Employment visa: Notice to employer satisfies procedural requirement of fairness, rules Karnataka High Court

In cases of employment visa sponsorship where the alleged misrepresentation pertains to the employer’s statutory declarations, a show-cause notice to the employer satisfies the procedural requirement of fairness, according to the High Court of Karnataka. 

“The beneficiary employee cannot claim an additional independent hearing where the determinative facts lie beyond his personal domain and stand admitted by the sponsor,” Justice Suraj Govindaraj said, dismissing a petition filed by Christopher Charles Kamolins, an Australian employed by an MNC. 

The petitioner was granted an employment visa (E-2) in January 2018 by the High Commission of India at Canberra in Australia. The proposed employment was as General Manager of Fisher and Paykel Health Care India Private Limited, a New Zealand-based MNC. The company had claimed to have conducted enquiries to identify a suitable Indian for the position but found none. 

Subsequently, the Foreign Regional Registration Officer (FRRO) raised certain queries with respect to the employment and on May 1, 2019, a Leave India Notice (LIN) was issued against the petitioner. 

The petitioner contended that once the High Commission granted the employment visa, the FRRO cannot issue an LIN. He also submitted that while LIN was issued on May 1, 2019 (served on June 19), a show-cause notice was issued to the company only on June 4, 2019. He further argued that he was neither put on notice nor granted an opportunity to explain his position, a violation of principles of natural justice. 

On the other hand, the FRRO contended that the visa was secured through suppression and misrepresentation. 

It was submitted that the petitioner’s qualifications, a bachelor’s degree in nursing and a graduate certificate in Critical Care Nursing do not justify displacement of Indian managerial talent and that there are innumerable persons with the same qualifications in India. The FRRO said with the petitioner’s exit in November 2019 and the subsequent expiry of the Employment Visa (in 2020), the LIN stood exhausted. 

After perusing the material, the court noted that the company, upon enquiry, had admitted that “no advertisements were placed” and they “selected employees from their existing Australian office.” 

“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,” Justice Govindaraj said, adding that when a privilege is obtained by fraud, the beneficiary cannot claim a violation of natural justice when that privilege is withdrawn. 

Delving further into “principles of natural justice”, the court said the hearing afforded to the employer was sufficient compliance with fairness, given the nature of the fraud. 

“The employment visa regime operates on the principle that sponsorship validity is a continuing condition. If sponsorship is withdrawn, invalidated or shown to be fundamentally defective, the beneficiary’s status correspondingly lapses. This is inherent in the nature of sponsored visas across immigration systems,” Justice Govindaraj said.