|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1989) 3A CLR 764
1989 July 12
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
PANAYIS SAVVA,
Applicant.
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF
FINANCE AND ANOTHER,
Respondents.
(Case No. 461/86)
Customs and excise-Motor vehicles-Importation of, by repatriated Cypriots The customs and Excise Duties Law 18/78, subheading 19 of item 0.1of the Fourth Schedule and Order 188/82 of the Council of Ministers-Permanent settlement abroad -In determining the question not only the intention of the applicant to settle permanently in another country should be taken into consideration, but also whether such country allowed him to remain therein as a permanent resident.
Executory act-Confirmatory act-Re-examination of application for a duty free importation of motor car-No new material placed before administration view decision to the same effect as the original decision is of a confirmatory nature-Therefore, present recourse, which was filed after the expiration of 75 days as from the original decision, is out of time.
By means of this recourse the applicant challenges the decision, whereby his application for a duty free importation of a motor car as a repatriated Cypriot was dismissed for the second time. The administration originally dismissed the application, but it re-examined the case, upon request by applicant's son, who, however, did not place any new material before the administration.
The applicant went to England with intention to settle permanently therein on 30/10/74. However till September 1977 he was admitted by England as a visitor with time restrictions. Such restrictions were finally lifted in October 1982. The applicant returned to Cyprus on 27/11/84. His application was dismissed on the ground that he had not completed 10 continuous years of permanent settlement abroad.
The Court, in dismissing the recourse, held that the sub judice decision is confirmatory in nature and that, in any event, in the light of the particular facts and the principle enunciated in the second of the above Headnotes, the requirement of permanent settlement abroad for a continuous period of 10 years had not been satisfied.
Recourse dismissed. No order as to
costs.
Cases referred to:
Kritiotis v. Municipality of Paphos (1986) 3 C.L.R.322,
Chrysanthou and Others v. Republic (1986) 3 C.L.R.1128,
Razis v. Republic (1979) 3 C.L.R.127,
Rossides v. Republic (1984) 3 C.L.R. 1482,
Matsas v. Republic (1985) 3 C.L.R. 54,
Mavronichis v. Republic (1985) 3 C.L.R. 2301,
Constantinides v. Republic (1986) 3 C.L.R. 822,
Ioannou v. Republic (1986) 3 C.L.R. 1263,
Schinis v Republic (1988) 3 C.L.R. 2692,
Ellina v. Republic (1988) 3 C.L.R. 2651.
Recourse.
Recourse against the refusal of the respondents to allow applicant to import a duty-free motor vehicle as a repatriated Cypriot.
Chr. Vassiliades with P. Liveras, for the Applicant.
S. Georghiades, Senior Counsel of the Republic, for the Respondents.
Cur. adv. vult.
KOURRIS, J. read the following judgment. By the present recourse, applicant seeks a declaration of the Court that the act and/or decision of the respondents to refuse to him to import a motor vehicle free of duty in accordance with the provisions of sub-heading 19 of Item 0.1 of the Fourth Schedule to the Customs and Excise Duties Law (Law 18/78) is null and void and of no legal effect whatsoever.
On 22/1/1985, applicant submitted an application to the Customs and Excise Department seeking relief under sub-heading 19 of Item 0.1 of the Fourth Schedule of Law 18/78 on the ground that having been a Cypriot, who, after a permanent settlement abroad for a continuous period of at least 10 years, returned to Cyprus in order to settle permanently.
The appropriate authority, after examining all the material before it in relation to applicant's application, decided on 29/4/1985 that his case does not fall within the provisions of the law and relevant regulations on the ground that his absence from Cyprus did not constitute a permanent settlement abroad for a continuous period of at least 10 years, and rejected the application of the applicant for the importation of his motorcar, B.M.W. No. QZ 553, free of duty. Hence the present recourse.
The matter is governed by the Excise Duties Law 18/78 section 11 and Order 188/82 published in the Third Supplement, Part II of the official Gazette of the Republic of 11th June, 1982, under Notification 17/83. The said Order, in so far as relevant, reads as follows:-
"Vehicles...imported by Cypriots who after permanent settlement abroad for a continuous period of at least 10 years, return and settle permanently in the Republic, provided that the importation is made within a reasonable time since their arrival according to the judgement of the Director.
The relief from import duty covers only one vehicle for every family."
The point in issue is whether applicant settled abroad permanently for a continuous period of at least 10 years before he returned to settle permanently in Cyprus.
At this stage I propose to deal with a preliminary point raised by learned counsel for the respondents. He contended that the sub judice decision is confirmatory of the decision taken by the respondents on 29/4/1985 and therefore, it is not justiciable under Article 146 of the Constitution (see Kritiotis v. Municipality of Paphos (1986) 3 C.L.R.322, Chrysanthou and Others v. The Republic (1986) 3 C.L.R.1128 at page 1137, decided by the Full Bench).
Counsel for the applicants contended that after the decision of the respondent authority on 29/4/1985, the son of the applicant addressed a letter to the respondents with new material and the respondents having examined the matter gave their decision on 8/5/1986 by which they rejected the application.
I have perused the letter of the son of the applicant dated 6/5/1985, which is attached as appendix A to the written address of counsel for the respondent, and I am satisfied that no new material was placed before the respondent authority. Consequently, I am satisfied that the sub judice decision is confirmatory of the decision of the respondent authority taken on 29/4/1985 and for this reason alone the recourse is dismissed as ft has been filed out of time.
