Centre Can Issue 'Leave India Notice' To Foreign National Residing On Employment Visa Obtained Through Fraud: Karnataka High Court
The Karnataka High Court has upheld the 'Leave India' notice issued to an Australian national who was residing on an Employment Visa, noting that the visa was obtained via misrepresentation as no process for recruiting local talent for the post was conducted.It held that the Leave India notice was not vitiated for violation of principles of natural justice and the petitioner, as a...
The Karnataka High Court has upheld the 'Leave India' notice issued to an Australian national who was residing on an Employment Visa, noting that the visa was obtained via misrepresentation as no process for recruiting local talent for the post was conducted.
It held that the Leave India notice was not vitiated for violation of principles of natural justice and the petitioner, as a foreign national residing on a contractual visa obtained through misrepresentation, does not enjoy the same degree of procedural protection as a citizen or a long-term resident seeking citizenship.
The court was hearing an Australian National's plea challenging a Leave India notice issued to him dated May 1, 2019.
Employment visa obtained by fraud
Justice Suraj Govindaraj in his 203 page order said:
"Petitioner herein is a contractual employee of a foreign multinational subsidiary. He has no claim to Indian citizenship, nor does his expulsion separate him from an Indian family. His right to stay is purely contingent upon the validity of his employment visa. The Respondent has placed substantial material on record demonstrating that the "Justification Letter" dated 14.12.2017 submitted by the Company to obtain the Petitioner's visa contained a material misrepresentation. The letter claimed that "no individual with similar experience and qualification could be found within India. However, upon inquiry, the Company admitted in July 2018 that "no advertisements were placed" and they "selected employees from their existing Australian office”.
This contradiction is fatal. The Employment Visa regime is designed to protect the domestic labor market. A declaration that no local talent is available is a jurisdictional fact for the grant of the visa. If this declaration is false, the visa is void ab initio. The legal maxim fraus omnia corrumpit (fraud vitiates everything) applies. When a privilege is obtained by fraud, the beneficiary cannot claim a violation of natural justice when that privilege is withdrawn. Natural justice is not a rigid formula, If the undisputed facts (here, the Employer's admission) point to only one conclusion, the issuance of a notice would be a "useless formality" theory".
The court said that the petitioner was unauthorised because the basis of his authorisation (the Justification Letter) was found to be false. It said since the misrepresentation was made by the Employer, the FRRO correctly issued the Show Cause Notice to the Employer on 04.06.2019, wherein employer was heard.
The court said that the Petitioner, whose status is derivative of the Employer's sponsorship, has no independent ground to stand on once the sponsorship is found tainted.
"To require a separate hearing for every expatriate employee when the employer admits to a systemic breach of recruitment norms would burden the administration unreasonably and is not required by law....the Leave India Notice is NOT vitiated for violation of principles of natural justice. The Petitioner, as a foreign national on a contractual visa obtained through misrepresentation, does not enjoy the same degree of procedural protection as a citizen or a long-term resident seeking citizenship. The hearing afforded to the Employer was sufficient compliance with fairness, given the nature of the fraud," the court added.
Leave India Notice issued during term of employment visa is lawful
The court observed that Section 3(2)(c) of the Foreigners Act authorises the Central Government to make orders directing that a foreigner “shall not remain in India" and this power is statutory in origin, flowing directly from Parliamentary legislation; plenary in nature, not conditioned upon cancellation of a visa stamp; and overriding in character.
The court said that this power is preventive and regulatory, rooted in sovereign control over territorial presence and the statute does not prescribe cancellation of a visa as a jurisdictional precondition to expulsion; to read such a requirement into the provision would amount to judicial legislation.
"A visa is a conditional permission to enter. It does not create a vested right to remain for the entirety of its duration if statutory conditions are breached or if public interest so demands. Acceptance of the Petitioner's argument would lead to an untenable situation where domestic authorities would be rendered powerless to remove a foreigner who violates conditions or becomes undesirable, unless and until a diplomatic mission abroad formally cancels the visa. Such a construction would render Section 3(2)(c) nugatory and must be rejected. The Ministry of External Affairs and the Ministry of Home Affairs are not competing sovereigns. They are administrative departments of the same Central Government. The grant of a visa and the regulation of continued presence operate within a coordinated sovereign framework...In the present case, the FRRO does not purport to cancel the visa. It exercises a distinct statutory power of expulsion under Section 3(2)(c). The legal source of authority is explicit. The incidental consequence that the visa becomes practically ineffective does not transform a statutory expulsion into a colourable cancellation," the court said.
It further said that in Hans Muller of Nuremberg v. Superintendent, Presidency Jail (1955), the Supreme Court held that a foreigner cannot claim the freedoms guaranteed under Article 19; thus the right to reside and settle in India is therefore not constitutionally available to a non-citizen.
"In Maneka Gandhi, the Hon'ble Supreme Court recognised that a pre-decisional hearing is not an invariable constitutional mandate in every context. In matters of immigration control, closely connected with sovereignty and public order, Parliament has not prescribed a mandatory adjudicatory hearing prior to issuance of an order under Section 3(2)(c). In Hans Muller, the Hon'ble Supreme Court did not read such a requirement into the statute. Where power is preventive and regulatory, particularly concerning non-citizens, fairness may be satisfied through contextual safeguards, including availability of post decisional representation and judicial review under Article 226. The existence of constitutional oversight serves as a significant check against abuse. The action must also withstand scrutiny under Article 14...The Leave India Notice in the present case is traceable to statutory authority, issued by a competent delegate, and aligned with the legislative scheme. There is no material suggesting mala fides, discrimination, or extraneous considerations. The action does not cross the threshold of manifest arbitrariness".
