clr/1984/1984_3_1031.pdf

(1984)ation by the respondents of their original decision. The res­ pondents rejected again her application by means of their letter dated 5.5.1983 and hence this recourse. According to the opposition the rejection was based on the ground that applicant did notbelong tothe Managerial Staff of theoff-shore company 5 Sharq Press Ltd.; and on the basis of the established policy, she did not fulfil the conditions for her engagement in the said company. According to a certificate from the Ministry of Commerce and Industry, however, the applicant was oneof the Directors of the above off-shore company;and in her aforesaid 10 applications she was described as "General Manager and share­ holder of Sharq Press Ltd" and "Director of the Company". Held (Ί) on the preliminaryobjection that the decision of :.5.1983 is not of an executory character but simply confirmatory of the previousdecision of 9.4.1983: 15 Thatasubsequent actordecision of theadministration, though identical in effect to a pre-existing one may qualify as an exe­ cutory if it springs from anew inquiry into thefacts of the cast; that respondents by their letter of 5.5.1983stated that theappli­ cant's application was "examined carefully but itwas notappro- 20 ved"; that in the absence of any othei material to the contrary it can be presumed, relying on the presumption of regularity that the respondents had carried out anew inquiry on the basis of new supplementary facts submitted to them before giving their new decision contained in the letter of 5.5.1983 and it 25 is immaterial whether this second decision was in the result the same as their first one because what countsis not the result but the new inquiry; and that, therefore, the decision of the respondent contained in the letter of 5.5.1983is of an executory chaiacter; and that, accoidingly, it is justiciable. 30 Held

(2)on the merits of the recourse: That a misconception asto amaterial fact or afailure to make a due inquiry causing lack of knowledge of material facts re­ sults due to contravention of well settled principles of Admi­ nistrative Law, in the invalidity of the relevant administiative action;thatadueinquiry based atleast onthematerial provided by the applicant on the aforesaid two occasions, would ha\e led to eliciting the truth which has been certified' by the Ministry of Commerceand Industry;thatinstead,therespondentscarried 1032 35 3 C.L.R. 5 10 15 20 Farran τ. Republic out an inquiry which was absolutely inadequate; that due to such inadequate inquiry they reached the conclusion that the applicant did not belong to the managerial staff of the off-shoie company in question a material fact which is not conect and on which the respondents relied in reaching their aforesaid decision by virtue of which the applicant was refused stay in Cyprus; that, thus, the failure of the respondents to make a due inquiry resulted to a misconception as to a material fact which must invalidate the whole administrative decision impugned; that, further, the reasoning of the respondent is invalidated because it is relying on the same incorrect fact. Subjudice decision annulledCases referred to: Pieris v. Republic

(1983)3 C.L.R. 1054 at p. 1062; Karranv. Republic

(1983)3 C.L.R.

1. Recourse. Recourse against the refusal of the respondents to renew applicant's temporary resident's permit in Cyprus. G. M. Michaelides, for the applicant. Λ/· Flourentzos,Senior Counsel of the Republic, for the respondent. Cur. adv. vult. LOR;S J. read the following judgment. The applicant in the present case, a Palestinian refugee, applied to the respondents 25 for the renewal of her temporary resident's permit in Cyprus (Vide Appendix 3 attached to the opposition dated 17.3.1983) and for permission to take up employment in Cyprus as Jour­ nalist—General Manager with Sharq Press Ltd, an off-shore company registered in Cyprus (vide Appendix A attached to 30 the opposition dated 14.3.1983). Both aforesaid applications were turned down by the respendents ia \ letter dated 9.4.1983 (vide ox. Β attached to the recourse) allegedly received by the applicant on 15.4.
2. 35 Another application ca ibe scjms Unes addre^ed to tho respendents on ϊο.4.1933 (vide ex. Γ attached to the recourse) by coiuiifii on bchaif of the applicant, furnishing further details and praying for reconsideration of their decision In ex. 3 was 1033 Loris J. Farran v. Republic

(1984)again turned down by therespondents (vide their letter dated 5.5.1983—ex. D attached to the recourse). Both these decisions of the respondents contained in their aforesaid letters of 9.4.1983 and 5.5.1983 respectively aie now beingimpugnedbytheapplicantbymeansofthepresentrecourse 5 filedon 29.6.1983, which prays for a declaratoiy judgment to the effect that the decisions aforesaid are null and devoid of any legal effect. The grounds of law on which the present recourse relies are mainly three: 10

