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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 567
1989 May 16
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANDREAS KALLIS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF THE
DEPARTMENT OF CUSTOMS AND EXCISE,
Respondent.
(Case No. 26/88)
Judicial control - Customs and excise - Motor vehicles - Duty free importation by repatriated Cypriots - The Customs and Excise Duties Law 18/1978, section 11(2) and the fourth Schedule, subheading 19 of item 01 and Order 188/82 of the Council of Ministers - Permanent settlement abroad for a continuous period of ten years - Respondent rejecting application on ground that applicant's absence from Cyprus did not amount to permanent settlement abroad - As in the circumstances such a conclusion was not reasonably open to the respondent, the sub judice decision was annulled.
It was not disputed that the applicant stayed in Greece from 30 April 1977 until 2 September 1987 and that he was continuously working there as an employee by one Andreas Ellinas.
His application, however, for a duty free importation of a motor car was rejected, because the applicant's stay abroad did not amount to a permanent settlement there. The reasons given for such a conclusion were:
(a) The applicant did not pay any social insurance contributions or income tax to the Greek authorities.
(b) His stay in Greece was subject to restrictions.
(c) The applicant continued to pay social insurance contributions in Cyprus during the period of his stay in Greece.
(d) When he applied for renewal of his passport in 1981 he mentioned in his application as his place of residence Cyprus and not Greece, and
(e) Whilst in Greece, he used to come to Cyprus for frequent and long visits.
The Court thought that whether or not the applicant failed to pay, in violation of the Greek Law, social contributions or income tax, is irrelevant to the notion of "permanent settlement abroad". It was proved that applicant's stay in Greece was not subject to restrictions, because Greek Cypriots can enter and stay in Greece without a visa and for such periods as they like. There is nothing in the social insurance legislation of Cyprus, preventing somebody, living abroad, from continuing paying his contributions, for the purpose of deriving benefit upon retirement. The applicant did give a reasonable explanation for his declaration in 1981, when he applied for a renewal of his passport. In the circumstances the conclusion of the respondent was not reasonably open to him.
Sub judice decision annulled. No order as
to costs.
Cases referred to:
Constantinides v. Republic and Another(1988) 3 C.L.R. 2375,
Matsas v. Republic (1988) 3 C.L.R. 1448,
Nikandrou v. Republic (1989) 3 C.L.R. 551,
Marangou v. Republic (1989) 3 C.L.R. 21.
Recourse.
Recourse against the refusal of the respondent to grant applicant exemption from import duty in respect of a motor vehicle as a repatriated Cypriot.
L. Papaphilippou, for the Applicant.
P. CIerides. Counsel of the Republic B, for the Respondent.
Cur.adv. vult.
SAVVIDES, J. read the following judgment. Applicant, by the present recourse challenges the decision of the respondent Director of the Department of Customs and Excise refusing to grant to the applicant exemption from import duty in respect of his car Honda Accord under Reg. PJ843, under the provisions of item 01. 19 of the Fourth Schedule to the Customs and Excise Duties Laws.
Applicant claimed such exemption as a repatriated Cypriot who after a permanent settlement abroad for a continuous period of at least ten years, returned to Cyprus to take permanent residence in Cyprus. His claim was based on an Order of the Council of Ministers issued under the provisions of s.11(2) of The Customs and Excise Duties Laws 1978-1981, and published in the official Gazette of the Republic, Third Supplement, of 11thJune, 1982, under Notification 188, which provides under item 19, sub-heading 01, that motor-vehicles of tariff headings 87.02.11 and 87.02.19, imported by Cypriots who after permanent settlement abroad for a continuous period of at least ten years, return to take tip permanent residence in Cyprus are exempted from import duty subject to certain conditions set out therein.
The applicant is a Cypriot, refugee from Kyrenia, who in consequence of the Turkish invasion, left Cyprus for Greece on 30th April, 1977, to secure employment and settle permanently there. His wife joined him three months later. His son got married in 1973 and after the completion of this studies in England for a degree in Architecture in 1977 and a postgraduate Master's degree in 1980 he took employment in Saudi Arabia. His daughter studied Journalism in Greece and completed her studies in 1973. She got married in 1974 and stayed in Greece till 1981 when she returned to Cyprus for permanent settlement.
