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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 894
1989 July 31
[SAVVIDES, J.1
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHRISTODOULOS HADJINICOLAOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
FINANCE AND ANOTHER,
Respondents.
(Case No. 670/87)
Customs and Excise - Motor vehicles - Importation of, by repatriated Cypriots - The Customs and Excise Duties Law, 1978 and sub-heading 19 of item 01 of the Fourth Schedule and Order 182/80 of the Council of Ministers - Permanent settlement abroad - Stay in Arab countries. where applicant never acquired a permanent residence permit -Reasonably open to respondent to find that prerequisite of permanent settlement abroad was not satisfied.
The applicant stayed in Iraq and Saudi Arabia for more than 10 continuous years. The applicant is a Cypriot. When he returned to Cyprus, he applied for a duty free importation of a motor car under the aforesaid legislation. The applicant, however, though working in the two aforesaid countries, never acquired a permit for a permanent residence therein. In fact, he obtained a series of permits of definite duration.
On these facts the Court found that it was reasonably open to the respondent to reach the conclusion that the prerequisite of the Law, namely "permanent settlement abroad" was not satisfied.
Recourse dismissed No order as to
costs.
Cases referred to:
Matsas v. Republic (1985) 3 C.L.R. 54,
Rossides v. Republic (1984) 3 C.L. R. 1482,
Mavronichis v. Republic (1985) 3 C.L.R. 2301,
Leonidha v. Republic (1986) 3 C.L.R. 2022,
Theodoulou v. Republic (1987) 3 C.L.R. 424,
Nicolis v. Director of Customs and Excise and Another (1988) 3 C.L.R. 1264,
Valanides v. Republic (1989) 3 C.L.R. 113,
Ioannou v. Republic (1986) 3 C.L.R. 1263,
Recourse.
Recourse against the decision of the respondents whereby applicant's application for the duty-free importation of a motor vehicle as a repatriated Cypriot was refused.
St. Triantafyllides, for the Applicant.
D. Papadopoulou (Mrs), Counsel of the Republic B, for the Respondents.
Cur. adv. vult.
SAVVIDES. J. read the following judgment. The applicant by the present recourse challenges the refusal of the respondent Director of the Department of Customs and Excise not to accede to his application to import a motor-vehicle free of duty under the provisions of sub-heading 01 item 19 of the Fourth Schedule to the Customs and Excise Duties Laws 1978-1986 which was communicated to the applicant by letter dated 5th June, 1997.
The legal grounds set out in the recourse are the following:
That the decision of the respondents is contrary to the law, the Constitution and the principles of administrative law; it was taken in excess and/or abuse of power; is not duly reasoned; it was taken under a misconception of fact; the respondents were wrong in deciding that the applicant had not been permanently resident abroad for a period of at least ten years before his return to Cyprus.
The facts of the case are briefly as follows:
The applicant, a Cypriot, born in Ayios Vassilios village of Nicosia, graduated the university of Salonica where he got his degree in Civil Engineering in 1976. After his graduation he was employed as a Civil Engineer, in 1976, in Iraq, by Charilaos Apostolides & Co. Ltd., of Greece. In 1980 he left the employment at Iraq and took employment in Saudi Arabia where he resided till 1987, employed by the Saudi Cyprian Construction Co. Ltd.
In January, 1977, he got married to a Greek national, of Salonica who joined and lived with him in Iraq and Saudi Arabia. On 25th March 1987, he returned to Cyprus with his family for permanent settlement.
Applicant submitted an application on the 30th March, 1987, to the respondent Director for the duty free importation of a Mercedes 200 car on the ground that he had permanently settled aborad for a continuous period of at least ten years and returned to take up permanent residence in Cyprus.
The respondent Director by letter dated 5th June, 1987, rejected the application. The contents of such letter read as follows:
"I refer to the above subject and regret to inform you that on the basis of the material produced in support of your application it is ascertained, prima facie, that you are not entitled to such relief as your absence from Cyprus did not amount to permanent settlement abroad."
It is the contention of the applicant that his residence abroad and in particular in Iraq and Saudi Arabia was in the nature of permanent settlement abroad as his original intention was not to return to Cyprus but settle in Salonica where his wife owned a flat.
The issue which poses for consideration is whether the applicant satisfies the requirement under item 19 of subheading 01 of the Fourth Schedule to The Customs and Excise Duties Laws 1978-1986 (Laws 18/78 to 176/86) published in the Third Supplement to the official Gazette of the Republic of 11th June, 1982, under Notification No. 188, according to which "Motor vehicles imported by Cypriots who after a permanent settlement abroad for a continuous period of at least ten years return and settle permanently in the Republic..."
The question for consideration is whether applicant's stay in Iraq and Saudi Arabia constitutes, permanent settlement in the said countries having in mind the facts of the case.
The relevant Order of the Council of Ministers enabling the duty free importation of motor-vehicles requires the following prerequisites to be satisfied: (a) Permanent settlement aborad for at least ten years; (b) return to Cyprus for permanent residence in the Republic; (c) importation of the car within a reasonable time from the date of arrival at the discretion of the Director.
