Docket: T-495-14
Citation:
2014 FC 1101
Ottawa, Ontario, November 20, 2014
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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KARIM AYYAD
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant seeks judicial review of the
decision of Citizenship Judge, Sharon Robertson, made on May 30, 2013 which
found that the applicant did not have a good and sufficient cause not to appear
to take the Oath of Citizenship.
[2]
The facts are straightforward. An application
for citizenship was made on behalf of the applicant, who was a minor at that
time, on May 4, 2012. On April 5, 2013, his citizenship was granted by an
Officer at Citizenship and Immigration Canada (CIC). On April 17, 2013, a
Notice to Appear was sent directing the applicant to attend a ceremony on May
9, 2013 to take his Oath of Citizenship. The notice was sent to the mailing
address previously provided by the applicant’s mother at their home in London,
Ontario.
[3]
The applicant, who was in London, England at
that time, received the Notice to Appear shortly after May 9, 2013. He advised
CIC by letter dated May 14, 2013 that he had been unable to attend as directed
because he was in London, England preparing to take his exams at the end of his
first year at the City Law School of City University where he was enrolled and
attached a letter from the University confirming his enrolment. He requested
that the Oath of Citizenship be rescheduled.
[4]
The Citizenship Judge decided that the
applicant’s explanation for failing to attend to take his Oath did not
constitute a good and sufficient cause. As a result, the application was then
considered abandoned. After repeated requests about the status of the
applicant’s citizenship application, Counsel for the applicant was advised by
letter dated February 24, 2014, from an unnamed Citizenship Official, that the
file had been closed.
[5]
The result of this determination – that his
application for citizenship was abandoned – is that the applicant would have to
make a new application for citizenship, now as an adult. The process would
recommence and he would have to satisfy all the requirements, despite the fact
that he had been granted citizenship in 2013 and the only remaining step was for
him to take the Oath of Citizenship.
[6]
For the reasons that follow, the application for
judicial review is allowed.
The decision under review
[7]
The decision of the Citizenship Judge is set out
on a form dated May 30, 2013. It notes that the applicant was duly notified to
attend on May 9, 2013 and did not attend, but notified CIC and submitted his
explanation on May 28, 2013, which was within the 60 day period specified in
the Citizenship Regulations, SOR/93-246.
[8]
In the box provided to set out the explanation offered,
the judge reiterates verbatim the content of the applicant’s letter; he had
travelled to London, England to prepare for his end of year Law School exams,
which started the first week of May.
[9]
The judge then reiterates verbatim the three
examples of acceptable explanations provided in the Processing Manual (CP 13,
section 6.5) regarding “good and sufficient cause” for missing the Oath
Ceremony. The Citizenship Judge then ticked the box indicating that she did
not agree that the applicant had good and sufficient cause not to appear.
The Relevant Provisions
[10]
The Citizenship Regulations, SOR/93-246
(as of the date of this decision) provide:
23. (1) Where a person who fails to appear and take the oath of
citizenship at the date, time and place appointed for that purpose fails,
within 60 days after that date, to satisfy the citizenship judge or foreign
service officer before whom the person was to appear, or the Minister where
the person was to appear before a Minister of the Crown, that the person was
prevented from appearing by some good and sufficient cause, the person’s
certificate of citizenship shall be returned to the Registrar.
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23. (1) Lorsque la
personne qui n’a pas comparu et n’a pas prêté le serment de citoyenneté aux
date, heure et lieu fixés à cette fin ne parvient pas, dans les 60 jours qui
suivent cette date, à convaincre le juge de la citoyenneté ou l’agent du
service extérieur devant lequel elle était censée comparaître, ou le ministre
si elle était censée comparaître devant un ministre de la Couronne, qu’une
raison valable l’a empêchée de comparaître, son certificat de citoyenneté
doit être renvoyé au greffier.
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(2) Where a person described in subsection (1) satisfies the
citizenship judge or foreign service officer before whom the person was to
appear, or the Minister where the person was to appear before a Minister of
the Crown, of the matter referred to in that subsection, another date, time
and place shall be appointed by the citizenship judge, foreign service
officer or the Registrar for the person to appear and take the oath of
citizenship
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(2) Lorsque la
personne mentionnée au paragraphe (1) réussit à convaincre le juge de la
citoyenneté ou l’agent du service extérieur devant lequel elle était censée
comparaître, ou le ministre si elle était censée comparaître devant un
ministre de la Couronne, du bien-fondé de son empêchement à comparaître, le
juge de la citoyenneté, l’agent du service extérieur ou le greffier fixe
d’autres date, heure et lieu auxquels elle devra comparaître pour prêter le
serment de citoyenneté.