Whilst in Greece he was regularly employed by one AndreasEllinas as from the 5th May, 1977 till the 30th June 1987, according to a certificate issued by him and attested by the Cyprus Embassy in Athens dated 12th July 1987, which appears in the relevant file of the administration (exhibit 1). In the same file there also appears a written affirmation of the Cyprus Consulate in Athens dated 10th June, 1987, which reads as follows:
"The Consular Office of the Republic of Cyprus affirms that Andreas Kallis holder of Cypriot passport No. B076234 resides and works in Greece permanently from the 1st May, 1977 till today".
The applicant is also described as residing in Athens on his refugee card issued by the Ministry of Interior.
The applicant returned to Cyprus on the 2nd September 1987, to take up permanent residence in Cyprus and brought with him his car under Registration No. PJ843. The said car was registered in Cyprus in May 1983, when the applicant brought it with him to Cyprus on a casual visit and was allowed to import it temporarily, duty free, and use it during his stay in Cyprus with an obligation to re-export it upon his leaving Cyprus, something he, in fact, did.
On 28th September 1987, he submitted an application to the respondent Director of the Department of Customs and Excise for relief from import duty in respect of his car as a repatriated Cypriot. The respondent by letter dated 9th November 1987, refused applicant's application. The only reason given in the aforesaid letter of the respondent for the refusal of such application was that applicant's absence from Cyprus did not amount to permanent settlement abroad.
The sole question which poses for consideration in the present case is whether applicant's continuous stay in Greece for the period as from the 30th April, 1977 till the 2nd September 1987, is such as to satisfy the condition of permanent settlement abroad as provided by Notification 188/82.
Counsel for respondent, in support of the decision of the respondent contended that the stay of applicant in Athens forthe aforesaid period did not satisfy the requirements of the relevant notification for the following reasons:
(a) The applicant was working in Greece without paying contribution to the Social Insurance Fund and Income Tax to the Greek Authorities.
(b) His stay there was subject to restrictions.
(c) The applicant continued to pay Social Insurance Contributions in Cyprus during his stay in Greece.
(d) When he applied for renewal of his passport in 1981 he mentioned in his application as his place of residence Cyprus and not Greece.
(e) Whilst in Greece he used to come to Cyprus for frequent and long visits.
In his written address counsel for respondent supplemented his argument by contending that the applicant had no family links with Greece, as his married son works in Saudi Arabia and his married daughter lives in Cyprus.
Before embarking on the issue posing for consideration in this recourse I find it necessary to refer to certain material which appears in the relevant file of the administration (exhibit 1) in connection with the present case.
Reference has already been made to the certificate issued by the Consular Office of the Republic of Cyprus in Athens verifying that the applicant "resides and works in Greece permanently as from 1st May 1977 till 10th June, 1987". Also the certificate issued by his employer that applicant was continuously employed as from 5th May, 1977 till 30th June, 1987.
In his answer to a questionnaire of the respondent (blue 9 in Exhibit 1) after answering all relevant questions and giving full particulars about his settlement in Athens the applicant explained the reason of his repatriation to Cyprus as follows:
"The reason of our repatriation is firstly due to age (I am a pensioner) and secondly to be near our daughter".
The customs Officer who investigated the case, in his report to the Collector of Customs, Mr. Hadjicostis, (blue 30 in Exhibit 1) set out explicitly the facts as supported by the material before him and in particular the passports of the applicant, the certificate issued by the Cyprus Consulate in Athens, the certificate of his employer and the whereabouts of his children and concluded as follows:
"Provided that all the above are considered satisfactory applicant's claim may be accepted. It is submitted for your decision".
In another supplementary report dated 27th October, 1987 (blue 32 in Exhibit 1) the following are reported:
"The applicant states that in his passport he mentioned Cyprus as his place of residence because his first passport was issued in 1974 when he was a resident of Cyprus. He emigrated on 30th April, 1977, and his second passport was issued in 1981 whilst he was on vacations in Cyprus and he thought proper, once the passport was to be issued in Cyprus, to state as his country of residence Cyprus as mentioned in his previous passport".
