clr/1989/1989_3A_567.pdf

(2)and the fourth Schedule, subheading 19 ol item 01 <uid Order 188/82of the Council ol Ministers — Permanent settlement abroad for a continuousperiod ol ten years — Respondent rejectingapplication ongroundthatapplicant'sabsencefrom Cyprusdid not amount to permanent settlement abroad— As m thecircumstances such a conclusion was not reasonably open to the respondent, the sub judiccdecisionwasannulled 10 Ii was not disputed that the applicant stayed in Greece from 30 April 1977 until2 September 1987 andthat hewas continuously working there as an employee by one Andreas Elhnas 15 His application,however, for a duty free importation of a motor car was rejected, because the applicant's stay abroad did not amount to a permanent settlement there The reasons given for such a conclusion were. 20 (a) The applicant did not pay any social insurance contributions or income tax to the Greek authorities 567 Kailis v. Republic

(1989)(

1. b)His stay in Greece was subject to restriction* (c)The applicant continued to pay social insurance contributions in Cyprus during the period oi hisstay m Greece. 5 (
2. d)When he applied for renewal of his passport in 1981 hementionedin his application as his place of residence Cyprus and not Greece, and (
3. e)Whilst in Greece, he used to come to Cyprus lor tiequent and long visits JO The Court thought that whether or not theapplicant 1ailed to pa> in violation of the Gieck Iaw, .social contributions οι income tax, is irrelevant tothe notion of "permanentsettlement abroad" Itwas proved that applicant s sta\ m Greece was not subject to icsmciions. because 15 Greek Cypnots can cntci undsta\ in Greece without a \isa and lor such periods as they like There is nothingin thesocial insurance legislation of C\prus preventing somebody. livingabroad. Iromcontinuing paying his contributions, lor the purpose ol deriving bencht upon retirement The applicant did give a reasonable explanation lor his declaration in 1981, 20 when he applied lor a renewal ol his passport In the circumstances the conclusion ol the respondent \WLSnot rca.sonabl\ open tohim Subjudicedcchionannulled>\oorderas to cosh 25 Giscs iclcircd to. Constantmidcs \ Republicand Another

(1988)K'i.R 2?75 30 V/ji.SiiM Republic (19S8)3 CLR 1448 \ikandrou ν Republic

(1989)?C.LR 55/. Sfamngou \ Republic

(1989)1CI R 21 Recourse. Recourse against the refusal o\ the respondent to grant applicant exemption irom import duty in respect of a motor 40 vehicle as arepatriatedCypriot. 568 35 3 C.L.R. Kallis v. Republic L. Papaphilippou, for the Applicant. P. Clerides, Counsel of the Republic B.for the Respondent. 5 Cur. adv. vuh. SAYVIDES. J. read the following judgment. Applicant, by the present recourse challenges the decision of the respondent Director of the Department of Customs and Excise refusing to 10 grant totheapplicant exemption from impon dutyinrespectof hiscar Honda Accord underReg.PJ843.undertheprovisionsof item 01.19 of the Fourth Schedule to the Customs and Excise Duties Laws. 15 Applicant claimed such exemption as a repatriated Cypriot who after a permanent settlement abroad for a continuous period of at least ten years, returned to Cyprus to take permanent residence in Cyprus. His claim was based on an Orderofthe Council of Ministers issuedundertheprovisionsof 20 s.ll

(2)ofThe Customs and Excise Duties Laws 1978-19SI,and published in the official Gazette of the Republic, Third Supplement, of 1 lth June, 1982.under Notification 188,which provides under item 19.sub-heading

1. that motor-vehicles of tariff headings87.02.11and87.02.19.importedbyCypriotswho 25 after permanent settlement abroad for acontinuous period ofat least ten years, return to take tip permanent residence in Cyprus, are exempted from impon duty subject to certain conditions set out therein. 30 . The applicant is a Cypriot. refugee from Kyrenia. who in consequence oftheTurkish invasion, left Cyprus for Greece on 30thApril, 1977,tosecureemployment andsettle permanently there. His wife joined him three months later. His son got married in 1973 and after the completion of this studies in 35 England for a degree in Architecture in 1977 and a postgraduate Master's degree in 1980hetook employment in Saudi Arabia. His daughter studied Journalism in Greece and - completed her studies in
2. She got married in 1974 and stayed in Greece till 19S1 when she returned to Cyprus for 40 permanent settlement. Whilst in Greece hewasregularly employed by one Andreas 569 Savvides, J. Kallis v. Republic