The contents of the Order published under Notification 188/82 came up for consideration in a number of cases of this Court and I need not expound further on this matter. (See, in this respect, inter alia, Matsas v. The Republic (1985) 3 C.L.R. 54; Rossides v. The Republic (1984) 3 C.L.R. 1482; Mavronichis V. The Republic (1985) 3 C.L.R. 2301; Leonidha v. The Republic(1986) 3 C.L.R. 2022; Theodoulou v. The Republic (1987) 3 C.L.R. 424; Nicolis v. The Director of the Department of Customs and Excise (1988) 3 C.L.R. 1264; Valanides v. The Republic (1989) 3 C.L.R. 113.
The interpretation of the prerequisite of "permanent settlement" has been considered in a series of cases of this Court. In Matsas v. The Republic (supra) A. Loizou, J. (as he then was) said the following at p. 61:
"To my mind permanent settlement carries with it the notion of a real or permanent home and should be distinguished from the notion of ordinary residence."
In Ioannou v. The Republic (1986) 3 C.L.R. 1263 where the applicant settled and worked in Saudi Arabia for 14 years it was held by Pikis, J. at p. 1266, that:
"..The question that must be answered is whether ten years stay in a foreign country immediately qualifies the stayer as a permanent settler in that country for the purposes of the Order. I think not. The concept of permanent settlement is not tied to the length of stay but to the element of permanence associated with physical stay. If the legislature intended to make length of stay the sole criterion for exemption, it was wholly unnecessary to make any reference to permanent settlement."
Stylianides, J. in dealing with a similar issue in the case of Philippos Michael v. The Republic (1986) 3 C.L.R 2067 after an extensive analysis on the matter said the following, at p.2075:
"Permanent establishment is not synonymous to 'residence'. Residence alone is not sufficient. Permanent establishment indicates a quality of residence rather than its length. The duration of the residence, i.e regular physical presence in a place, is only one of a number of relevant factors. An element of intention to reside and establish is required. Evidence of intention may be important where the period or periods of residence are such as to point to both directions. It is not possible for a person to be permanently settled in the Republic and in another country. The intention of permanently settling may be gathered from the conduct and action consistent with such settlement. Though permanent settlement cannot be assimilated to domicile, it is akin to it and pronouncements on domicile are very relevant and helpful."
The question which poses for consideration in this case is whether the applicant satisfies the prerequisites of the relevant Order of the Council of Ministers.
In an affidavit sworn by the applicant in support of his application the permanent settlement abroad on which applicant seeks to rely is his continuous employment in Iraq and Saudi Arabia for a period of more than ten years and his alleged intention to settle in Salonica after the termination of his employment in the Arab countries which intention, however, never materialised as in fact after the termination of his employment instead of returning to Salonica the applicant returned to Cyprus with his family with the intention of permanently settling in Cyprus as mentioned in his application to the respondent.
Therefore, on the material before me the permanent settlement abroad on which he seeks to rely is his stay in the Arab countries for a period satisfying the main prerequisite of the relevant Order.
Applicant has produced photocopies of the entries in his passport with translations in English. From these entries it is apparent that in Iraq and Saudi Arabia he never acquired a permit for a permanent residence but his stay there was subject to the conditions of his visa which was for a limited period renewable from time to time for fixed periods connected with his employment.
In my judgement in a recent case Valanides v. The Republic (supra) in dealing with the prerequisite of permanent settlement abroad I expressed the following opinion which I fully adopt in the present case:
"What is required by the Order in question is not absence from Cyprus or residence abroad for the purpose of performing work under a contract of employment but permanent settlement abroad. Applicant's residence abroad and in particular in an Arab country where the acquisition of permanent settlement to non-Arabs is strictly restricted, was clearly of a. temporary nature and its validity was collateral to the length of his employment as appearing in his passport. When such permit was granted to him it was of a duration of one year and was renewed from time to time subject to the same conditions. The applicant could not himself take the decision that he would permanently settle there once his residence permit was temporary and could be suspended by the authorities at any time."
From his evidence it may be gathered that the applicant was aware all along that his stay in the said two countries would be co-extensive with the tenure of his employment.
In the light of our Case Law relevant to the notion of permanent settlement abroad and of the material before me and bearing also in mind the particular circumstances of the present case and especially the fact that the applicant never acquired a permit for permanent settlement in Iraq or Saudi Arabia I am of the view that it was legally and reasonably open to the respondent Director of Customs and Excise to find that the applicant had not settled permanently abroad and to refuse on this ground his application for a duty free importation of a motorcar.
In the course of the hearing of this case counsel for respondents stated that this case was under reconsideration together with other cases as to whether the applicant is entitled to the relief under the provisions of the new law. I shall not deal with this aspect of the case as it has not been raised in this case but bearing in mind the fact that the applicant has been residing abroad for a continuous period of eleven years which is a matter which under the provisions of the new law may entitle the respondents to grant relief, this question is left open for consideration by the respondent Director in the exercise of his powers under the new law.
In the result the recourse fails and it is hereby dismissed. In the circumstances I make no order for costs.
Recourse dismissed. No order as
to costs.