clr/1988/1988_3_1955.pdf

(6)and 2—Head of Department (Τμηματάρχης).; · • · ' * s' * . . · · * · General principles ofadministrative'taw—Thefour stepsan themakingof an administrativeact—Thestudyandinterpretationof therelevantlegalprovi- 1955 Meibar v. Republic

(1988)sion, the ascertainment of thetruefactual situation, theapplication ofthe lawtothefacts andthedecisiononthecourseofaction. Judical controloftheevaluationofthefactual situation—Principlesapplicable. Misconception offact—It mayconstistofeitherthetakingintoconsiderationof non existingfacts or thenon takingintoaccount ofexisitngfacts—Failure 5 tomake adue inquiry causinglackofknowledgeofmaterialfacts amounts tomisconception—Presumption infavour ofthecorrectnessofthefindings offact—Weakened bycreatingdoubtinthemindoftheCourtinrespectof such correctness. Reasoning of an administraive act—What isdue reasoning—It must contain the way of thinking of the administration on the relevantfacts—it must, also,be clear—Itmay besupplementedbythematerialinthefile. 10 Thiscaseconcernstherefusal torenew applicant'stemporary residence and employment permits.The facts need notbe summarized here. Suffice tosay that theapplicant failed tosubstantiate thegroundsofannulmentput 15 forward by him.The legalprinciplesexpounded bytheCourtin dismissing therecoursearcsufficiently indicated inthehereinabove headnote. Recoursedismissed. Noorderasto costs. Casesreferredto: 20 AGEE v. The United Kingdom (Appl.7729/16), 7 DA. p. 164; Karaliotas v.TheRepublic

(1987)3C.L.R.1701; Georghiades v. TheRepublic

(1966)3C.L.R.252; HjiStefanou v.TheRepublic

(1966)3C.L.R.289; Christodoulou v.TheRepublic

(1967)3C.L.R. 691; Photos Photiades and Co. v. TheRepublic, 1964C.L.R. 102; Republic v. Georghiades

(1972)3C.L.R.594; 1956 3 C.L.R. Meibar v. Republic L. and G.lacovidesEnterprises Ltd. v.TheRepublic

(1986)3C.L.R. 2101; Skarosv. TheRepublic

(1986)3C.L.R.2109; Panayisv. ThePortsAuthorityofCyprus

(1988)3C.L.R. 1095; Papaefstathiouv. ReviewLicensingAuthority and Another

(1988)3 C.L.R.1102; HjiSawav.TheRepublic

(1972)3 C.L.R.174; TsouloftasandOthersv. TheRepublic

(1983)3 C.L.R.426; • Marangosv. TheRepublic

(1983)3C.L.R. 682; Co-operativeSocietyofAlonav. TheRepublic

(1986)-3C.L.R.222; Decision470170oftheGreekCouncilofState. Recourse. •' Recourseagainsttherefusal oftherespondentstorenewapplicant'stemporaryresidentandemploymentpermit A. Eftychiou,for theapplicant. · ·' ' D.Papadopoulou(Mrs.), fortherespondents. ! ' • ' • ' " Cur. adv. vult. STYLIANIDESJ.readthefollowingjudgment.Theapplicant bythisrecourseimpugnsthedecisionhottorenewhistemporary residentandemploymentpermit,communicatedtohis*advocate on7thFebruary, 1985. . :; : TheapplicantisaSyriannational,aholderofSyrianpassport No. 409981. He enteredthis country on a temporary visitor's 1957 Stylianides J. Meibar v. Republic

