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"As Usual, It Is Always Someone Else's Fault, Never His"; Bombay HC Dismisses Petition By US National Who Violated Visa Conditions

nitish kashyap
12 Sep 2019 2:15 PM GMT
"As Usual, It Is Always Someone Else
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Joshua Sadagursky, 29-year-old resident of Massachusetts, USA filed a writ petition before the Bombay High Court seeking a writ of certiorari to quash and set aside a notice issued to him by the Bureau of Immigration wherein, he was declared an "inadmissible passenger" and asked to go back to the United States.

Sadagursky's contention was that he had a five-year multiple-entry business visa issued in the United States by the Indian Consulate, therefore, he was entitled to enter the country and could not have be stopped.

"The submission is entirely without merit. It needs only to be stated to be rejected. It is without logic, for it necessarily means that all immigration protocols and authorities are redundant and are denuded of all powers except to check whether the inbound passenger holds a visa. That is contrary to law, as we shall shortly see"- the division bench of Justice SC Dharmadhikari and Justice GS Patel noted at the very outset, calling the petition "less than candid in the case it presents."

The petitioner also sought reimbursement of an amount of US$ 2,000 for expenses regarding his return fight to the United States, which he had to take after not being cleared by immigration.

Case Background

According to the petition, Sadagursky is a 'former employee' of a US-based non-profit organization called 'Global Citizen Year' which provides fellowship programmes to the university-bound students coming to India from overseas partnering with an Indian NGO called Teach for India.

The petitioner was issued a US passport on December 13, 2016 valid for 10 years until December 12, 2026. He first visited India in early-September 2012, a good five years earlier on a tourist visa. He returned later in 2013 and stayed on a student visa. For 2012-2013 he overstayed by 62 days. Thereafter, Sadagursky travelled to India multiple times for the next four years and between 2017-18, he again overstayed for a period of 25 days.

In March 2018, the petitioner applied for extension of his business visa at the FRRO, Hyderabad after overstaying the permissible period in accordance with his visa conditions. In May, FRRO denied his request for extension and gave him an exit permit.

Then, the petitioner claims that a five-year multiple-entry visa was issued to him 'due to his noteworthy contribution in India'. When Sadagursky arrived on May 21, 2018 at Mumbai International Airport, he was refused entry by immigration officials and sent back.

Submissions and Judgement

Court noted-

"Of this so-called reason for issuing him a visa we have no evidence whatsoever. There is nothing to show that the five-year multiple-entry visa of 16th May 2018 was given to Sadagursky 'in recognition' of any of his activities or work that he did in India. It seems to us to be entirely a self-serving figment of Sadagursky's imagination."

Sadagursky filed a rejoinder accepting the fact that he overstayed previously and argued that he applied for an extension of his business visa with the FRRO in Hyderabad in March 2018, but the authorities took almost two months to process this request.

"Therefore, as usual, it always someone else's fault, never his. The submission is untenable. There is no requirement in law that an extension must be granted."

Dr.Birendra Saraf appeared on behalf of the petitioner and submitted that his client's expulsion was illegal and in violation of several international conventions and treaties. Referring to the United Nations International Covenant on Civil and Political Rights and Dr.Saraf invoked Article 13 of the United Nations Covenant.

This Article states that an alien lawfully in the territory of the State party may be expelled only in pursuance of a decision reached in accordance with law and shall ordinarily be allowed to submit reasons against his expulsion and to have his case reviewed and represented before a Competent Authority.

Court rejected this argument and observed-

"The submission is misconceived and misdirected. Sadagursky was never lawfully in the territory of India when he was required to return to the United States on his arrival on 21st May 2018. He had already left the country on 12th May 2018, and was now attempting to re-enter. He was therefore not expelled, which implies the ejectment from Indian territory of someone already within its borders. He was denied entry into the country. Article 13 has no application whatsoever."

Apart from the overstay, Justice Patel noted that Sadagursky was clearly Teach for India which was in clear violation of conditions of his 'business visa'.

Thus, dismissing the petition, Court said-

"For some reason that we are unable to understand, Sadagursky seems to be oblivious to the fact that at the time of the impugned notice he was not legally in India at all. He had not crossed the immigration borders. Although he had a visa, as we have noted, this did not give him unrestricted right to enter India. The civil authorities at the Airport always had the right to refuse him entry.

Far from being an innocent victim, we see a person who has repeatedly entered India, yet kept from the petition all details of his past visits; has more than once violated the terms of his visa, and not disclosed these in his petition; and his violations include not only overstaying the maximum permissible period, but also in engaging in activities that were clearly forbidden. We are unable to appreciate how this petitioner can, in these circumstances and these facts invoke any rights at all let alone any fundamental rights."

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