Punjab-Haryana High Court
Harminder Kaur And Another vs Union Of India And Others on 25 September, 2012
Equivalent citations: AIR 2013 PUNJAB AND HARYANA 139, (2013) 1 PUN LR 96
Author: Mahesh Grover
Bench: Mahesh Grover
C.W.P. No.23835 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
C.W.P. No.23835 of 2011 (O&M)
DATE OF DECISION : 25.9.2012
Harminder Kaur and another PETITIONERS
VERSUS
Union of India and others RESPONDENTS
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Shri R.S.Bains, Advocate for the petitioners.
Shri Karminder Singh, Advocate for the Union of India.
MAHESH GROVER, J.
The petitioners through this petition under Articles 226/227 of the Constitution of India pray for a direction to respondent No.3 to re-issue the passport to them.
It is the stated case of the petitioners that husband of petitioner No.1 and father of petitioner No.2 had gone to Canada in the year 2000 and gained asylum there. The petitioners left India in the year 2007 on permanent resident visa to Canada on an Indian Passport. The husband of petitioner No.1 became a permanent resident of Toronto on 21.4.2007 and was granted permanent resident card. Petitioner No.2 was also granted similar card. Due to some emergency, the C.W.P. No.23835 of 2011 -2- petitioners had to travel to India. They applied for re-issue of the passport to the Indian Consular Office at Toronto and were granted a short duration six months passport on 4.3.2011 issued at Toronto and valid upto 3.9.2011 in the case of petitioner No.1, whereas petitioner No.2 was issued a similar passport on 16.3.2011 valid upto 15.6.2011. The petitioners approached the Vancouver Consular Office subsequent thereto on 12.10.2011, 13.10.2011, 28.10.2011, 29.10.2011 and 1.11.2011 for their passports, but were denied the same. Finally they were given Emergency Certificate to travel one-way from Canada to India without any document for return. The petitioners accordingly travelled to India and have been persistently pursuing their case with the Passport authorities in India for release of the passport and travel documents, so that they can return to Canada.
The respondents have filed their reply and have questioned the status of the petitioners to say that they are "derivative asylees" for the reason that Harjinder Singh Brar, husband of petitioner No.1 and father of petitioner No.2 was granted asylum by the Canadian Authorities and finally granted a permanent resident status which benefit petitioner No.2 has also got similarly and in view of this, they are not entitled to any facility from the Indian Authorities and at best, they are free to approach the Canadian Government for their travel documents. They have referred to stamp embossed on the documents of the petitioners which bears the following inscription :-
"Refugee status accepted by Canadian Government, any query regarding extension of passport should be made to this mission. Valid for travel to India only the holder must return his/her passport to this mission on return from India."
They have thus flatly denied their responsibility to issue any document to the petitioners and have suggested that the petitioners should C.W.P. No.23835 of 2011 -3- approach the Canadian Authorities. A communication to this effect has already been issued to the petitioners on 31.1.2012 which is on record as Annexure R-1.
The respondents have also filed an affidavit to say that since both the petitioners are derivative asylees, an Emergency Certificate was issued on their request as the spouse of petitioner No.1 and father of petitioner No.2 has been granted the asylum and the Canadian Government has accepted his refugee status.
Learned counsel for the petitioners contends that the only grounds for refusing the passport are contained in the Indian Passport Act and no other reason can be assigned to decline the issuance of a passport to an Indian citizen. He has further stated that under the Citizenship Act, 1955, the citizenship of the petitiones as Indian citizens cannot be extinguished except in accordance with the provisions of the said Act and as a consequence thereof, the benefits such as issuance of passport cannot be denied to the petitioners. For the purpose of reference, Section 6 of the Passports Act, 1967 is extracted here below :-
"6. Refusal of passports, travel documents etc. (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely :-
(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India ;
(b) that the presence of the applicant in such country may, or is likely to be detrimental to the security of India ;
(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India C.W.P. No.23835 of 2011 -4- with that or any other country ;
(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.
