Mrs Hu Xiaolin vs The Deputy Police Commissioner
2023 Latest Caselaw 5394 Kant

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                                                           NC: 2023:KHC:27825
                                                          WP No. 9115 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 8TH DAY OF AUGUST, 2023

                                            BEFORE
                           THE HON'BLE MR JUSTICE KRISHNA S DIXIT
                           WRIT PETITION NO.9115 OF 2023 (GM-RES)


                   BETWEEN:

                         MRS. HU XIAOLIN,
                         W/O. ANAS AHMED,
                         AGED ABOUT 40 YEARS,
                         NATIONALITY: CHINESE NATIONAL,
                         PASSPORT NO.: E83749100,
                         RESIDING AT NO.5, 20TH FLOOR,
                         BLOCK-11, PRESTIGE LAKE SIDE,
                         HABITAT, GUNJUR VILLAGE,
                         MARATHAHALLI-SARJAPURA ROAD,
                         WHITEFIELD, VARTHUR HOBLI,
                         BANGALORE - 560 087.
                                                                 ...PETITIONER
Digitally signed   (BY SRI. SHIVAJI H. MANE, ADVOCATE)
by SHARADA
VANI B             AND:
Location: HIGH
COURT OF
KARNATAKA          1.    THE DEPUTY POLICE COMMISSIONER,
                         INTELLIGENCE , FRRO, BANGALORE,
                         THE FOREIGNERS REGIONAL
                         REGISTRATION OFFICE
                         5TH FLOOR, A BLOCK,
                         TTMC, BMTC BUS STAND BUILDING,
                         K.H. ROAD, SHANTHINAGAR,
                         BANGALORE - 560 027.
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                                         NC: 2023:KHC:27825
                                       WP No. 9115 of 2023




2.   BUREAU OF IMMIGRATION,
     REPRESENTED BY THE COMMISSIONER,
     MINISTRY OF HOME AFFAIRS,
     GOVERNMENT OF INDIA,
     EAST BLOCK-VIII,
     SECTION-1, R.K. PURAM,
     NEW DEHLI - 110 088.

3.   THE STATION HOUSE OFFICER,
     MARATHAHALLI POLICE STATION,
     BANGALORE.
     REFERRED BY KARNATAKA
     STATE SPECIAL PUBLIC PROSECUTOR,
     BANGALORE - 560 037.

                                            ...RESPONDENTS
(BY SMT. SHWETA KRISHNAPPA, AGA FOR R1 AND R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO DIRECTING
THE R-1 AND 2 TO ACCEPT THE APPLICATION OF THE
REGISTRATION OF THE PETITIONER AND HER MINOR
DAUGHTER (HOU HANRUI) AND DIRECT THE R-1 TO ISSUE OF
VISA EXTENSION OF THE PETITIONER AND HER MINOR
DAUGHTER (HOU HANSURI) AND ETC.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
                          ORDER

Petitioner, a Chinese Citizen is invoking the Writ

jurisdiction of this Court with the following principal

prayers:

"a) Issue a writ of Mandamus directing the respondent No.1 The Deputy Police Commissioner, Intelligence, FRRO, Bangalore, The Foreigners

NC: 2023:KHC:27825 WP No. 9115 of 2023

Regional Registration office 5th floor, A Block, TTMC, BMTC Bus Stand Building, K.H. Road, Shanthinagar, Bangalore - 560 027 and Respondent No.2 Bureau of Immigration, Represented by the commissioner, Ministry of home affairs, Government of India, East Block-VIII, Section-1, R.K Puram, New Dehli-110 088, to accept the application of the registration of the petitioner vide application No.0411220ZAF77 Reg No.B003 as Annexure-A and her minor daughter (HOU HANRUI) Vide application No.0411228MR075 Reg No.B003, and direct the respondent No.1 to issue of visa extension of the petitioner and her minor daughter (HOU HANRUI).

b) Issue a writ of Mandamus or any other appropriate writ order or direction forbearing any proceedings being conducted consequent to the denial of visa extension of petitioner and her minor daughter (HOU HANRUI) (Annexure-A)

c) Pass such other order or direction as deemed fit and proper by this Hon'ble Court in the facts and circumstances of the case in the interest of Justice."

