3C.L.B. 1987July31 fTRIAKTAFYLUDES.Ρ] INTHE MATTEROFARTICLE 146OFTHECONSTITUTION ABDOKHALIL DAMIAN, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THEMINISTER OF INTERIOR, Respondent. (CaseNo. 1024/85). Recourseforannulment—Competence—Themattermayberaisedeitherbythe Courtexpropriomotuorbyanyoftheparties. AdministrativeLaw—Competence—Lackof— Groundofannulment. 5 AdministrativeLaw—Competence—Aliens—MigrationOfficersoughtapproval oftheMinisteroftntertorinrespectofdecisiontorefuseapplicantapermitto enter Cyprusas well as a residence and a wortdng permit — Reply communicatingapprovalwrittenbyanOfficialoftheMinistryonbehalfofthe Director-GeneraloftheMinistry—Suchofficialdidnothavecompetenceon thematter. 10 Theapplicantis aLebanese subject. On12.11.85theMigration Officer decided nottoapprove theijraht tothe applicant of an entry permit,a temporaryresidencepermitandaworkingpermit.Beforecommunicatinghis decision tbtheappfic< ffttfcflgrafjofiOfficer sought the approval of the MinisterinhiscapacityasChief ImmigrationOfficer. 15 CM19November 1985anofficial ofthe Ministry of Interiorreplied, on behalf of tKeDirector-General oftheMinistryof Interior,tothe Migration Officer, thaifieUtflInagreementwiththedecision. HencethisHlcbtifse. 25 Hdd,ahntififhg'thetubJudl'ced'etlsion: (l)TheIssueofthecompetenceοί trieorgancontainedma?beraisedeitherbyapartytoa recourseοτbythe CourtexpVoprfbmorkLackofcompetenceisagroundfortheannulmentof thedecision concerned. 1849 Damlan v. Republic
(1987)
(2)Since the matterhad onthisparticular occasion,been referred directly io the Minister of Interior, himself as Chief Immigration Officer, for a final decision by him,neither the Director-General of the Ministry of Intenornor any official acting on behalf of himcould have taken such decision. Subjudice decision annulled. No orderas tocosts 5 Casesreferred to. Antoniades ν The Chairmanand Members of the Municipal Council of Paphos,
(1982)3 C.L.R.844; Androntkou v. TheRepublic
(1983)3 C.L.R.209; 10 Paraskeva ν TheMunicipal Committee of Limassol (X99A) 3 C.L R 54; Evlogimenos v. TheRepublic
(1973)3 C.L.R. 184; Phaenicia Hotels Ltd v. TheRepublic
(1978)3 C.L.R 94 Recourse. Recourse aqainst the decision of the resDOndent whereby 15 applicant'sentryintoCypruswasprohibited. L Clerides with C. derides, andP. Liveras, fortheapplicant. A. Papasawas, Senior Counsel of the Republic, for the respondent. Cur. adv.vult. 20 TRIANTAFYLLIDES P.readthefollowing judgment.Bymeans of the present recourse the applicant seeks the annulmentof a decision by meansof whichhisentryintoCyprusisprohibited. The applicant,who is a Lebanese subject, cameto Cyprusin 1980 and till 1982 hewas residing inCyprus with hisfamily as a 25 visitor. In 1982 he secured a working permit and a temporary residence permitwhich were being renewed untilMay 1985. On4May1985theapplicantappliedforafurtherrenewalofhis temporaryresidencepermitandworkingpermitforanotheryear. On10June 1985theapplicantwasarrestedforinterrogationin 30 connection with the commission of a criminal offence and was remanded in custody until 13June 1985 when he was released withoutbeing charged withany offence. 1850 3C.L.B. Damianv.Republic Triantafyllide· P. On 14June 1985anorderfor hisdeportationfrom Cyprusasa prohibited immigrant was issued.Againstthisordertheapplicant filedrecourse No.576/85on 15June 1985 andsubsequently the applicantleft Cyprus for Athens onhisown initiative. 5 On 8 November 1985 the aforesaid deportation order was annulled by the judgment delivered in case No. 576/85 (see Damian v. TheRepublic