(1988)permit on 6th May,

1. On 12th May, 1982,he submitted an application for renewal of hisresident permit inorder tostayand take up work asthe Director of EblaTrading Company Limited, an offshore company, he being the shareholder of 50% of its shares. He was granted temporary resident permit until 31st De- 5 cember, 1982—(see Exhibit 3,Red 4).On 5th June, 1983,on an application for further extension, hewas granted temporary resident andemployement permituntil3rdDecember,
2. On 15th December, 1983,the aforesaid permits were renewed until 14th December, 1984.The natureof hisresidence, asdescribed in the aforesaid permit, was Director of Ebla Trading Company Limited, anoffshore company. On 28th November, 1984, a report was prepared by P.S. 36 Th. Anastassiou (see Reds 34-29inExhibit 3). Asaresulttherenewal of hispermit wasconsidered by theappropriate organ undesirable. On theexpiration ofhis abovepermits hewas notified orally by the Police to leave the country. But, notwithstanding such indication andrequest bythePolice,hefailed; hecontinued to stay in Cyprus and on4th January, 1985,Deportation andDetention Orders were issued by the appropriate Authority. In the meantime, however, on 18thDecember, 1984,hesubmitted apetition inwriting (see Red 27inExhibit 3),inwhich hereferred to thePoliceaction aforesaid andrequested anappointment with the Migration Officer—Mr. Zavros—inordertodiscusstheproblems arising out of the verbal request by the Authorities to leave the country the soonest. On 27th December, 1984, by letter addressed tothesame Officer headmitted thatheincurreddebtsand he stated that hewould settle samein aperiod of twomonths.He filed Recourse No. 31/85,which wassubsequently withdrawn. On 18January 1985 Mr. Eftychiou applied to the Minister of 30 theInterioron behalf of theapplicant for thegranttohimofaresident andemploymentpermit,toenablehimtoworkastheManaging Director of Ebla Trading Company Limited. He attached theretoCertificate of Registrationof thecompany andadocument dated 13th April, 1982, emanating from the Central Bank inre- 35 spect of Ebla Trading Company Limited, whereby permission, 1958 15 20 25 ι 3 C.L.R. Meibar v. Republic Stylianides J. under section 10 of theExchange ControlLaw, Cap. 199, was granted tothesaidnon-residencecompany. 5 10 15 On 7th February, 1985, the sub judice decision, whereby the application contained in letter dated 18th January, 1985, aforesaid, was turneddown, on theground thattheapplicant violated theconditionsof his previous permit andfor theprotectionof the public interest,was taken. The applicant contends thatthesubjudice decision was taken by organ contrary tothelaw, without dueinquiry andis theresult of misconceptionof fact and lacks duereasoning; thatis arbitrary andwas taken inexcessof power. Itwas contendedby Mr.Eftychiou thatArticle 13of the Cove­ nanton Civil andPolitical Rights, which was ratified by Law·14/ 69,and underInternationalLaw, his permit should have been renewed and that there was nolegal foundation for the sub judice decision. •» I think thatitis.pertinent atthis stagetosay afew words about therightof an alien andtherightof a Statewith regard toaliens. 20 • Article 32 of theConstitutionprovides thattheRepublic is not precluded from regulating by law any mattersrelating toaliens in accordance with InternationalLaw. , 25 • .,. • rj. · • ,· . According to theprinciples of International Law thereception of aliens by a State is amatterof discretion; andevery Stateis by reason of its territorial "supremacy competent to exclude aliens from its territory—(OppenheinVs InternationalLaw, 8thed., vol. 1,pp. 675-676). The Administration has a very wide discretionary power in permitting analienttoenterand/orstayin theRepublic. • 30 - Article 5(l)(f) of the-Gonventionfor theProtectionof Human Rights and Fundamental Freedoms, which is<part of our Law 1959 Stylianides J. Meibar v. Republic

(1988)with superior force, having been ratified byLaw 39/62,andArticle 11.2(

1. f)of our Constitution arerelevanton thematter. The Statesof theCouncilofEurope,includingtheRepublicof Cyprus intended toreserve tothemselves thepower todeport aliens from theirterritory. InAGEE v. The United Kingdom, Application No. 7729/76, 7 D.R., p. 164,at pp. 172-173 it was said: "9. The Commission observesfirstly that it has constantly held that therightof analien toresideintheterritory of aHigh Contracting Party is not as such guaranteed by the Conven- 10 tion. Furthermore it is clearly implied by Art. 5(l)(
2. f)of the Convention and Arts. 3 and 4 of Protocol No. 4 thereto that theHigh ContractingParties intended toreserve to themselves the power to deport aliens from their territory. On the other hand theCommission hasheld thatdeportation mayinexcep- 15 tional circumstances involve violation of the Convention, for example where there is serious fear of treatment contrary to Art.3inthereceiving State.TheHigh Contracting Partiesthus havea discretionary powertodecide whether toexpel analien present in their territory but this power must be exercised in 20 such a way as not toinfringe the rights under the Convention of theperson concerned." (See,aslo,Karaliotas v.Republic

