Retaining Immigration Processing Fee Without Rendering Any Service Amounts To Deficiency: Kerala State Consumer Commission
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., affirming a District Com-mission's order directing refund of service fees to a client. The Commission held that retention of processing fees...
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., affirming a District Com-mission's order directing refund of service fees to a client.
The Commission held that retention of processing fees without initiating any actual visa documen-tation process amounts to “unfair enrichment” and “deficiency in service.”
Brief Facts
The complainant, Ruksana Nazlin M, engaged the services of Amster Immigration Overseas Pvt. Ltd. (opposite party) for obtaining a Canadian Permanent Resident (PR) visa and paid a total sum of ₹76,190, comprising ₹75,000 towards processing fees and ₹1,190 as an assessment fee.
At the time of payment, the complainant was assured that the processing fee would be refundable in the event of cancellation. However, on 2 December 2020, the opposite party sent an email en-closing a blank preliminary agreement stating that the fee was non-refundable. The complainant did not sign either the preliminary agreement or the main agreement referred to therein.
The opposite party failed to provide proper guidance on the procedures to be followed. Its only ac-tion was creating an ICES account for Educational Credential Assessment (ECA), but the applica-tion was incomplete and was rejected twice. Owing to financial difficulties arising from the COVID-19 pandemic, the complainant was unable to clear the IELTS examination and complete the ECA, which were mandatory prerequisites for commencing PR documentation.
Since IELTS and ECA were mandatory, the opposite party could not commence the Permanent Resident documentation process. As no actual processing had begun, the complainant sought can-cellation of the PR proceedings and refund of the amount paid, which the opposite party refused. Instead, it suggested keeping the proceedings in abeyance and asked the complainant to participate in arbitration, which she declined as there was no arbitration agreement.
Aggrieved, the complainant approached the District Consumer Disputes Redressal Commission, Kottayam, which allowed the complaint and directed refund of ₹75,000 with 9% interest, ₹25,000 as compensation, and ₹5,000 as costs. The opposite party challenged the order before the State Commission.
Contentions of the Opposite Party
The opposite party contended that the amount paid by the complainant was contractually non-refundable, relying on an email dated 2 December 2020 which expressly stated that the fee would not be refunded.
It was further argued that, instead of seeking cancellation and refund, the complainant ought to have agreed to keep the Permanent Resident (PR) proceedings in abeyance. The opposite party al-so submitted that the dispute ought to have been resolved through arbitration.
Findings of the Commission
The State Commission agreed with the findings of the District Commission and held that, although the opposite party claimed the fees were non-refundable, no actual processing work had been car-ried out to justify retention of the amount.
The Commission noted that the amount was received on 30 November 2020, even before execu-tion of any agreement. The preliminary agreement declaring the fee to be non-refundable was sent only two days later, and the main agreement referred to therein was never signed by the complain-ant.
Holding that the opposite party retained the complainant's money without performing any substan-tive work towards PR documentation, the Commission found that such conduct resulted in unfair enrichment and amounted to deficiency in service.
The Commission further observed that the inability to proceed was attributable to the complain-ant's failure to clear IELTS and ECA due to financial hardship caused by the COVID-19 pandem-ic, and in such circumstances, the opposite party had no justification to retain the entire amount.
Accordingly, the Commission dismissed the appeal and upheld the District Commission's direc-tions to refund ₹75,000 with 9% interest, pay ₹25,000 as compensation and ₹5,000 as costs, while additionally imposing ₹10,000 as costs in the appeal.
Case Title: Amster Immigration Overseas Pvt. Ltd. v. Ruksana Nazlin M
Case No.: FA No. 16/2024 (SC/32/A/16/2024)