Karnataka high court OKs leave-India notice to Oz man in job visa case

Bengaluru: The Karnataka high court has held that in cases involving employment visa sponsorship based on an employer's statutory declarations, issuance of a show-cause notice to the employer alone can satisfy the requirements of natural justice.Justice Suraj Govindaraj made the observation recently while dismissing a petition filed by Christopher Charles Kamolins, an Australian national, who challenged a leave-India notice issued to him on June 19, 2019 by the foreign regional registration office (FRRO).
The judge observed that a separate hearing for the employee was not mandated where the determinative facts lay exclusively within the employer's domain.The petitioner was issued an employment visa in Jan 2018, valid until Jan 7, 2020, on the basis of his proposed employment as the general manager of Fisher and Paykel Health Care India Private Limited, an Indian subsidiary of a multinational company.Kamolins contended that he had been selected to the post as there was no eligible Indian candidate. He also claimed that the leave-India notice was issued without following procedural safeguards and that FRRO did not have the authority to issue such notices.FRRO submitted that the claim made by the petitioner's employer that no qualified Indian was available was proved otherwise by their own subsequent correspondence, and the same constituted suppression or misrepresentation.FRRO also said the petitioner's qualifications, a bachelor's degree in nursing and a graduate certificate in critical care nursing, did not satisfy the requirements of the general manager's post."The employment visa framework cannot be exploited as a device to circumvent domestic employment safeguards. The policy objective underlying the visa regime is to preserve employment opportunities for Indian citizens while permitting foreign expertise strictly in cases of genuine requirement," FRRO contended.Justice Govindaraj noted that the petitioner already exited India based on the leave-India notice and hence the matter was decided only on the question of law.The judge noted that a visa was a conditional permission to enter India and did not confer an indefeasible or vested right to remain for its entire duration. The issuance of a leave-India notice was an independent statutory exercise of sovereign power to regulate the presence of foreigners.The court noted that the foreign regional registration officer, acting as the designated civil authority, possessed statutory jurisdiction to issue a leave-India notice within his territorial jurisdiction. Justice Govindaraj observed that internal administrative directions need not be published in the official gazette. The impugned leave-India notice did not suffer from arbitrariness or non-application of mind. It was founded on relevant documentary material, including the employer's admission regarding irregular recruitment, and bore a rational nexus to the objective of preserving the integrity of the visa regime.The judge observed once a foreigner's entry was effected, the regulatory jurisdiction over the person's continued stay vested in domestic authorities.