MIKHAIL ANOKHIN (MICHAEL) v. MILLER, CHAN & ASSOCIATES

DCCJ6837/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6837 OF 2004

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J U D G M E N T

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1. The plaintiff claims against the defendant for the return of the sum of $20,800 for the defendant’s failure to complete the services under an agreement entered by the parties on 26 June 2003.  The defendants deny that the plaintiff is entitled to any refund.  They further claim that the services of the defendants could not be completed because the plaintiff had changed his original intended immigration status after the second payment resulting in a stay in the defendant’s processing of the plaintiff’s application to enable the plaintiff to improve his English proficiency.

Background

2. The defendant, Miller, Chan & Associates (hereinafter referred to as MCA) is an immigration consultant.  The plaintiff sought  the assistance of the defendant in June 2003 at the introduction of a friend to emigrate with his family to Canada.  After discussion with the plaintiff of his assets and requirements, the defendant assessed the plaintiff’s case and agreed to take up the plaintiff’s case to assist him in his immigration application as a skilled worker.  The plaintiff signed an agreement retaining MCA to act as his agent in  his application for immigration to Canada.

3. According to the plaintiff’s evidence, he telephoned the defendant’s Miss Teresa Chan to inform her he had changed his mind about emigrating to Canada and told her that he wished to withdraw from the contract about one week after the signing of the contract.  He was told he could not do so because he had already signed on the contract.  He claimed he was further persuaded by Miss Chan that he should continue with his application because he and his family would be better off in Canada.

4. The plaintiff claimed he was forced into carrying on with the application and paid the first instalment of the payment, $20,800, to the defendant.  He further submitted his personal documents, such as his birth certificate, his wife’s birth certificate, and particulars of his background, including education and work experience, to the defendant.  He was  required to produce a certificate of good conduct from the Police Department of the countries he had resided in.  Consequently, he applied and obtained these documents from Russia and Mongolia, where he had resided before coming to Hong Kong. 

5. In or about October 2003, he was informed by the defendant’s office that his file was ready to be submitted to the authorities.  He was  requested to pay the second instalment payment.  He duly paid the second instalment payment and a receipt was issued to him on 15 October 2003. 

6. Soon after he made the second payment, he telephoned the defendant’s Miss Chan to say that he wished to change his mind about the immigration status of his application.  He told her, instead of the original intention that the MCA should obtain a job offer for him under ‘Skilled Worker Category’ he wished to change this status to ‘Business Investment Category’.  He believed he could achieve a higher score in his English proficiency test to fulfil the requirement under a ‘Business immigration’ application.  He informed Miss Chan that he preferred to save the US$3,000 retaining fee.  In turn, he would improve his English proficiency test scores.  Based on this conversation, the defendant decided to stay his application pending the plaintiff obtaining a higher test score on his English proficiency test. 

7. According to the evidence of Miss Chan, she claimed that the plaintiff told her he had moved to an address in Shenzhen in the meantime, and it was some time in September 2004 that he told her he had returned to live in Hong Kong.  At about the same time, he had also informed Miss Chan that he had taken up a job on the side as an insurance agent for AIA.  The defendant then requested for the plaintiff’s information and details, such as MPF certificate from his own company and from AIA, and the profits and loss accounts of his company. 

8. In or about early June 2004, the plaintiff went to the defendant’s office and gave to the MCA staff his latest proficiency of English test result.  He had scored 7.5 on 1 June 2004.  Miss Chan maintained that 7.5 was not good enough for his business investment immigration that he would need to achieve 8 on his proficiency of English test.  This conversation took place sometime before 1 September 2004.

9. On 1 September 2004, MCA informed the plaintiff by email that he had to update his information and supply documents on his financial status by submitting his latest bank statements, AIA employment records and his business profits and loss accounts.  The plaintiff in his email to the defendant staff, Angela, of 6 September 2004  - (page 30 of the bundle) - apologised to Angela for his delay in supplying to the defendant the latest profits and loss accounts of his company and the delay in supplying the bank statements requested by MCA on the 1 September 2004 email.  He gave the reason that these documents were still stored in packed boxes because of his move to Shenzhen earlier

10. On 13 September 2004, the plaintiff wrote an email to MCA, notifying MCA of his intention not to proceed with his immigration application to the Canadian Government.  He further requested details of a refund.  The defendant sent a registered letter on 17 September 2004, informing the plaintiff that they were still acting under the contract and would be submitting the plaintiff’s case to the Canadian Government  shortly.  However, on the email dated 20 September 2004, the defendant - MCA - further requested the plaintiff to supply the documents requested and asked the plaintiff and his wife to attend MCA’s office to sign the application form.  This shows clearly that MCA was not agreeable to refund the plaintiff or to treat the contract had been terminated.

