(1987)1987 February13 [PIKIS J 1 INTHEMATTER OFARTICLE 146OF THE CONSTITUTION ABTUL RASHIM SULEIMAN, Applicant, ν THE REPUBLICOFCYPRUS,THROUGH 1 THEMINISTRYOFINTERIOR, 2 THEMIGRATIONOFFICER, Respondents (CaseNo 93/87) Aliens—Entry of in Cyprus—Discretion of Authontiesunder TheAliens and Immigration Law Cap 105—Very wide, bordenng absolute discretion— DutyofAuthonties—To examine anapplication forentry ingood faith— Presumptionofgoodfaith Provisional order—An extraordinary remedy spannglyexercisedupon good 5 grounds—Negativeact—NojunsdictiontodirectAdministrationtoact, unless itomitsorfailstocarryoutapositivedutycastbystatute—Afortionthepower tomakeaprovisionalorderissubjecttothesameconstraint—Refusaltoallow analientoenterthecountry—Suchrefusalisanegativeact The applicantisanalien,whosepermittostayinthiscountryexpiredon 10 31 1286 Anapplicationforitsrenewalwasrejected Therelevantdecision wasnotchallengedbeforethisCourt By means of this recourse theapplicant challenges thevalidity of the respondents' decision dated 10287 refusing himentry atLarnacaAirport and thevalidityofthedirectivedeclannghim aprohibitedimmigrant Within 1 5 theframeworkofthepresentrecourse,theapplicantseeksaprovisionalorder restraining theImmigrationAuthorities from givingeffect totheirsaidrefusal orfrom deportinghim from Cyprus Held,dismissingtheapplication
(1)Theapplicanthad nonghttoenterthe country,unlesssuchnghtwasgiventohim Powertorefuseentrytoaliensis 2 0 anincidentof sovereignty ThediscretionoftheauthontiesunderCap 105to refuse entry to aliens isverywide,bordenng absolute discretion (Amanda MargaLtdν TheRepublic
(1985)3CLR 2583 adopted)
(2)Analien'sapplicationtoenterthe countryshouldbeconsideredby the 224 3C.L.R. Suleiman v. Republic Authonties ingood faith (AmandaMargaetc supra) Thepresumption isthai the Authonties acted ingood faith anassumption that remainsvaliduntilthe opposite is proved Nothinglikeacase of flagrant illegality has been madeto justify theinterference of theCourt 10
(3)Moreover the sub judice decision is a negative one Its suspension would not achieve what the applicant desires, namely his entry in Cyprus Save where theAdministration fails or omits to carry out a positive duty cast by statute there isnojunsdiction to direct theAdministration toact Afortion the power of the Court to usue a provisional order is subject to the same constraints Application dismissed Casesreferredto Amanda Marga Ltd ν TheRepublic
(1985)3 C LR 2583 Georghiades(No 1) ν TheRepublic
(1965)3 C LR 392 15 Sofocleous ν TheRepublic
(1971)3 C LR 345 Miltiadousv TheRepublic
(1972)3 C LR 341 Procopiouand Othersν TheRepublic
(1979)3 C LR 686 Sophocleousv TheRepublic
(1981)3 C LR 360 Frangosand Othersν TheRepublic
(1982)3 C LR 53 20 Sayigh ν The/*·«- «·'-"086) 3C LR 277 Applicatici Applicant from givino * from depn · 25 the reco A C .j.jnal order restraining the respondents * • .ex refusal to admit applicant in Cyprus or 11Cyprus until the final determination of η refusal ),for the applicant 3 Ch Kynakides, Counsel ofthe Republic,fortherespondents Cur adv vult PIKISJ read the following judgment Abtul Rashim Suleiman, 30 acitizen of SouthYemen, seeksaprovisional orderrestraining the Immigration Authonties of theRepublic from givingeffect totheir refusal toadmithimtothecountry ordeporting him from Cyprus Theapplication ismadewithin theframework of arecourse forthe 225 PikisJ. Suleiman v. Republic
(1987)judicial review of the decision of the respondents of 10th February 1987 refusing him entry at Lamaca Airport and the directive of the authorities declanng him a prohibited immigrant Following this refusal hetsdetained atLamacaAirport pending his departure On the directions of the Courtnotice of the application and affidavit were served on the respondents in order to afford them opportunity to be heard in the matter Counsel for the respondents joined issuewith the applicant strongly opposing the application He informed the Court entry was refused on grounds of national security 5 About two years ago the applicant was given permission to reside in