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[11]
The Citizenship Act, RSC1985, c C-29 (the
Act), now provides in Section 13.2 that an application is abandoned where the
applicant fails to attend without reasonable excuse. That determination would
be made by the Minister or the Minister’s delegate. While Section 13.2 of the
Act does not apply to this application for judicial review, the respondent
helpfully points out that, in the event the Court allows the application for
judicial review, any reconsideration of the applicant’s reason for not
attending to take his Oath of Citizenship would be determined in accordance
with Section 13.2 by the Minister and not by a Citizenship Judge. In addition,
the wording of “good and sufficient cause” has been replaced by “reasonable
excuse”.
[12]
Section 13.2 of the Citizenship Act now
provides:
13.2 (1) The Minister may treat an application as abandoned
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13.2 (1) Le ministre peut considérer une demande comme abandonnée
dans les cas suivants:
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(a) if the
applicant fails, without reasonable excuse, when required by the Minister
under section 23.1,
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a) le demandeur omet, sans excuse légitime,
alors que le ministre l’exige au titre de l’article 23.1 :
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(i) in the case
where the Minister requires additional information or evidence without
requiring an appearance, to provide the additional information or evidence by
the date specified, or
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(i) de fournir, au
plus tard à la date précisée, les renseignements ou les éléments de preuve
supplémentaires, lorsqu’il n’est pas tenu de comparaître pour les présenter,
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(ii) in the case
where the Minister requires an appearance for the purpose of providing
additional information or evidence, to appear at the time and at the place —
or at the time and by the means — specified or to provide the additional
information or evidence at his or her appearance; or
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(ii) de
comparaître aux moment et lieu — ou au moment et par le moyen —fixés, ou de
fournir les renseignements ou les éléments de preuve supplémentaires lors de
sa comparution, lorsqu’il est tenu de comparaître pour les présenter;
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(b) in the
case of an applicant who must take the oath of citizenship to become a
citizen, if the applicant fails, without reasonable excuse, to appear and
take the oath at the time and at the place — or at the time and by the means
— specified in an invitation from the Minister.
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b) le demandeur omet, sans excuse légitime,
de se présenter aux moment et lieu — ou au moment et par le moyen — fixés et
de prêter le serment alors qu’il a été invité à le faire par le ministre et
qu’il est tenu de le faire pour avoir la qualité de citoyen.
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(2) If the Minister treats an application as abandoned, no further
action is to be taken with respect to it.
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(2) Il n’est donné suite à aucune demande considérée comme
abandonnée par le ministre.
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[13]
Processing Manual CP 13 – Administration,
section 6.5, provides:
Exceptions
If an applicant provides CIC officials with a reasonable
explanation for failure to respond within requested timeframes AND provides
proof or evidence to support the explanation, additional time may be granted.
At the discretion of the citizenship officer and depending on the nature of
the circumstance, an applicant may be given up to six months from the date
specified on the original notice by which to comply with the request to
provide required documents to appear.
Example: If the date on the original notice was June 5, 2004, the
applicant would have up until December 5, 2004 to comply. This means that
clients cannot be made unavailable in GCMS for more than six months. Clients
should not be given more than six months “grace” to comply with the
requirements of the Act.
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Exceptions
Si un demandeur founit à un fonctionnaire de la citoyenneté une
explication raisonnable de l’absence de réponse dans le délai prescrit ET une
preuve à l’appui de son explication, il peut obtenir un délai supplémentaire.
L’agent de la citoyenneté peut, selon les motifs de l’absence de réponse,
accorder un délai supplémentaire maximal de six mois, à compter de la date
précisée dans l’avis original, dans lequel le demandeur devra fournir les
documents exigés ou se présenter.
Exemple : Si la date dans l’avis original était le 5 juin
2004, le demandeur pourrait avoir jusqu’au 5 décembre 2004 pour se conforme à
l’avis. Cela signifie que le dossier d’un client ne peut pas rester inactif
dans le SMGC plus de six mois. Il ne faut pas accorder plus de six
mois « de grâce » aux clients pour se conformer aux exigences
de la Loi.
