1 Jun 2010

Foreigner has no right to visa: High Court

In a recently reported decision the Bombay High Court has declared that no foreigner has a right to make a representation to the Ministry for grant of visa when a request to this end has already been rejected. The High Court was dealing with a writ petition filed by an Israeli citizen who had come to India allegedly on a business visa and the same having expired his application for extension of visa was also rejected. It was argued before the High Court that he should be allowed to stay in India till he made a representation against the rejection and was heard on the same. The High Court, however, declaring that there was no such right available under law dismissed the petition.

The High Court inter alia observed as under;
7. In the case of Hans Muller (Supra), the Supreme Court held that the Foreigners Act confers the power to expel foreigners from India and it vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains. In the case of Louis De Raedt (Supra), it was held that the fundamental right of the foreigners is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. In Khudiram Chakma’s case, the Supreme Court referred to Louis De Raedt’ case (Supra) and reiterated that Articles 19(1)(d) and (e) are unavailable to foreigners because those rights are conferred only on the citizens and, therefore, the machinery of Article 14 cannot be invoked to obtain that fundamental right. It further held that the rights under Article 19(1)(d) and (e) are expressly withheld to the foreigners.
8. We are, therefore, required to consider the only issue as to whether the petitioner is required to be allowed to submit a representation and further he is required to be heard on the same before he is deported from this country. xxx
9. ... The petitioner entered this country on a business Visa and his request for extension of the same has been turned down. The reasons for rejection of Visa, as noted hereinabove, cannot be a subject matter of judicial review. The observations made by the Supreme Court in the case of Hasan Ali Raihany so as to give an opportunity of submitting a representation and deciding the same after hearing by the Competent Authority are required to be read in the facts of that case and cannot be made applicable in the petitioner’s case. As per the policy for issuance of business Visa, the foreigner, who is doing petty trading is not entitled to grant business Visa. It was contended before us by the petitioner that he was not a petty trader and he is one of the Directors of a Private Limited Company. We do not have any record before us to know the business turnover of the said Company, but the fact remains that the petitioner’s income tax return for a continuous period of three years showed his gross income of less than Rs.1 lack per annum and, therefore, he had not paid any income tax. It was also noted that he had obtained business Visa from countries other than his own country i.e. Israel. For example, the business Visa obtained from Hongkong was valid till 12/6/2006 and the business Visa obtained from Holland was valid till 13/3/2007 as has been stated in the affidavit-in-reply filed on behalf of the respondent no.5. Once the petitioner’s application for extension of business Visa has been rejected, the inevitable result is that he has to leave this country and he does not have any vested right for extension of business Visa. His contentions that even after rejection of his Visa, he must be given an opportunity to submit a representation to the Competent Authority and the said authority must hear him before passing any further order, are unsustainable. No foreigner whose request for Visa or for renewal of the same has been rejected is contemplated to be given such a right either under the Foreigners Act, 1946, the Foreigners Order, 1948 and the Registration of Foreigners Rules, 1992.

No comments: