3 C.L.R. 1984 August Π [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146OFTHECONSTITUTION ALBERT ABDEL MALEK BAGDADI ASAAD, Applicant. V. THE REPUBLIC O F CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Case No. 117/83). 5 10 15 20 Administrative Law—Administrative acts or decisions—Executory act—Confirmatory act—Cannot be made the subject of a recourse —Administrative decision, taken subsequently to an executory administrative decision in the same matter not confirmatory if /'/ is the result of a new inquiry not merely regarding the legal aspectbut of a new inquiry involvingthe evaluationof new factors —When does a new inquiry take place—Re-examination of the case of the applicant taking place on the basis of the already existing material·—Decision taken after such re-examination merely confirmatory of theprevious decision of theadministration in the same matter. The applicant,whoresidedinAlexandriainEgyptwas refused re-entry in Cyprus, as an alien, on the ground that while in Cyprus he had allegedly been unlawfully in possession of gold; andwas informed of this refusal by letters dated 23rd October, 1981,1stNovember, 1981and 16thOctober, 1982. Asapplicant denied the above allegation the respondent undertook to re examinethe matter andhaving done so he informed applicant's Counsel, by letter dated 12thJanuary, 1983that there continued to exist thereasonsfor whichtheentry was prohibited. Hence this recoursewhich was filed on the 23rd March, 1983. On the preliminary objection, raised in the opposition, that the recourse challenged a confirmatory act: 1529 Asaad v. Republic
(1984)Held,that a confirmatory act cannot be made the subject of a recourse; that an administrative decision, which is taken subsequently to an executory administrative decision in the samematter,isnotconfirmatory ifitistheresult ofanewinquiry not merely regardingthe legalaspect ofthe matter but of anew 5 inquiry involving the evaluation of new factors; that whether or not a new inquiry has taken place does not depend on what wasstatedinthisrespectbyapartytoanadministrativerecourse, suchasthepresent one,butwhatthisCourt, asan administrative Court, finds out to be the true situation; that as the re- 10 examination of the caseof the applicant took place onthe basis of the already existing material and it was decided to insist on his exclusion from Cyprus, the sub judice decision, which wascommunicatedtohim bythe letterofthe 12thJanuary 1983, was merely confirmatory of the previous decision of the admi- 15 nistration in the same matter and, therefore, this recourse could not be made against the said confirmatory decision; and it is out of time as regards the previous decision which could be treated as being of an executory nature (p. 1532 post). Application dismissed. 20 Cases referred to: Goulielmos v. Educational ServiceCommittee
(1983)3 C.L.R. 883 at p. 895; Demos Farm Ltd. v. Republic
(1983)3 C.L.R. 1172at p. 1178; Odysseos v. Republic
(1984)3 C.L.R. 463 at p. 470; 25 Decisions of the GreekCouncil of State Nos.: 459/58, 1833/65 and 538/
- Recourse. Recourse against the refusal of the respondent to allow applicant, who resides in Alexandria, Egypt, to re-enter Cyprus as 30 an alien. L.N. Clerides, for the applicant. N. Charalambous, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 35 1530 3 C.L.R. Asaad v. Republic TRIANTAFYLUDES P. read the following judgment. By this recourse the applicant, who resides in Alexandria, in Egypt, challenges the refusal of the respondent to allow him to reenter Cyprus, as an alien. 5 Counsel who was acting at that time for the applicant was informed ofthe said refusal onthe23rd October 1981andthere envued correspondence with the Migration Officer, who comes under therespondent Minister ofInterior,inthecourseofwhich such refusal wasconnimed bya letter dated the 18thNovember 10 1981and, also, by another letter dated the 16thOctober
- As a result of further correspondence and a telephone communication between counsel for theapplicant andthe DirectorGeneral of the Ministry of Interior a meeting took place in the office of the said Director-General, in the presence of the 15 Migration Officer, at which counsel for the applicant wasinformed that it was alleged that the applicant had, while in Cyprus, been unlawfully inpossession ofgold. Atthat meeting it was undertaken by the Director-General of the Ministry of Interior and the Migration Officer to re-examine the matter 20 inthelightofthedenialbytheapplicant ofthe above allegation against him, and such denial was communicated in writing. too, to the Director-General of the Ministry of Interior. Eventually, on the 12thJanuary 1983,the Migration Officer addressed a letter to counsel for the applicant informing him 25 that the matter of the entry into Cyprus of hisclient had been carefully re-examined but there continued to exist the reasons for which his entry was prohibited. This recourse was filed on the 23rd March 1983and there can be no doubt that, ifbymeansof the letter of the 12th 30 January 1983there wascommunicated to counsel for theapplicant an executory administrative decision, this recourse was filed within the time prescribed by Article 146.3of the Constitution. Counsel for the respondent has, however, raised the issue 35 bythe Opposition and byhiswritten address that this recourse challenges a confiimatory act and that, therefore, it has to be dismissed. That a confirmatory act cannot be made the subject-matter of a recourse is well settled (see, inter alia, in this respect, 1531 Triantafyllides P. Asaad v. Republic
(1984)Goulielmos v. The Educational Service Committee,
(1983)3 C.L.R. 883, 895, Demos Farm Ltd. v. The Republic,
(1983)3 C.L.R. 1172, 1178, and Odysseos v. The Republic,
(1984)3 C.L.R. 463, 470). An administrative decision, which is taken subsequently 5 to an executory administrative decision in the same matter, is not confirmatory if it is the result of a new inquiry not merely regarding the legal aspect of the matter but of a new inquiry involving the evaluation of new factors; and whether or not a new inquiry has taken place, as aforesaid, does not depend 10 on what was stated inthisrespect by a party to an administrative recourse, such as the present one, but what this Court, as an administrative Court, finds out to be the true situation (see, in this respect, Tsatsos on the Recourse for Annulment before the Council of State—"Η Αΐτησίξ Ακυρώσεως ενώπιον του 15 Συμβουλίου Επικρατείας"—3rd ed., ρ. 136,and,also,theDecision of the Council of State in Greece in case 459/1958). In is, furthermore, useful to note that in case 1833/1965. the Council of State in Greeceheld that a new decision reached after re-examination of the factors which have alreadybeen 20 taken into account in reaching a previous executory decision is merely confirmatory of such previous decision, and not an executory one; and it was, also, held by the Council of State in Greece in case 538/1969 that the taking into account, in the course of such re-examination, of an isolated element put 25 forward by the applicant which is not found to be material enough to lead to the revocation of the previously taken exe cutory decision does not render the subsequent decision of the administration an executory one. In the light of all the foregoing and having in mind that, 30 as stated, in particular, in the relevant administrative records (seefileNo.A80O457, entry No. 18,dated 20th December 1982) the re-examination of the case of the applicant took place on the basis of the already existing material and it was decided to insist on his exclusion from Cyprus, I am of, the opinion 35 that the sub judice decision, which was communicated to him, by the letter of the 12th January 1983, was merely confirmatory of the previous decision of the administration in the same matter and, therefore, this recourse could not be made against the said confirmatory decision; and it is out of time as regards 40 1532 3 C.L.R. Asaad γ. Republic Triantaf)Hides P. the previous decision which could be treated as being of an executory nature. Thisrecourseis,therefore,dismissed; butIwillmakenoorder as to its costs. 5 Recoursedismissed. No order as to costs. 1533