Nakia v Nihal [2024] DIFC SCT 147 (24 July 2024)

Claim No: SCT 147/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL
BEFORE H.E. JUSTICE MAHA AL MHEIRI

BETWEEN

NAKIA

Claimant

and

NIHAL

Defendant

Hearing :	30 May 2024
Judgment :	24 July 2024

JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI

UPON the Claimant’s claim filed on 15 April 2024

AND UPON a hearing having been held before H.E. Justice Maha Al Mheiri on 30 May 2024, with the Claimant’s and the Defendant’s representative in attendance

AND UPON reviewing the documents and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Claim is dismissed.

2. The Defendant’s Counterclaim is dismissed.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 24 July 2024
At: 9am

THE REASONS

The Parties

1. The Claimant is Nakia (the “Claimant”), an individual who sought the services of the Defendant to apply for a visa.

2. The Defendant is Nihal (hereafter “the Defendant”), a company specialized in immigration services registered and located in Dubai.

Background and the Preceding History

3. On 21 September 2022, the Claimant appointed the Defendant for immigration services to apply for Innovator visa (the “Visa”) to enter the United Kingdom (the “Agreement”). in return for payment of AED 43,785 excluding any third-party fees (the “Agreement”). The Claimant paid the downpayment of AED 26,269 to proceed with the Agreement.

4. On 25 October 2022, the Claimant received an email from the Defendant’s case processing officer, informing him that she was reviewing the Claimant’s form, and he will receive a checklist containing the process for obtaining the Visa and the list of documents required from him.

5. On 17 November 2022, the Claimant received a “checklist” which set out all the documentation he needed to provide to facilitate the visa process.

6. On 29 December 2022, the Defendant emailed the Claimant the updated business plan for the company, requesting that the Claimant review and provide any comments.

7. On 24 January 2023, the Claimant approved the business plan, and the Defendant started the submission process to find an endorsing body.

8. On 8 April 2023, The Defendant informed the Claimant that the UK Home Office had released the “Innovator Founder” visa. This visa route permits applicants to open a new, innovative company in the UK, without the £50,000 minimum investment fund. Additional benefits included allowing applicants to gain employment outside their business, and access to the ‘short route to settlement’ within 3 years instead of 5.

9. On 30 April 2023, due a more attractive list of benefits, the Claimant signed the switch declaration form from the Innovator visa to the Innovator Founder visa (“New Visa”).

10. On 8 May 2023, the Claimant received an “updated checklist” which set out all the documentation he needed to provide to facilitate the New Visa process.

11. On 16 December 2023, the Defendant emailed the Claimant the updated business plan for the company according to the New Visa requirements, requesting that the Claimant review and satisfy the additional requirements, being the minimum investment fund.

12. On 30 December 2023, the Defendant sent a follow up email. The Claimant then approved the business plan. The Defendant started the submission process to find an endorsing body, which the Claimant failed to coordinate with.

13. On 30 December 2023, the Defendant sent a follow up email to the Claimant, stating the following:

“Dear Mr. Nakia,

Pleasure speaking with you.

As discussed, you've agreed to proceed with the Innovator Founder Visa application.

We’ve provided you with the business plan on 16/12/2023 along with suggestions to enhance/strengthen the application, & we're awaiting your approval of the same.

As stated, you are not willing to work on the suggestion. Hence, as a gesture of goodwill, we'll assist on the same. Also, you were not able to show £50,000 as investment funds for your business plan, & we offered to provide you with a co-founder/investor to assist you with your funding requirements without additional costs. Though, you agreed to furnish a minimum investment of £50,000, utilizing your account & your wife's account.

We've provided the business plan on 16/12/2023 along with suggestions to enhance/strengthen the application, & we're awaiting your approval of the same.

Kindly note that the final submission to the endorsing body shall be made when all the relevant documents are provided by you, including the suggestions.

We look forward to further your application with all the relevant documents at the earliest possible.”

14. On 15 April 2024, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming a refund of the amount AED 26,000 for fees paid to the Defendant.

15. On 26 April 2024, the Defendant filed a counterclaim (the “Counterclaim”) seeking the amount of AED 17,516 for breach of the Agreement.

16. In accordance with the rules and the procedures of the SCT, the matter was referred to me for determination, pursuant to the Hearing. After reviewing all documents and evidence submitted on the Court file, I give my judgment below.

Discussion

17. This dispute is governed by the DIFC Contract Law and the relevant case law and principles concerning a breach of contract. Neither party has disputed the jurisdiction of the DIFC Courts and thus the Court assumes jurisdiction of this dispute. Clause 4 of the Agreement stipulates the following:

“4. Disputes & Jurisdiction: Any dispute, difference, controversy or claim arising out of or in connection with this contract, including (but not limited to) any question regarding its existence, validity, interpretation, performance, discharge and applicable remedies, shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre ("the DIFC Courts"). These terms and conditions in this contract or agreement and any other agreement or contract between the client / applicant and the company (Nihal ) is governed by and to be interpreted in accordance with the Civil/Commercial laws of the UAE.”

18. In essence, the disagreement between the parties pertains to whether the Claimant should be refunded for the amount that he paid pursuant to the Agreement.

19. Before answering the above question, the Court must first examine the services rendered by the Defendant and whether there is any provision that qualifies the Claimant for a refund in the Agreement.