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Acceptable explanations (examples)
Applicant must be away for an extended
period to care for a dying parent.
Applicant is unable to appear as a result of health constraints
following an illness/accident.
Other extenuating circumstances as deemed reasonable by CIC (e.g.
applicant called out of country to sort out family/ business affairs as a
result of death in the family).
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Explication acceptables (exemples)
Le demandeur doit s’absenter pour une période prolongée afin de s’occuper
d’un parent mourant.
Le demandeur ne peut pas se présenter pour des raisons de santé
(maladie ou accident).
D’autres circonstances indépendantes de la volonté du demandeur
que CIC jugera raisonnables (par exemple, le demandeur a été appelé à l’étranger
pour une affaire familiale ou autre, à la suite d’un décès dans la famille).
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Unacceptable explanations (examples)
Applicant lives or continually travels abroad and wants to wait
until next trip to Canada.
Applicant has not prepared for language /knowledge assessment and
needs more time to complete classes.
Applicant neglected to appear on scheduled date.
On occasion, there may be reasons put forward by the applicant
which are difficult to assess. If a citizenship officer is unsure whether or
not to initiate abandonment procedures, advice should be sought from the
Integration Branch, Citizenship Division.
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Explication inacceptables (exemples)
Le demandeur vit ou voyage continuellement à l’étranger et veut
attendre d’être revenu au Canada.
Le demandeur ne s’est pas préparé pour l’examen (connaissance de
la langue et connaissance du Canada) et a besoin de plus de temps pour suivre
les cours.
Le demandeur ne s’est tout simplement pas présenté à la date
prescrite.
Il peut arriver qu’un
demandeur fournisse une explication qui est difficile à évaluer. En case de
doute, l’agent de la citoyenneté doit demander conseil à la Division de la
citoyenneté, de la Direction générale de l’intégration.
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(I
note that CP 13 applied to the provisions in effect prior to
August 1, 2014, including section 23 of the Regulations.)
The Applicant’s position
[14]
The applicant argues that the decision is not
reasonable because the Citizenship Judge fettered her discretion by considering
the examples in the Guidelines to be the only acceptable explanations that
would constitute “good and sufficient cause” for failing to attend to take the
Oath rather than considering whether the applicant’s explanation would be a
good and sufficient cause. The applicant notes that CP 13 is a guideline only
and there is nothing in the Act or the Regulations to limit the discretion of
the Citizenship Judge.
[15]
The applicant also argues that the Citizenship
Judge failed to provide adequate reasons; the information provided does not
reveal an intelligible, transparent or justifiable decision. The reasons do not
demonstrate any analysis about why the applicant’s explanation is not a good
and sufficient cause or would not fall within “extenuating circumstances”,
which is provided as an example in CP 13.
[16]
The applicant submits that the respondent has
attempted to provide additional reasons that are not on the record at all –
i.e., that the Notice was sent to the applicant’s last known address and that
the Judge considered his explanation more analogous to one of the unacceptable
explanations. The applicant also argues that the reasons should not require the
Court to speculate to provide additional support for the reasonableness of the
decision (Canada (Citizenship and Immigration) v Jeizan, 2010 FC
323, 386 FTR 1 [Jeizan]).
The Respondent’s Position
[17]
The respondent submits that the decision is
reasonable and that the reasons, although brief, are adequate.
[18]
The respondent notes that there is no statutory
requirement to provide reasons when denying an applicant’s explanation or
request for a new date to take the Oath, unlike decisions made pursuant to
section 14 of the Citizenship Act which require that reasons be provided.
[19]
Alternatively, the respondent submits that, if
there is a duty to provide reasons, it is minimal and it was satisfied by the
letter sent to the applicant in February 2014, attaching the Citizenship
Judge’s decision.
[20]
The respondent submits that this decision, which
sets out the examples of acceptable explanations, along with the record, which
includes the applicant’s letter and the letter from City University, make it
possible to understand why the Citizenship Judge found that the explanation did
not constitute good and sufficient cause. She considered the applicant’s
explanation, was guided by the examples, but found that his reason for not
appearing was not a good and sufficient cause.
[21]
The respondent submits that the Notice to Appear
was sent to the applicant at the address his mother had very recently provided
and the fact that he was out of the country when the Notice was sent was not an
adequate explanation.
[22]
The respondent argues that the Guidelines do not
fetter the Citizenship Judge’s discretion, noting that they specifically
include, as an example of a good and sufficient cause, “other
extenuating circumstances as deemed reasonable by CIC”. Nor did the
Citizenship Judge fetter her discretion by referring to the Guidelines. The
respondent argues that by setting out the applicant’s explanation and the
examples of acceptable explanations, the reasons show that the Citizenship
Judge considered the applicant’s circumstances, but concluded that these did
not constitute a good and sufficient cause.
The Issues
[23]
The applicant challenges both the reasonableness
of the decision to refuse his explanation as a good and sufficient cause and
the adequacy of the reasons provided by the Citizenship Judge, which consist of
a cut-and-paste from his letter and the CP Guidelines.
[24]
The issue is whether the decision is reasonable;
this includes whether the Citizenship Judge fettered her discretion, whether
the reasons are adequate to allow the Court to understand why the Citizenship
Judge reached the decision and whether the decision is within the range of
acceptable outcomes (Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
Nurses]).
Standard of Review
[25]
The applicant submits that issues related to
fettering of discretion are issues of procedural fairness, reviewable on the
standard of correctness.
[26]
The respondent submits that both issues – the
adequacy of the reasons and whether the judge fettered her discretion – are
reviewable on the reasonableness standard.
[27]
The standard of reasonableness applies to the
Citizenship Judge’s decision as it involves an exercise of discretion based on
questions of fact and law.
[28]
The role of the Court is to determine whether
the decision “falls within ‘a range of possible, acceptable outcomes which are
defensible in respect of the facts and law’
(Dunsmuir, at para 47). There might be more than one reasonable outcome.
However, as long as the process and the outcome fit comfortably with the
principles of justification, transparency and intelligibility, it is not open
to a reviewing court to substitute its own view of a preferable outcome”:
(Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12
at para 59, [2009] 1 S.C.R. 339, citing Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[29]
The inadequacy of the reasons is not a stand
alone ground to allow an application for judicial review. In Newfoundland
Nurses, the Supreme Court of Canada elaborated on the requirements of Dunsmuir,
noting that the reasons are to “be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (at para 14). In addition, where necessary,
courts may look to the record “for the purpose of
assessing the reasonableness of the outcome” (at para 15). The Court
summed up their guidance at para 16:
In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[30]
However, a Court is not expected to look to the
record to fill in gaps to the extent that it rewrites the reasons. In Pathmanathan
v Canada (Citizenship and Immigration), 2013 FC 353 at para 28, 430 FTR 192
[Pathmanathan], Justice Rennie noted that Newfoundland Nurses “is not an invitation to the supervising court to re-cast the
reasons given, to change the factual foundation on which it is based, or to
speculate as to what the outcome would have been had the decision-maker
properly assessed the evidence.”
[31]
Similarly in Kamolafe v Canada (Citizenship
and Immigration), 2013 FC 431, 16 Imm LR (4th) 267, relied on by the
applicant, Justice Rennie noted, at para 11, that “Newfoundland
Nurses is not an open invitation to the Court to provide reasons that were not
given, nor is it licence to guess what findings might have been made or to
speculate as to what the tribunal might have been thinking.”
The decision is not reasonable
The Citizenship Judge fettered her discretion
[32]
The applicant relies on Singh Bajwa v Canada
(Citizenship and Immigration), 2012 FC 864 at para 46, 415 FTR 107, as
support for his position that the Citizenship Judge limited her consideration
to the Guidelines rather than considering the law and, as a result, fettered
her discretion. In that case, Justice O’Keefe found that the fettering of
discretion was reviewable on the standard of correctness and the decision-maker
was owed little deference.
[33]
I agree that the Citizenship Judge’s narrow
consideration of the examples in the Guidelines as the only possible good and
sufficient causes demonstrates a fettering of her discretion.
[34]
The Guidelines are meant to provide guidance, as
the name suggests, and not to dictate the decision or to provide a checklist.
The Guidelines, on their own, do not fetter the decision-maker’s discretion;
rather, it is the reliance on the Guidelines instead of the law and the
Regulations that is the problem. The Citizenship Judge has the discretion to
consider a range of explanations, some of which would be analogous to the
examples and others which would not; then must determine if the explanation
provided by the applicant is a good and sufficient cause.
[35]
Whether the correctness or reasonableness
standard of review applies does not change the outcome in the present case.