(1985)3C.L.R.2714). On the same day applicant's counsel sent a telegram to the respondent Minister of Interior informing him that after the 10 judgment inhisfavour theapplicantintendedtoreturntoCyprus from abroad. TherespondentMinisterreplied, throughthe Director-General ofhisMinistry,thatthe*applicantwas beingadvisednottocometo Cyprus untilhis case would be reconsidered and a final decision 15 taken. As it appears from minute No.26 in the relevant file of the administration (Α80296Ό) the case of the applicant was reconsideredbytheMigrationOfficer on 12November 1985 who decided not to approve the grant to the applicant of an entry 20 permitandatemporary residence permitandaworkingpermit. Before communicating his decision to the applicant the MigrationOfficer sought theapproval oftheMinisterofInteriorin hiscapacity as Chief Immigration Officer. On 19 November 1985 an official of the Ministry of Interior 25 replied, on behalf of the Director-General of the Ministry of interior, totheMigrationOfficer, bymeansofminuteNo.27inthe aforesaid file,thathewas inagreementwith themannerinwhich theMigrationOfficer was proposing tohandlethematterandthat theentryof theapplicantintoCyprusshould notbe allowed. 30 On 20 November 1985 an official acting on behalf of the Migration Officer informed counsel for the applicant that his client's application for an entry permithadbeen examined very carefully buthadnotbeen approved. Asaresult theapplicantfiled thepresent recourse. 35 AfterthehearingofthecasewasconcludedIdecidedtore-open itinordertohearcounselasregards theissueofwhetherthe sub judice decision could have been taken not by the Minister of Interiorhimself,astheChiefImmigrationOfficer, but,asitappears 1S51 from theaforesaid minuteNo.27,byanofficial oftheMinistryof Interioractingonbehalf oftheDirector-General ofsuchMinistry. Itiswell settled thatthe issueofthecompetence oftheorgan concernedmayberaisedeitherbyapartytoarecourseorbythe Court ex proprio motu (see, inter alia, Antoniades v. The 5 Chairman and Members of the Municipal CouncilofPaphos,
(1982)3C.L.R.844,849,Andronikou v.TheRepublic,
(1983)3 C.LR.209,214,215,andftrasAeya v.TheMunicipalCommittee ofUmassol,
(1984)3C.L.R.54,57)andthatlackofcompetence isaground forthe annulment ofthedecision concerned (see,in 10 thisrespect, Evlogimenosv.TheRepublic,
(1973)3C.L.R.184, 190,Phaenicia HotelsLtd. v.TheRepublic,
(1978)3C.L.R. 94, 98,theAntoniadescase,supra,p.849,andtheAndronikoucase, supra,p.215).' As it appears from minute No. 26 in the relevant file the 15 MigrationOfficer referred thematterinquestiontotheMinisterof Interior, asthe Chief Immigration Officer, anditisclearfrom the contents of minute No. 27 in the same file that the sub judice decision was in effect reached by an official of the Ministryof Interioractingonbehalf oftheDirector-GeneralofsuchMinistry 20 andnotbytherespondentMinisterofInteriororbyanyofficial to whom the Minister had properly delegated hisrelevant powers. Since,however, the matterhadonthisparticularoccasion,been referred directly to the Minister of Interior, himself, as Chief Immigration Officer, for a final decision by him, neither the 25 Director-General oftheMinistryofInteriornoranyofficial acting onbehalf ofhimcouldhavetakensuchdecision. In the light, therefore, of the foregoing I have reached the conclusionthatthesubjudicedecisionhastobeannulledforlack ofcompetenceand,consequently, itisnotnecessarytodealwith 30 themeritsofthiscase;but!shallnotmakeanyorderastoitscosts. _Subjudicedecisionannulled. No orderastocosts. 1852