1. Misconception of fact.
2. Violation of the convention dated 20.7.1951 relating to the status of Refugees (obviously what is meant here is the Convention relating to the Status of Refugees signed at Geneva on 28.7.1951—which was extended by a 15 protocol deposited at the United Nations General Assembly at its 1495th plenary to cover persons who became relugees after the 1.1.1951; the said protocol to which Cyprus is a signatory was ratified by Law 73/68.) 20
3. Lack of due reasoning. The respondents in their opposition after raising two preliminary objections, to which I shall be referring immediately hereinbclow,allegethat"thedecisionimpugned isdulyreasoned, leached at correctly and lawfully pursuant to the relevant pro- 25 visions of the Constitution, the Laws and Regulations, after due exercise of the powers vested in the respondents and after taking into consideration all the substantial facts and circumstances of the case". The 1st objection relates to the decision of 9.4.1983 (vide 30 ex. B)and goes to thejurisdiction, asit allegesthat the present recourse is out of time having been filed, as stated above, on 29.6.
4. It is true that in the statement of facts (para. 5)it is stated that the letter of9.4.1983wasreceived bytheapplicant on 15.
5. 35 1983; further, after thefilingof the written addresses and the clarification stage,the piesent casewasre-opened on the appli1034 3 C.L.R. Farran ?. Republic Loris J. cation of the applicant; the application for rc-opening was accompanied by an affidavit dated 10.3.1984 sworn by the applicant where it is clearly and positively stated that theletter of therespondents'dated 9.4.1983 was received by theapplicant 5 on 15.4.
6. This fact was conceded on 14.3.1984 by learned Counsel appearing for the respondents and on the same day this preliminary point was dismissed by this Court. The second objection impugnes the decision contained in theletteroftherespondentsdated5.5.1983(ex.D);thisobjection 10 goes to thejusticiability of this decision in the sense that same is not of an executory character but simply confirmatory of the previous decision of 9.4.
7. Inspite of the fact that this objection was never pursued by the respondents any further in their written address oi otherwise, (and I could therefore 15 treat it as abandoned) I iniend io deal with it. It was repeatedly stated inthepast and was recently leiterated by the Full Bench of this Court (vide Pierisv. The Republic

(1983)3C.L.R. 1054at p. 1062)thatasubsequent actordecision • of theadministration,though identical in effect toa pre-existing 20 one, may qualify as an executory "If it springs from a new inquiry into the facts of the case „" In the case under consideration the applicant applied to the respondents submitting to the respondents Appendices A and Β dated 14.3.1983 and 17.3.1983; the respondents on 9.4.1983 25 by letterex. Βturneddown thesaid applications. On16.4.1983 counsel for applicant addressed new application (ex. Γ) sub­ mittingnowsupplementary facts andplaying for reconsideration by the respondents of their original decision. Thenew supple­ mentary facts submitted weie the following; 30 (i) A clear and unambiguous statement contained in the application of 16.4.1983to theeffect that theapplicant was a director of the off-shore company in question. (ii) A contractof leasewhichisAppendix Εattachedtothe opposition. 35 (Theabove facts areadmittedby therespondentsin paiagraph 6 of their opposition). To the application of 16.4.1983, containing the aforesaid 1035 Loris J. Farran v. Republic

(1984)new facts, the·respondents replied by their letter of 5.5.1983 —-ex.D—wherein it is stated clearly that "your application was examined carefully but it was not approved". In the absence of any other material to the contrary I can presume, relying on the presumption of regularity, that the respondents had carried 5 out a new inquiiy on the basis of new supplementary facts submitted to them before giving their new decision contained in ex. D; and it is immaterial whether this second decision was in the result the same as their first one. What counts is not the result, but the new inquiry which preceded on the supple- 10 mentary information submitted as above (vide The Conclusions of the Greek Council of State 1929-1959 at p. 241). Under the circumstances the decision of the respondents contained in ex. D dated 5.5.1983 is of an executory character, therefore justiciable and the second preliminary objection is 15 doomed to failure and it is accordingly dismissed. I shall now proceed to examine the first ground of Law on which the presen' recourse is based namely 'misconception of fact'. The general principles of Law in connection with miscon- 20 ception of fact have been authoritatively thus stated: "A misconception as to a material fact or a failure to make a due inquiry causing lack of knowledge of material facts results due to contravention of well-settled principles of Administrative Law, in the invalidity of the relevant 25 administrative action A misconception as to facts may consist of eithei the taking into account of non-existing fact» or the non taking into account of existing facts". (Ioannides v. The Republic

