(1989)19S9 July 31 [SAVVIDES, J.] INTHE MATTER OF ARTICLE 146 OFTHECONSTITUTION CHRISTODOULOSHADJINICOLAOU. Applicant. v. THE REPUBLICOF CYPRUS,THROUGH THE MINISTER OF FINANCE ANDANOTHER, Respondents. (Case ΛΌ. 670/S7) Customs and Excise — Motor vehicles — Importation of. by repathaicd Cypriots — The Customs andExcise DutiesLaw, I97Sandsub-heading 19of Hem01 of the Fourth ScheduleandOrder 1S2/S0 of the Councilof Ministers — Permanent settlement abroad — Stay in Arab countries. where applicant never acquired α permanent residence permit — Reasonably open to respondent to find that prerequisite of permanent settlement abroadwas notsatisfied. 5 The applicant stayed in Iraq and Saudi Arabia for more than 10 continuous years. The applicant is a Cypriot. When he returned to 10 Cyprus, he applied for a duty free importation of a motorcar underthe aforesaid legislation. Theapplicant,however, though working in the two aforesaid countries, never acquired a permit for a permanent residence therein. In fact, he obtained ascries of permits of definite duration. 15 On these facts the Court found that it was reasonably open to the respondent to reach the conclusion that the prerequisite of the Law, namely "permanent settlement abroad" was not satisfied. Recourse dismissed. No order as to 2 0 costs. 894 3C.L.R. Hadjinicolaou v. Republic &Another Casesreferredto: Marsas v.Republic(19S5) 3 C.L.R.54. 5 Rossidcs v.Republic(I9S4) 3 C.L.R. 14S2, Mavronichis v.Republic(I9S5) 3 C.L.R. 2301, Leonidha v.Republic(19S6) 3 C.L.R. 2022. 10 Theodoulou v.Republic(I9S7) 3 C.L.R.424, Sicoiis v. Directorot Customs and Excise andAnother (I9S8) 3 C.L.R. 1264. 15 Valanides v.Republic
(1939)3 C.L.R. 113. loannou v. Republic
(1986)3C.L.R.
- 20 Michael v. Republic(I9S6)3C.L.R
- Recourse. Recourse against the decision of the respondents whereby 25 applicant's application for the duty-free importation of a - motor vehicle as a repatriated Cypriot was refused. St. Triantafyllides. for the Applicant. 30 D.Papadopoulou(Mrs).Counsel of theRepublic B,for the Respondents. Cur. adv. vult. 35 SAVVIDES, J. read the following judgment. The applicant bythe present recourse challenges therefusal of the respondent Director of the Department of Customs and Excise not to accedeto hisapplication to import amotor-vehicle free of duty under the provisions of sub-heading 01 item 19 of the Fourth 40 Schedule to the Customs and Excise Duties Laws 1978-1986 which was communicated to the applicant bv letter dated 5th June,
- 895 Savudes. J. Hadjinicolaou \. Republic & \nother
(1989)The legal grounds set out in the recourse arethe following That the decision of the respondents iscontrary to the law. the Constitution and theprinciples otadministrative law.itwas taken in excess and/or abuse of power; isnot duly reasoned, it 5 wastaken under amisconception of fact- the respondents were wrong in deciding that the applicant had not been permanently resident abroad lor a period of at least ten years before his return to Cyprus. 10 The facts ot the case are briefly as follows: The applicant, a Cypnot, bom in Ayios Vassihos village of Nicosia, graduated the university ot Salonica where he got his degree in Civil Engineering in 1976 Alter his graduation he 15 was employed as a Civil Engineer, in
- in Iraq, by Chanlaos Apostohdes &Co Ltd.,of Greece In 19S0heleft the employment at Iraq and took employment in Saudi Arabia where he resided till 1987, employed by the Saudi Cypnan Construction Co Ltd 20 In January,
- he got married to a Greek national, ot Salonica who ioined and lived with him in Iraq and Saudi Arabia. On 25th March.