11. On the very same day, 20 September 2004, the plaintiff lodged an application at the Small Claims Tribunal against the defendant for the return of $20,800 (the second payment) and the $19,140 collected by MCA to pay the application charges of the plaintiff to the Canadian Government.  As a result of a Small Claims Tribunal hearing, MCA returned to the plaintiff the sum of $19,140 application of immigration fee and the plaintiff continued his pursuit for the return of the $20,800 second payment.  The matter was transferred to this court.

Findings

12. It is clear from the evidence disclosed at the trial that the plaintiff had intended to make an application to emigrate to Canada, that was why he went to the defendant to see Miss Chan.  He also knew at the time he did not have sufficient ratings to make a direct application to the Canadian Government and the defendant’s Miss Chan was introduced to him as an immigration consultant who might be able to help him. 

13. It is undisputed that the plaintiff had wanted to back down from the contract of retaining the defendant after signing the contract on 26 June 2003 but he was persuaded by Miss Chan to carry on with his application.  It is apparent that he had agreed to carry on with his application after his conversation on the telephone with Miss Chan because he paid the first payment by a bank transfer on 4 July 2003.  He then supplied the particulars required to MCA under the agreement.  On the basis of the agreement, the defendant would find a job offer for him so that he would qualify under the ‘Skill Worker Category’.

14. After paying the second payment, upon the defendant informing him his case was ready to be submitted to the authorities, he changed his mind about his immigration category and then he told Miss Chan that he preferred to save $3,000 of the defendant’s retaining fee and therefore no longer required MCA to obtain a job offer from Canada for him.  This effectively meant that the plaintiff had opted for a ‘Business Investment Category’ immigration, which he was told by Miss Chan required a higher score in English proficiency.

15. The change of immigration category also meant different criteria applied.  Other than the English proficiency test, he has to provide information on financial status, proof of the applicant’s business background, experience and history, which inevitably would have to include evidence of his past business record.  It is obvious that these were the new particulars required and demanded by MCA after 15 October 2003.  The emails exchange in early September 2004 clearly showed the defendant, MCA, required the plaintiff to supply such information. 

16. However, on 13 September 2004, the plaintiff decided to terminate his application and demanded a refund.  It is also apparent that the defendant refused and expressed that it was continuing to serve the plaintiff in his application, hence the letter of 17 September by registered mail. 

17. It is clear from the record of correspondences and emails that by 13 September 2004 the plaintiff had decided not to proceed further with his application.  However, the defendant is holding him to the contract.  It is therefore necessary to look at the terms of the contract to see if the plaintiff is entitled to a refund.

18. The terms of the contract, clauses 1, 3, 4, 5  and 6, all stated in one form or another that no refund would be payable and that the contract is irrevocable:

“	1.	The applicant shall irrevocably accept and follow the advice of MCA at all times and this agreement shall continue in force until the applicants is in possession of their desired visa.  Should the applicant fail to comply with the advice of MCA, may, at his discretion, opt out or cancel this contract and no refund shall be paid at counsel’s total discretion.
	3.	The applicant shall provide all information required by MCA.  In the event that the applicant fails to provide such information and documents within a reasonable period of time (within 30 days) and regarding any retainer paid under this agreement, no refund shall be paid to the applicant at the sole discretion of MCA.  Furthermore, the applicant shall attend any meeting, consultations, interviews or trips which are necessary for the success of the applicant’s case as directed by MCA.
	4.	This agreement shall remain irrevocably until the said visa is to the applicant and the applicant shall not revoke or terminate the services and representation of MCA or deal directly with the authorities hereinafter written in any way whatsoever nor or shall the applicant advice the relevant consulate, department, appeal board or court authorities of any such termination without the express consent of MCA.
	5.	Should the applicant provide the authorities with any notifications in any way whatsoever which purport to terminate or supersede this agreement or deprive MCA of its right to collect fees on the happening of certain events, then such activities shall deem all work under this contract to be completed and all fees under this agreement shall immediately become due and payable to MCA.  In the event that the applicant breaches either clause 1 or clause 4 or clause 5, the applicant shall be liable to pay the full contract fees.
	6.	MCA accepts no responsibility whatsoever and shall not provide refunds for applications which are rejected for the reason of misrepresentation of facts, dishonesty, unravelled criminal or security records and medical disabilities on the part of the applicant.  Should the applicant mislead MCA in any way whatsoever, MCA reserves the right to withdraw its services to the applicant and no refund shall be payable at MCA’s entire discretion.”

