(1988)1988May7 [STYLIAN1DES,J.] INTHEMATTER OFARTICLE 146OFTHECONSTITUTION PHOTIS ACHILLEOS, Applicant, v. THE REPUBLIC OFCYPRUS,THROUGH 1.THE MINISTER OFFINANCE, 2.THE DIRECTOR OFCUSTOMS ANDEXCISE, Respondents. (Case No.611184). Customs and excise duties—Motor vehicles, importation of by Cypriots— Exemption from duty—The Customs and Excise Duties Law, 1978 (Law 18/78) as amended, section 11—The three prerequisites of the reliefJudicial controlof therelevantfindings—Thetimethatelapsedbetweenresettlement and submission of application must be "reasonable"—What is "reasonable"depends onthecircumstancesofthecase—Judicialcontrolof thedecisionasto"reasonableness"—Principlesapplicable. Therecourseisdirected againsttherefusal toexemptapplicant from importdutyunder theaforesaid legalprovision. TheCourt found that itwasreasonablyopen totherespondent todetermine the lime of applicant's resettlement in Cyprus asbeing inJuly 1981. The application for relief was submitted in August, 1983.As the Court found thatitwasreasonablyopentotherespondent tofindthatthetimebetween July 1981 to August, 1983was not "reasonable", the recourse was dismissed. Recoursedismissed. No orderas to costs. 930 3 C.L.R. Achilleos v. Republic Casesreferredto: Michaelv. TheRepublic
(1986)3 C.L.R.2067; Yiangouv.TheRepublic
(1987)3C.L.R. 18; Salloumisv.TheRepublic
(1987)3C.L.R.412; Constantouriv. TheRepublic
(1987)3C.L.R. 391; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation
(1947)2A11E.R.680; SecretaryofStateforEducationandSciencev. TheMetropolitanBorough ofTameside
(1976)3 AllE.R.665; JQ ' Puhlhoferandanotherv. HillingtonLondonBoroughCouncil
(1986)1 All E.R.467. Recourse. 15 Recourse against the decision of the respondents whereby applicant 's request for exemption from import duty for a motor car as a repatriated Cypriot was rejected. M. Aspri (Miss) for AS. Angelides, for the applicant. S. Georghiades, Senior Counsel of the Republic, for the respondents. Cur. adv.vult: STYLIANIDES J. read the following judgment: The applicant by means of this recourse seeks the annulment of thedecision of the respondent Director of Customs,-whereby his request for exemption from import duty for a motor-car was rejected. 931 Stylianides J. Achilleos v. Republic
(1988)Theapplicantwas bom inCyprus. In 1*55 heemigrated tothe United Kingdom.Hesettled himself there,where heestablished a business. In 1977 hepurchased aflat in Cyprus. In 1979 he came to Cyprus and caused the registration of a 5 Construction company, which is still in operation.He is one of its shareholders. He returned to the Republic of Cyprus on 8th July, 1981 to getherwith his family, as his business inEngland went bankrupt, and heresided in theflat. 10 Upon his such arrival heimportedhis personal andhousehold effects free of customs duty because hedeclared thathe"intended to settlepermanentlyinCyprus"- (seeDeclarationof theapplicant dated 22nd July, 1981). In March 1982 he travelled toGreece with his family, where he unsuccessfully tried tofind employment. In October 1982 thewhole family went toEngland,where the wife gave birth toachild. Duringtheirshort stay inEngland-un til December 1982- they lived inthehouseof a relative. In April 1983 he went to Greece,wherefrom he returned to Cyprus on 15th August, 1983 with acar. On 10th August, 1983 hesubmitted anapplicationfor exemp tion from importduty. The competentAuthority rejected his such application onthe ground thattherequest did nottakeplace within areasonable pe- ~ς riod from the date of his return,which was established to be the 8th July,
- Hence thisrecourse. 932 ^ 3 C.L.R. Achilleosv. Republic Stylianides J. Therespondent arrivedatthesubjudicedecision havingtaken intoconsideration:(a)Thatthe applicantleft theUnitedKingdom andcamewith hisfamily andhousehold and personal effects on 8th July,
- Hestatedclearly onthedaythatheintended tosettlepermanently in Cyprus,thus hepaid noimport duty. 5 (b)That sinceJuly 1981hewaspayingregularly hiscontributions totheCyprus Social Insurance Fund. (c)That during the wholeperiod he owned a flat at Larnaca, which washis permanent residence irrespective of theperiod of hisabsence abroad. 10 (d)Thathisstayfor ashortperiodinGreeceandtheshortperiodinEnglanddid nothavethecharacterofpermanent settlement in any of these twocountries. It is notable that even in 1984 he stayed - as it appears from his passport-for three months in Greece. 15 Itwassubmittedbylearnedcounselfortheapplicant that:(a) In July 1981 the applicant came to Cyprus to find out whether Cyprus was more profitable for permanent settlement, having regard to his family, financial and occupational matters.Then hehad tochoosebetween Greece and Cyprus.Hetravelled to Greece, but, due to intervening health problems of his wife, he travelled to England. He returned to Greece and, ultimately, aslate as August 1983,hedecided tosettle permanently in Cyprus.Heimported thecarand submitted therelevant application for exemption from import duty. In view of all the above theconclusion that hesettledpermanently inCyprus on 8thJuly, 1981wasnotreasonably open totherespondent. 20 25 (b)/The applicant's case should have been treated on its own specialfeatures. IndeedhediddeclareinJuly 1981thatheintended tosettlepermanently in Cyprus,buthis said intention wasre- 30 / / I I 933 Stylianides J. Achilleos v. Republic