A further supplementary report appears in (blue 34 of Exhibit 1) addressed to the Collector of Customs as follows:
"The applicant, following directions from you, presented his refugee identity card in which his address is stated as being Chiou 41. Holargos, Athens, and a statement of his weekly contributions to Social Insurance, according to which he was voluntarily insured during the period 1975-1985. Since 1985 the applicant is paid old age pension".
The Collector of Customs submitted his report to the respondent on the 3rd November 1987, in which he mentions that "irrespective of certain doubts he had he was inclined towards the refusal of the application for the reason that applicant was working in Greece without paying contributions[573]to the Social Insurance Fund in Greece or any income tax and his residence there was subject to restrictions, that when he renewed his passport in 1981 he stated as his country of residence Cyprus and not Greece, that he was visiting Cyprus at intervals some of which were prolonged, that he was paying contributions to the Social Insurance Fund in Cyprus during his term of absence which resulted to his being granted a pension and concluded as follows:
"From the aforesaid, I have formed the impression that the applicant had not permanently settled abroad within the spirit of the philosophy 'to live and die there and I am inclined to refuse his claim as his stay in Greece does not amount to permanent settlement. Your instructions please".
The decision of the Director was entered on such report by a rubber stamp entry of the word "ΑΠΟΡΡΙΠΤΕΤΑΙ" (refused) and the signature of the Director of the Department of Customs and Excise and dated 5th November 1987. Such decision was communicated to the applicant by letter dated 9th November, 1987.
After communicating his decision to the applicant, respondent on 24th November, 1987, addressed a letter to the Attorney-General setting out the facts and the decision reached by him asking for his opinion as to the correctness of his decision, to reject applicant's claim, obviously being in doubt as to the correctness of such decision.
The reply of the office of the Attorney-General to the above letter was that once the respondent had already refused applicant's claim no useful purpose would be served for expressing an opinion in the matter.
It is well settled that this Court in determining a recourse, does not interfere with the subjective evaluation of the facts by the administration, but only interferes to review to the extent that the findings of fact are tainted by a misconception of fact or law or the administration has exceeded the extreme limits of its discretionary power in the sense that its findings are not reasonably open to it, on the consideration of the materialbefore it in its totality (relevant in this respect are the recent pronouncements of the Full Bench of the Supreme Court in Constantinides v. The Republic and Another(1988) 3 C.L.R. 2375 and Matsas v. The Republic (1988) 3 C.L.R. 1448.
The notion of permanent settlement abroad has been considered and explained in a series of cases of the Supreme Court, extensive reference to which has been made by me in my recent judgment in Nikandrou v. The Republic (1989) 3 C.L.R. 551 and I need not repeat them once again.
It is common ground that the applicant left Cyprus for Greece together with his wife on 30th April 1977, and stayed there till 2nd September 1987 when they returned to Cyprus. Also that during his stay in Greece he was regularly employed. When he left Cyprus he left no member of his family behind as his daughter was already in Greece working as a journalist and his son was studying in England d later took employment in Saudi Arabia. At all material times he had no house either rented or owned in the free part of Cyprus. As mentioned earlier it is the contention of the applicant that he left Cyprus for Greece and settled there permanently.
I shall now proceed to examine one by one the reasons which led the respondent to refuse applicant's application:
(a) The non-payment of contribution to the Social Insurance Fund and Income Tax to the Greek Authorities. The fact that the applicant was regularly employed in Greece has not been disputed. The allegation of the applicant that during the whole of the said period he regular employed is supported by the certificate issued by his employer and the certificate of he Cyprus Consulate in Greece. The applicant was never asked by the respondent to give any explanation as to whether his income was subject to payment of any income tax in Greece or contributions to the Social Insurance. Nor did any information was made available to the Court as whether by virtue of bilateral agreements between Greece and Cyprus nationals of either country are bound to pay contributions to both countries or may elect to paycontributions to the SocialInsurance Fund of their own country and be exempted from such payment in the other country and then be entitled only to pension in their own country and not in the country where they have settled. Irrespective of the above it is irrelevant for the purposes of the present case whether the applicant by not paying contributions and income tax in Greece has breached the relevant Greek law in this respect. Proof of payment of contribution to Social insurance Fund in a foreign country may be necessary in cases where the fact that a person is regularly employed in such country is disputed In the present case the fact that the appIicant had a regular employment in Greece during the whole period of his stay there has been proved by him and has not been disputed by the respondent. Therefore, whether he was paying contributions to the Social Insurance in Greece or any Income Tax is entirely irrelevant and was not a reason to influence the respondent in taking the sub judice decision.
