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Nasr v Ness [2024] DIFC SCT 150

July 17, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 150/2024

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

NASR

Claimant

and

NESS

Defendant

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Hearing :	30 May 2024
Judgment :	17 July 2024

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JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI

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UPON the Claimant’s claim filed on 15 April 2024 (the “Claim”)

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 representatives in attendance (the “Hearing”)

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

IT IS HEREBY ORDERED THAT:

1. The Defendant shall pay the Claimant the amount of AED 27,405.

2. The Defendant shall pay the Claimant the Court fees to the amount of AED 1,371.18.

3. The Defendant’s Counterclaim is dismissed.

Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 17 July 2024
At: 8am

THE REASONS

The Parties

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

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

Background and the Preceding History

3. On 12 May 2023, the Claimant appointed the Defendant for immigration services to apply for and obtain a Portugal D2 business visa (the “Visa”) in return for payment of AED 63,236.25 excluding any third-party fees (the “Agreement”). The Claimant paid the downpayment of AED 27,405 to proceed with the Agreement.

4. On 13 May 2023, the Claimant received an email from the Defendant’s case processing officer, informing him that he is reviewing the Claimant’s form, and he will receive a checklist containing the process for obtaining the Visa and the list of documents.

5. On 16 May 2023, the Claimant received a “checklist” which set out all the documentation he needed to provide to facilitate the visa process.

6. The Defendant asked the Claimant about the nature of his current job, to which the Claimant explained that he was working as an accountant in an insurance company. The Defendant suggested that the Claimant opens an insurance company, and they will help him draft the business plan.

7. On 7 June 2023, the Claimant received an extensive email from the Defendant informing him that they are in the process of registering the Claimant’s company to facilitate the Visa process.

8. On 26 July 2023, the Defendant emailed the Claimant the certificate confirming the incorporation of his company in Portugal, pending the issuing of the bank account. The Defendant provided the Claimant with the option to fast-track the issuance of his bank account with additional fees, which the Claimant refused and requested the normal course. The Claimant was also facing issues booking an appointment with the visa and passport administration outsourcing company for governments (the “Nasrin ”) as there were no available slots for an appointment.

9. On 21 August 2023, the Defendant emailed the Claimant the initial business plan for the company requesting that the Claimant review and provide any comments. On 22 August 2023, the Claimant approved an enquiry about an update for the progress of his bank account application process for the company.

10. In September 2023, the Claimant managed to book an appointment with Nasrin , the Defendant sent him an email with a checklist of all the documents required for the appointment. In addition, on 10 October 2023, the Defendant sent the Claimant the renewed trade license for the interview.

11. On 13 October 2023, the Claimant emailed the Defendant informing them that the Nasrin employee refused to accept the Claimant’s application due to incomplete documentation being, inactive bank account and proof of social security number. The Claimant also expressed his dissatisfaction with the Defendant’s service. In reply, the Defendant explained that there has been a recent change in the document requirements from the Nasrin being the requirement of a social security number and they will work on providing the Claimant with a number and an update on the status of the bank account. On 22 November 2023, the Defendant emailed the Claimant with his bank account number and activation process.

12. On 27 November 2023, the Claimant's application was submitted to Nasrin with the support and assistance provided by Defendant. On 12 February 2024, the Claimant communicated with the Defendant to inform them that he had received communication from the Portugal Embassy, requesting his bank statement with MOFA stamps once more. The Claimant communicated to the Defendant that at the time he submitted his application to Nasrin his closing balance in the bank statement exceeded AED 100,000, however, his current balance stands at AED 70,000. In response, the Defendant clarified to the Claimant that the bank statement should be consistent with the figures described in the Claimant’s business plan, which had already been submitted to Nasrin and thus could not be altered. Despite the Claimant's subsequent request to amend the business plan to reflect the reduced balance in his bank statement, the team explained that such modification would violate the integrity of the business plan as originally submitted.

13. On 7 March 2024, the Claimant emailed the Defendant explaining that he received a rejection to his Visa application from the Portugal Embassy for the reason being "business viability is not seen as a guarantor of means of living”. In addition, the Claimant referenced Clause 8 of the Agreement and requested a refund of the amounts paid to the Defendant.

14. On 11 March 2024, the Defendant replied stating that it is not the Defendant’s fault that the Portuguese embassy finds that the Claimant’s business idea is not financially viable to support his living expenses in Portugal, and the Claimant has an option to request for an appeal of the embassy’s decision or re-apply for another application.

15. On 15 April 2024, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming a refund of the amount AED 27,405 for fees paid to the Defendant.

16. On 26 April 2024, the Defendant filed a counterclaim (the “Counterclaim”) seeking the amount of AED 10,000 for breach of the Agreement.

17. 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

18. 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 (NESS) is governed by and to be interpreted in accordance with the Civil/Commercial laws of the UAE.”

19. 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.

20. During the course of the Hearing, the Claimant made submissions seeking the amount of AED 15,000 from the Defendant for breach of the Agreement, which resulted in visa complications and financial strain. This was not set out as a claim in the Claimant’s claim form and therefore I shall not address it in my findings below.

The Claim

21. I have reviewed Clauses 5, 7 and 8 of the Agreement, which reads as follows:

“5. If the client revokes this Agreement or change his/her mind or found to a criminal record after signing the Agreement then NESS shall not be responsible to refund any amount received.

