DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH ======== Consumer Complaint No. : CC/782/2015 Date of Institution : 23/11/2015 Date of Decision : 31/05/2016 Akshay Bhatia, resident of 30, Swastik Vihar, Phase-3, Mansa Devi Complex, Sector 5, Panchkula, Haryana.
..Complainant V E R S U S Canam Consultants Limited, SCO 83-84, Sector 17D, Chandigarh.
Opposite Party QUORUM: DR. MANJIT SINGH PRESIDENT MRS.SURJEET KAUR MEMBER SURESH KUMAR SARDANA MEMBER ARGUED BY : Complainant in person : Sh. Balwinder Singh Jolly, Counsel for OP.
PER DR. MANJIT SINGH, PRESIDENT Sh. Akshay Bhatia, complainant has brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Canam Consultants Limited, Opposite Party (hereinafter called the OP), claiming refund of an amount of Rs.1,13,000/- with interest and also a sum of Rs.1,00,000/- as compensation.
The facts, in brief, are that the complainant hired the service of OP for immigrating to Western Australia State in Australia. In order to move to Australia, the complainant signed an agreement on 1.10.2013 for permanent residency of himself and his family under the Skilled Nominated Visa (subclass 190). Part payment of Rs.60,000/- was paid and the remaining amount of Rs.30,000/- was to be paid at later stage. The paid amount included the skilled assessment fees required by the Australian authorities. It is alleged that the receipt of Rs.20,000/- was issued, but, the receipt for Rs.40,000/- was never issued by the OP. The complainant also appeared twice in the IELTS (International English Language Testing System) exam and spent Rs.32,000/-. The application was submitted to the skills assessment authority named VETASSESS in Australia and the outcome was positive for complainants occupation of Project Administrator which was necessary to apply for immigration. The complainant was told to wait for a few months for any state in Australia to open sponsorships for his occupation. In April, 2015, the complainant was informed that he would be eligible if he improved his score in IELTS exam to 7 bands each in four modules. After getting the desired score, as per instructions of the OP, the complainant contacted the OP, but, he was informed that he needs a job offer now to complete the application which was never mentioned at the time of signing the agreement. Since the complainant could not settle in Australia, therefore, he filed the instant complaint.
The OP resisted the allegations in the complaint and pleaded that the complaint is liable to be dismissed as the complainant has actively concealed the material facts from the Forum. It is pleaded that at the time of counseling ANEZCO code : 511112 Program or Project Administrator was found in Western Australia, the complainant was specifically made aware of the fact at the time of signing of the retainer agreement that immigration policy of Australia occupation may become unavailable without notice. It is alleged that the complainant was specifically told at the time of counseling in October 2013 that he needs at least 7 bands in each module i.e. listening, writing, speaking and reading and the complainant after signing of the retainer agreement on 1.10.2013, cleared his IELTS exam on 30.5.2015 i.e. after approx. 2 years. However, when the OP received the IELTS test results of the complainant on 30.5.2015, the occupation in which the complainant had applied became unavailable. It is alleged that at the time of signing of retainer agreement, the complainant was made aware that as per clause (f) of the refund policy he is precluded from claiming any refund from the firm, if due to any circumstances, beyond the control of the firm due to any sort of change in policy or criterion amendment, restrictions imposed by the High Commission or if High Commission alters its immigration policy or any change in policy of the Australian government which makes the applicant ineligible to immigrate. The OP only admitted receipt of Rs.20,000/- as retainer fee out of total fee of Rs.59,000/-. It is alleged that Positive Skilled Migration Assessment was received by the OP on 21.3.2014 and in the meantime the complainant submitted the IELTS test results, but, the IELTS test result of the complainant was 6.5 band in writing and at the time of counseling the complainant was told that he needs to have 7 band in each module and advised him to improve his IELTS test. It is alleged that fee of Rs.40,000/- equivalent to $630 was paid by the complainant for Vetassess skill assessment fee vide demand draft dated 3.10.2013 from HDFC Bank Limited in favour of Vetassess, which was duly acknowledged. It is alleged that the OP is not responsible for the expenses incurred by the complainant for clearing the IELTS test. The OP prayed for dismissal of the complaint.
The parties led evidence in support of their contentions.
We have gone through the record and heard the arguments addressed by the complainant in person and learned Counsel for the OP.