(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting nay foreign country under clause (c) of sub-
section (2) of Section 5 on any one or more of the following grounds, and on no other ground, namely :-
(a) that the applicant is not a citizen of India ;
(b) that the applicant may, or is likely to engage outside India in activities prejudicial to the sovereignty and integrity of India ;
(c) that the departure of the applicant from India may, or is likely to be detrimental to the security of India ;
(d) that the presence of the applicant outside India may, or is likely to prejudice the friendly relations of India with any foreign country ;
(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years ;
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India ;C.W.P. No.23835 of 2011 -5-
(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such Court ;
(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation ;
(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest."
Likewise, the relevant provisions of the Citizenship Act, 1955 are also extracted here below :-
"8. Renunciation of citizenship.- (1) If any citizen of India of full age and capacity, makes in the prescribed manner a declaration renouncing his Indian Citizenship, the declaration shall be registered by the prescribed authority, and upon such registration, that person shall cease to be a citizen of India ;
Provided that if any such declaration is made during any war in which India may be engaged, registration thereof shall be withheld until the Central Government otherwise directs.
(2) Where a person ceases to be a citizen of India under sub-
section (1) every minor child of that person shall thereupon cease to be a citizen of India :
Provided that any such child may, within one year after C.W.P. No.23835 of 2011 -6- attaining full age, make a declaration in the prescribed form and manner that he wishes to resume Indian Citizenship and shall thereupon again become a citizen of India.
9. Termination of citizenship.- (1) Any citizen of India who by naturalization, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India :
Provided that nothing in this sub-section shall apply to a citizen of India who, during any way in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.
(2) If any question arises as to whether, when or how any citizen of India has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.
10. Deprivation of citizenship.- (1) A citizen of India who is such by naturalization or by virtue only of clause (c) of Article 5 of the Constitution or by registration otherwise than under clause (b)(ii) of article 6 of the Constitution or clause
(a) of sub-section (1) of section 5 of this act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section.
(2) Subject to the provisions of this section, the Central C.W.P. No.23835 of 2011 -7- Government may, by order, deprive any such citizen of Indian citizenship, if it is satisfied that -
(a) the registration or certificate of naturalization was obtained by means of fraud, false representation or the concealment of any material fact ; or
(b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established ; or
(c) that citizen has, during any war in which India may be engaged unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business that was to his knowledge carried on in such manner as to assist an enemy in that war ; or
(d) that citizen has, within five years after registration or naturalization, been sentenced in any country to imprisonment for a term of not less than two years ; or
(e) that citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government in India or of an international organization of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India.
(3) The Central Government shall not deprive a person of citizenship under this section unless it is satisfied that it is not C.W.P. No.23835 of 2011 -8- conducive to the public good that the person should continue to be a citizen of India.
(4) Before making an order under this section, the Central Government shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and, if the order is proposed to be made on any of the grounds specified in sub- section (2) other than clause (e) thereof, of his right, upon making application therefor in the prescribed manner, to have his case referred to a committee of inquiry under this section. (5) If the order is proposed to be made against a person on any of the grounds specified in sub-section (2) other than clause (e) thereof and that person so applies in the prescribed manner, the Central Government shall, and in any other case it may, refer the case to a Committee of Inquiry consisting of a chairman (being a person who has for at least ten years held a judicial office) and two other members appointed by the Central Government in this behalf.
(6) The Committee of Inquiry shall, on such reference, hold the inquiry in such manner as may be prescribed and submit its report to the Central Government, and the Central Government shall ordinarily be guided by such report in making an order under this section."
I have considered the matter in detail. There is no denial to the fact that the spouse of petitioner No.1 has been accepted as a refugee by the Canadian Government and granted permanent resident status, as has petitioner No.2, his son. C.W.P. No.23835 of 2011 -9- The petitioners who had sought the immigration status on the ground of being relations of Harjinder Singh Brar, the asylee, have thus been accorded the status of "derivative asylees".
According to the Convention relating to the Status of Refugees adopted on 28.7.1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly Resolution, 429(V) of 14 December, 1950, the term refugee would mean to be as follows :-
"As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if , without any valid reasons based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
The Convention also provides that a person shall cease to be a refugee if the following are satisfied :-
C.W.P. No.23835 of 2011 -10-
"(1) He has voluntarily re-availed himself of the protection of the country of his nationality ; or (2) Having lost his nationality, he has voluntarily reacquired it ; or (3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality ; or (4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear or persecution ; or (5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality ;
Provided that this paragraph shall not apply to a refugee falling under Section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality ;
(6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence ;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence."