(1972)3 C.L.R. 318 at p. 325). 30 "According to the principles of administrative law there exists a presumption that an administrative decision is reached after a correct ascertainment of relevant facts; but such presumption can be rebutted if a litigant succeeds in establishing that there exists at least a probability that 35 a misconception has led to the taking of the decision complained of __" {HjiMichael v. The Republic

(1972)3 C.L.R. 246 at p. 252). 1036 3 C.L.R. Farran τ. Republic Lorls J. In the present case, ground 1, which contains the general allegation that the respondents acted under misconception as to facts proceeds to enumciate the particular alleged miscon­ ceptions in six separate paragraphs (a)-(Q forming part of 5 giound 1. In order to avoid confusion, I feel that the contents of para­ graphs (

1. b)and (
2. d)should be examined together with ground 2 with which they are closely interwoven. From theremainingfour paragraphs of giound 1 theapplicant 10 seems to attach paramount importance to the allegation con­ tained in para, (
3. e)which reads as follows: (Respondents) "Wrongly mistook the employment of ttie applicant as one of non-managerial nature" (μή διευθυντικής φύσεως). In order to elicit this particular complaint I have to examine 15 what the respondents said on this mattei. In paragraph 9 of the opposition the respondents set out the grounds for their refusal to allow appUcant's stay in Cyprus; one of these grounds is thus stated in para, (b): 20 25 "9(β) ή αίτήτρια 5έν ανήκει ε!ς το Διευβυντικόν Προσωτπκόν της υπερπόντιου 'Εταιρείας Sharq Press Ltd., καΐ ως έκ τούτου βάσει της χαραχθείσης πολιτικής 6έν πληροί τάς προϋποθέσεις διά τήν άπασχόλησιν της είς την τοιαύτηυ έταιρείαν". (The applicant does not belong to the Managerial Staff of the off-shore company Sharq Press Ltd., therefoic on the basis of the established policy, she does not fulfil the conditions for her engagement in the said company). Paragiaph 9(
4. b)of the opposition,, to my comprehension contains (
5. a)A positive averment that the applicant does not 30 belong to the Managerial staff of the off-shore company in question; (
6. b)A statement of Government Policy: As she is not in the managerial staff of the off-shore company in question she does not—on the basis of established policy— qualify for her engagement in the said company, therefore her 35 application for employment in Cyprus is. refused. In consequence of the aforesaid contents of paragraph 9(
7. b)of the opposition the following questions arise: Is the above aveiment of the respondents correct? 1037 Loris J. Farran v. Republic

(1984)If not, did the respondents carry out a due inquiry in order to elicit the true fact? This is the crucial issue in this case. 1have before me exh. A attached to the recouise; it is a certi­ ficate from the Ministry of Commerce and Industry dated 5 1.3.1983 which certifies to the effect that the applicant in the present case is one of the directors of Sharq Press Ltd., the off-shore company in question. The respondents say in their written address that no such certificate was ever placed before them by the applicant; it is true that there is nothing on record 10 which indicates that the certificate itself was evei produced to the respondents. But we have the following facts which indi­ cate that therespondents would have been in a position to know whether the applicant was one of the Directors of the off-shore company in question had they carried out a proper inquiry; 15 1. Inher application of 17.3.1984(vide Appendix Βattached to the opposition) she is described as "General Managei and shaieholdcr of Sharq Press Ltd." 2. In the application dated 16.4.1983 addicssed to the respondents on her behalf she is lefeired to as "Diiector 20 of the Company"— Διευθύντρια της 'Εταιρείας (vide paragraph four of exh. Γ attached to the recourse). I hold the view that a due inquiiy, based ?.t least on themate­ rial ptovided by the applicant on the aforesaid two occasions, would have led to eliciting the truth which is being ceriincd 25 in ex. A; I would even go further and say that a due inquiiy could reveal ex. A itself. Instead, the respondents carried out an inquiry which in my opinion was absolutely inadequate; due to such inadequate inquiry they reached the conclusion appearing in paragraph 30 9 (