(1987)3C.L.R. 1701). Article 13of theInternational Covenant on Civil andPolitical Rights, which came into force on 23rd March, 1976, provides 25 that an alien lawfully in theterritory ofaStatePartytothepresent Covenant may beexpelled therefrom only inpursuanceof adecision reached inaccordance withlaw and shall,except wherecompelling reasonsof national security otherwiserequire, be allowed to submit the reasons against his expulsion and tohave his case 30 reviewed by, and berepresented for thepurpose before thecompetent authority or aperson orpersons especially designated by thecompetent authority. 1960 5 3 C.L.R. 5 1ο 15 20 25' O0 Meibar v. Republic Stylianides J. This Article does nomorethanproclaim andenshrinetheright safeguarded by paragraph 7.of Article·11of ourConstitution,that the decision for his expulsion shall be taken in accordance with theLaw andthatheshall beentitled totakeproceedings by which the lawfulness of his detention shall be decided speedily by a Court.The right for review of adecision of an administrative or­ gan or authority is safeguarded and regulated by Article 146 of ourConstitution. >ι , . ' In the present case, however, the validity of neither of the Deportation, norof theDetentionOrderis impugned:.The actun­ derreview is thatcontainedin theletterof the-Administration ad­ dressed toMr.Eftychiou, dated 7th February,.1985, whereby his request for aresident andemployment permit was refused. Thecontentionthatthesubjudice decision was taken by anincompetentorgan;has half heartedly been put forward by counsel for theapplicantwho did notelaborate onit, - · An Administrative Courtis entitled toexamine ex propriomotu the competence of the particular organ, the decision.of which is being challenged before it, inview of thenature'of its revisional jurisdiction—(Cleanthis Georghiades and'The Republic of Cy­ prus

(1966)3 C.L.R. 252; at p. 276; YiangosP. Hjistephanou and the Republic of Cyprus

(1966)3 C.L.R. 289, at p. 300; Ahnika Christodoulou v. Republic (Public Service Commission)

(1967)3 C.L.R. 691, at p. 701). The applicant is an alien, whose residence in the'Republic is temporary. The categories of permits for temporary.residence in the Republic are set out in Regulation 9

(1)of the Aliens andIm­ migration Regulations of 1972. What theapplicant in fact is ask­ ing for is an employment permit; Paragraph 6 of Regulation 9 reads: ' ·. ' "9 -

(6)Ο Τμηματάρχης δύναται να επεκτείνη διαπε­ ραιτέρωχρονικήνπερίοδονήπεριόδους, ως ούτος θεωρεί . σκόπιμον, τηνπερίδονδι' ην επιτρέπεται εις προσωρινόν 1961 Stylianides J. Meibar v. Republic

(1988)κάτοικον ναπαραμείνη εντηΔημοκρατία δυνάμει αδείας εκδιδομένης δυνάμειτων διατάξεωντου παρόντοςκανο­ νισμού." "Τμηματάρχης" (Head of Department)is defined in Regula­ tion 2 as theDirectorof theDepartmentof Passports, Nationality 5 and Controlof Aliens of theMinistry of theInteriorand includes the Assistant Head and any otherperson duly authorized by the Head of theDepartment. Counsel of the applicant did not substantiate his such allega­ tion,and,having regard tothecontentsof theRegulations and the 10 file of the Administration, Ireach theconclusion thatthis ground fails. On 28th November, 1984, a long and exhaustive report, after inquiries toall directions, was madeby aPolice Sergeant andthis report was before theAdministration atthetime thesubjudice de- 15 cision was taken.Furthermore,it was in thefilethelicence given to the offshore company of which the applicant was aDirector. The applicant was, also, contacted personally; further, they had his letterin which he admitteddebts. Also,before the Administra­ tion was material that theapplicant was in fact meddling and/or 20 working and/or was connected with the issue of paper "ALLIQUAL". In this report it was, stated thatEbla Trading Company Limited had noactivities at all in

1. Ithadnoemployees or of­ fices. Mr.Eftychiou produced totheCourtCertificate of Registration 25 of Connection Publishing and Printing Company Limited and Certificate of its shareholders, dated28th November,
2. There was no allegation in the file of the Administration and the Administration did not act under the impression or the false assumption thattheapplicant was a shareholder of thiscompany. Financial statementsof EblaTrading CompanyLimited, Profit and Loss Account for 1984 were, also, produced. They aredated 1962 30 3 C.L.R. Meibar v. Republic Stylianides J. 7th September, 1985, long after the subjudice decision was tak­ en. ' 5 Even thesedocumentsdonotin any way disprove, orcreatea doubt about thecorrectness of the"findings of fact by the Administration. 'Note 2 totheProfit andLoss Accountreads as follows: "
3. PROFIT ANDLOSS ACCOUNT 2.
4. Directors*emoluments£3,000 MaamounMeibar * · 10 s ja 2.2 Rent£1,040 Avraam Andronicou -Envias 14B; Nico, . ·< " '2.3 Expenses includedin theaccountsamountingto£7,155 l are notsupported;by documentary'evidence. ' ' • \ A. • ι\ • 2.4 TKecompany offer tothemanaging'directorMr.'Maa­ moun Meibar,freeaccommodationandprivate use of car." j5 20 25 "All trieamountsspentby thecompany intheGeneral Expenses for 1984 totalled£13,784- andarenothingbut theamountswhich are set outin Note2,herein above quoted.'Envias Ί4Βis theresi­ denceof the applicant. * · J •. · • * An Administrative Authority hasaduty tomakethereasonably necessary inquiry for the purposes of ascertaining the'correct facts towhich therelevant legislation is'to be applied. The ascer­ tainment of thecorrectfacts; application'of the law tothe facts; and"decision onthecourse of action. (Vide "TheLaw of Admin­ istrative Acts" by Stassinopoulos