19. The last paragraph of the second page, on page 11 of the bundle, however, provided the only refund clause “50% of the above fees will be refundable if the application including all appeals and judicial review and other remedial action recommended by MCA fail.”

20. In spite of  the fact that the agreement contained a number of typing and grammatical errors, it is clear from clauses 1, 3, 4, 5 and 6 of the contract, the intention of MCA was not to provide refunds or revocations of agreements.  If there were any or at all, the discretion belonged to MCA.

21. The aforesaid clauses seemed to be harsh and unfair, there would be no refund except for the final clause, that should the applicant’s application be unsuccessful which may entail an appeal or judicial review to the authorities, MCA will refund 50% of the fees.  In this matter, no immigration application was ever lodged by MCA on the plaintiff’s behalf. 

22. After the variation of the immigration category from skilled worker to business investment by the plaintiff, the contract fee charged by the defendant was amended to US$5,000.  Consequently, when the plaintiff paid the second payment of $20,800, he had in fact paid 100% of the fee before submission of any application was made.  It is clear that under the terms of the contract, no refund would be given unless the defendant considered it suitable.

23. I am satisfied that the plaintiff was and is fully aware of the terms of the contract.  In spite of the fact that before he made the first payment he had considered withdrawing from the contract, however, after discussing the matter over with Miss Chan, he decided to carry on and retained MCA to represent him in the application.  He confirmed this decision by the payment of the first payment.  He further confirmed it by supplying all his particulars, including his birth certificate, education, background, etc., to MCA. 

24. As to the plaintiff’s claim that he was forced into signing the contract, I find on the basis of his evidence given at trial there was no force exercised by MCA.  He was told he had signed a contract and expressed the intention to engage the defendant.  Neither was he forced to make a deposit of the first payment to the MCA account in the bank or pay the second payment by cheque, because he continued supplying information and particulars to MCA. 

25. Further, after the second payment, he went for a third proficiency of English test.  He said he was very happy after he obtained his test score on the third occasion because it was a great improvement, he had scored 7.5.   He gave the score result to MCA.  He also brought alone to Miss Chan, a bottle of wine and a box of chocolates on this occasion.

26. There was a change in circumstances when he changed the immigration application category to business investment.  That change required him to supply evidence of his business acumen, his profits and loss accounts, evidence of his tax payment, records of payment to MPF to showing his income.  He told Miss Chan that he has little income from AIA, his email to Angela in September 2004, he informed MCA that his company, AMIC, was returning a loss each year.  No tax had ever been paid.

27. I am satisfied that the reason for the plaintiff’s changing the immigration status to ‘business’ was he wanted to save the US$3,000 which would have included MCA finding a job offer for him in Canada.  He expressed that he needed the money because at the time the economy in Hong Kong was poor.

28. Meanwhile, his wife and his three Hong Kong born children have all obtained Hong Kong residency and therefore there is at present date no real urgency for him to emigrate to Canada.

29. I reject his evidence that he was not given an immigration document checklist.  I accept Miss Chan’s evidence that MCA had no reason not to give him the immigration checklist at the time the plaintiff signed the contract.  There is no reasonable excuse for the plaintiff’s agent to hide the list from him.  When the contract was signed, the document of a checklist was supposed to have been given to him before he made the first payment.  It was Miss Chan’s evidence and the plaintiff’s evidence that he was told the immigration document checklist could be found in the Canadian Immigration website.  If such information was readily available on the internet, there was no reason for MCA to keep the list from him.

30. The plaintiff and his wife complained that the defendant was always demanding for more documents each time they delivered up a required document and they found this extremely annoying and had considered it was MCA’s tactic in delaying their application.  After hearing the evidence and considering the documents produced, I am satisfied the reason why MCA had asked the plaintiff to supply further and more documents was because the plaintiff had changed the immigration category from ‘skill worker’ to ‘business’, and there was also a delay of over one year consented to by the defendant, MCA, for the plaintiff to pursue and obtain a higher test score in the proficiency of the English test.

31. In conclusion, I am not satisfied that the plaintiff had successfully proved the claim against the defendant and I dismiss his claim with costs, to be taxed if not agreed.