused the evidence/documents placed on record by the parties along with written arguments.

5]             The complainant was aggrieved because he had not been granted Immigration Visa for Australia.  As alleged by him, the OPs did not file his case properly, even though he had paid a total sum of Rs.1,07,000/- to the OPs.  He had deposited all relevant fee and documents, as demanded from time to time by the OPs and was therefore, very unhappy that his case was rejected.  According to him, Condition No.3 of the Contract provided as under:-

“3.    (e)    Prepare the client for the selection interview with the Processing Visa Office;

(f)       Monitor the client’s application throughout the processing as to ensure the issuance of the appropriate Permanent Residency Visa in a timely fashion;

(g)      Effect all additional written and/or verbal representations to the processing Visa Office and related to Australian Government agencies as deemed necessary by the Attorney;

(j)        advice the client of the ongoing requirements by the Visa Office with respect to the client’s application;”

                The complainant feels that even though his case was rejected, there was no specific reason mentioned in the rejection letter and hence it is the fault of the Ops that his case has been rejected.  If they had submitted his case properly, he would not have been in the present situation.  He has not only lost time but also money and is now unhappy that he has still not got the required Visa.  The OPs have submitted that they provided professional service to the applicants who wish to migrate to Australia and prepare the papers of such applicants as is needed for submission. The Ops had processed the case of the complainant and had submitted his application to TRA where it had been approved.  When the application was subsequently submitted before the Immigration Officials of Australian High Commission, it was rejected with the following observations:-

“Australian Immigration Officers in New Delhi conducted checks against your claim for work experience as Electronic Equipment Tradesperson at Sharma Electrical & Electronic, Patiala on 13/8/2009. The following adverse information was discovered during the course of these checks:

-     The applicant was not at work when the site visit was conducted while all the other employees were present (the applicant lived nearby and was called to work)

-     There were also no records at the business to indicate that the applicant was an employee at the business.

-     Contradictory and conflicting information had been provided by the applicant and the referee as to how the applicant was employed at work and whether the applicant was related to the referee or not.

-     The applicant and referee have provided different timings at work and a different salary paid to the applicant,

-     The referee stated that he was not sure of work carried out by the applicant on the day of the site visit as he was away himself.  The applicant on the other hand claimed that the referee had sent him to repair a TV at Leela Bhawan,

-     The referee stated that the applicant had repaired a TV at Bichhatar Nagar the day prior to the visit and then repaired a TV at Model Town and that the applicant had gone alone to attend the complaints.  The applicant on the other hand stated that he had gone with the referee to repair a TV at Bichhatar Nagar and had repaired a DVD at the business. 

-     The applicant was unable to answer a single technical question correctly relating to his trade.

-     The applicant was unable to show the offices the tools (as mentioned in the Employment reference letter) that he used to carry out his duties on a day to day basis.

-     The applicant was not competent in providing a physical demonstration on how to de- solder an IC from the mother board to demonstrate his skills.

In assessment of your employment at a skilled level, two requirements must be met, namely:

.       that it was undertaken after the applicant met the entry level requirements for that occupation (i.e. completed a sufficient level of study or amount of on-the-job training) AND

.       that it involved duties at the level of depth and complexity expected in Australia.

I have now reviewed all the employment evidence relevant to your claimed employment with Sharma Electrical & Electronics, Patiala for the period 28/6/2005 – 28/12/2006. My conclusion is that I am not satisfied that your have been employed at a skilled level in this occupation or in any other skilled occupation for the required period due to the above findings.” 

6]             A perusal of the order of the Australian Authorities placed at Ann.OP-10 and partly reproduced above, clearly shows that the application of the complainant was rejected due to his own faults and not due to any deficiency in providing documents by the OPs.  OPs had fulfilled their obligation by submitting the required relevant documents to the Australian Authorities.  It is only when the Australian Immigration Officers conducted a check after the application of complainant was filed, that his application for work experience and the required period due for the same was found to be wrong. This could not be said to be due to any fault of the OPs as per the contract.  The OPs have also in their reply at Para Nos.24 & 25 placed reliance on the cases of the Hon’ble National Commission and Hon’ble Supreme Court of India to validate their contentions.  

                The Hon’ble National Commission, New Delhi in Homeopathic Medical College and Hospital, Chandigarh Vs. Miss Gunitka Virk, I(1996) CPJ 37 N.C.  has held : “…Suffice it to say that FOR A constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the Prospectus of any institution as unconscionable or illegal. It is for the Civil Court to determine this point…”

                The Hob’ble Supreme Court of India in Bharati Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704 has held : “When a person signs a document which contains certain contractual terms, normally parties are bound by such Contract, it is for the party to establish exception in a suit…..But when there is a specific term in the contract, the parties are bound by the terms of contract.”

7]             The ld.Counsel for the OPs have also submitted that once the case of any person is rejected by the Australian High Commission, then the case cannot be resubmitted as per letter of Department of Immigration and Citizenship of Australia, dated 25.8.2009 (Ann.OP-10) wherein it is mentioned that “…there is no right of review in respect of a decision to refuse application of the complainant.”   So by this order, the Department of Immigration and Citizenship of Australia, has taken away the right to appeal against their order.  The complainant’s case cannot thus be filed again, as  demanded by him.

8]             From the above discussion & findings, it is made clear that there was no deficiency of service on the part of OPs for rejection of Visa to the complainant by the High Commission of Australia.  The rejection of Visa and approval thereof was the sole prerogative of the Australian High Commission and the OPs were only required to submit the relevant documents to help in obtaining the Visa.  The rejection letter by the Australian High Commission clearly shows that the case was not rejected due to insufficient documents but due to the surprise check conducted by them at the place of work of the complainant.  This is evident from their letter at Ann.OP/10  and already reproduced above.

9]             In view of the above discussion, we are of the view that there is no proved case of deficiency in service or unfair trade practice by the OPs.  The complainant’s case has been rejected due to his own faults.  The complaint is, therefore, dismissed.  However, OPs are directed not to claim the balance amount, if any, due from the complainant to them, as claimed in the reply, as a gesture of goodwill to him. 

                    Certified copies of the order be supplied to the parties free of any charge. The file be consigned to the record room after compliance.    

Announced

5^th Sept., 2010                                                            ----------------

(LAKSHMAN SHARMA)

PRESIDENT

                                                                   --------------

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                                Sd/-

                                                    (MADHU MUTNEJA)

MEMBER

‘Om’