Docket: T-1615-17
Citation: 2018 FC 562
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 30, 2018
PRESENT: The Honourable Madam Justice Roussel
| BETWEEN:
|
| GPP
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The applicant, GPP, is seeking an order in the nature of mandamus directing the Minister of Citizenship and Immigration [Minister] to grant him Canadian citizenship or, alternatively, to cancel the suspension of his application for citizenship and to process it without delay. The applicant maintains that he meets all the conditions for the granting of citizenship and that the Minister did not have the legal authority to suspend processing of his application for citizenship.
[2]
The Minister counters that the administrative suspension of the processing of the Applicant’s application for citizenship was legal under section 13.1 of the Citizenship Act, R.S.C., 1985, c. C-29 [Citizenship Act]. This provision grants the Minister the power to suspend, for as long as is necessary, the processing of an application for citizenship while awaiting information, evidence or the results of an investigation that could have an impact on an applicant’s admissibility to citizenship. Therefore, in the absence of a legal duty to continue to process the application for citizenship, the applicant cannot claim to meet the first criterion for the issuance of a writ of mandamus, that is, the existence of a public legal duty to act, as set forth by the Federal Court of Appeal in Apotex Inc v. Canada (Attorney General), [1994] 1 FC 742 (FCA) (QL) at paragraph 45, confirmed by [1994] 3 SCR 1100 [Apotex].
[3]
The parties agree that the key issue in this case is whether or not the Minister had the authority to suspend the Applicant’s application for citizenship. To make a determination, the Court must decide whether, at the time of its entry into force on August 1, 2014, section 13.1 of the Citizenship Act had an immediate effect on applications for citizenship that had already been made but were still being processed. This matter therefore deals with the interpretation of the transitional provision contained in subsections 31(1) and 31(2) of the Strengthening Canadian Citizenship Act, S.C. 2014, c. 22 [Strengthening Canadian Citizenship Act].
II.
Background
[4]
The applicant is originally from Cuba. He entered Canada on August 14, 2009, and filed a claim for refugee protection one month later. He received refugee status on April 22, 2010, and then permanent residence on June 8, 2011. The applicant returned to Cube five (5) times between September 15, 2011, and May 25, 2013, for family reasons. The applicant states that he received permission from the competent authorities to travel there each time.
[5]
On January 2, 2014, the applicant made an application for Canadian citizenship. A few days later, he returned to Cuba, where he remained until February 1, 2014.
[6]
On September 24, 2014, the applicant was convened for a citizenship test and for identity verification on October 8, 2014. He failed the test.
[7]
On November 1, 2014, upon returning to Canada after a two-week stay in Cuba, a Canada Border Services Agency [CBSA] officer questioned the applicant about his trips to Cuba and his Cuban passport. The following day, the officer entered a note into the applicant’s file stating that the applicant obtained permanent residence in Canada under the refugee claimant class from his country of origin on June 8, 2011, that he then made seven (7) trips to Cuba and that a Cuban passport was issued to him on September 30, 2013.
[8]
On November 5, 2014, the applicant passed his citizenship test.
[9]
On December 18, 2014, a citizenship application processing officer saw a note from the CBSA dated November 6, 2014, in the Global Case Management System stating that the applicant’s file was [translation] “under review for cancellation or cessation of refugee protection
.”
[10]
On December 22, 2014, a local citizenship office received a request from the CBSA to suspend the processing of the applicant’s application for citizenship due to a CBSA investigation into the cancellation or cessation of the applicant’s refugee protection.
[11]
On Jun 20, 2017, after a number of follow-up requests from the applicant and the citizenship office, the CBSA sent an application to cease refugee protection on the basis of section 108 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] to the Immigration and Refugee Board on the ground that the applicant returned to his country of origin since obtaining his refugee status.
[12]
On September 8, 2017, the Minister informed the applicant by email that his application for citizenship was suspended as of December 22, 2014, under section 13.1 of the Citizenship Act, which had entered into force on August 1, 2014. The Minister also stated that under subparagraph 31(1)(b)(iv) and subsection 31(2) of the Strengthening Canadian Citizenship Act, section 13.1 of the Citizenship Act applies to all applications for citizenship made under subsection 5(1) of the Citizenship Act, including those made before August 1, 2014.
