Attorney General v Kenilorea [2022] SBCA 7; SICOA-CAC 35 of 2021 (8 July 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Attorney General v Kenilorea
Citation:
Decision date:	8 July 2022
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Faukona J)
Court File Number(s):	35 of 2021
Parties:	Attorney General v Peter Kenilorea Junior
Hearing date(s):	29 June 2022
Place of delivery:
Judge(s):	Goldsbrough P Palmer CJ Hansen JA
Representation:	Banuve S and Rofeta P for Appellant Radclyffe A for Respondent
Catchwords:	Constitution Solomon Islands’ Citizenship
Words and phrases:
Legislation cited:	Constitution S 22, Constitution 1978, repealed S 23, Constitutional (Amendment) (Dual Citizenship) Act 2018,
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-5

JUDGMENT OF THE COURT

1. This is a pointless appeal against the decision of Deputy Chief Justice Faukona dated 8 December 2021.

Background

2. The respondent was born in the Solomon Islands and is a Solomon Islands citizen. On 5 February 2000, in Honiara, he married Vanessa Kenilorea, who had dual Netherlands and Australian citizenship. In the early 2000s the respondent and his wife resided and worked in the United States and had two children: Taliyah Siunari Kenilorea born in New York, USA, on 23 February 2004, and Aiden Peter Kabui Kenilorea, born in New York, USA, on 24 April 2007. Being born in the USA, under the laws of that country, the children acquired US citizenship, and both have US passports.
3. The respondent and his family returned to the Solomon Islands and applied for Solomon Islands passports for the two children. This was refused by the Immigration Department, who said they would have to wait until they were 18 years of age before being eligible to apply. That decision was on the advice of an officer of the Attorney-General’s chambers. It was conveyed to the respondent by letter dated 14 October 2020, which led to judicial review proceedings being filed in the High Court of the Solomon Islands on 31 May 2020.

The judicial review claim

4. That claim sought a declaration that the two children were citizens of the Solomon Islands by birth, pursuant to section 22 of the Constitution. It further sought a declaration that the children were entitled to be issued with Solomon Islands passports, and to retain their US passports. Finally, a declaration was sought that they did not require visas to enter and reside in the Solomon Islands, on the grounds that, as Solomon Islands citizens, they did not need visas.
5. The respondent argued that although s: 22 does grant birth citizenship to the respondent’s children, it did not automatically create dual citizenship because of the operation of the since-repealed s: 23 of the Constitution 1978. It was accepted that changed with the Constitutional (Amendment) (Dual Citizenship) Act 2018 which came into effect on 10 January 2019, repealed s 23 and allowed for dual citizenship. But the central argument was that because of the operation of s: 23 of the Constitution dual citizenship was not permitted for the respondent’s children as they were not Solomon Island citizens.

The High Court decision

6. The Judge found that the appellant’s case in the High Court was based on a clear misinterpretation and misconception of the law. He said the issue was simple, as the claimants were Solomon Islands citizens by birth in accordance with s: 22 of the Constitution, their father being a Solomon Islander. He also held they were not disqualified by the repealed section 23. He made the declarations sought.

Discussion

7. The Constitution provides (where relevant):
   • Persons born on or after Independence Day
   • 22. Every person born on or after Independence Day, whether within or outside Solomon Islands, shall become a citizen of Solomon Islands at the date of his birth if at that date either of his parents is, or would but for his death have been, a citizen of Solomon Islands.
   • Avoidance of dual nationality
   • 23.(1) Subject to the provisions of subsection (2) of this section, any citizen of Solomon Islands who is a national of some other country shall cease to be a citizen of Solomon Islands at the expiry of two years after the date on which he acquired citizenship of Solomon Islands or attained the age of eighteen years, whichever is the later, or such longer period as may be prescribed by Parliament, unless before the expiry of that period he has renounced or lost the nationality of that other country or, if the law of that other country does not permit him to renounce that nationality, made such declaration as may be prescribed.
8. These two children become Solomon Islands citizens by virtue of section 22. The advice of the Attorney-General’s officers to the Immigration Department on s: 23 was conceded at hearing by Ms Rofeta to be wrong. It was manifestly and obviously so and that should have been conceded much earlier. Clearly, under s:23(1) a citizen of the Solomon Islands (the children of the respondent) could only cease to be a citizen of the Solomon Islands at the expiry of two years after the date of birth which gave them citizenship of the Solomon Islands or when they attain the age of 18 years, whichever is the later. At all material times the two children were under the age of 18 years. It is clear beyond peradventure that the later date in this case was the attaining of 18 years.
9. Given that these children were not 18 at the material time, even if s: 23 was still in effect it would not strip them of their Solomon Islands citizenship. They remain citizens of the Solomon Islands and enjoy all the rights and privileges attached to that, which includes the ability to apply for a Solomon Islands passport and to travel freely to and from the Solomon Islands without the need for obtaining visas. (We note the eldest child was under 18 at the time of the High Court Hearing but has since reached that age. It is immaterial for the purposes of this appeal.)
10. Given they were not 18 at the material time, the repealed s: 23 could never assist the Attorney-General’s advice. The provisions of the Constitutional (Amendment) (Dual Citizenship) Act 2018 give them added protection.
11. Given the appellant’s concession at trial that the reliance and interpretation of the repealed s: 23 was entirely misplaced the decision of the Judge was self-evidently correct and should not have been appealed.
12. For the sake of completeness, we note that the Attorney-General applied for a stay of the Judge’s order, which was refused by the President of this Court. In the meantime, quite properly, the children have been issued with Solomon Islands passports.
13. Mr Radclyffe sought indemnity costs. Our understanding is that the Civil Procedure Rules allowing for indemnity costs does not extend to the Court of Appeal. However, in this case, for obvious reasons, we are satisfied an equivalent order can be made. Ms Rofeta argued against such an award, on the basis that the appellant was seeking clarity. The clarity was in the clear language of the section, as she eventually and readily conceded before us. Accordingly, there will be solicitor and client costs to the respondent, to be taxed if not agreed.

Goldsbrough P
Palmer CJ
Hansen JA