The court further said that Leave India Notice is not an indirect cancellation of the visa but a direct exercise of statutory authority under Section 3(2)(c) of the Foreigners Act.
The visa does not create an indefeasible right to remain immune from that power and Articles 14 and 21 are not violated, and Article 19 is inapplicable. The court this held that issuance of the Leave India Notice during the subsistence of the Employment Visa does not amount to an impermissible indirect or de facto cancellation of the visa and is a lawful, independent exercise of power under Section 3(2)(c) of the Foreigners Act.
FRRO as delegated Civil Authority empowered to issue Leave India notice
The court said that the Foreigners Act does not contemplate that the Central Government must personally or directly issue every individual order affecting a foreigner and the act authorises the Central Government to direct, by notification, that any power conferred by or under the Act may be exercised by such officer or authority as may be specified.
"Delegation is therefore not incidental to the statutory scheme; it is embedded within it as an essential mechanism for operational enforcement. The Respondents have produced notifications issued by the Ministry of Home Affairs, including Notification S.O. 590(E), S.O. 3310(E), and subsequent amendments, whereby the FRRO is appointed as the “Civil Authority” for specified territorial jurisdictions, including Bengaluru. These notifications are issued in exercise of powers under Section 12 of the Act and operate in conjunction with the Foreigners Order, 1948. The Foreigners Order, 1948, issued under Section 3, defines “Civil Authority” as such authority as may be appointed by the Central Government. The Order further confers upon the Civil Authority substantive powers to regulate movement, residence, reporting obligations, and compliance with conditions imposed upon foreigners. Paragraph 11 empowers the Civil Authority to issue directions concerning residence and movement, and to ensure enforcement of statutory requirements," the court noted.
The court noted that the FRRO, by virtue of the notifications on record, functions as the Civil Authority within its territorial domain and its authority is expressly conferred through statutory delegation.
The court noted that in the present case the decision was processed through the Bureau of Immigration (BoI), functioning under the Ministry of Home Affairs and the FRRO operates as the regional head within this administrative hierarchy.
The FRRO, acting as the delegated Civil Authority under the Foreigners Act, 1946 and the Foreigners Order, 1948, therefore possesses statutory jurisdiction to issue a Leave India Notice, the court said.
Referring to the process undertaken by the Central Authorities, the court also held that LIN does not suffer from arbitrariness but was based on relevant material—the Employer's admission of irregular recruitment—which constitutes a rational nexus to the objective of protecting national interests and the integrity of the visa regime.
The court also observed that there is no statutory requirement that allegations of fraud or misrepresentation in procurement of an Employment Visa must first be adjudicated by the overseas visa-issuing authority before domestic regulatory action is taken.
It said that the FRRO, acting within the delegated framework of the Foreigners Act, is competent to act upon such material when discovered within India.
"The Petitioner's argument would lead to a dangerous proposition where domestic security agencies are powerless to act against visa fraud detected on Indian soil...If a foreigner obtains a visa by suppressing a criminal record, or as in this case, by the employer suppressing the availability of local talent, and this fact is discovered after entry, the FRRO is the competent authority to act. The High Commission in Canberra is functus officio once the visa is issued and the person enters India. The jurisdiction to police the conditions of the visa shifts to the domestic authorities," the court said.
Background
The petitioner was granted an Employment Visa on 08.01.2018, permitting him multiple entries into India which was valid until 07.01.2020. The visa was issued on the basis of his proposed employment as General Manager of Fisher and Paykel Health Care India Private Limited, an Indian subsidiary of Fisher and Paykel Health Care Limited, a New Zealand-based multinational corporation.
The petitioner was appointed as General Manager with effect from 01.02.2018. Prior to his appointment, the Indian operations of the company were headed by an Indian national who functioned as Resident Director and was responsible for managing business operations within the country.
It is alleged that during that tenure, the company experienced significant performance challenges and consequently, the services of the concerned senior management personnel were discontinued and the petitioner was appointed as General Manager.
Prior to appointing the petitioner, the company conducted enquiries to identify a suitable Indian candidate for the position, but none was found to meet the required qualifications and experience.
On 11.07.2018, the Foreign Regional Registration Officer (FRRO) addressed an email to the company seeking details regarding the employment status of three former Indian employees, two of whom were part of the earlier senior management, and also sought information regarding foreign nationals employed by the company.
The company responded stating that the three former employees had resigned or separated in accordance with the terms of their appointment. Thereafter, the FRRO again called upon the company to furnish detailed particulars regarding the employment of the petitioner and another expatriate employee. Several further communications were exchanged between the FRRO and the company in the ensuing months. Ultimately, on 19.06.2019, a Leave India Notice (LIN) was issued to the petitioner.
The plea was dismissed.
Case title: CHRISTOPHER CHARLES KAMOLINS v/s UNION OF INDIA
WRIT PETITION NO. 26412 OF 2019