[13]
On October 27, 2017, the applicant applied for judicial review before this Court.
III.
Legislative background
[14]
When the applicant made his application for citizenship on January 2, 2014, the legal conditions for granting citizenship were set forth in subsection 5(1) of the Citizenship Act. At the time, the Minister granted citizenship to a person who demonstrated, among other things, that he or she was a permanent resident within the meaning of subsection 2(1) of the IRPA and that he or she lived in Canada for at least three (3) years in the four (4) years preceding the date of his or her application (Citizenship Act, paragraph 5(1)(c)).
[15]
Section 17 also states that the Minister could suspend the processing of the application for as long as is necessary if the Minister deems not to have all the information required to establish that the citizenship applicant met the conditions provided for in the Act and its regulations. The suspension period could not, however, exceed six (6) months following the suspension date.
[16]
On June 19, 2014, the Strengthening Canadian Citizenship Act received royal assent. This act amends the Citizenship Act in its previous version, particularly by updating the eligibility conditions for obtaining Canadian citizenship, strengthening the provisions pertaining to security and fraud, and amending the provisions governing the processing of applications and the review of decisions.
[17]
Among the changes made, section 11 of the Strengthening Canadian Citizenship Act provides for the addition of section 13.1 to the Citizenship Act, which reads as follows:
| 13.1 The Minister may suspend the processing of an application for as long as is necessary to receive
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13.1 Le ministre peut suspendre, pendant la période nécessaire, la procédure d’examen d’une demande :
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| (a) any information or evidence or the results of any investigation or inquiry for the purpose of ascertaining whether the applicant meets the requirements under this Act relating to the application, whether the applicant should be the subject of an admissibility hearing or a removal order under the Immigration and Refugee Protection Act or whether section 20 or 22 applies with respect to the applicant; and
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a ) dans l’attente de renseignements ou d’éléments de preuve ou des résultats d’une enquête, afin d’établir si le demandeur remplit, à l’égard de la demande, les conditions prévues sous le régime de la présente loi, si celui-ci devrait faire l’objet d’une enquête dans le cadre de la Loi sur l’immigration et la protection des réfugiés ou d’une mesure de renvoi au titre de cette loi, ou si les articles 20 ou 22 s’appliquent à l’égard de celui-ci;
|
| (b) in the case of an applicant who is a permanent resident and who is the subject of an admissibility hearing under the Immigration and Refugee Protection Act, the determination as to whether a removal order is to be made against the applicant.
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b ) dans le cas d’un demandeur qui est un résident permanent qui a fait l’objet d’une enquête dans le cadre de la Loi sur l’immigration et la protection des réfugiés, dans l’attente de la décision sur la question de savoir si une mesure de renvoi devrait être prise contre celui-ci.
|
[18]
Section 13 of the Strengthening Canadian Citizenship Act also repeals section 17 of the Citizenship Act.
[19]
The Strengthening Canadian Citizenship Act provides different dates for the entry into force of the amendments made to the Citizenship Act. Under subsection 46(1) of the Strengthening Canadian Citizenship Act, section 11 of this act enters into force on the date established by Order in Council The Order in Council in question, P.C. 2014-891, was introduced on July 31, 2014, and sets August 1, 2014, as the day on which section 11 of the Strengthening Canadian Citizenship Act comes into force. Therefore, section 13.1 of the Citizenship Act entered into force on August 1, 2014.
[20]
Section 13 of the Strengthening Canadian Citizenship Act, which repeals section 17 of the Citizenship Act, entered into force on the same date.
