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[Coronavirus] Bombay HC comes to rescue of 19 y/o student stranded in Dubai after misinterpretation of Travel Advisory

Th Court found that there are compelling reasons for the issuance of a fresh visa as well, observing that the student is 19 years old and "stranded in Dubai with none of her family present with her."

Aishwarya

The Bombay High Court recently directed that a fresh visa be issued to a 19-year old student who was denied boarding on a transit flight from Dubai to Mumbai, owing to mistaken interpretation of the Indian government's travel advisory issued following the coronavirus outbreak. (Sabah Manal Colabawalla v Union of India and Anr)

A Division Bench of Justices SJ Kathawalla and RI Chagla concluded,

Clearly, these circulars have been misinterpreted by the Airlines by not allowing Nyla to board her onward flight from Dubai to Mumbai. We also see no reason why the petitioner’s daughter should be discriminated when other OCI holders in Istanbul were issued a Visa on compelling grounds.”

The Court proceeded to pull up the Indian Diplomatic Commission for not having intervened for the student's aid in these circumstances.

The High Court further issued a writ of mandamus under directing the respondents to issue a fresh visa for the student, so as to enable her to come to Mumbai.

The Court passed the ruling on a petition filed by a woman to bring her 19 year old daughter to Mumbai, from the Dubai airport since March 13. Notably, she was returning home from the United States of America via Dubai.

Shortly before the student was due to return to Mumbai, the Indian Government issued a travel advisory suspending visas for various classes of people until April 15, including OCI holders such as the student. This advisory was to come into effect on March 13, 12:00 GMT from the port of departure.

The student, on the other hand, had her departure flight from the USA on March 12. However, she was denied entry into her transit flight at Dubai on March 13, on the ground that the time specified in the Indian Government's travel advisory had expired.

The question that came before the Court was whether the petitioner’s daughter could be denied to board a flight from Dubai, which was in fact her connecting flight and not the original port of departure from where the restrictions had to be applied.

Senior Advocate DD Madon told the Court’s that in wake of the global coronavirus outbreak, the petitioner's daughter had been informed that her University in the US would conduct classes across streams online for the remainder of the semester from March 25.

Further, the University had directed the students staying on campus to vacate the campus by March 16, 2020 and return to their permanent residence.

The petitioner’s daughter had a valid five year multiple entry visa issued on January 6, 2020. Her permanent residence was in Mumbai, India as evidenced by the address shown on her OCI card as well as her Aadhar card.

In any case, the Court noted that the travel restrictions imposed by the Indian Government would only came into effect from 12:00 GMT (5:30 pm IST) on March 13, 2020 at the port of departure. Pertinently, the Bench held that the travel advisory excludes the time taken for travel and/or transit. It In this case, it was explained that,

“A port of departure would mean original port of departure, in the present case being Boston, U.S.A. A passenger in transit would not fall within the word ‘port of departure’. This is clear not only from clause 1 of Consolidated Travel Advisory dated 11th March, 2020 but also clause (ii) of the circular issued by the Bureau of Immigration dated 13th March, 2020.”

It went on to note that Clause (ii) of the travel advisory circular dated March 13 stipulated that travel time to India may be in addition to the deadline of 12:00 GMT on March 13.

The Court, thus, held that the circulars were misinterpreted by the Airlines in not allowing the petitioner’s daughter to board her onward flight from Dubai to Mumbai. It added that there existed compelling reasons for the issuance of a fresh visa to the petitioner’s daughter, to allow her to come back to India.

"Firstly...Nyla was wrongly denied boarding by the Airlines to go to Mumbai. She is 19 years old and is stranded in Dubai with none of her family present with her. She is now unable to return to her university in Boston, U.S.A. as the university has directed the students staying on campus to vacate the campus by 16th March 2020 and return to their permanent residence."

Bombay High Court

The Bench, therefore, allowed the petitioner's plea, while clarifying that the relief granted cannot be treated as a precedent.

The Court further directed that the student should be quarantined at home for a 14 day period after she arrives in India in case there is a delay in facilitating her arrival home, beyond the new deadline prescribed from persons coming from the UAE in terms of a March 18 travel advisory.

"We make it clear that in the case there is any delay on the part of the respondents to issue a visa to Nyla in compliance with this order, then the Petitioner shall keep her daughter self quarantined at home. Needless to state that Nyla shall be checked on arrival at Mumbai airport just like all other passengers", the Court said.

The petitioner were represented by Senior Advocate DD Madon, with Advocates Cyrus Ardeshir, Prateek Seksaria, Heena Chheda, Bharat Kumar Jain instructed by Hariani and Co whereas Advocate Rui Rodrigues and DP Singh were present for the Government authorities.

[Read the order here]

Sabah Manal Colabawalla v Union of India and anr.pdf.pdf
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