CIVI PROCEDURE ACT 1972RULES OF COTIRT

(O.38, r.1)

APPLICATION F'OR JT]DICIAL REVIEW

IN THE SUPRMEME COURTOF'THE REPTIBLIC OF NATIRU

BETWEEN

Miscellaneous Causes No. f,lz0ts

RODNEY HENSHAWApplicant

AND

SECRETARY OF JUSTICERespondent

ORIGINATING SUMMONS

Let the Applicant be heard by the Registrar in Chambers at the Court house at Yaren on the?. 3cpr".?-.k. day of May 2015 on his application for leave to commence judicial review under

Order 38 of the Civil Procedure Rules 1972 of the decision by the Secretary of Justice on 21May 2015, to deny the legal representative of the Applicant a visa to appear in Civil Suit No.2 &. 9/20T4 and seeks the following orders:

a) A writ of certiorari, bringing the decision of the Secretary Justice into thisCourt to be quashed.

b) A writ of mandamus, directing the Secretary of Justice to re-determine theapplication according to law.

c) A writ of prohibition, r&raining the Secretary of Justice, his employees,officers, delegates or agents from acting upon or giving effect to the decision.

d) Any further or other relief the Court considers appropriate.e) Costs.

Grounds of Application

l. This an application for judicial review of the decision made on 21 May 2015 by theRespondent to deny the legal representative of the Plaintiff a visa to appear in CivilSuit No. 2 & 912014. Refe, to attachment A.

Ground 1: Contrary to Law -

Violation of the Constitution of the Republic of Nauru

2. The decision by the Respondent to deny the legal representative of the Plaintiff a visato enable counsel to represent and appear on his behalf in civil suit No. 2 & 912014 iscontrary to law and in violation of article 10 of the Constitution of the Republic ofNauru or alternatively, the common law right to legal representation of choice.

Ground 2: Abuse of Process

3. The Respondent exercised power in a way that constitutes an abuse of the power.

Ground 2: Denial of Natural Justice and Procedural Fairness

4. The Respondent breached the rules of natural justice and procedural fairness bydenying the Plaintiff access to legal representation, facilities for the preparation of thematter, facilities to examine by his legal representative witnesses and the fair hearingrule within a reasonable time.

Ground 3: Actual or Reasonable Apprehension of Bias

5. The Respondent exercised power in a manner which constituted actual or reasonableapprehension ofbias.

Ground 4: No Evidence

6. There was no evidence or other material to justify the making of decision to deny thelegal representative of the Plaintiff a vis4 or the Respondent relied on facts, which didnot exist.

Ground 5: Improper Purpose

7. The Respondent exercised power for an improper purpose, to deny the Plaintiff hisconstitutional and common law right to legal representation in an attempt perveft thecourse ofjustice and thwart the contempt of court charges and other proceedingsagainst the First, Second and Third Defendants in civil suit no. 2 &.9/2014.

Ground 6: Bad Faith

8. The Respondent exercised power in a manner, which constituted bad faith.

ti

Ground 7: Unreasonableness

9. The Respondent exercise power in a manner that is so unreasonable that no reasonablerepository of power would havo so exercised the power. Alternatively, the Rospondentreasoned illogically or irrationally and the decision lacked evident or intelligible.iustification. ' ":

Ground 8: Contempt of Court

10. His Honor the Chief Justice had granted admission to Mr. Jay Williams Barrister topractice generally as a Barrister in the Nauru Courts. The denial of his application fora business visa to enter Nauru to perform his function as an officer of the NauruCourts is a contempt of Court.

Dated

Signed

Vinci N. ClodumarPleader for the Plaintiff

IN THE SUPRMEME COURTOF TTIE REPUBLIC OF NAURU

REGISTRY: YAREN COURTHOUSE

BETWEEN

ANi)

Miscellaneous Causes No. 12015

RODNEY HENSIIAWApplicant

SECRBTARY OF JUSTICERespondent

AFF'IDAVIT IN SUPPORT

ryt Flynr,=s Cx%.11 gc-or:ra-,I, Rodney Henshaw, of(A^L{kPlLg-k,hereby solemnly swea.r and say the following:

1. I am the Applicant in this matter and the Plaintiffin the amended Civil Suit No Z &gl20L4 and Civil Suit No. 4/2014 which are at foot in the Nauru Supreme Court.

The Parties

2. I am the owner/operator ofthe Reef Bar Tavem and the Tubwa Bet TAB both locatedat the Menen Hotel. The Reef Bal Partnership comprises of Mr Rodney Henshaw, thelate A:rne Henshaw wife of Rodney Henshaw, Faith Mau and Rick Daoe.

3. I am an Australian citizen holding passport nunber M5379059 which expires on 07July 2016. I heid a Republic of Nauru business visa 8P1784-13 issued on 12 July2013, which was valid at the relevant time, wilh an expiry date of 12 July 2014.Iwas residing in Roorn 260 atthe Menen Hotel, Meneng District.