Admittedly, the parties to this complaint i.e. the complainant and OP entered into an agreement (Annexure R-1). As per the agreement, the OP was to assist in preparing the application and further assist the client in every reasonable way to obtain legal permission to enter Australia as Permanent Resident Skilled-Sponsored (Migrant) Visa (subclass 190). As per clause (d) of the refund policy of this agreement, the complainant agreed that he would be precluded from claiming any refund in case he failed to obtain the relevant IELTS score in all the four disciplines of speaking, reading, listening and writing as required by DIAC and the applicable skill assessment bodies. As per clause 9 of the agreement, the complainant agreed to supply the documents within stipulated time of 60 days otherwise his case was to be put under voluntary abandonment and the firm was not liable to take any further step in processing the visa application. It is not disputed that at the time of entering into agreement, the complainant had not passed the IELTS test with 7 band. For the first time, the complainant passed the IELTS test with requisite band score on 30.5.2015 i.e. after a gap of 1 year and 7 months of entering into the agreement. As such, till 30.5.2015, the complainant was not eligible for immigration as he could not score the requisite 7 band IELTS. The receipt portion of the agreement clearly proves that the complainant has understood that English language requirements (IELTS) for himself and his wife was mandatory. He also fully understood the criteria of refund policy enshrined in clause 6 of the agreement. Thus, at the time of entering into agreement, the complainant was aware that he and his wife were required to pass the IELTS test with 7 bands and at the time of agreement they were not eligible for immigration. When at the time of agreement, the complainant himself was not eligible for immigration, so he cannot raise the little finger against the OPs.
Further, as per clause (f) of the refund policy the complainant was precluded from claiming any refund from the OP if due to any circumstances, beyond the control of firm due to any sort of change in policy or criterion amendments, restrictions imposed by the High Commission for any present or further processing of immigration applications or if the High Commission alters its immigration policy/procedures/pass marks etc. that affects the clients eligibility after signing of the retainer agreement and any change in policy of the Australian Sd/- Sd/- Sd/- Government which makes the applicant ineligible to immigrate forthwith, even if the same comes into effect with retrospective effect to the detriment of the client.
The OP has pleaded that since occupation ANZSCO code 511112 (Program or Project Administrator) became unavailable in the skilled list for Western Australia, so the papers of the complainant could not be processed. It is alleged that copy of the Western Australian Skilled Migration Occupation List updated for 2013-2014 clearly shows that that the occupation may become unavailable without notice (Ex.R-6). As per the Australian Capital Territory Act Occupation list February 2016, the occupation of ANZSCO 511112 was closed from August 2015. Since the occupation had already closed at the time the complainant became eligible, so no fault can be found with the OP or its services.
The complainant has pointed out that a contract of employment for full time employment for at least 12 months in Western Australia was required for immigration, but, this fact was concealed by the OP and that is why his application was not processed.
The complainant has failed to produce any document to show that at the time of entering into agreement there was any such condition of prior employment contract for 12 months in Western Australia. So, it cannot be said that the OP has concealed any information from the complainant. Otherwise also, since the complainant was well educated, he could very well get all the information with regard to the immigration terms and conditions through internet. There is no evidence on record that any such information was concealed from the complainant. The complainant, while entering into an agreement with the OP, himself was not eligible for immigration as he had not qualified the IELTS exam. When the complainant cleared the IELTS exam with the required band score, at that time the occupation for which he required immigration had become unavailable. So, the complainant was not in a position to get the immigration and this circumstance was beyond the control of the OP and the complainant already knew that in case of circumstances beyond the control of the OP, he was not entitled to refund of his money.
It is proved on the record that the complainant paid only Rs.20,000/- to the OP. The sum of Rs.32,000/- spent by the complainant in passing through the IELTS exam was spent by him voluntarily. The OP had no role in conducting the exam nor was it to collect the fee for the exam. The fee of exam was directly paid by the complainant to the IELTS, which is an independent body and is not under the control of OP. So, the complainant is not entitled to refund of this amount. A sum of Rs.40,000/-, which was required for skilled immigration assessment, was sent by the complainant directly to Vetassess for skill assessment fee vide demand draft dated 3.10.2013 and since the complainant was required to obtain the said certificate, so he was to bear the said expenses and the OP cannot be held responsible for the said amount spent by the complainant. The requirement of skill assessment was mandatory and the complainant had to spend the amount of his own.
As discussed above, the complainant himself is responsible for the delay as he could not clear his IELTS exam with 7 band well in time. Since when the complainant passed the IELTS exam with 7 band score, the occupation for which he required immigration had become unavailable, so no fault can be found with the OP.
Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the complainant has failed to prove that there has been any deficiency in service on the part of the OP or that the OP adopted any unfair trade practice. As such, the complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear their own costs.
31/05/2016 [Suresh Kumar Sardana] [Surjeet Kaur] [Dr. Manjit Singh] hg Member Member President