2. Learned counsel for the petitioner vehemently

argues that: His client is absolutely innocent. She has

been falsely implicated in the offences concerned. She has

nothing to do with the offences with which her husband is

implicated, either. Investigation in both these cases is yet

to be accomplished. Presence of petitioner may be

required both for the investigation and trial, if charge

NC: 2023:KHC:27825 WP No. 9115 of 2023

sheet is filed. Every person is presumed to be innocent

till the contrary is proved before a competent court of law.

That being the position, the respondents ought to have

granted extension of Visa. He also adds that his client &

minor child be permitted to visit China to see her aged &

ailing father.

3. Learned CGC Mr. Aditya Singh who appeared

for Respondent No.2 on request and learned AGA who

represents Respondent Nos. 1 & 3 oppose the petition

contending that grant of VISA is not a matter of course; it

is a matter pertaining to sovereignty of the nation which

treats such requests in its absolute discretion; a host of

factors including reciprocity of the country to which the

foreign national belongs, enter the fray and a writ court by

its very limitations cannot undertake the evaluation of

such factors and therefore as of necessity a large leverage

is conceded to the Executive. Learned CGC placing on

record a copy of the judgment in LIDONG vs. UNION OF

INDIA & ANOTHER, AIR 2022 Kar 43 which involved again

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a Chinese national, submits that the subject matter of this

petition is substantially similar to the one in the said case

and therefore petitioner herein cannot be granted any

relief.

4. Having heard the learned counsel appearing for

the parties and having perused the petition papers, this

Court declines indulgence in the matter inasmuch as in

substantially a similar fact matrix, relief of the kind has

been denied to a Chinese national like the petitioner

herein in LIDONG supra. Absolutely there is no

circumstance that differentiates case of the petitioner from

the case law cited. Like cases should be treated alike,

hardly needs to be reiterated as a norm. Learned

counsel for the petitioner is not in a position to answer the

question of court as to how similarly placed Indian

nationals are treated in the Republic of China. It is a

matter of common knowledge world over that India treats

the foreign nationals coming to its territory with due

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deference. History is replete with such instances, which

hardly need to be mentioned.

5. It is pertinent to advert to what this very court had

observed in the ruling cited at the Bar:

"4. As to what the jurists of International Law say about the rights of aliens in the host Nations:

(a) Oppenheim's International Law, volume 1, 8th Edition, page 675 says:"... no State can claim the right for its subjects to enter into, and reside on, the territory of a foreign State. The reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole or any part, of its territory... if a State need not receive aliens at all, it can receive them only under certain conditions...", similarly, another acclaimed jurist J.G.Starke in his Introduction to International Law, 11th Edition at Pages 314-315 writes: "Most states claim in legal theory to exclude all aliens at will, affirming that such unqualified right is an essential attribute of sovereign government...The absence of any duty at international law to admit aliens is supported by an examination of state immigration laws, showing that scarcely any states freely admit aliens... Most states, however place aliens under some kind of disability or some measure of restrictions of varying severity..."

The Apex Court in UNION OF INDIA Vs. AGRICAS, LLP 2020 SCC Online SC 675, has respectfully referred to the writings of Oppenheim; similarly, the Constitution Bench of the Apex Court has referred to the opinions of J.G.Starke, in several cases i.e., UOI Vs. SUKUMAR SEN GUPTA, 1990 (3) SCR 24 and in

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SARBANANDA SONOWAL Vs. UOI, AIR 2005 SC 2920.

(b) It can be broadly normed that the rights of aliens on a foreign soil are those which the host country grants and that no alien can lay a claim for more rights than are granted; our Constitution extends certain Fundamental Rights to non-citizens as well, inter alia under Articles 14, 20 & 21, is true; however, the degree & extent of their availment vary depending upon the circumstances, which the domestic law envisages; the significance of boundaries of nations justifies the classification of people as citizens and aliens; SALMOND in an article on 'CITIZENSHIP AND ALLEGIANCE' published more than a century ago in (1901) 17 LQR 270 wrote: "...Citizenship is a title to rights which are not available for aliens. Citizens are members optimo jure, while aliens stand on a lower level in the scale of legal right...".

