CASE DETAILS: Ms. Kishinchand Poornima Wasdani v/s WWICS, CIC
Ms. Kishinchand Poornima Wasdani, (herein after, “the client”), female, aged around 40 years, and an Indian National, had engaged the services of World Wide Immigration Consultancy Services (WWICS) Ltd. (herein after, “the company”), having its Head Office at SCO 2415-16, Sector 22-C, Chandigarh – 160022, U.T. Chandigarh, for receiving professional consultancy towards preparation and submission of an application for immigration to Canada, under the Federal Skilled Worker (FSW) category.
CONTRACT OF ENGAGEMENT BETWEEN THE CLIENT AND THE COMPANY: OCTOBER 2005
On 31st October 2005, a Contract of Engagement (Skilled Category) having No. 509, was executed between the client and the company for the aforesaid purpose(s), at Chennai, and legally applicable at Chandigarh (U.T.). Under the options (Gold and Bronze) available to the client, she opted for the Gold Package, which included both pre- and post-landing services, as against the Bronze Package, which included only pre-landing services. From among the payment options available (Spot payment plan/Special Spot payment plan, and Installment payment plan), the client opted for the Installment Payment plan.
Under Clause No. 1 (“Duties of the company”) of this agreement, the company, in consultation with its associates in respective countries, was required to provide the following services to the client:
1) Assist the client in preparation of his/her immigration case.
2) Review and identify submission of required documents and supporting evidences.
3) Submit the complete case with supporting documentation and evidence along with submission report to the processing visa office.
4) Handle all the correspondence with the respective High Commission pertaining to the client’s case.
5) Assist the client in keeping his/her file up to date.
As per Clause No. 3 (“Fees of the company”) , under the Installment Payment Plan opted for by the client, the client undertook to pay “In consideration of the company’s professional services”, a total fee of INR 50,000/- (Indian Rupees Fifty Thousand only), as follows:
a) INR 30,000/- (Indian Rupees Thirty Thousand only) was payable at the time of signing the agreement.
b) The balance sum of INR 20,000/- (Indian Rupees Twenty Thousand only) was to be paid within 30 days of the receipt of the High Commission of Canada file by the company on behalf of the client.
Clause No. 6 (“Fee charged by Immigration Authorities”) stated that the client agreed to pay the visa processing fee to the Immigration Authorities in accordance with the immigration regulations in force at the time, and that “The client shall solely be responsible for any adverse effect on the case due to delay/non-payment/short-payment of visa processing fee to the Immigration Authorities. Any additional burden on the account of change in the Visa Processing Fee, or any other fees levied by the Immigration Authority, from time to time, would be borne by the client. The above processing fees are non-refundable as per the current rules of the Immigration Authorities of the concerned countries. Thus, the client shall not seek refund of the said fee from the company since the same is payable to the Immigration Authorities and not to the Company.”
Clause No. 9 of the contract stated that “It shall be an honest endeavor of the company and its associates to ensure speedy achievement of the objectives. However, the company and its associates shall not be responsible for any delay occurring during the process. Time shall not be the essence of the contract.”
Clause No. 10 (“Refund”) stated that “The services provided by the company being professional in nature, the entire fee is non-refundable.”
Clause No. 14 (“Support to the Client”) stated that “The Client would be provided with specialized services by a team of professionals having vast experience and exposure in their relevant fields. All services to the Client would be provided under the direct supervision of CSIC (Canadian Society of Immigration Consultants) member, Mr. Devinder Sandhu (Registration/Membership Number: M042344).”, and that “He would be assisted by the following management personnel: The Senior Manager (Assessment) would be assisting and responsible for assessment of Clients on the various qualifying criteria’s specified from time to time. The Counselor and Technical Advisor would be providing technical advisory services to the Client including judicial review. The Senior Manager (Customer Care) would be looking into the Client’s queries, concerns and other related issues. The General Manager (Operations), heading the operations division, would be responsible for the complete process flows, i.e., Assessment, case filing, case processing, customer care.”
Clause No. 16 (“Arbitration”) stated that “All differences and disputes between the parties hereto on any clause or matter herein contained, their respective rights, claims, liabilities, howsoever in relation to or arising out of this agreement shall be referred to the sole arbitration of the arbitrator appointed by the company or any other person approved by the company whose award shall be final and binding on both the parties. Such arbitration shall be governed by the arbitration and conciliation Act 1996 or any modifications/re-enactment thereof for the time being in force. The venue of Arbitration proceedings shall be at Chandigarh.”, and that, “It is further specifically agreed upon by the client that he forgoes his right to initiate any legal proceeding against the company at any place expect the Union Territory of Chandigarh and the jurisdiction at all other places is thus hereby excluded.”
CONTRACT OF ENGAGEMENT BETWEEN THE CLIENT AND THE SECOND COMPANY: OCTOBER 2005
In order to avail the pre- and post-landing services under the Gold Package, a second Contract of Engagement (Skilled Category) was executed between the client and Global Strategic Business Consultancy (herein after, the “second company”), having its offices at FZCO. Office No. 315-316, West Wing-3, Dubai Airport Free Zone, Dubai, United Arab Emirates, on 31st October 2005, at Chennai, and legally applicable at Dubai (U.A.E.). The contract detailed a list of services which the client was eligible to avail under the categories of Pre-Landing Services, Settlement Services, and Placement Assistance Services under the Gold Package. The client opted for the Installment Plan under the various options available for payment, viz., Spot Payment Plan, Special Spot Payment Plan, and Installment Plan. Under the Installment Plan opted for by the client for immigration to Canada, a sum total of USD 1700 (United States Dollars One Thousand and Seven Hundred only) was to be paid to the second company for services under the following heads:
a) File No. : USD 300
b) Interview/Interview Waiver: USD 700, and
c) Medical: USD 700.
Clause No. 7 of this contract stated that “It shall be an honest endeavor of the company to ensure speedy achievement of the objective. However, the company shall not be responsible for any delay occurring during the process. Time shall not be the essence of the contract.”
Clause No. 8 (“Refund”) stated that “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 the 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.” and that “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 disinterested 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.”
Clause No. 14 (“Support to the Client”) stated that “The Client would be provided with specialized services by a team of professionals having vast experience and exposure in their relevant fields. All services to the Client would be provided under the direct supervision of CSIC (Canadian Society of Immigration Consultants) member, Mr. Parvinder Sandhu (Registration/Membership Number: M041642).”
Clause No. 15 (“Arbitration”) stated that “All differences and disputes between the parties hereto on any clause or matter herein contained, their respective rights, claims, liabilities, howsoever in relation to or arising out of this agreement shall be referred to the sole arbitrator appointed by the Company or any other person approved by the Company, whose award shall be final and binding on both the parties. The venue of Arbitration proceedings shall be at Dubai.” and that “It is further specifically agreed up on by the Client that he forgoes his right to initiate any legal proceeding against the Company at any place expect at Dubai and the jurisdiction at all other places is hereby excluded.”
DETAILS OF FURTHER PROCESSING OF THE APPICATION AND PAYMENTS MADE BY THE CLIENT
However, after due reconsideration and consultation with the company, the client opted for a Special Spot Payment Plan (Plan-2 under the Gold Package), which entailed the following payments:
a) An initial payment of INR 30,000/- (Indian Rupees Thirty Thousand only) towards professional services rendered to the client by the company.
b) A balance payment comprising of INR 20,000/- (Indian Rupees Twenty Thousand only) towards the professional services rendered to the client by the company., and
c) A payment of USD 1400 (United States Dollars One Thousand and Four Hundred only) towards further processing of the papers by the High Commission of Canada. This fee was to be paid upon completion of allotment of an Immigration File No. to the client by the High Commission of Canada.
d) A fee of INR 20,350/- (Indian Rupees Twenty Thousand Three Hundred and Fifty only), which to be paid to the High Commission of Canada for each applicant who was above 22 years of age, and a fee of INR 5500/- (Five Thousand and Five Hundred only), to be paid to the High Commission of Canada for each applicant who was below 22 years of age.
e) A Right of Landing Fee (ROLF) of INR 36,075/- (Indian Rupees Thirty Six Thousand and Seventy Five only), to be paid to the High Commission of Canada for each applicant above 22 years of age, after the medical examinations.
The company also offered the client a discount of INR 5000/- (Indian Rupees Five Thousand only) if the registration was done on an immediate basis. This meant that the client had to pay INR 45,000/- (Indian Rupees Forty Five Thousand only) towards availing the professional services of the company. The client then paid the company a sum total of INR 45,000/- (Indian Rupees Forty Five Thousand only) and USD 1400/- (United States Dollars One Thousand Four Hundred only), through installments paid at different points of time, towards availing professional services. The details of the payments made are mentioned below:
Sl. No. Date of Transaction Amount Paid (Currency) Bank Receipt No. Mode of Payment Instrument No. & Date
1. 31st October 2005 18000/- (INR) Dena Bank 7381 Cheque 072177 dated 02nd November 2005
2. 19th November 2005 7000/- (INR) Indian Bank 1812 Cheque 979664 dated 15th November 2005
3. 31st January 2006 20,000/- (INR) Dena Bank 10254
4. 30th January 2006 300/- (USD) Bank of Punjab
5. 01st February 2006 1100/- (USD) Indian Bank
Subsequently, the client decided to make an application only in her name as the principal applicant for creation of the Immigration File in the High Commission of Canada, by paying the requisite fee of INR 20,350/- (Indian Rupees Twenty Thousand Three Hundred and Fifty only).
On 13th January 2006, the company received an official letter from the Immigration Section of the High Commission of Canada, located at 7/8 Shantipath, Chanakyapuri, P.O. Box 5209, New Delhi – 110021, acknowledging the receipt of the application from the client for permanent residence in Canada dated 28th November 2005, and that an Immigration File No. B049028394 had been created for the client. The letter also stated that “We are presently assessing applications received approximately 52 months ago. With unforeseen changes in our volumes and the resources available to handle applications, we cannot, however, guarantee that we will be able to complete the initial screening of your application within 52 months.”
Attached to the letter was a scheme detailing how the application of the client would be processed, and a Receipt No. 6029 dated 12th December 2005 for INR 20,350/- (Indian Rupees Twenty Thousand Three Hundred and Fifty only), towards “Skilled Worker PR Application – Spouse/Common Law Partner, Dep > 22”.
The Settlement Division of the company accordingly assigned a Reference No. WWICS C05 – 411819/33156 for the file of the client and issued a letter to her on 13th February 2006 confirming the receipt of the Visa Processing Fee and including instructions for further stages of immigration.
On 12th June 2013, the company received an intimation from Citizenship and Immigration Canada (CIC), with Immigration file number B049028394, dated 24th May 2013, and addressed to the client, with regard to her Federal Skilled Worker application for immigration to Canada, which stated that her application for the same had been terminated by law due to the passage of “The Jobs, Growth, and Long-Term Prosperity Act” on 29th June 2012, under whose legislation the FSW applications made before 27th February 2008 were terminated by an operation of law if a selection decision had not been made by an immigration officer before 29th March 2012. The letter also stated that “The immigration processing fee(s) paid for your permanent residence application, and, if applicable, any Right of Permanent Residence Fee (RPRF), formerly called the Right of Landing Fee (ROLF), paid for your permanent residence application, must be returned to you by law.” The letter carried with it an application form for “Refund of Processing Fee, Right of Permanent Residence Fee or Right of Landing Fee”, which needed to be filled-in and returned to CIC within 60 days of the receipt of the letter. The letter and application form were then forwarded to the client.
On 07th April 2014, the company received a notification from Citizenship and Immigration Canada (CIC), under the head “FEDERAL SKILL WORKER REFUND” for USD 550/- (United States Dollars Five Hundred and Fifty only), accompanied by a Demand Draft No. 997045310762, drawn on the Bank of America, dated 24th March 2014, and valid for 90 days, for an amount of USD 493.19/- (United States Dollars Four Hundred and Ninety Three and Nineteen Cents only) towards refund of Immigration Processing Fee from the Government of Canada.
The client refused to accept the draft and decided to explore further legal options to recover her monies spent on the process.
QUESTIONS RAISED BY THE CLIENT
1) The client would now like to know if her legal options are limited by her signing of the two Contracts of Engagement, one of which limited the scope of arbitration proceedings to Chandigarh, India, and the other, which limited the scope of arbitration proceedings to Dubai, UAE.
2) As a new act has been passed by the Government of Canada under which the in-process application of the client has been declared null and void as a decision on the application was pending at the time of the passage of the act, the client intends to know the available legal options, especially in light of the Clause No. 8 of the Contract of Engagement between the client and the second company.
3) How tenable is the argument that: the services provided by the company being professional in nature, the client is not entitled to a refund of any part of the fees paid by her to the company?
4) The client wishes to know the exact purpose for which the company collected USD 1400 (United states Dollars One Thousand and Four Hundred only). If this amount was collected towards the Immigration Processing Fees, then the client wishes to know:
a. If this entire amount collected in USD (1400) was forwarded to the High Commission of Canada by the company on behalf of the client, then is the client not entitled to the full refund of this amount on the basis of the statement in the letter of Citizenship and Immigration Canada dated 24th May 2013, that “The immigration processing fee(s) paid for your permanent residence application, and, if applicable, any Right of Permanent Residence Fee (RPRF), formerly called the Right of Landing Fee (ROLF), paid for your permanent residence application, must be returned to you by law.”
b. If this amount was forwarded in part to the High Commission of Canada by the company, then the client is of the opinion that the part which was with held by the company must be refunded to her forthwith.
5) The client feels that the clauses are very unilateral and that she deserves a full refund of the money as the application for Immigration under the Federal Skilled Worker Scheme has been refused after a long period of processing time for no fault of hers.