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Application by Leaman under Births, Deaths and Marriages Act [2002] TOLawRp 51; [2002] Tonga LR 329 (25 November 2002)

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

RG 788/02

Application by Leaman under Births, Deaths and Marriages Act

25 November 2002; 25 November 2002

Births, Deaths and Marriages – registration of Tongan born abroad – rights as at time of birth

Glenn James William Rich was born in New Zealand on 2 July 1954. Glenn's cousin made an application to register the birth of a Tongan born abroad. Glenn's mother was a New Zealander. Glenn's father, James Tavake Rich, was born in Nuku'alofa on 8 July 1926. James took his nationality from his place of birth as he was born in 1926 before the Nationality Act of 1935 was passed. Glenn's mother was deemed to be a Tongan because of her marriage to James. On 12 July 1989 James became a naturalised New Zealander and therefore ceased to be a Tongan. Glenn had obtained a New Zealand passport.

Held:

1. When his father became a New Zealander, Glenn was 35 years old and so was still a Tongan subject.

2. The duty of the Sub-Registrars was to register any birth of a person born abroad who was Tongan. When Glenn was born that was what he was. The right to have his birth registered arose at that time and no subsequent change in his nationality could change that.

3. The responsibility of the Registry staff was to make accurate entries in the registers on the basis of the information provided. Any other possible or probable consequence was not their concern unless it suggested inaccuracy of the information they were given for the registration.

Cases considered:

Edwards v Kingdom of Tonga [1994] Tonga LR 62 (CA)

Fie'eiki, Re Application by (Application number RG 718/02)

Statutes considered:

Nationality Act 1935

Naturalisation Act 1915

Applicant in person
Counsel for Crown: Miss Simiki

Judgment

This was an application to register the birth of a Tongan born abroad. I allowed the application but have been asked by the Chief Registrar to give my reasons in order to assist the Sub-Registrars who normally deal with such applications.

The person whose birth is to be registered is Glenn James William Rich and his cousin makes this application on his behalf.

Glenn was born in New Zealand on 2 July 1954. His father, James Tavake Rich, was born in Nuku'alofa on 8 July 1926.

The affidavits filed before me state that James was the son of one Ernst Harold Rich but the records of his birth in the registry here name no father and state that he was born illegitimately to one Sauloloa Lasike. I shall act on the official records we have here.

When James was born in 1926, the Nationality Act of 1935 had not been passed and so he took his nationality from his place of birth as has been explained by the Court of Appeal in Edwards v Kingdom of Tonga [1994] Tonga LR 62.

In the Edwards' case, the birth of the father of the appellant was in 1902 before there was any statutory provision in Tongan law. Thus the Court of Appeal could deal with the question of his nationality on that basis and then pass to consider that of the appellant.

In the present case, the father of the applicant was born after the passing of the Naturalisation Act 1915, (the first of our statutes relating to nationality) and before the passing of the Nationality Act of 1935. The 1915 Act and the law as it then stood did not define a Tongan and so his nationality is determined by the place of his birth in the same way as it was in the Edwards' case. However, section 2 of the Nationality Act 1935, changed that:

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

(a) Any person born in Tonga of Tongan parentage and the first generation born abroad....

(b) any person naturalised under this Act;

(c) any person born out of wedlock in Tonga whose father is a Tongan subject and whose mother is an alien; and

(d) any person born out of wedlock in Tonga whose mother is a Tongan subject and whose father is an alien."

That was amended and clarified by Act number 7 of 1959 but that was five years after Glenn was born and so his case must be determined under the provisions of the 1935 Act set out above.

I read section 2(a) as providing that the first generation born abroad of Tongan parentage will still be Tongan subjects. The Court of Appeal pointed out in the Edwards case that the Tongan version of section 2(a) makes it clear that the phrase 'Tongan parentage' means that both parents must be Tongan.

In the case of Glenn, the affidavits show he was born abroad of a Tongan father and a New Zealand mother. Section 2 makes no provision for a situation where only one of the parents of the first generation born abroad is a Tongan and so, on the face of it, Glenn can not be a Tongan – a position that has now been partly addressed by the 1959 amendment.