(b) His stay in Greece was subject to restrictions. Nothing appears in his passport that he needed a visa to visit Greece or any restriction was imposed on him by the Greek Government. The position of Cypriots settling in Greece or taking employment in Greece is different to that of Cypriot employed in most Arab countries where a temporary visa is granted renewable at the will of the State. No viza is required for Cypriots to visit Greece whenever they wish, stay there for as long as they like, acquire property and get employment.
(c) Contribution to the Social Insurance Fund in Cyprus. My attention has not been drawn to any provision in the relevant legislation in Cyprus and could not trace provision, excluding a national of Cyprus who is resident and employed abroad to make voluntary contribution to the Social Insurance Fund of Cyprus and enjoy the benefits derived from such contribution.
(d) The address given by applicant on the renewal of his passport in 1981. The applicant gave an explanation to the respondent why he stated his residence as beingCyprus which in the circumstances I do not consider unreasonable.
(e) His frequent and sometimes prolonged visits to Cyprus. It is evident from the certificates produced by the applicant that such visits did no in any way interfere with his regular employment in Greece which according to, both his employer and the Cyprus Consular Authorities in Greece was continuous and the permanency of his residence in Greece not interfered with. On the question of frequent visits to Cyprus and the extent to which such visits effect the "residence abroad" I wish to make reference to the way such visits were in practice treated by the Customs Authorities in dealing with cases of this nature. According to the directions of the respondent contained in a circular issued by him in 1984 (No. 42, October 1984) reference to which appears in the case of Nikandrou v. The Republic (supra) under paragraph iv. such visits should be considered in the following way:
".. it should be noted that residence must be of a permanent and continuous nature but is not deemed to be broken by temporary visits to Cyprus normally not exceeding in the aggregate 365 days in any period of 24 consecutive months". (The underlining is mine).
In Marangou v. The Republic(1989) 3 C.L.R. 21 Stylianides J., in dealing with considerably long interruptions of applicant's residence in England (245 days in Cyprus in 1980 and 204 days in Cyprus in 1981) had this to say:
"A person abandons the permanent establishment in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise....... The question of 'continuous' permanent settlement required legal interpretation, evaluation of the facts and application of the law to these facts".
I agree and adopt the above dicta.
From the material before me it clearly emanates that it wasnot reasonably open to the respondent to treat the casual visits of the applicant as being such as to interrupt the applicant's permanent settlement in Greece. The intention of the applicant that his visits were of casual nature for pleasure, or, after 1981, for visiting his daughter is manifested by the fact that when he applied for the renewal of his refugee card in 1984, during one of his visits to Cyprus, he gave his address as being at Holargos, Athens and that was the address mentioned in his card. Also when he visited Cyprus in May 1983, and brought his car with him he was allowed to temporarily import it as a visitor.
The applicant in explaining to the Customs why he returned to take permanent settlement in Cyprus in 1987 gave as reasons that once he was of old age and since 1985 he was receiving his pension from the Social Insurance Fund his wife and himself decided to return and settle in Cyprus near their married daughter who had left Greece in 1981 and settled in Cyprus.
In the circumstances of the present case I find that the respondent Director of the Department of Customs and Excise in reaching the sub judice decision took into consideration extraneous matters which materially affected his judgment and/or failed to carry out a due enquiry concerning such matters and that in the circumstances of the case, on their totality, the sub judice decision was not reasonably open to him.
In the result the sub judice decision is declared null and void and of no effect under Article 146.4(b) of the Constitution. I make no order for costs.
Sub judice decision annulled. No
order as to costs.