Re Application by Fie'eiki [2002] TOLawRp 56; [2002] Tonga LR 379 (19 December 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

RG 718/2002

Re Application by Fie'eiki

Ward CJ, Registrar General
16 December 2002; 19 December 2002

Births, Deaths, and Marriages – no provision for dual citizenship

Danny Simote Fie'eiki was born in Santa Monica Hospital, California in the United States of America on 23 November 1966. His father applied to have the birth registered in Tonga. The father, Filimone Fie'eiki, was naturalised in the United States of America in 1962. His son, for whom he made this application was born in the United States of America on 23 November 1966.

Held:

1. There was no provision for a Tongan to hold dual citizenship. When Filimone became a naturalised United States citizen, he automatically lost his Tongan citizenship. As a result, when his son Danny was born, his father was not a Tongan and so he had never been a Tongan.

2. When a Tongan man becomes naturalised in another country, all his children under 16 years of age also immediately cease to be Tongan unless, by the law of the country of the father's new citizenship, a child does not also become a citizen. However, any such child was allowed to resume his Tongan nationality if he forwarded a written declaration of his wish to resume Tongan nationality to the Minister of Foreign Affairs within one year of attaining the age of 16. That time had passed and so Danny was not Tongan and his birth could not be registered in Tonga.

Statutes considered:

Nationality Act (Cap 59)

Passport Act (Cap 61)

Regulations considered:

Births and Deaths Regulations

Counsel for applicant : Mr Tu'utafaiva
Counsel for Crown : Mr Kefu

Ruling

Danny Simote Fie'eiki was born in Santa Monica Hospital, California in the United States of America on 23 November 1966. This is an application by his father to have the birth registered in Tonga. At the hearing in chambers, I refused the application and said I would give written reasons. I now do so.

By the Births, Deaths and Marriages Act, there is a requirement that all births in Tonga are reported to the sub-registrar for the district in which the birth occurred. The birth is then registered. When a Tongan is born abroad, Regulation 7 of the Registrar General's Births and Deaths Regulations provides for the registration here of the birth abroad:

"7. Any person who wishes to register the birth or death of a Tongan that has occurred outside the Kingdom must act as follows:

(1) Produce at or send to the Central Registry the Official birth or death certificate of the country in which the event occurred.

(2) File an affidavit stating:

His relationship to or connection with the person the subject of the registration.

His grounds for believing that person is or was a Tongan.

That he believes the certificate produced to be genuine and its contents true.

Upon the production of these documents the Sub-Registrar shall cause the birth or death to be recorded in a special register, unless he doubts the truth of the affidavit."

A Tongan is defined by section 2 of the Nationality Act (Cap 59);

"2. The following persons shall be deemed to be Tongan subjects –

(a) any person born in Tonga whose father is a Tongan;

(b) any person born abroad of a Tongan father who was born in Tonga;

(c) any person born out of wedlock in Tonga whose mother is a Tongan;

(d) any alien woman who marries a Tongan provided that within 12 months from the date of her marriage she –

(i) lodges with the Minister of Foreign Affairs a written declaration that she wishes to assume Tongan nationality; and

(ii) takes the oath of allegiance prescribed by this Act;

(e) any person naturalised under this Act."

The evidence before me is that the father, Filimone Fie'eiki, was naturalised in the United States of America in 1962. His son, for whom he makes this application was born in the United States of America on 23 November 1966. Filimone deposes that he holds dual citizenship and indeed holds both a Tongan and a United States passport.

By section 4(1) of the Nationality Act;

"4(1) A Tongan subject who when in any foreign State and not under disability by obtaining a certificate of naturalisation or by another voluntary and formal act becomes naturalised therein shall henceforth be deemed to have ceased to be a Tongan subject."

There is no provision under our law for a Tongan to hold dual citizenship. When Filimone became a naturalised United States citizen, he automatically lost his Tongan citizenship. As a result, when his son Danny was born, his father was not a Tongan and so he has never been a Tongan.

It is worthy to note that when a Tongan man becomes naturalised in another country, all his children under 16 years of age also immediately cease to be Tongan unless, by the law of the country of the father's new citizenship, a child does not also become a citizen.

Section 3(1), however, allows any such child to resume his Tongan nationality if he forwards a written declaration of his wish to resume Tongan nationality to the Minister of Foreign Affairs within one year of attaining the age of 16. In the case of Danny that time has now passed and so he is not Tongan and his birth cannot be registered here under the provisions of regulation 7.

I would add one further comment. Filimone's Tongan passport was issued on 18 September 2000. As he has been a United States citizen since 1962, he has not been entitled to hold such a passport since then and it should not have been issued. I do not know how it happened that he was able to obtain it but I notice it states that his domicile is Nuku'alofa, which may not have been true.

I shall direct that a copy of this ruling should be sent to the Principal Immigration Officer for consideration of cancellation of the passport and investigation as to whether the applicant made any false declaration when applying for it.

I would also suggest that the Immigration authorities should consider whether Forms II and III in Schedule I of the Passports Act should include declarations that the applicant has not acquired the citizenship of any other country and that he does not hold a passport of another country.