Cyprus in order to manage herefrom an offshore company His wife and two children joined him in Cyprus and reside at Larnaca where the children go to schoool His permit to stay in the country expired on 31st December, 1986 An \Q application for itsrenewal was rejected thatdecision has notbeen challenged before the Court When Abtul Rashim Suleiman applied before the Immigration Authorities for permission toenter the country he had norighttoenterunless anghtwas giventohim Permission to enter was in the discretion of the appropnate 15 authorities of theRepublic inaccordancewith theprovisions ofthe Aliens and Immigration Law Cap 105 Power to refuse entry to aliens is an incident of the sovereignty of the country The discretion to refuse entry to an alien is very wide bordenng on absolute discretion The powers of the State >nthis respect were 20 the subject of discussion and analysis in Αι landaMargaLtd ν Republic* The passage cited below is definitive of the powers of the State and suggestive of the breadth of the discretion to refuse entry to an alien I adopt and repeat itas an accurate statement of the law (p 2587) 25 «By thetermsof theAliensandImmigration Law, Cap 105, the discretion of the State to exclude aliens is very wide, as broad as it can be in law, consistent with the supremacy and temtonal integnty of the State, but not absolute Itis subject to the bona fide exercise of the discretion So long as the 30 discretion is exercised in good faith, the Court will query the decision no further An alien,subject toany nghts thatmay be conferred by convention or bilateral treaty, has no nght to '<198S)3CLR 2533 226 3 C.L.R. 5 Suleiman v. Republic PUdsJ. enter thecountry.Hisonlyrightisthatan applicationtoenter the country should be considered in good faith. Acknowledgment of any further obligation on thepart of the State woulcr be inconsistent with the sovereign right of the Statetoexclude aliens». There is nosuggestion applicant was denied the right to make representations in support of his application for entry, nor canI suppose thattheauthoritiesactedinbad faith.Thepresumptionis thattheyactedingood faith,anassumptionthatremainsvaliduntil 10 theopposite isproven.Nothing like acase of flagrant illegality has been declaredthatmightjustify theinterventionofthe Courtatthis stage. A provisional order is an extraordinary remedy sparingly exercised upon good grounds*. Moreover there is a more fundamental reason still for dismissing the application for a 15 provisional order. The decision sought to be stayed is a negative one, its suspension by provisional order would be inconsequential and would not achieve the end desired by the applicant, namely, a positive decision to allow him to enter. The jurisdiction of the 20 SupremeCourtunderArt.146 isconfinedtoreviewofthe legality of administrative action and its remedial powers to a decision or declaration on its validity. Save where the Administration fails or omits to carry out a positive duty cast by statute, there is no jurisdiction todirecttheAdministration toact.Afortiori the power 25 oftheCourttomakeaprovisional orderunderRule 13**is subject to the same constraints. The subject was discussed in Sayigh v. Republic***the facts of which were very similar to those of the present case. In that case too applicant, an alien, sought a provisional order to suspend a decision refusing extension of his 30, stay inCyprus. Itwas pointedoutthatstay of such decision would not give him a right to stay, having none in the absence of permission by the Immigration Authorities to remain in the country. * See Georghiades (No1) ν The Republic
(1965)3 CLR 392, Sofocleous ν Republic
(1971)3 CLR345, Miltiadous ν Republic
(1972)3 CLR 341, Pmcopiou & Othersν Republic
(1979)3 CLR 686,Sophocleous ν Republic
(1981)3 CLR 360, Frangos & , Others ν Republic
(1982)3 C LR 53 ** Supreme ConstitutionalCourtRules 1962made applicable by Law33/64 *·*
(1986)3CLR 277 ,U27 Pikis J . Suleiman v. Republic
(1987)I find the application to be groundless and is dismissed accordingly. Application dismissed. 228