Q.914 Indian Visa for Australian

citizen already living in India

Dear Sir, Please take 10 minutes of your time to read what is about to come below in this email as we have been told that this is a unique case and none of the immigration lawyers ( 3 of them: 2 from Delhi and 1 from Mumbai) could throw a light or guide us. In fact one of them tried to con us by demanding a lot of money without giving a possible solution or a pathway. Please bear with me for a couple of minutes as i am about to write everything in detail. So here I am writing on behalf of my cousin who went to Australia for further studies in the year 2005 and cleared his Australian citizenship exam in the year 2010 in Brisbane, Australia. He travelled to India to get married to an Indian girl in 2010 on his Indian Passport as he had not conferred Australian citizenship as yet. He stayed in India for about 2 months post his wedding. He travelled back to Australia as he had to resume his job leaving his parents and newly wedded wife behind. Sadly within 15 days of his return to Australia his father had a brain stroke and was asked by family to return at the earliest. He travelled to India again on his Indian Passport . His fatherpassed away the same evening he reached. His mother also bed ridden at that point of time as she was not keeping well and had already gone through a major kidney surgery. He decided to stay back and had already thought of never returning back to Australia as his priority was his mother's health. after a month or so he decided to go back to Australia for 3 days to settle his rent agreement with the real estate agent and bring back his belongings which were left behind. Just a week before he was to leave for Australia he received an email from Australian authorities asking him for his whereabouts and they mentioned that the reason why they are getting in touch is because his citizenship decision was still pending as he was out of the country. He emailed back explaining the situation and also informed them that he would be coming to Austrlia for 3 days to vacate his appartment as he has to be with his mother back in India. The officer told him that he could still get his Australian citizenship while he was there for 3 days as there was a citizenship ceremony being held in Brisbane City and he could accommodate him for the same. He attended the ceremony and flew back to India with an Australian Citizenship certificate. Although he returned, he was under the impression that he would never be able to apply for an Australian passport and had given up on it as his priority was looking after his sick mother and he was stationed in India. Within a few months due to personal differences he went through a divorce ( Guess his wife wasn't happy of his decision to stay back in India for his mother. Her ideal husband was an NRI ) . After almost a year, he was told by a friend that he could very well apply for an Australian passport within India at the Australian High Commission in Mumbai. He applied for an Australian Passport in july, 2011 by submitting his Australian citizenship certificate he had obtained and did get his passport within a week. Circumstances were such that his mother's health kept deteriorating and went through a surgery again the same year. I must tell you he was very stressed and could not surrender his Indian Passport and stayed on in India without a visa. Thankfully by the grace of god, his mother's health has improved after a gruelling period of 5 years and now a month back he went to surrender his Indian Passport which had already expired in the year 2011. He was asked to pay a fine of INR 15000 at the passport office in Mumbai and have already received a surrender certificate along with his cancelled Indian Passport. Now the problem ahead is, how should one apply for an OCI without a valid Indian Visa on their Australian Passport? My cousin was told by his friend about your website and the way you guide people hence i am writing to you as he was apprehensive to write directly to you. He married again in the year 2012 to an Indian girl again and he has a 2 year old beautiful girl. We just want to get this rectified so that he can stay with his family legally (OCI Status) with a peaceful mind as he and his immediate family has gone through a lot and as he is my only cousin brother we all are very worried for him. I know there is ignorance of law involved here but to him his mother's health was a priority and never approached any FRRO thinking he will get deported forever and parting with his family will be devastating for him. We are aware that acquisition of an Indian visa has been delayed for way too long a period. We have been through your page and now your guidance is our last resort. Can you please guide us in the right path ? Would be ever grateful to you for your reply to this mail. Thanking You. Regards, ***** Answer: My understanding after reading your email is: • Your 2010 entry to India from Australia on Indian passport would be legal since you had not yet acquired Australian citizenship. Simply passing a citizenship exam I would argue does not confer citizenship. Only after one takes the oath of citizenship is a certificate of citizenship issued! • Returning to India after within three days of acquiring Australian citizenship falls in the grace period allowed for travel on Indian passport so your entry to India should be considered legal. [see below] o The Government of India allows a grace period of three months after acquisition of foreign nationality for using Indian passport to travel. This three month period does not start when a foreign passport is acquired but from the date of date of registration / Naturalization Certificate. • The uniqueness in your case is that you do not have an entry stamp on your Australian passport because your entry was based on your Indian passport. Although the use of Indian passport at that time appears to be within the grace period, your continued stay in India without a valid visa since 2010 would be a contravention of Indian law. Foreign passport holders will face problems when leaving India if the authorities at point of departure do not find an entry stamp to confirm legal entry into India. Options for OCI: • OCI application can be made in India but only if you are not considered to be in the country illegally or • OCI application can be made from Australia, however to leave India you would need to approach the FRRO to get Exit Permit [FRRO online link for more info >>] How you wish to proceed would be a decision you would have to make for yourself. My suggestion is that instead of approaching lawyers who you feel are trying to scam you, perhaps the best course of action would be to go to the FRRO and sort this out. I think the most that will happen is that you would end up paying a fine. The fact that you surrendered your Indian passport and paid the fine would be a point in your favor. It is better to voluntarily approach the authorities to legalize your status before they find out! Staying in India without legal status is liable for prosecution under the Foreigners Act 1946. The faster you get this sorted out the better. Each case is considered on a case by case basis by the authorities and penalties if any are assessed accordingly. I assume most people simply end up paying a penalty. Request: After you do get this sorted out kindly share you experience with us so other’s may learn from your experience. faqnri@gmail.com Names or email IDs are not published on our website