- he returned to Cyprus with his family for permanent settlement 25 Applicant submitted an application on the 30th March. 1987,to the respondent Director for the dutv tree importation ot a Mercedes 200 car on theground that he had permanently settled aborad for a continuous period of at least ten years and 30 returned to take up permanent residence in Cyprus The respondent Director by letter dated 5th June. 1987, rejected the application The contents of such letter read as follows "I refer to the above subject and regret to inform you that on the basis ot the material produced in support ot your application it is ascertained, prima facie, that you are not entitled to such relief as your absence from Cyprus did not 40 amount to permanent settlement abroad " 896 35 3 CX.R. 5 Hadjinicolaou ν Republic &Another Savvides, J. It isthecontentionof theapplicant thathis residence abroad and in particular in Iraq andSaudi Arabia was in the natureof permanent settlement abroad as his original intention was not to return toCyprus but settle in Salonica where his wife owned a flat The issue which poses tor consideration is whether the applicant satisfies the requirement under item 19 of sub heading 01 of the Tourth Schedule to The Customs and Excise 10 Duties Laws 1978-1986(Laws 1S/7Sto 176/86)published inthe ThirdSupplement totheofficial Gazetteof theRepublic of 11th June. 1982, under Notification No
- according to which "Motor vehicles .. imported by Cypnots who after a permanent settlement abroad tor a continuous period of at 15 least ten years return and settle permanently in the Republic 20 25 30 35 The question tor consideration is whether applicant's stay in Iraq andSaudi Arabia constitutes,permanent settlement inthe said countries having in mind the tacts ot the case The relevant Order of the Council of Ministers enabling the duty tree importation of motor-vehicles requires the following prerequisites to be satisfied (a) Permanent settlement aborad tor at least ten years, (b) return to Cyprus tor permanent residence in the Republic, (c) importation ol the car within a reasonable time from the date ot arrival at the discretion otthe Director The contents of the Order published under Notification 188/82 came up tor consideration in a number ot cases of this Court and I need not expound further on this matter (See, in this respect, inter aha, Matsas v. The Republic
(1985)3 C LR. 54, Rossides v. The Republic
(1984)3 CLR 1482, Mavronichis v. The Republic
(1985)3 C L R 2301, Leonidha v.The Republic (19S6) 3CL.R 2022. Tbeodoulou v.The Republic {19S7) 3C LR 424; ISicolisv. The Director of the Department of Customs and Excise
(1988)3 CL R 1264, Vaianides v. The Republic (19S9) 3 CLR 113 40 The interpretation of the prerequisite of "permanent settlement"' has been considered in a series of cases ot this 897 Savvides, J. Hadjinicolaou v.Republic & Another
(1989)Court.In Matsas v.TheRepublic(supra)A.Loizou,J.(ashe then was)saidthefollowing atp. 61: "To my mind permanent settlement carries with it the notion of a real or permanent home and should be 5 distinguished from thenotion of ordinaryresidence." •In loannou v. TheRepublic
(1986)3C.L.R. 1263where theapplicant settledandworkedinSaudiArabiafor 14yearsit washeldbyPikis.J.atp. 1266, that: 10 " The question that must be answered is whether ten years stay in a foreign country immediately qualifies the stayer as a permanent settler in that country for the purposes of the Order. I think not. The concept of 15 permanent settlement isnot tiedtothelength ofstaybutto The element of permanence associatedwithphysical stay.If the legislature intended to make length of stay the sole criterion for exemption,itwaswhollyunnecessarytomake anyreference to permanent settlement." 20 Stvlianides. J. in dealing with a similar issue in the caseof PhilipposMichaelv. TheRepublic
(1986)3 C.L.R2067after an extensive analvsis on the matter said the following, at p.2075: " '"Permanent establishment' is not synonymous to 'residence'. Residence alone is not sufficient. Permanent establishment indicatesaqualityof residencerather thanits length. The duration of the residence, ie regular physical 30 presence in a place, is only one of a number of relevant factors. An element of intention to reside and establish is required.Evidenceofintention maybeimportant wherethe period or periods of residence are such asto point toboth directions.It isnot possiblefor aperson tobepermanently 35 settledintheRepublicandinanothercountry.Theintention of permanently settling may begathered from the conduct and action consistent with such settlement. Though permanent settlement cannot be assimilated to domicile,it is akin to it and pronouncements on domicile are very 40 relevant and helpful." 89S 25 3C.L.R. Hadjinicolaou v.Republic & Another Savvides,J. The question which poses for consideration in this case is whethertheapplicantsatisfies theprerequisites oftherelevant OrderoftheCouncil ofMinisters. 5 In an affidavit sworn by the applicant in support of his application the permanent settlement abroad on which applicant seeks to rely is his continuous employment in Iraq and Saudi Arabia for a period of more than ten years andhis alleged intention to settle in Salonica after the termination of 10 his employment in the Arab countries which intention, however,nevermaterialised asinfact after theterminationof hisemployment instead of returning toSalonica the applicant returned to Cyprus with his family with the intention of permanentlysettlinginCyprusasmentioned inhisapplication 15 tothe respondent. Therefore, on the material before me the permanent settlement abroad on which he seeks to rely ishisstay in the Arabcountriesfor aperiodsatisfying themain prerequisiteof 20 therelevantOrder. Applicant has produced photocopies of the entries in his passport with translations in English. From these entries itis apparent that in Iraq and Saudi Arabia he never acquired a 25 permitforapermanent residencebuthisstaytherewassubject to the conditions of his visa which was for a limited period renewable from time to timefor fixed periods connectedwith hisemployment. 30 35 40 In my judgement in a recent case Valanides v. The Republic(supra)indealingwiththeprerequisiteofpermanent settlement abroad I expressed the following opinion which I fully adopt inthepresentcase: "What is required by the Order in question is not absence from Cyprus or residence abroad for the purpose of performing work under a contract of employment but permanent settlement abroad.Applicant's residenceabroad andinparticularinanArabcountrywheretheacquisitionof permanent settlement to non-Arabs is strictly restricted, was clearly of a temporary nature and its validity was collateral to the length of hisemployment as appearing in 899 Savwdes,J. Hadjimcolaou \. Republic & Another
(1989)hispassport. When suchpermit wasgrantedto him itwasot a duration ot one year and was renewed from time to time subject to the same conditions The applicant could not himself take the decision that he would permanently settle there once hisresidence permit wastemporary andcouldbe 5 suspended by the authorities at any time." From hisevidence it maybegathered that theapplicant was aware all along that hisstay inthesaid two countries wouldbe co-extensive with the tenure of hisemployment 10 In the light of our Case Law relevant to the notion ot permanent settlement abroad and ot the material before me and bearing also in mind the particular circumstances of the present case and especially the tact that the applicant never 15 acquired a permit for permanent settlement in Iraq or Saudi Arabia Iam ot the view that it waslegallyandreasonably open to the respondent Director ot Customs and Excise to tmd that the applicant had not settled permanently abroad and to retuse on this ground his application tor a duty tree imponation ot a 20 motorcar In the course of the hearing of this case counsel for respondents stated that this case was under reconsideration together with other casesastowhether theapplicant isentitled 25 to therelief underthe provisions of thenewlaw Ishallnot deal with this aspect of the case asithasnot been raised in this case but bearing inmind thefact that theapplicant hasbeen residing abroad for a continuous period of eleven years which is a matter which under the provisions ot the new law may entitle 30 the respondents to grant relief, this question is left open tor consideration by the respondent Director in the exercise ot his powers under the new law In the result the recourse tails and it ishereby dismissed In 35 the circumstances I make noorder for costs Recourse dismissed. No orderas tocosts 900