(1989)Ellinas as from the 5th May, 1977 till the 30th June 1987, according to a certificate issued by him and attested by the Cyprus Embassy inAthens dated 12thJuly 1987,which appears in the relevant file of theadministration (exhibit 1).In thesame file there also appears a written affirmation of the Cyprus 5 Consulate in Athens dated 10th June, 19S7, which reads as follows: 'The Consular Office of the Republic of Cyprus affirms that Andreas Kallis holder of Cypriot passport No. 10 B076234 resides and works in Greece permanently from the 1st May, 1977till today". The applicant is also described as residing in Athens on his refugee card issuedby the Ministry of Interior. 15 The applicant returned to Cyprus on the 2nd September 1987, to take up permanent residence in Cyprus and brought with him hiscar under Registration No.PJ843.Thesaidcar was registeredinCyprus inMay 1983,whentheapplicantbrought it 20 with him to Cyprus on acasual visit and wasallowed to import it temporarily, duty free, and use it during his stay in Cyprus with an obligation to re-export it upon his leaving Cyprus, something he,in fact, did. ' 25 On 28th September 1987,hesubmitted an application to the respondent Director of the Department of Customs and Excise for relief from import duty in respect of hiscar asa repatriated Cypriot. The respondent by letter dated 9th November 1987, refused applicant's application. The only reason given in the 30 aforesaid letter of the respondent for the refusal of such application was that applicant's absence from Cyprus did not amount to permanent settlement abroad. The sole question which poses for consideration in the 35 presentcaseiswhetherapplicant'scontinuousstayinGreece for the period as from the 30th April, 1977till the 2nd September 1987,issuch astosatisfy thecondition of permanent settlement abroad as provided by Notification 18S/82. 40 Counsel for respondent, in support of the decision of the respondent contended that the stay of applicant in Athens for 570 3 C.L.R. Kallis v. Republic Savvides, J. the aforesaid period did not satisfy the requirements of the relevant notification for thefollowing reasons: 5 (

1. a)The applicant was working in Greece without paying contribution to the Social Insurance Fund and Income Tax to theGreek Authorities. (
2. b)Hisstay there wassubject to restrictions. 10 15 (
3. c)The applicant continued to pay Social Insurance Contributions in Cyprus duringhisstay in Greece. (
4. d)When he applied for renewal of his passport in 1981he .mentioned in his application as his place of residence Cyprusandnot Greece. (
5. e)Whilst inGreeceheusedtocometoCyprus for frequent andlongvisits. 20 In his written address counsel for respondent supplemented his argument by contending that the applicant had no family linkswith Greece,ashismarried son works inSaudiArabiaand hismarrieddaughter livesin Cyprus. 25 Before embarking on the issue posing for consideration in thisrecourseIfinditnecessarytorefertocertain material which appears in the relevant file of the administration (exhibit 1)in connection with the present case. 30 Reference has already been made to thecertificate issuedby the Consular Office of the Republic of Cyprus in Athens verifying that the applicant "resides and works in Greece permanently as from 1st May 1977 till 10th June, 1987'. Also the certificate issued by his employer that applicant was 35 continuously employed as from 5th May, 1977 till 30th June, 1987. In hisanswer to aquestionnaire of the respondent (blue 9in Exhibit 1)after answering allrelevant questions andgiving full 40 particulars about his settlement in Athens the applicant explained thereason of hisrepatriation to Cyprus as follows: 571 Savvides, J. Kallis v. Republic

(1989)"The reason of our repatriation isfirstly dueto age (I am a pensioner) andsecondlyto benear our daughter". The customs Officer who investigated the case, in his report totheCollector of Customs.Mr.Hadjicostis.(blue30in Exhibit 5 1)setout explicitly thefacts assupportedbythematerial before him and in particular the passports of the applicant, the certificate issued by the Cyprus Consulate in Athens, the certificate of his employer and the whereabouts of his children and concluded as follows: 10 "Provided that all the above are considered satisfactory applicant'sclaim maybeaccepted. Itissubmitted for your decision". 15 In another supplementary report dated 27th October. 1987 (blue 32 in Exhibit 1)the following are reported: "The applicant states that in his passport he mentioned Cyprus as his place of residence because hisfirst passport 20 was issued in 1974 when he was a resident of Cyprus. He emigrated on 30th April.