(1951)p. 249; Photo's Photiadesand Co., and theRepublic of Cyprusthroughthe Minister of Finance, 1964 C.L.R. 102, at pp. 112-113.) Theevaluation"ofthefacts is within thediscretionary power of the Administrative Authority. An Administrative Courtcan only' 1963 Stylianides J. Meibar v. Republic

(1988)interfere if thereexists animproperuse of thediscretionary power or a misconceptionconcerningthefactual situation orthenon ta­ king intoaccountof material factors. The Courtcannotsubstitute its own evaluation for thatof the Administration. Thereis apresumption in favour of thecorrect- 5 ness of thefindings of fact by theAdministration.Thispresump­ tion is weakened, oncetheapplicant succeeds inrendering possi­ ble the existence of misconception of fact on the part of the Administration,even by creating doubts in themindof the Court about the correctness of such findings of fact. (Republic (Public 10 Service Commission) v. Lefkos Georghiades

(1972)3 C.L.R. 594; L. & G. Iacovides Enterprises Ltd. v. TheRepublic

(1986)3 C.L.R.2101 andKaterina Papaefstathiou, v.ReviewLicensing Authority and Another

(1988)3C.L.R. 1102. Minsconception as tofacts may consist of eitherthetakinginto j5 consideration of nonexisting facts orthenontaking into account of existing facts; failure to make a due inquiry causing lack of knowledge of material facts amounts to misconception of fact(Skaros v. TheRepublic

(1986)3 C.L.R. 2109). Therequirementof duereasoning in administrative decisions 20 has been stressed repeatedly by this Court.The requirement of reasoning is thatits presence excludes arbitrariness onthepartof the administrative organ andprotectstheadministrationagainst it­ self by preventing it from taking a hasty decision. At the same time itprotectsthepersons affected by suchdecision. Thereason- ~ς ing must be clear, thatis tosay, theconcretefactors on which the administration base its decision for thecase underconsideration must be specifically mentioned in such a manner as torender possible itsjudicial control.Itmustcontaintheway of thinkingof the administrative organ ontherelevant facts which constitutethe 30 foundation for the decision. A reasoning which does not satisfy these conditionscannotbe considered as duereasoning. Therea­ soning may be supplemented from thematerial in thefile of the administration. (Soteris L.Panayis v.ThePortsAuthority of Cy­ prus,

(1988)3 C.L.R. 1095; Athos G. Georghiades and Others 35 1964 3 C.L.R. 5 10 Meibar v. Republic Stylianides J. v. Republic (Public Service Commission

(1967)3 C.L.R. 653, 666; Georghios HjiSavva v. Republic (Council of Ministers)

(1972)3 C.L.R. 174; Republic (Public Service Commission) v. Lefcos Georghiades

(1972)3 C.L.R. 594; Andreas Tsouloftas and Others v. TheRepublic of Cyprus

(1983)3 C.L.R.426;Marangos v. The Republic

(1983)3 C.L.R. 682 and Co-Operative Society of Alona v. The Republic of Cyprus

(1986)3 C.L.R. 222. See, also, Decisions of the Greek Council of State, 470/ 1970, Volume A', p. 686 and Π.Δ. Δαγτόγλου - General Administrative Law, a' p. 1977, pp. 166-167 and γ'/1 1989, pp. 285-286.) The Respondents carried out a reasonably due inquiry. They made theevaluation of thefacts before them.Thesubjudice deci­ sion is reasoned and the reasoning is adequately supplemented 15 from the material in thefile. The subjudice decision is not arbi­ trary. There was sufficient material before the Administration. The subjucide decision, which was taken pursuant to, andinac­ cordancewith theLaw andtheRegulations madethereunder, was in all thecircumstances, having regard to all thematerial in the 20 file, reasonably opentothe Respondents. Inview of theforegoing, therecourse fails. Thesubjudicede­ cision is confimed underArticle 146.4(a). Let therebe noorderas tocosts. Recoursedismissed. No order as to costs. 2* 1965