Removal Order by Cabinet - T January Z0l4

4. On 7 Januar y 2A14at 4.00 pm, the Cabinet of the Republic of Naruu, approved theremoval of the plaintiff, endorsed the deportation order and cancelled forthwith thevisa of the plaintifi by way of cabinet submission na. B/2ar4.

Removal order by Minister for Justice and Border control -

g January 2014

5- On 8 January 2O14 a14.00 pm, the Hon. David Adeang M.P, Minister for Justice andBorder Control issued a removal order by way letter dated I January 2}l4,informingme that pursuant to the Immigration Act 1999 (Nr), I had been declared a prohibited

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Immigrant and my removal from Nauru was scheduled for witldn 7 days or the nextflight to Australian whichever is soonest.

Civil Suit No2l20l4 -

Interim Interlocutory Injunction - 9 January 2014

6. On 9 January 2014, the Registrar of the Supreme Courl of Nauru found the Plaintiffdid have a prime a facie case for judicial review of the Minister's determination andgranted an interim interlocutory ir{unction restraining the implementation orenforcement of the Removal Order against the Applicant on or before ari applicationfor Judicial Review is heald and determined by the Supreme Court of Nauu.

Order Granting Leave for Judicial Review -

L3 January 2014

7 . On 13th January 2014,the Registrar ofthe Supreme Court ofNauru determined that itwas in the interests ofjustice for leave to be granted for judicial review of theMinister's decision deciaring the plaintiff to be a Prahibited lmmigant.

Civil Suit No 4/2014 - Termination of the Reef Bar Agreement- L5 January 2014

8. On 13 January 2074, the Menen Hotel Management wlote a ietter to the Plaintiffordering the closure of the business and vacation of residence by the Plaintiff basedon a declaration by the Minister the Plaintiffis a'Prohibited Immigrant' required toleave within 7 days.

9. On 15th January 2014, the Registrzr ofthe Suprerne Court ofNauru ordeted an interiminterlocutory iajunction restaining the implementation or enforcement of the Orderby the Menen Hotel against the Plaintiff directing the closure of the betting agencyknown as 'Tubwa Bet' conducted within the premises of the MenenHotel.

Civil Suit No 3/2014 - Termination of the former Resident Magistrate, Peter Law -

19January 2014

10. On 19 January 2A14,the Resident Magistrate and Registrar ofthe Supreme Courtadvised the Court that his contract had been terminated, without notice, and hehad been detained by poiice on orders of the President for deportation from Nauruon the next day,20 January 2014-

11. The ChiefJustice ofthe Supreme Courl ofNauru granted aninterim interlocutoryinjunction restratning the respondents, their servants or agents, fiomimplementation or enforcement of the Removal or deportation Order against theApplicant on orbefore an application for Judicial Review is heard and detenrrinedby the Supreme Courl of Nauru.

Cancellation of the Yisa of the Former Chief Justice -

20 January 2014

12. On 19 January 2A14, the Government of Nauru cancelled the visa of the ChiefJustice ofthe Supreme Coiut ofNauru.

BH ,',',''i'/

Resignation of the Solicitor-General of Nauru, 2l Janutry 201413. On 20 Jarnary 2014,the former Solicitor-General of Nauru resigned in protest at

the treatment of the formel Resident Magistrate, Peter Law, and the fonner ChiefJustice, Geoffrey Eames, AO QC.

Civil Case No 9/2014 -

Application for Injunction,2g Ja;nuaLry 201414. On 28 Janualy 2A14, the Parliament ofNauru passed the Immigration Act 20la Q\r).15. On 28 January 2014, the piaintiff received a letter from the Minister for Justice

ordering his removal from the island of Nauru as a Prohibited Immigrant under theImrnigration Act 2014 and ordering the plaintiffto depart Nauru within seven daysor the next available flight'u,hichever was soonest. No reason was given in the letteras to why the plaintiffwas declared a Prohibited Immigrant.

16. On 29 lanuary 2014, David Aingimea, Executive Chairman of EgiguHoldings Corporation issued a letter, directing the Reef Bar', the Reef BarTab and all hotel accommodation units utilized by the plaintiffand his staffto be vacated that day.

17 . On29 January 2014, the plaintiff was directed to be on the 2.30 pm flight toAustralia and placed under house arrest with members of the Nauru Police Forcestationed outside his room at the Menen Hotel awaiting to escort him to the airport.

1 8. At approximately 1 .3 0 pm on 29 January 2A14, theplaintiff sought an ugent exparte injunction pre'renting his deportation, before the Acting Registrar', AndrewJacobson.

19. The former Resident Magistrate, Andrew Jacobson, refused the iqjunction and foundthere was no prima facie case to be tried because this Couit does not havejurisdiction to revierv the lemoval order.