C.W.P. No.23835 of 2011 -11-The words "asylum seekers" and "refugee" have to be understood in similar terms as they have the same connotation. The contracting States to the aforesaid conventions are bound by the terms of the covenants expressed in the convention.
Article 12 of the Convention provides for the personal status of a refugee or the asylee. The same is extracted here below :-
"1. The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.
2. Rights previously acquired by a refugee and dependent on personal status, more particularly rights attracting to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee."
Although the aforesaid has no direct relevance to the actual controversy raised in the petition i.e. issuance of a passport by the Indian Government, it is necessary to extract the aforesaid article for the purposes of understanding that an asylee's personal status is protected in so far as his personal laws are concerned.
Article 28 refers to the Travel Documents. The same is extracted here below :-
"ARTICLE 28 - TRAVEL DOCUMENTS
1. The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of C.W.P. No.23835 of 2011 -12- travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other refugee in their territory ; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.
2. Travel documents issued to refugees under previous international agreements by Parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article."
It is thus evident that it is the country where asylum has been sought by a person which assumes the principal jurisdiction to issue travel documents to an asylee. The petitioners who seek such status in Canada, the country where their immediate relation has sought asylum and through whom they seek to cement their immigration status, cannot have a better status than the asylee himself unless so acknowledged by the State where they seek immigration. The Canadian Authorities in turn have endorsed the status of the petitioners to be that of a "derivative asylee" and in this view of the matter, when the asylee himself is obliged to seek travel documents from the Canadian Authorities, i.e. the country of his residence after having abandoned the country of his nationality, the petitioners being derivative asylees, would necessarily have to follow the same course.
Besides, the husband of petitioner No.1 has been accepted as a refugee and granted a permanent resident status as also his son i.e. petitioner No.2 C.W.P. No.23835 of 2011 -13- implying thereby that the petitioners are directly benefitting a stay in the country which has granted a refugee status to their close kin. If they derive such a benefit from a Government on whatever consideration ostensibly humanitarian, then it is the sole responsibility of the Government which has granted the refugee status to a person and an extended status to his family, to cater to their needs and his legal obligations of an International Travel.
Canada as a country has a complete mechanism in an Act and a policy intended to re-settle "refugees". The Immigration and Refugee Protection Act is an act of Canadian Parliament passed in the year 2002 replacing the earlier Immigration Act, 1976 and regulating immigration to Canada and providing protection to refugees.
A person who has been re-settled in Canada as a refugee or determined to be a refugee in Canada has the status of a "Protected Person" under the said Act. Section 115(1) of the said Act defines a protected person as follows:-
"Section 115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment."
A country also has a policy for a family re-unification of such refugees/protected persons acknowledging a family re-unification as a basic unit. It is evidently under this policy that the petitioners have been granted the benefit of C.W.P. No.23835 of 2011 -14- a stay in Canada on terms which are variant in so far as petitioners No.1 and 2 are concerned. Nevertheless, the fact remains that both of them have gained the benefit of a stay in Canada through the protected person i.e. the husband of petitioner No.1 and father of petitioner No.2. The privileges and benefits admissible to a protected person are thus, also admissible to the members of his family, if not in entirety, at a particular moment of time, but certainly likely to fructify in unison with the protected person with the efflux of time or with adherence to the procedural requirements. The status of such persons therefore, who enjoy the economic, social and health benefits of the country of their residence, cannot be dissected to result in a situation where they are permitted to invoke their nationality of the country of their birth to get the same benefits which they otherwise do not deserve on account of their having abused the very same country, which they have shunned consciously, to gain an access to their perceived sense of beneficial existence.
The respondents are thus well within their rights in not granting any facility to the petitioners.
I thus, do not find any ground to interfere and am in agreement with the stand of the respondents that the petitioners are at liberty to approach the Canadian Authorities for appropriate travel documents because of their status which has been elaborately dealt with in the fore-going paragraphs.
The petition is dismissed.
(MAHESH GROVER)
September 25, 2012 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO