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Re Application by Paea [2002] TOLawRp 22; [2002] Tonga LR 134 (12 June 2002)

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

RG 280/1999

Re Application by Paea

Ward CJ, Registrar General
12 June 2002; 12 June 2002

Births, Deaths, and Marriages – application to have overseas born children registered in Tonga – refused

A father of five applied to have his four children who were born overseas registered in Tonga. The applicant was born overseas but, as both his parents were Tongan, his birth was registered in Tonga in 1982. The applicant's wife was American Samoan and the four subject children were all born in America Samoa.

Held:

1. The Nationality Act (Cap 59) made it clear that any person born abroad of a Tongan father shall only be deemed a Tongan if his father was Tongan and was also born in Tonga. Therefore the birth of the applicant could be registered in Tonga but not the birth of his first four children.

2. The application to register the births in Tonga was refused.

Statute considered:

Nationality Act (Cap 59)

Regulations considered:

Births and Deaths Regulations

Ruling

This is an application by the father to register the births of his four children born overseas.

The applicant's parents are both Tongans born in Vava'u. They had a business in American Samoa and the applicant was born there in 1966. His father, Fainga'a Paea, was born in Neiafu, Vava'u and the applicant's birth was registered here in 1982 under the Registrar General's Births and Deaths Regulations which provide a procedure whereby the birth of a Tongan born overseas may be registered in here.

Regulation 7 provides:

"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:

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

(b) His grounds for believing that person is or was a Tonga.

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

(3) 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."

In 1989, the applicant married in American Samoa. His wife was an American Samoan by birth and they have subsequently had five children. Shortly after the marriage, they moved to Vava'u where they have a business and have lived since. They and their children are clearly domiciled in Tonga and equally clearly regard themselves as Tongan.

However, while they were living in Tonga, whenever the applicant's wife was pregnant, she would return to American Samoa in time for the birth of her baby. This took place in 1991, 1996, 1997 and 1998 and it is the births of those children, a girl and three boys, that the applicant now seeks to register. The fifth child was born in Vava'u and so the birth has been registered here in the usual way.

I accept the applicant and his family regard themselves as Tongan and I fully understand their anxiety to have the births registered here. However, this can only be done if they are Tongan.

That question is governed by section 2 of the Nationality Act (Cap 59), which states:

"2. The following person 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 Tonga;

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

(i) lodges with 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. "

Paragraph (b) makes it clear that any person born abroad of a Tongan father shall only be deemed a Tongan if his father is Tongan and was also born in Tonga. This allowed the birth of the applicant to be registered here but, unfortunately, that same provision prevents his first four children from being deemed to be Tongan and so they do not fall within the terms of Regulation 7.

As a result, I must regrettably refuse the application to register the births here.