(1988)alized only on 5th August, 1983,after he looked for alternative places abroad; and (
- c)Even if he returtned toCyprus in July 1981,then, having regard tothepersonal and family circumstancesofthe applicant, twoyears wasreasonable timewithin which toapply. 5 Before therelief sought can begranted, under theOrderissued by the Council of Ministers in virtue of itspowers under section 11 of the Customs Duties and Excise Law, 1978 (Law No. 18/ 78) as amended, theDirector hastobesatisfied that the following prerequisites aremet bytheapplicant:- 10 (
- a)Permanent settlement abroad for at least ten continuous years; (b)Return and permanent establishment intheRepublic;and (
- c)Importation within reasonabletimefrom thedateof arrival. 15 It is for the Director, on the material placed before him, to reach a decision on each of the aforesaid and issue theadministrative actcontemplated, either acceptingorrejecting theapplication -(Philippos Michael v.TheRepublic
(1986)3C.L.R. 2067; Anna Yiangou v. The Republic of Cyprus
(1987)3 C.L.R. 20 18;loannis Salloumis v.The Republic
(1987)3 C.L.R. 412). Having given due consideration tothe matter, Ihave reached the conclusion, in the light of all the material before me, that,in the particular circumstances of thiscase,it was reasonably open to the respondent Director of Customs to find that the applicant 25 hasreturned and permanently established in the Republicin July 1981, when he brought his household and personal effects in Cyprus. The evaluation of the factor of "reasonable time" between the re-establishment in Cyprus and theclaim for relief from theimportation of the motor-car was left by the legislator to thejudg- 30 934 3 C.L.R. Achilleos v.Republic Stylianides J. mentanddiscretion of theDirectorof Customs. 5 10 Where anything is limited to be done within a "reasonable time",thequestion whatisareasonable timemust necessarily depend on thecircumstances, and is,therefore, aquestion of fact (Phitippos Michael v. The Republic
(1986)3 C.L.R. 2067, at 2077; Elli Constantouri v.TheRepublic
(1987)3C.L.R.391). If theDirector in theexerciseof hisdiscretion finds that time is, or is not reasonable and his such decision is not otherwise faulty, the Court will not disturb it if it was reasonably open to theDirector. InAssociated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1947]2 AllE.R. 680, withregard to ufeasonablenessof anactofalocalauthority it was stated that itistrue tosay that, if a decision on acompetent matter is so unreasonable that 15 no reasonable authority could ever have come to it, then the courts can interfere.That, I think, is right; but to prove acase of ' thatkindwouldrequire something overwhelming. 20 25 30 Theobservartion byLordDiplockinSecretaryofStatefor EducationandSciencev.MetropolitanBoroughofTameside [1976] 3AllE.R. 665at695: "Theveryconceptof administrativediscretion involves a right to choose between more than one possible coursesof actiononwhich thereisroomfor reasonablepeopleto hold differing opinionsastowhich istobepreferred" should alwaysbekeptinmind. ' Where the existence or non-existence of a fact is left to the judgment anddiscretion of apublicbody andthatfact involvesa broad spectrumranging from theobvioustothedebatable tothe justconceivable,itisthedutyof theCourttoleavethedecisionof thatfact tothepublic bodytowhom Parliament hasentrusted the decision-making powersaveinacasewhereitisobviousthatthe publicbody,consciously or unconsciously, areacting perversely - (Puhlhoferand another v.HillingdonLondonBoroughCouncil [1986] 1AllE.R. 467. 935 Stylianides J. Achilleos v. Republic
(1988)I amof theopinionthatitwas reasonably opentotherespon dent tofind thattheperiodfromJuly 1981 toAugust 1983 was notwithin thelimit of reasonable timeafter theapplicant'sreturn to Cyprus. Ontheapplicationof counselfor the applicant thecase was re- e openedinordertoenablehimtoproducethreeletters-lettersdated 13.2.86, 26.4.86 and 4.7.
- In those letters it was contended thattheapplicantre-established himself in Cyprus on 5.8.
- The Ministry of Financereplied by letter dated 12thMarch, 1987, thematerialpartof whichreads:10 "2.'ΟπωςγνωρίζετεοΥπουργός Οικονομικώνδυνάμει των προνοιώντουπιοπάνωεδαφίουέχει διακριτική εξου σία να εξετάζει αιτήσεις Κυπρίωνπουήλθανγια μόνιμη εγκατάστασηστηνΚύπροπροτης1.1.
- 3.'Οπωςέχειδηλωθείτόσοαπό σαςστιςπιοπάνω επι- 15 στολές σαςόσοκαιαπότονπελάτησαςστησχετικήτουαί τησηηεπανεγκατάστασητουστηνΚύπροέλαβεχώραστις 5.8.
- Ενόψει των πιοπάνωείναι φανερόότι ο Υπουργός Οικονομικών δεν έχει διακραική εξουσία ναεξετάσει το αίτηματουπελάτη σας." „ Itwas submitted by counsel thatthislettercontradictsthedeci sion of theDirector of Customs. With respect, the Ministry in paragraph 3of thesaid letter doesonly set outtheallegation of thecounsel anddoes notexpressanydecision orconclusion. 25 For all theforegoing reasons, this recourse is dismissed.The subjudice decision is confirmed. Let thereno orderas tocosts. Recoursedismissed. Noorderas tocosts. 30 936