20. At approximately 4.20pmon 29 January 2014,theplaintifffiled and servedthewrit of summons for civil suit no" gl}0l4 on the defendants.

Civil Case No 9/2014 -

Appeal against the Decision by the Acting Registrar, AndrewJacobson, 3 February 2014

21. On 3 February 2014,the plaintiff'filed and served an appeal against the decisionby the Acting Registrar, Andrew- Jacobson to refuse to grant an injunctionpreventing the depofiation ofthe plaintiff.

Resignation of the former Chief Justice Eames, 13 March 2014

22. On 13 March 2U74,the Chief Justice of Naurq Geoffiey Eames AO QC, resigned asthe Chief Justice of &e Supreme Court ofNauru.

///,ft ,4fr1

The Suspension of three Opposition MP's - 14 May 2014

23. on 14 May 2014, the parliamenl of Nauru suspended three opposition MPs for

,,intending t"l*n|", **imum au*ug" to Nauru's reputation.-" According to themedia rerease,

.The motiorr,o ,.,rro|ii iup;;;;Batsiu4 Kieren Keke andRoland run was moved by ,h. d;;#; i"u"*i"e **v *ontt's

of interviews by

the three members where th.y "di;T;;'er,*fi" *i N"* Z"aland to intervene in

Nauru,sdomesticaffairsu,ds,gg",t"dthatthetwo"o*t,i",shouldreconsideraidprograms''

The Suspension of two Opposition MP's - 9 June 2014

24.orrgJunez[l[,theparliamentofNauruhassuspendedtrvomembersofpar.liament, ;; h;;. Sprcnt Dabwij; o,J uo,,. sq}* Jeremiah were suspendedfiom the House following a moti;;;*"a uv Justice Minister

David Adeang'

AppointmentofnewChiefJustice,JusticesandMagistrate.gSeptembera0|A25.ongSeptemberZol4,HisExcellencyPresidentBaronwaqaappointedRatuJoni

MadraiwiwiasthenewChiefJ,,sti""orm"Suprem-eCourtofNatrru,arrdJusticesElizabethHamilton-Whiteand,,"r,""","aShafiullahKhan.MsEmmaGarowasswola in before Justice Ministe. H;;David Adeang

* o'" new Resident Magistrate'

ResumptionoftheMatters-CalIover-23September2014-CivilSuitNo4l2o14

26.on23Septembet[[l4,someninemonthsaftertlecommencementofproceedings,ttie matter;-;;""gh' before the Court for mention'

Amended writ of summons - contempt of court charges Against the President and

Minister for Justice of Nauru

27.on23octoberzo| }hePlaintifffiledandservedanAmendedWritofSummonsincivil suit rc 9l2014and seeks leave of the court '";;;;;ilu* "i\iit

sgits no 2; 4 aItd

912t04;to join the causes "f ,;;;;;d t" 3oi,

ana-r"move certain defendants and

raised contempt of court "ir*g"r"ugrliri.i

ti" p'"'ia";;*d Minster for Justice of

Nauru'

23.on30Jarruary2ols,theRegistraroftheSupremeCourtofNaurusetthestrikeoutapplicationUitUedefe"dantslownforhearingonllJune2015'

petition by Jay wiltiams to Practice as a Barrister of the Supreme court of Nauru

29. on10 october zo|4,Jay Williams, of co.unsel and the legal representative to the

plaintiff applied to tt "

srrprem" c"rrt of the nepuutic oiNu'* for admission as a

barrister'

30. on 2g october zol4 dre District court ofNauruissued a sumrnons t9 Jay williams

commanding him to attendaii;;;; s N*"*u"tJol+ to answer the charge of

ur"u.r'i"il'5'"u1" lolzlof the civil Aviation Act 201'

ii/ lt I

31. on 2g october 2014, the Registrar of the supreme court of the Republic of Nauru

notified Jay WilliaLs that afrer advertising io ttt* G9zex2on22 October 2014' the

Supreme Court ,;;ir; an objectio" ilf"-.d'"ission of Jay Williams as a barrister of

theSupremeCourtbytheSecretaryofJusticeoftheRepublicofNairnr.

32. on 28 Novemb er 20l4,the Director of Public Prosecutions discontinued the

proceedings against Jay Williarns'

33. on 1g Decemb er2014,the Registrar of the Supreme-low ofthe Republic ofNauru

wrote to the barrister and legal ,"p."rJr*i* ortrr" Plaintiff, Jay williams, informinghim that the Chief Justice had approved his admission'

34. on 20 May ZO!5,the pleader for $e Plaintiffwrote to the secretary of Justice seeking

abusinessuppti"utio,,forthebarristertoappealincivilsuit2&91201i4.

35. on the same day, the secretaly of Justice denied the application for a visa for the

barrister of JaY Williams'

SwoRN by Rodney Henshaw, ^A',fu'*'^-----, this I'4*Iday of May 2015 before me:

-!

Justice of the PeaceDeponent

M",5/,'l