1. and his second passport was issued in 1981 whilst he was on vacations in Cyprus and hethought proper, oncethe passport wasto beissued in Cyprus, to state ashis country of residence Cyprus as mentioned in his previous passport". 25 A further supplementary report appears in (blue 34 of Exhibit 1)addressed to theCollector of Customs as follows: "The applicant, following directions from you. presented 30 his refugee identity card in which his address is stated as being Chiou
2. Holargos.Athens, and a statement ofhis weekly contributions to Social Insurance, according to which he was voluntarily insured during the period 197519S5.Since 1985 theapplicant ispaid old age pension". 35 The Collector of Customs submitted his report to the respondent on the 3rd November 1987,in which he mentions that "irrespective of certain doubts he had he was inclined towards the refusal of the application for the reason that 40 applicant was working in Greece without paying contributions 572 3 C.L.R. 5 10 15 20 25 Kallis \. Republic Saw ides, .
3. to the Social Insurance Fundin Greeceor any incometax and his residence there was subject to restrictions, that when he renewed his passport in 1981 he stated as his country ot residence Cyprus andnotGreece,thathewas visitingCyprus at intervals some ol which were prolonged, that he was paying contributions to theSocial InsuranceFundin Cyprus duringhis term ot absence which resulted to his being granted a pension and concluded as follows"From the atoresaid. Ϊ have formed the impression that the applicant had not permanently settled abroad within thespirit otthephilosophy 'toliveanddiethere*andI am inclined to refuse his claim as his stay in Greece does not amount to permanent settlement Your instructions please" The decision of the Directorwas enteredon such report by a rubber stamp entry ot the word "ΑΠΟΡΡΙΠΤΕΤΑΙ" (refused) andthesignature ot theDirectorof the Department otCustoms and Excise and dated 5th November 1987 Such decision was communicated to the applicant bv letter dated 9th November. 1987 Attei communicating his decision to the applicant. respondent on 24th November.
4. addressed a letter to the Attornev-General setting out the tacts andthedecision reached b> him asking tor his opinion as to the correctness of his decision, to reject applicant's claim,obviously being in doubt as to the correctness ol such decision 30 The reply ot theoffice ot theAttorney-General to the above letter was that once the respondent had already relused applicant's claim no useful purpose would be served tor expiessing an opinion in thematter 35 40 It is well settled that this Court in determining a recourse. does not interfere vvirh thesubjective evaluation of thetacts by the administration,but only interferes to review to the extent that thefindings of tactaretaintedby amisconception ot tactor law or the administration has exceeded theextreme limits ot us discretionary power in the sense that its findings are not reasonably open to it. on the consideration of the material 573 Savvides, J. Kallis v.Republic

(1989)before it in its totality (relevant in this respect are the recent pronouncements of the Full Bench of the Supreme Court in Constantinides v.The Republic andAnother

(1988)3C.L.R. 2375 and Matsas v.The Republic

(1988)3C.L.R. 1448. 5 The notion of permanent settlement abroad has been considered and explained in a series of cases of the Supreme Court,extensive reference towhichhasbeen madebymeinmy recent judgment in ISikandrou v. The Republic

(1989)3 C.L.R. 551 and Ineed not repeat them once again. 10 It is common ground that the applicant left Cyprus for Greece together with his wife on 30th April 1977, and stayed there till 2nd September 19S7 when they returned to Cyprus. Also that during hisstay in Greece he was regularly employed. 15 When he left Cyprus he left no member of his family behind as his daughter was already in Greece working as a journalist and his son was studying in England and later took employment in SaudiArabia.Atallmaterial timeshehadnohouseeither rented or owned in the free part of Cyprus. As mentioned earlier it is 20 the contention of the applicant that he left Cyprus for Greece andsettled there permanently. Ishall now proceedtoexamine onebyonethereasonswhich led the respondent to refuse applicant's application: 25 (

