Retention Of Immigration Processing Fee Without Initiating Visa Process Amounts To Deficiency In Service: Kerala State Consumer Commission
Pranav B Prem
The Kerala State Consumer Disputes Redressal Commission, comprising Justice B. Sudheendra Kumar (President), Ajith Kumar D. (Judicial Member) and K.R. Radhakrishnan (Member), has dismissed an appeal filed by Amster Immigration Overseas Pvt. Ltd., thereby affirming the order passed by the District Consumer Disputes Redressal Commission, Kottayam, which had directed refund of service fees to a client. The State Commission held that retention of processing fees without initiating any actual visa documentation process amounts to unfair enrichment and deficiency in service.
The complainant, Ruksana Nazlin M, had availed the services of Amster Immigration Overseas Pvt. Ltd. for obtaining a Canadian Permanent Resident visa and paid a total sum of ₹76,190 on 30.11.2020. Out of this amount, ₹75,000 was paid towards processing fees and ₹1,190 towards assessment fees. According to the complainant, she was assured at the time of payment that the processing fee would be refundable in the event of cancellation of the Permanent Resident visa process.
Subsequently, on 02.12.2020, the opposite party sent an email to the complainant enclosing a blank preliminary agreement, signed by its manager, stating that the amount paid would be treated as a non-refundable fee. The agreement also referred to a main agreement which was to be signed later. However, the complainant did not sign either the preliminary agreement or any main agreement. The Commission noted that the money was received by the opposite party even before execution of any agreement by the complainant, which assumed significance while assessing the contractual obligations between the parties.
It was the complainant’s case that the opposite party failed to provide proper guidance regarding the procedures to be followed for obtaining the Permanent Resident visa. The only step taken by the opposite party was the creation of an ICES account for the purpose of Educational Credential Assessment, but the application was incomplete and was rejected twice. Due to financial difficulties caused by the COVID-19 pandemic, the complainant was unable to clear the IELTS examination and complete the ECA, both of which were mandatory prerequisites for commencement of Permanent Resident documentation. As a result, no actual processing of the visa application could be initiated by the opposite party.
Since no substantive processing had begun, the complainant requested cancellation of the Permanent Resident proceedings and sought refund of the amount paid. The opposite party refused to refund the amount and instead suggested that the proceedings be kept in abeyance. It also proposed arbitration, which the complainant declined on the ground that there was no arbitration agreement between the parties. Thereafter, a legal notice was issued, but the amount was still not refunded, compelling the complainant to approach the District Commission.
The District Consumer Commission, Kottayam, allowed the complaint and directed the opposite party to refund ₹75,000 with interest at 9%, pay ₹25,000 as compensation for mental agony and ₹5,000 as litigation costs. Challenging this order, the opposite party preferred an appeal before the State Commission contending that the processing fee was contractually non-refundable and that the complainant ought to have kept the Permanent Resident process in abeyance instead of seeking refund.
After examining the records, the State Commission concurred with the findings of the District Commission. It noted that no material was produced to show that any steps were initiated by the opposite party towards Permanent Resident documentation. The Commission observed that since IELTS and ECA were mandatory prerequisites and the complainant was unable to complete them due to financial hardship arising from the COVID-19 pandemic, the opposite party could not commence the visa process at all. In such circumstances, retention of the entire processing fee without rendering any substantive service was held to be unjustified.
The State Commission specifically held that the opposite party had retained the complainant’s money without suffering any actual loss and without performing any work towards the promised service. Such conduct, the Commission held, resulted in unfair enrichment and clearly amounted to deficiency in service under the Consumer Protection Act. The plea relating to arbitration was also rejected, as there was no arbitration agreement between the parties.
Accordingly, the State Commission dismissed the appeal and upheld the directions issued by the District Commission for refund of ₹75,000 with 9% interest, payment of ₹25,000 as compensation and ₹5,000 as costs. Additionally, the Commission imposed costs of ₹10,000 on the appellant in the appeal, directing the statutory deposit to be adjusted towards the amount payable to the complainant.
Cause Title: Amster Immigration Overseas Pvt. Ltd. v. Ruksana Nazlin M
Case No.: FA No. 16/2024 (SC/32/A/16/2024)
Coram: Justice B. Sudheendra Kumar (President), Ajith Kumar D. (Judicial Member), and K.R. Radhakrishnan (Member)