…

7. If the Visa application is refused OR delayed, due to any error by applicant -like but not limited to not fulfilling the documents and information requirements OR Change of Mind OR any false/incorrect information provided by applicant OR any fake document provided by applicant for the application purpose OR If the Hosting Country (Country Name is mentioned in this agreement) Visa authorities makes an enquiry to any other authority about the applicant and that other authority does not reply to satisfactory level. In all these cases applicant will not be refunded any service Charges paid to us.

8. NESS will represent the applicant until the successful result of the Visa application. In case the application remains unsuccessful without falling under clause no.7 (above mentioned cause) of this agreement, any our professional service charges received will be refunded in 2 weeks.”

22. Clause 7 to 9 of the Terms of Business of the Agreement, states:

7. The Client undertakes on instructing NESS to apply for a Visa for him/herself or thereafter promptly on receipt of any request from NESS to provide accurate and detailed information and documentation regarding the Client, -like but not limited to- the personal details, qualifications and work experience of the Client, and any other information or documentation that in its sole discretion NESS may deem necessary in order to obtain a visa / visa for a client. In case the client delay or fail to provide the required documents or information on time, then our services can be delayed.

8. The applicant agrees to create new personal email address and to give its access to NESS, tor the purpose of creating online application account of applicant for visa application and to correspond for any visa / visa application related matter. Applicant agrees to monitor this new email address regularly.

9. The visa application along with all the required documents will be ready to submit after it is checked by the applicant, giving written permission including clear satisfactory consent by applicant before application submission.”

23. The Rejection letter received from the Portugal embassy has a template of reasons given to the applicants for rejecting the visa containing the following reasons, which they came back to the Claimant disclosing the reason for rejection being “Business viability does not appear to be a guarantor of means of subsistence”, as set out below:

“In accordance with article 114 of the Code of Administrative Procedure, this notification is to inform you that the visa application referred to above has been rejected for the following reason(s):

o The following documents were not delivered (according to articles 12, 17-A, 18, 19. 19-A, 21, 22,23, 23-A. 23-B. 24. 30. 31, 32, 32-A, 33 of Regulatory Decree (DR) no. 84/07, of November Sth amended by Regulatory Decree (DR) no. 9/18, of September 11th);

o Insufficiency of own financial means and/or reference in National Territory (article 12th al. f) of no. 1 DR no. 84/07, of November 5th amended by Regulatory Decree (DR) no. 9/18. of September IIth and Ordinance No. 1563/07, of December 11th):

o Failure to present proof justifying the purpose and conditions of the planned stay in national territory or lack of reliability of such proof (See art. 365, no.2 and 370, no.2 of the Civil Code (CC) and article 115 and 119, no. 2 of the Code of Administrative Procedure (CPA)):

o Presentation of false, adulterated and/or erased documents (article 371, no. 2 CC and 119, no. 2 CPA):

o Request submitted after the legal deadline (article 68 of DR no. 84/07, of November 5th, amended by Regulatory Decree (DR) no. 9/18, of September 11th) and/or documentation out of date (article, 119, no.2 CPA);

Other reason(s):

Business viability does not appear to be a guarantor of means of subsistence.”

24. In review of the submissions made by both parties, I find that the Claimant complied with, and performed each requirement as requested by the Defendant and in accordance with the terms of the Agreement, as evidenced in email correspondence between them.

25. Although the Defendant submits that the rejection of the Visa is based on the Claimant’s business idea or business plan that was drafted by the Defendant, the Court finds this accusation is baseless as the Defendant is the expert in this field and if the Defendant finds that the Claimant’s business idea is not good enough they should have highlighted that from the beginning, before submitting the proposal to Nasrin.

26. In addition, the Defendant further argues that the change in the financial status of the Claimant in his bank account affected the Claimant’s Visa application. The Court finds this statement false as the Rejection letter from the Portugal embassy did not tick the box next to financial status of the Claimant “Insufficiency of own financial means and/or reference in National Territory”. The Rejection Letter highlighted the reason being the business viability, a reason that has no connection to the reasons stated in Clause 7 of the Agreement, being:

“due to any error by applicant -like but not limited to not fulfilling the documents and information requirements OR Change of Mind OR any false/incorrect information provided by applicant OR any fake document provided by applicant for the application purpose”

27. In my view, the Agreement is clear as to the criteria to qualify the Applicant for a refund, which the Claimant meets. In addition, the Claimant provided all documents requested by the Defendant in accordance with the Defendant’s conditions.

28. As such, the Defendant shall refund the amount paid for the Visa application in the amount of AED 27,405.

Counterclaim

29. The Defendant seeks the payment of AED 10,000 as compensation for the breach of the Agreement. The Defendant argues that they offered assistance with the appeal process, however, the Claimant did not abide by the terms of the Agreement, specifically referring to clauses 7 and 8 of the Agreement.

30. The Defendant submits that the Claimant's decision to withdraw his application constituted of breach of the Agreement and a breach of trust. According to the declaration signed in the Agreement the Claimant is not eligible for a refund under any circumstances.

31. The Court finds the Counterclaim to be without merit as it is the Claimant’s right to discontinue the process. In addition, the Defendant did not meet the burden of proof to demonstrate that it suffered due to the claimed breach. The Claimant’s decision to not move forward with the appeal does not fall under breach of the Agreement for the reason being that the appeal is considered a second chance for the Application, being a new process.

32. The Defendant did not provide any evidence to support their Counterclaim or provide the legal basis or justification to claim the AED 10,000. As such, the Defendant’s Counterclaim is dismissed.

Conclusion

33. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 27,405 in addition to the Court fees in the amount of AED 1,371.18.

34. The Defendant’s Counterclaim is dismissed.