1. a)The non-pavment of contribution to the Social Insurance Fund and Income Tax to the Greek Authorities. The fact that the applicant was regularly employed in Greece has not been disputed. The 30 allegation of the applicant that during the whole of the said period he was regularly employed is supported by the certificate issued byhis employer and the certificate of the Cyprus Consulate in Greece. The applicant was never asked by the respondent to give any explanation 35 as to whether hisincome wassubject to payment of any income tax in Greece or contributions to the Social Insurance. Nor did any information was made available to the Court as to whether by virtue of bilateral agreements between Greece and Cyprus nationals of 40 either country are bound to pay contributions to both - - - countries ormay elect topay-contributions to the Social 574 3C.L.R. Kallis v. Republic Savvides, J. Insurance Fund of their own country and be exempted from such payment in the other country and then be entitled onlyto pension in theirown country and not in the country where they have settled.lrrespective of the aboveit isirrelevant forthepurposes ol thepresent case whether the applicant by not paying contributions and income tax in Greece has breached the relevant Greek law inthis respect. Proof of payment of contribution to Social Insurance Fund in a foreign country may be necessary in cases where the fact that a person is regularly employed in such country is disputed. In the present case, the fact "that the applicant had a'regular employment in Greece during the whole period of his stay there has been proved by him and has not been disputed by the respondent. Therefore, whether he was paying contributions to the Social Insurance in Greece or any Income Tax isentirely irrelevant and was not a reason to influence the respondent in taking the sub judice decision. (
2. b)His stav in Greece was subject to restrictions. Nothing appears in his passport that he needed a visa to visit Greece or any restriction was imposed on him by the Greek Government. The position ot Cypriots settlingin Greece or taking employment in Greece is different to that of Cvpriotsemployed inmostArabcountries where a temporary visa isgranted renewable at the will of the State. No vi7a is required for Cypriots to visit Greece whenever they wish,stay there for as long as they like, acquire property andget employment. (
3. c)Contribution totheSocial Insurance FundinCvpais.My attention has not been' drawn to any provision in the relevant legislation in Cyprus and Icould not trace any provision, excludinganational otCypruswhoisresident andemployed abroadtomakevoluntary contribution to the Social Insurance Fund of Cyprus and enjoy the benefits derived from such contribution. (
4. d)The address given bv applicant on the renewal of his passport in 1981. The applicant gave an explanation to the respondent why he stated his residence as being 575 Savvides. J. Kallis v. Republic

(1989)Cyprus which in the circumstances I do not consider unreasonable. (e) His frequent andsometimes prolonged visits to Cvpnis. It is evident from the certificates produced by the 5 applicant that suchvisits didnoin any way interfere with his regular employment in Greece which according to, both his employer andthe Cyprus Consular Authorities in Greece was continuous and the permanency of his residence in Greecenotinterfered with. On thequestion 10 of frequent visits to Cyprus andtheextent to whichsuch visits effect the "residence abroad" I wish to make reference to the way such visits were in practicetreated by the Customs Authorities in dealing with cases of this nature. According to the directions of the respondent 15 contained in a circular issued by him in 1984 (No.42. October 1984) reference to which appears in the case of Nikandrou v. The Republic (supra) under paragraph iv. such visits should beconsidered inthefollowing wav: 20 " it should be noted that residence must be of a permanent andcontinuousnaturebut isnotdeemedto be broken bv temporaryvisitstoCyprus,normallynot exceeding intheaggregate 365 davsin anν periodof 24 consecutive months". (Theunderlining is mine). 25 In Marangou v.The Republic

(1989)3C.L.R.21 Styiianides J., in dealing with considerably long interruptionsot applicant's residence in England (245 days in Cvpnis in 1980 and204 days in Cyprus in 1981) hadthis to say: 30 '"A person abandons thepermanentestablishment in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise The question of 'continuous' 35 permanent settlement required legal interpretation. evaluation of the facts and application of the law to these facts". I agree andadopt the above dicta. From the material before me it clearly emanates that it was 576 40 3 C.L.R. Kallis \. Republic Savvides. J. not reasonably open to the respondent totreat the casual visits ot the applicant as being such as to interrupt the applicant's permanent settlement inGreece The intention ot the applicant that his visits were of casual nature tor pleasure,or. after 1981, 5 tor visiting his daughter is manifested by the fact that when he applied tor the renewal ot his refugee card in 1984,dunng one ot hisvisitsto Cyprus,hegavehisaddressasbeing at Holargos, Athens and that was the address mentioned in his card Also when he visited Cyprus in May 19S3.and brought his car with 10 him hewas allowedto temporanly import it asa visitor The applicant inexplainingto the Customs why he returned to take permanent settlement inCyprusin 1987gaveasreasons that once he was of old age andsince 19S5hewasreceiving his 15 pension from the Social Insurance Fund his wife and himself decided to return and settle in Cyprus near their married daughter whohad left Greece in 1981andsettled in Cypnis In the circumstances ot the present case I find that the 20 respondent Director of the Department ot Customs and Excise in reaching the sub judice decision took into consideration extraneous matters which materially affected his judgment and/orfailed tocarry out adueenquiry concerning such matters and that in the circumstances ot the case, on their totality, the 25 sub iiidice decision was not reasonably open to him In the result the subjudice decision is declared null and void and ot no effect under Article 1464(b) of the Constitution. I make no order tor costs 30 Subjudice decisionannulled No orderastocosts 577