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 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 fraudJustice 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a privilege is obtained by fraud, the beneficiary cannot claim a violation of natural justice when that privilege is withdrawn.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 lawfulThe 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...

Centre Can Issue 'Leave India Notice' To Foreign National Residing On Employment Visa Obtained Through Fraud: Karnataka High Court

Malavika Prasad

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