(c) A distinction is made in practically all countries between citizens & non-citizens and between domiciled & non-domiciled aliens, with reference to their rights & duties; how the aliens should be treated is essentially a policy matter left to the wisdom of the government of host country; several pragmatic factors and the lessons gained from experience enter the fray of foreign-policy- making and it's implementation; in matters of this kind, courts lack expertise in assessing the worth & relevance of such factors and therefore as of necessity recognize a greater latitude in the Executive; the Executive i.e., the competent authorities have taken the decision to issue Leave India Notices and the judiciary being an organ of the State has to show due deference to such decisions of other organs; that is the essence of doctrine of 'Separation of Powers' which is recognized as a basic feature of our Constitution vide INDIRA NEHRU GANDHI Vs. RAJ NARAIN, 1976 (2) SCR 347.

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5. The Apex Court and the rights of VISA overstaying foreigners:

In our country, the law relating to deportation of aliens has grown from precedent to precedent; in HANS MULLER OF NURENBURG Vs. SUPERINTENDENT, PRESIDENCY JAIL AIR 1955 SC 367, the Constitution Bench of the Apex Court observed at para 39: "The Foreigners Act confers the power to expel foreigners from India. 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"; later, in LOUIS DE RAEDT Vs. UNION OF INDIA (1991) 3 SCR 149, it is observed that the foreigners also enjoy some fundamental right under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner 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; this well settled position of law has been reiterated by the Apex Court and High Courts in several cases.

6. The treatment of VISA overstaying foreigners in other jurisdictions:

(a) A Writ Court cannot turn a Nelson's Eye to the realities of the world; it hardly needs to be stated that in hosting the foreigners, the principle of reciprocity between the host country and the foreign country concerned and the doctrine of Sovereignty of Nations, assume significance in matters relating to expulsion of foreigners; several other factors that belong to the domain and expertise of the Executive do also figure; despite repeated questioning, learned counsel for the petitioner was not in a position to answer as to

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how overstaying Indians are treated in the country to which his client belongs; a basic search reveals that such persons are treated with hefty penalties & stringent punishments; in almost all countries, overstaying the Visa period per se is made an offence, although punishments & penalties vary in degrees; in India, Sec. 14 of the Foreigners Act, criminalizes the act of overstaying the VISA and the offence is punishable with an imprisonment upto 5 years and levy of unlimited fine; that being the position, there is absolutely no justification for the petitioner to stay on Indian soil any longer disobeying a series of Leave India Notices; such foreign nationals cannot be granted indulgence by the constitutional courts.

(b) The reliance of learned counsel for the petitioner on the decision of the Apex Court in HASAN ALI RAIHANY Vs. UOI AND OTHERS, (2006) 3 SCC 705 that she cannot be expelled without giving reasons, does not much come to her aid inasmuch as, it was a case of sudden deportation of a foreign national who was born, brought up, domiciled & educated in India; since long he was carrying on lawful business too; this fact matrix is miles away from that of petitioner's case; similarly, the Division Bench decision of Hon'ble Delhi High Court in MOHD. JAVED & ANOTHER Vs. UOI & ANOTHER, AIR 2019 DEL 170, too does not much come to the support of petitioner because of differential fact matrix; in the said case, the foreigner was abruptly asked to leave India absolutely without any justification when his Long Term Visa (LTV) period had not yet expired; it is pertinent to mention what Lord Halsbury more than a century ago had said in QUINN Vs. LEATHEM, 1901 AC 495 that a case is an authority for the proposition that it lays down in a given fact matrix and not for all that which logically follows from what has been so laid down".

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NC: 2023:KHC:27825 WP No. 9115 of 2023

In view of the above, this petition being devoid of

merits is liable to be dismissed and accordingly it is, costs

having been made easy.

Sd/-

JUDGE

ABK