The Claim

20. The Claimant argues that as per the terms outlined in the Agreement, the Defendant agreed to undertake all necessary steps and responsibilities in ensuring the successful application and processing of the Innovator visa for the Claimant.

21. The Claimant submits that as per his discussions with the Defendant, he was assured that they would arrange for the necessary endorsement letter from UK endorsement bodies. This endorsement is crucial for the successful application of a three-year visa for the Claimant and his family members, allowing them to reside in the UK for the duration of the higher education program of his children. The Defendant failed to fulfill their contractual obligations to procure an endorsement letter from UK endorsement bodies as promised. Furthermore, the Defendant explained that upon the expiration of the initial three-year visa, they will assist us in obtaining Indefinite Leave to Remain, granting us the opportunity for permanent residency in the United Kingdom.

22. The Claimant argues that despite their assurances, the Defendant acted unprofessionally and incompetently in their dealings with various endorsement bodies. As a result, the Claimant has been unable to obtain the necessary endorsement letter for himself and his family to proceed with their visa applications for higher education in the United Kingdom. The Claimant requested a refund of the payment which was refused, claiming that the Claimant is not eligible for a refund.

23. The Agreement, set out the services expected to be carried out by the Defendant before and after obtaining the visa. There is no need for me to mention the services for after visa issuance as the visa was not issued in this case.

24. The Defendant was expected to perform the following services:

(a) Provide a detailed assessment of client’s circumstances

(b) Provide a documentation list

(d) Draft a business plan

(e) Keep the applicant informed about his application status and to continue working on the application until success.

25. As to the first point, being a detailed assessment of client’s circumstances, I am of the view that this has been complied with which prompted the Claimant to enter into the Agreement and elect the Innovator visa, which then helped the Defendant in drafting the business plans accordingly.

26. As to the documentation needed to facilitate the visa, the Defendant submitted evidence that the checklist was shared with the Claimant on 8 May 2023 and the Claimant did not deny it. The checklist does mention that the Claimant must produce the latest personal bank statements for maintenance funds and investments funds, which must be submitted before the endorsement letter issuance.

27. Further to the above, the Claimant submits that the Defendant lacked transparency and did not disclose the exact documentation required, whilst the Defendant submits that the checklist is exhaustive and clear, and a reminder email was sent to the Claimant on 30 December 2023.

28. By virtue of the checklist and the above email, I find that the Defendant notified the Claimant of the required documents to be submitted and gave him an opportunity to send them. Additionally, the Claimant was given a chance to approve the updated business plan and provide the missing documents.

29. It is evident from the emails shared by the Defendant, that they followed up with him in relation to the next steps. The responses received from the Defendant were satisfactory in answering the Claimant’s queries. I also acknowledge that the Defendant refrained from giving the Claimant any timeframe as to the next steps, but I do not consider this a breach of contractual obligation.

30. While I appreciate the Claimant’s frustration and sympathise with the Claimant that the process took very long with no desirable outcome, the fact remains that the visa category has been changed with no fault of the Defendant, which meant that the whole process would start all over again, and the business proposal was not agreed, thus contributing to prolonging the progress of the visa application.

31. Clause 4 of the Agreement states expressly that the Defendant does not have the authority to grant the visa, and that their role is merely to assist an applicant in doing so. From the evidence before me, although two years have lapsed and the visa application is not yet submitted, this does not mean that the Defendant did not fulfil its obligations under the Agreement as its duty is to continue to provide services until the issuance of the visa.

32. Further to the emails shared by the Claimant and the Defendant, it seems that the Defendant was communicating with the Claimant regularly in relation to the specifics of the business plan, which means that the Claimant was aware of the progress of the application and the Defendant complied with its obligations to complete the online application and assist in business plan.

33. In addition, the Defendant cannot proceed to the next step without the missing documentation, or the Claimant’s approval of the business plan, which is why the application was suspended.

34. Despite the fact that this process has taken longer than initially anticipated, given that there is no timeline mentioned in the Agreement, I am of the view that the Defendant performed its obligation to the best of their ability and is still willing to do so.

35. In any event, paragraph 7 of the Agreement gives the Claimant the right to ask for a refund only in the event the visa application was rejected, which is not the case here. Therefore, I am of the view that the Claimant is not eligible for a refund.

36. In light of the aforementioned and having reviewed the case file and submissions filed by the parties, I find that the Defendant has performed all of its duties in accordance with the terms of the Agreement. Consequently, I find that the Claimant is not entitled to a refund and the Claim must be rejected.

Counterclaim

37. The Defendant is of the view that the Claimant breached the contract and therefore it should be compensated for the remainder amount of the Agreement in the amount of AED 17,516. Though, the Agreement gives the Claimant the right to withdraw from it while losing the fee and as such, I do not find that the Claimant breached the Agreement.

38. I do not find it appropriate to order any damages to be paid to the Defendant as it is my view that the Defendant failed to provide evidence to demonstrate the damages that it has been subjected to by the Claimant and failed to provide an explanation or a legal binding Clause to allow him to claim the remainder of the amount.

39. Moreover, there is no reference in the Agreement in respect of damages being awarded to the Defendant in case of breach of contract, which is not the case. Accordingly, I find that the Defendant’s Counterclaim shall be rejected.

Findings

40. The Claim shall be dismissed.

41. The Counterclaim shall be dismissed.

42. Given that neither party has been successful in its claim, I find that each party shall bear its own cost.

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Nakia v Nihal [2024] DIFC SCT 147