1. b)of the opposition, namely that the applicant does not belong to the managerial staff of the off-shore company in question; a material fact which is not correct and on which the respondents relied in reaching their aforesaid decision by virtue of which the applicant was refused stay in Cyprus. Thus 35 the failure of the respondents to make a due inquiry resulted to a misconception as to a material fact which must invalid the whole administrative decision impugned. 1038 3 C.L.R. 5 Farran v. Republic Loris J. My finding as above on ground 1 (
2. b)of the recourse covers ground 1(a)as well; undci the circumstances I need not proceed to examine whether due inquiry was carried out by the respondents in respect of other mattcis referred to in grounds l(
3. y)and 1(ζ) of the recourse. Ground 2and theinterwoven matters in grounds 1(b)and 1(
4. d)were not fully argued before me; although raised in the recourse quite vaguely they were not pursued any further in the written addross of theapplicant; and the respondents in thisconnection, 10 confined themselves in stating that "the Convention in respect of Refugees is not applicable to the applicant at least so far as regards the obligation of Cyprus in this particular instance to accept the applicant to Cyprus" (vide paragraph 9

(5)of the opposition). 15 Having in mind the aforesaid stand of both sides on this issue but predominantly taking into consideration that my pronouncement on ground 1(e) has decided the fate of this recourse 1 feci that I should not pronounce on giound 2. In­ stead I shall confine myself in repealing what I have stated on 20 a similar occasion in the past; "if the applicant is a 'refugee' within themeaningenvisaged by Article 1of the Geneva Conven­ tion(supra), a matter which I leave entirely open, 1 would like to draw the attention of the responsible authorities to the provisions of Article 32 of the Geneva Convention referred 25 to above in connection with 'expulsion' from the Republic " (vide Riad Karram v. Republic

(1983)3 C.L.R. 199). 1 lea\e this matter in the hands of the responsible authorities trusting that they will bear it in mind when re-examining this cacc as my finding on ground 1(c) above, requires. 30 Coming now to giound 3namely "reasoning"; itis well settled that administrative decisions have to be duly reasoned; and the reasoning may be found either in the decision itself or in the administrative file related thereto. In the instant case on the face of both decisions exhibits Β 35 and D,attached to the recourse, no reasoning whatever appears. No administrative file was produced and in none of the docu­ ments produced any reasoning whatsoever could be traced. The only reasoning for the decisions impugned can only be 1039 Loris J. Farran r. Republic

(1984)traced in paragraph 9 of the opposition where the grounds for the refusal of applicant's stay in Cypius are set out. Learned counsel for respondents in his written address after elaborating on the relevant provisions of the Aliens andImmigiation Law, Cap. 105 and the Regulations made thereunder, 5 submitted relying on Kyriakopoulos {The Greek Administrative Law,4th edition Vol. Β at p. 387) that inadequate reasoning or even lack of any reasoning in cases of this naturecannot lead to the annulment of the impugned decisions of theadmi­ nistration. 10 With respect to learned counsel, that is not the problem in this case. I am well aware of the wide discretionary powers granted to the respondents under the Aliens andImmigration Law, Cap.105 and the Aliens and Immigration Regulations (Vol. II of the 1953 ed. of the Subsidiary Legislation) but the 15 fact remains in this case that the grounds given in paragraph 9 of the oppositionandinparticular para9(b)thereof arc based on afact which is notcorrect,as Ihave already held. Irepeat: The statement—reason given in paiagraph 9(b) to the effect that the applicant does not belong to the managerial staff 20 (Διευθυντικόν Προσωπικόν) of the said off-shoie company is not correct; it was established beyond any doubt by the Certificate of the Ministiy of Commerce and Industry dated 1.3.1983, which is exh. A before me that the applicant is one of theDirectorsofthesaid company;inotherwords shebelongs 25 to the Managerial staff of Shaiq Piess Ltd. off-shore company. The question therefore is notabsence of reasoning, oi inade­ quate reasoning. The issue is: reasoning relying on an in­ correctfact; andinthesameway thedecision of therespondents is invaUdated due to the misconception under which they weie 30 labouring in connectionwith this material fact, their reasoning is invalidated as well because it is relying on a wrong material fact. For this leason ground of Law 3 of therecoursesucceeds as well. In the result present recourse succeeds and both decisions 35 impugned are hereby annulled onthegrounds thattherespond­ ents have acted under a misconception of material fact (relying 1040 3CXJL Famo£T.Republic Lorfa J, on a proven incorrect fact) and also for theii specific reasoning also based on the same incoirect fact as stated above. Taking into consideration the particulai circumstances of this case, including the re-opening of this case at the instance 5 of the appUcant, I havedecided to make no order as to thecosts thereof. Sub judice decisions annulled. No order as to costs. 1041