I now propose to examine the substance of the recourse if it were to be held that I was wrong on the preliminary issue.
The notion of permanent settlement abroad has been explained, inter alia, in the cases of (Razis v. The Republic (1979) 3 C. L. R. 127 at page 135, Rossides v. The Republic (1984) 3 C.L.R. 1482 at page 1486, Matsas v. The Republic (1985) 3 C.L.R. 54 at page 58-62, Mavronichis v. The Republic (1985) 3 C.L.R. 2301, Constantinides v. The Republic (1986) 3 C.L.R. 822, Ioannou v. The Republic (1986) 3 C.L.R. 1263, and Theodoros Schinis v. The Republic (1988) 3 C.L.R. 2692).
The salient facts of the present case shortly are the following:-
Applicant is a Cypriot subject and his place of residence was Trikomo village. As a result of the occupation of his village by the Turkish forces who invaded Cyprus in 1974, applicant left Cyprus for England on 3/10/1974, together with his wife and he returned to Cyprus on 27/11/1984 for permanent re-settlement.
Applicant, when he went to England on 30/10/1974, was admitted there as a visitor with time restrictions till September 1977 on the condition that he would not obtain any employment either with or without remuneration.
The stay of the applicant in England was subject to time restrictions until October 1982 when all restrictions were removed and he was granted leave to stay there permanently.
The applicant resided in England continuously until 27/11/1984 when he returned to Cyprus to settle permanently.
It is obvious from the affidavit sworn on 2 1/4/1989 by a certain Jack Nicholas, who was established in London in the garment industry that the applicant was "unofficially", as he stated in his affidavit, employed by his firm in U.K. as a maintenance employee from the end of 1974 till 1976.
He goes on to say that since 1976 applicant and his son Panicos started to re-establish themselves in the furniture trade in London initially with the business name of "Panayiotou Interiors" and he watched their business grow successfully and a year or two later on they started exporting furniture all over Europe under the trade name "Lord Sheratons" which had become their trade name until today.
It appears from this affidavit that the applicant was employed by the said firm from 1974 to 1976 against the conditions of his permit to enter the U.K.
Counsel for the applicant contended that applicant has satisfied the requirements of the law in that he had permanently settled in England for a continuous period of over 10 years before returning to Cyprus for permanent re-settlement. He laid stress on the fact that the intention of applicant when he went to England was to settle there permanently, because he lost in Cyprus everything he had. Consequently, he said, from the very moment he went to England his intention was to settle there permanently, and he said that the Court should not take into consideration the fact that when he went to England he was granted leave to enter the country and stay there subject to time restrictions.
On the other hand, counsel for the respondents contended that even if applicant intended to make England his permanent home, England did not permit him to do so. This is obvious, he said from the fact that applicant's stay there until October 1982 was subject to time restrictions and that his physical stay there was not associated with the element of permanence as the U.K. authorities did not permit it.
The question which poses for consideration is whether the stay of applicant in England subject to time restrictions should be taken into consideration in calculating the period for permanent residence there.
Permanent residence is a question of fact and has to be decided on the facts of each particular case.
In the case of Revekka Ellina v. The Republic (1988) 3 C.L.R. 2651, A. Loizou, P., said the following at pages 2654, 2655:-
"No doubt the determination of what constitutes permanent settlement depends on the facts of each case and a relevant consideration is whether the country in which the person claims to have settled permanently has allowed that person to remain therein as a permanent resident or whether such country has granted only a temporary permit under conditions."
Again in the case of Theodoros Schinis v. The Republic (1988) 3 CL.R. 2692, A. Loizou, P., adopted the reasoning of his judgment in the case of Ellina (supra) and said the following at page 2695:-
"A similar situation arose in the case of Revekka Ellina v. The Republic of Gyprus (1988) 3 C.L.R. 2651, where I said in relation to the decided cases which I reviewed that a relevant consideration in determining what constituted permanent settlement is wether the country in which the person claims to have so settled permanently, has allowed a person to remain therein as a permanent resident, or whether such country has granted only a temporary permit under conditions."
And again at page 2696 he said:-
"permanent residene is a question of fact and has to be decided having in mind, inter alia, whether the foreign country in which the applicant claims to have permanently settled, intended to receive him as a permanently established immigrant, in which case his stay there would be unrestricted, or on a temporary resident basis, whereupon his residence would be subject to restrictions, as it is the case that all the countries to which the applicant has worked."
With respect, I agree and I adopt the reasoning of these two cases.
The question which poses for determination is whether in the light of the aforesaid cases and on the facts hereinbefore set out, it was reasonably open for the director of the Customs and Excise Department to reach the sub judice decision.
In my judgment, the answer is in the positive, because he had to take into consideration not only the intention of the applicant when he went to England, i.e. that lie intended to settle permanently, but also whether the country in which the applicant claims to have so settled permanently has allowed him to remain therein as a permanent resident. In the present case the receiving country did not allow applicant to remain therein as a permanent resident from the moment he went to England. His stay from 30/10/1974 until October 1982 was subject to time restrictions and this period cannot be taken into consideration in calculating the relevant time. The time for the purposes of this law has started running from the date that England allowed applicant to stay there indefinitely without any restrictions as to time. Consequently, applicant did not complete 10 years permanent settlement in the United Kingdom and it was reasonably open for the director of the Customs Department to ach the decision which he did.
In the circumstances, the recourse is dismissed but with no order for costs.
Recourse dismissed. No order as
to costs.