3 C.L.R. 1984 December 10 [PIKIS, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION TASSOS ZEMBYLAS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE, Respondent. (CaseNo. 104/84). 5 10 15 20 Administrative Law—Executory act—Confirmatory act—When is an act confirmatory of an earlier executory decision—Foremost consideration is the contentof the two acts and their effectin law—Three decisionsrefusing three applications for issue of a passport—All decisions identicalin contentand had similar effect in law—Recourse against /as/, of these decisions—Not justiciablebecause such decision a confirmatory of the earlier decisions. Threeapplications for theissueofa passporttothe applicant, the first addressed to the Immigration Officer and the last two to the Minister of the Interior, wererefused for similarreasons, that is, for default in the fulfilment of his military obligations under the National Guard Law. The decisions were issued bytheMinistry ofDefencetowhomtheMinister ofthe Interior, who presided over both Ministries, apparently referred the matter. Each decision was repetitive of the previous one and founded onanidenticalappreciation ofthefactsandlawrelevant to the case. Upon a recourse by applicant against the last of the three series of decisions Counsel for the respondent raised the preliminary objection that this decision was notjusticiable for lack of executory character becauseitwasconfirmatory oftheearlier decisions. 1461 Zembylas v. Republic
(1984)Held, that only executory acts challenged within 75 days can be madea proper subject for judicial review;thatit is a question of substance whether a given act or decision is confirmatory of an earlier one; and that the foremost consideration is the content of the acts and their effect in law; that in this case the 5 acts were identical in content and had similar effect in law; andthat,therefore,thesubjudice decisionisplainly confirmatory of thefirst two decisions and is notjusticiable; accordingly the recourse must fail. Application dismissed. 10 Cases referred to: Pieris v. Republic
(1983)3 C.L.R. 1054; Ioannou v. Commander of Police
(1974)3 C.L.R. 504; LordosApartotels Ltd. v. Republic
(1974)3 C.L.R.
- Recourse. Recourse against the refusal of the respondent to issue a passport to the applicant. 15 Ch. Ierides, for the applicant. Λ'. Charalambous, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. PIKIS J. read the following judgment. Three applications for the issue of a passport to the applicant, the first addressed to the Immigration Officer and the last two to the Minister of the Interior, were refused for similar reasons, that is, for 25 default in the fulfilment of his military obligations under the National Guard Law. The decisions were issued by the Mini stry of Defence to whom the Minister of the Interior, who presides over both Ministries, apparently referred the matter. Each decision is repetitive of the previous one and founded on 30 an identical appreciation of the facts and law relevant to the case. Applicant lodged a recourse against the last of this series of decisions taken on 31st January, 1984,.a course that promptedtheimmediateobjection of counselfor therespondents to the justiciability of the decision for lack of executory.cha- 35 racier. I am required to decide before anything else, the .1462 20 3 C.L.R. Zembylas v. Republic Pikis J. validityof theobjection necessitating examination of the nature of the decision under consideration, in particular whether it is of a confirmatory character. The validity of the first two decisions taken on 20th January, 1982, and 30th September, 5 1983, was not challenged. As noted, passport was refused because of the failure of the applicant to discharge his military obligations. The applicant became liable to conscription in January
- On his applicationhisenlistmentwassuspendedpendingthecompletion 10 of his studies at the Gymnasium, then in the final year of his studies. On his application travel documents were issued to himdesignedtoenablehimtovisithissisterwhostudied abroad and spend Easter with her. They were valid for two months. He stayed abroad eversince and followed University studies. 15 His conduct exposed him to the charge that he used the visit to his sister as a pretext to bypass his military obligations. Whatever his intentions may have been, the palpable fact is that hefailed toenlist at the expiration oftheperiod ofsuspension of his call up to the National Guard and for that reason 20 the application for a passport was consistently and repeatedly refused by the authorities. At this juncture I am not concerned with the merits of the application or the duty of the State to issue a passport to its citizens or for that matter the circumstances under which an ?5 application may be legitimately refused. I am only required to determine whether thesubjudice decision isconfirmatory of both or either of the two earlier decisions.' Counsel for the Republic submitted the act plainly confirms thecourseearmarkedbytheadministrationbypreviousdecision; 30 all that the decision of 31st January, 1984, signified was adherence to the course already plotted. This proposition is indisputably correct. Nevertheless, counsel for the applicant invited the Court to take cognizance of the recourse for the reason that the decision emanated from an organ other than 35 the one to which the application had been addressed, namely, by the Ministry of Defence, whereas the application had been made to the Minister of the Interior. Earlier on we indicated that thefirstapplication had been addressed tothe Immigration Officer and the last two to the Minister of the Interior. The 40 complaint of the applicant, as defined in the application, is 1463 Pikis J. Zembybs τ. Republic
(1984)not directed against any omission or default of the Minister of the Interiorto reply to anapplicationfor theissueof a pass port. At issueis thecorrectnessof thedecision of theMinister in his capacity as Minister of the Interiorand Defence. Hence weareasked toreviewthemeritsof thedecisionof 30thJanuary, 5 1984, a decision identical in content and effect with the two previous ones issued on the same subject matter by the same authority. Inmyjudgmentthesubjudicedecisionis plainly confirmatory of the first two decisions, identical to them in every respect. 10 In Pieris v. TheRepublic
(1983)3 C.L.R. 1054, the FullBench of the Supreme Court adverted to the principles relevant to the classification of an act as confirmatory. It is a question of substance whether a given act or decision is confirmatory of an earlier one. Thesubject matterof thetwo decisions and 15 their effect in law must, therefore, be examined in order to establish the identity, if any, between two or more decisions. As indicated in the above case "the foremost consideration is the contentof the two acts and their effect in law". The acts here under review were identical in content and had similar 20 effect in law. The issue of a passport to the applicant was refused because of his default in the discharge of his military obligations. As Cyprus and Greek caselaw establishes, the barrier to the justiciability of a confirmatory act will not be lightly lifted nor will the time bar of 75 days be allowed to be 25 lightly circumvented or bypassed. Only executory acts chal lenged within 75 days canbe madea propersubject for judicial review. In Evripides Ioarmou v. Commander of Police
(1974)3 C.L.R. 504,it was stressed thatarepetitive actdoes notrevive the executory character of the decision unless it is the product 30 of a new factual and legal inquiry. A new inquiry will not be deemed to have taken place unless there is a substantial reappraisal of a situation in the light of new material un discoveredorunknownatthetimethefirstdecisionwastaken(l). By the very terms of his application of 27th January, 1984, 35 the applicant acknowledged the matter under review was the subject of an earlier decision. He introduced his application (l) LordosApartoteh Ltd. v. The Republic
(1974)3 C.L.R. 471 Stauwopoulos, Law of Administrative Acts, p.
- Tsatsos, Application for Annulment, 3rd Ed., p.
- 1464 3 C.L.R. Zymbylas v. Republic Pikis J. by the following expression: " I apply once more" (αιτούμαι Εανά) indicating that his application was directed towards a reversal of an earlier decision. The application was swiftly refused without holding a fresh inquiry into the case and there 5 ended the matter. In view of the outcome of the case, I shall refrain from exa mining any otheraspect of the recourse or expressing anopinion on the authority competent under the law to issue passports, their discretion in the matter or its curtailment by virtue of the 10 provisions of Articles 13 and 20 of the Constitution. In the light of the above, the recourse fails, it is dismissed. Let there be no order as to costs. Recourse dismissed. No order as to costs. 146S