However, I prefer the approach of Justice Stratas in Stemijon Investments
Ltd v Canada (Attorney General), 2011 FCA 299 at paras 22-23, 341 DLR (4th)
710, where he first explained the notion of fettering of discretion and then
found that this should be considered in the context of assessing the
reasonableness of the decision. He offered this approach at para 24:
[24] Dunsmuir reaffirms a
longstanding, cardinal principle: “all exercises of
public authority must find their source in law” (paragraphs 27-28). Any
decision that draws upon something other than the law – for example a decision
based solely upon an informal policy statement without regard or cognizance of
law, cannot fall within the range of what is acceptable and defensible and,
thus, be reasonable as that is defined in Dunsmuir at paragraph 47. A
decision that is the product of a fettered discretion must per se be
unreasonable.
[36]
I agree that, in the present case, the decision
is the product of fettered discretion and is, therefore, unreasonable.
[37]
If I am wrong in this finding, I would also find
that the decision is unreasonable because the reasons do not permit the Court
to understand why the Citizenship Judge made the decision or whether the decision
falls within the range of acceptable outcomes.
The Reasons are not adequate
[38]
Although the adequacy of reasons is not a stand
alone ground for judicial review, the pasting in of a paragraph from the
applicant’s letter setting out the reason he missed the Oath Ceremony, followed
by the pasting in of the examples of acceptable explanations from CP 13,
section 6.5 cannot be considered reasons. Although there is no statutory
requirement to provide reasons, there remains a basic requirement to advise the
applicant why his explanation is not a good and sufficient cause. The
cut-and-paste approach does not disclose the reasoning of the Citizenship
Judge. The respondent has offered potential reasons to fill in this gap, but
these are not on the record and call for speculation, which the Court may not
engage in.
[39]
As noted in Jeizan, above, by Justice de
Montigny at para 17:
[17] Reasons for decisions are adequate
when they are clear, precise and intelligible and when they state why the
decision was reached. Adequate reasons show a grasp of the issues raised by
the evidence, allow the individual to understand why the decision was made and
allow the reviewing court to assess the validity of the decision: see Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23 at para.
46; Mehterian v. Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu,
above, at paras. 35-36.
[40]
In Canada (Citizenship and Immigration) v
Arastu, 2008 FC 1222 at paras 35-36, 174 ACWS (3d) 336, Justice Russell
explained the benefits of reasons. Although that case dealt with a decision
made under section 14 of the Act, for which there is a requirement for reasons
to be provided, that decision affected the status of the applicant, as it does
in the present case:
[35] The duty to provide reasons is a
salutary one. Not only do reasons foster better decision-making by ensuring
that the issues and judge’s reasoning are well-articulated, but they also
provide a basis for an assessment of possible grounds for appeal or review.
This is particularly important when the decision is subject to a deferential
standard of review: VIA Rail Canada Inc. v. National Transportation Agency,
193 D.L.R. (4th) 357 (F.C.A.) at paragraphs 17 and 19.
[36] The duty requires that the reasons be
adequate. They must set out the findings of fact and must address the major
points in issue. The reasoning process followed by the decision maker must be
set out and must reflect consideration of the main relevant factors. Further, a
determination of whether reasons are adequate must be considered in light of
the particular circumstances of each case. Where a person’s status is at issue,
the requirements are more stringent: Baker at paragraphs 25, 75 and Via
Rail at paragraphs 21-22.
[41]
The reasons required of the Citizenship Judge to
either agree or disagree with an applicant’s explanation for failing to attend
to take the Oath need not be detailed but should disclose not only that the
judge has considered the explanation offered but why the judge found that the
explanation was not a good and sufficient cause. In the present case, the
decision affects the status of the applicant. He is no longer one small step
from Citizenship. Given the consequences, more than the brief reference to his
explanation, the examples and the check mark indicating lack of agreement is
required.
[42]
The guidance provided by Newfoundland Nurses
calls on the Court to consider whether the reasons, supplemented by the record,
allow it to understand why the Citizenship Judge made the decision and
determine whether the decision falls within the range of acceptable outcomes. I
have looked to the sparse record to supplement and support the outcome, but it
does not assist. The Court cannot rewrite the decision with reasons which are
not there (Pathmanathan, above).
Conclusion
[43]
The application for judicial review is allowed.
The applicant’s explanation for not attending to take the Oath of Citizenship
must be reconsidered in accordance with the statutory provisions now in force.
Once the decision is made, it should be communicated to the applicant promptly.
No costs are ordered.