No individual intimation needed prior to ‘leave India notice’ to foreign national working in India on ‘employment visa’ secured by employer: Karnataka High Court

The High Court of Karnataka has dismissed a petition filed by an Australian citizen challenging a Leave India Notice (LIN) issued against him on finding that he was employed in India on an employment visa (E-2) by misrepresentation by his employer-company back in 2019.

Justice Suraj Govindaraj passed the order while dismissing the petition filed by Christopher, an Australian citizen. Though the petitioner had questioned the legality of non-issuance of notice to him personally before issuing LIN against him, he had left India subsequent to filling of the petition.

The Foreign Regional Registration Officer had issued notice to the company — which is the Indian a subsidiary of a multi-national company engaged in the manufacturing, design, and marketing of medical devices used in respiratory care — which had secured employment visa for him to appoint him for the post of general manager on the ground that “no qualified Indian candidate was available” for the post.

FRRO enquiries

However, the FRRO made several enquiries with the company on appointment of the petitioner and later came to a conclusion that there was no dearth of professionals in India with Bachelor’s degree in Nursing and a Graduate Certificate in Critical Care Nursing, the qualification possessed by the petitioner.

Hence, the FRRO stated that the appointment of the petitioner to the post does not justify displacement of Indian managerial talent in a general managerial role and then issued LIN against the petitioner.

Notice to employer

Dismissing arguments that LIN violated principles of natural justice, the court held that in employment visa cases where misrepresentation pertains to the employer’s statutory declarations, a show-cause notice issued to the employer satisfies procedural fairness. The employee, being a derivative beneficiary, cannot claim an independent hearing when determinative facts lie exclusively within the employer’s domain, the court clarified.

The court also rejected the petitioner’s contention that the FRRO cannot act on visa fraud without prior adjudication by the visa-issuing authority. “Once the foreign national enters Indian territory, regulatory jurisdiction over his continued stay shifts to domestic authorities acting under the Foreigners Act,” the court observed.

The FRRO had also told the court that LIN was enforced as he had left India and did not seek restoration of employment-based residence, while pointing out that the petitioner was later allowed to come to India again on business and tourist visas, respectively.