The answer lies in section 3 of the 1935 Act which deems that a wife shall take her nationality from her husband:

"3. The wife of a Tongan subject shall be deemed to be a Tongan subject and the wife of an alien shall be deemed to be an alien:

Provided that where a man ceases during the continuance of his marriage to be a Tongan subject it shall be lawful for his wife to make a declaration that she desires to retain Tongan nationality and thereupon she shall be deemed to remain a Tongan subject."

It may well be that Glenn's mother's status as a New Zealand citizen never changed under New Zealand law but, under our law, she was deemed to be a Tongan because of her marriage to James. As a result, when Glenn was born, both his parents were Tongan and, as he was also the first generation born abroad, he was also deemed to be a Tongan subject.

However, the matter on which the Chief Registrar seeks further guidance is the way in which a case such as this should be dealt with when application to register the birth is only made many years later and intervening events have changed the situation from that which pertained at the time of the birth.

The subsequent events in this case are that James was granted permanent residency in New Zealand two years after Glenn was born and was then granted New Zealand citizenship in 1989. Section 4(1) of the Nationality Act (re-enacting section 6 of the 1935 Act) provides:

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

Clearly, therefore, James ceased to be a Tongan when he became a naturalised New Zealander on 12 July 1989.

By that time Glenn was 35 years old and so he was not affected by the loss of his father's Tongan nationality. By section 2 of the 1935 Act, he was a Tongan subject when he was born and, by section 3, his status was unaffected by any change in his father's nationality that occurred after Glenn reached 16 years;

"3. (1) Where a male person being a Tongan subject ceases to be a Tongan subject every child of that person under the age of 16 years shall thereupon cease to be a Tongan subject unless that child or that person ceasing to be a Tongan subject does not become by the law of any other country naturalised in that country."

Any child under the age of 16 years who loses his Tongan nationality under section 3(1) is given the right by subsection (2) to resume his Tongan nationality by making a written declaration to the Minister of Foreign Affairs of his wish so to do but this must be done within one year of his 16th birthday. However, in Glen's case, this had no relevance because, although his birth in New Zealand may well have given him the right to citizenship in New Zealand, by our law he had not lost his Tongan nationality at the time he attained 16 years. (I recently dealt with this provision in Re Fie'eiki, Application number RG 718/02, and incorrectly suggested, obiter, that section 3(2) may have applied in that case. I take this opportunity to correct my statement there. I clearly overlooked the fact that the person in that case was never a Tongan because he was born after his father had lost his Tongan nationality so the question of resumption never arose.)

However in the present case, it would appear that Glenn has obtained a New Zealand passport. If that is the case, he has voluntarily and formally by that action confirmed his status as a New Zealand citizen and has therefore ceased to be a Tongan subject.

Thus this application is to register the birth of a Tongan born abroad but is made at a time when that person is no longer a Tongan. It is this, which the Chief Registrar wishes to have clarified.

The answer seems clear. The duty of the Sub-Registrars is to register any birth of a person born abroad who is Tongan. When Glenn was born that is what he was. The right to have his birth registered arose at that time and no subsequent change in his nationality can change that.

It is, however, the fact of his present nationality which causes the Chief Registrar concern because the fact that a birth is registered in the Tongan register is prima facie evidence that he is a Tongan. By production of his birth certificate, he may, for example, be able to acquire a Tongan passport to which he is clearly no longer entitled.

I accept that may be a serious problem but the responsibility of the Registry staff is to make accurate entries in the registers on the basis of the information provided. Any other possible or probable consequence is not their concern unless it suggests inaccuracy of the information they have been given for the registration. In this case, it is a matter for the Immigration Authorities to ascertain.

It may be that consideration should be given to whether there is a need for a change in the law to ensure more correlation of information between one Government department and another in this field. The Registry and the Courts see many cases where Tongans now hold foreign passports and still apply for and are given Tongan passports or assert other rights they lost with their assumption of foreign citizenship. It is clear the terms of section 4 prohibit dual nationality in such cases. Better procedures and a duty to pass information from one department to another would help to correct such anomalies but that is a matter for the Legislature.

In the meantime, I shall direct that a copy of this ruling should be supplied to the Principal Immigration Officer.