[21]
To prevent any ambiguity as to the application of the amended, repealed or added provisions in the Citizenship Act, the Strengthening Canadian Citizenship Act contains various transitional provisions. Subparagraph 31(1)(b)(iv) and subsection 31(2) of the Strengthening Canadian Citizenship Act govern the application of section 13.1 of the Citizenship Act. They read as follows:
| 31. (1) Subject to subsections (2) and (3), an application that was made under subsection 5(1), (2), or (5), 5.1(1), (2) or (3), 9(1) or 11(1) of the Citizenship Act before the day on which subsection 3(7) comes into force and was not finally disposed of before that day is to be dealt with and disposed of in accord-ance with
|
31. (1) Sous réserve des paragraphes (2) et (3), la demande qui a été présentée en vertu des paragraphes 5(1), (2) ou (5), 5.1(1), (2) ou (3), 9(1) ou 11(1) de la Loi sur la citoyenneté avant la date d’entrée en vigueur du paragraphe 3(7) et dont il n’a pas été décidé définitivement avant cette date est régie à la fois par :
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| (a) the provisions of that Act — except section 3, subsection 5(4), sections 5.1 and 14 and paragraph 22(1)(f) — as they read immediately before that day; and
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a ) cette loi, dans sa version antérieure à cette date, exception faite de l’article 3, du paragraphe 5(4), des articles 5.1 et 14 et de l’alinéa 22(1)f);
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| (b) the following provisions of that Act as they read on that day:
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b ) les dispositions ci-après de cette loi, dans leur version à cette date :
|
| (i) section 3,
(ii) paragraph 5(2)(b) and subsection 5(4),
(iii) section 5.1 other than paragraph (1)(c.1),
(iv) sections 13.1 to 14, and
(v) paragraphs 22(1)(a.1), (a.2), (b.1), (e.1), (e.2) and (f) and subsections 22(1.1), (3) and (4).
|
(i) l’article 3,
(ii) l’alinéa 5(2)b) et le paragraphe 5(4),
(iii) l’article 5.1, exception faite de l’alinéa (1)c.1),
(iv) les articles 13.1 à 14,
(v) les alinéas 22(1)a.1), a.2), b.1), e.1), e.2) et f) et les paragraphes 22(1.1), (3) et (4).
|
| (2) On the day on which section 11 comes into force, the reference to subsection 3(7) in subsection (1) is replaced by a reference to that section 11.
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(2) À la date d’entrée en vigueur de l’article 11, le renvoi au paragraphe 3(7) visé au paragraphe (1) est remplacé par un renvoi à cet article 11.
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| (3) On the day on which subsection 2(2) comes into force
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(3) À la date d’entrée en vigueur du paragraphe 2(2) :
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| (a) the reference to section 11 in subsection (1) is replaced by a reference to that subsection 2(2); and
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a ) le renvoi à l’article 11 visé au paragraphe (1) est remplacé par un renvoi à ce paragraphe 2(2);
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| (b) the requirement described in paragraph 5(1)(c) or 11(1)(d) of that Act, as enacted by subsections 3(1) and 9(2), respectively, that a person have no unfulfilled conditions relating to their status as a permanent resident, applies to an application referred to in subsection (1).
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b ) l’exigence selon laquelle la personne est tenue de satisfaire à toute condition rattachée à son statut de résident permanent, mentionnée aux alinéas 5(1)c) et 11(1)d) de cette loi édictés par les paragraphes 3(1) et 9(2), respectivement, s’applique aux demandes visées au paragraphe (1).
|
[22]
In 2015, section 31 was amended by the adoption of section 11 of the Protection of Canada from Terrorists Act, S.C. 2015, c. 9. However, the Court does not need to take these provisions into account in its analysis.
IV.
Analysis
[23]
The conditions that must be met for a mandamus order to be granted are set out in Apotex, as cited above. These conditions must all be met for the Court to grant this extraordinary remedy (Lukacs v. Canada (Transportation Agency), 2016 FCA 202 at paragraph 29; Coderre v. Canada (Office of the Information Commissioner), 2015 FC 776 at paragraph 27; Rocky Mountain Ecosystem Coalition v. Canada (National Energy Board), (1999) FCJ No. 1223 at paragraph 30).
[24]
For the purposes of this case, the first condition is key, that is, the existence of a public legal duty to act with respect to the applicant.
[25]
The Court is of the opinion that the applicant did not demonstrate that this condition was met.
[26]
The applicant maintains that the Minister had the duty to continue to process his application for citizenship because section 13.1 of the Citizenship Act is not retroactive to the application he made on January 2, 2014. He states that it is the filing date that counts under subsections 31(1) and 31(2) of the Strengthening Canadian Citizenship Act and that only applications received as of August 1, 2014, are subject to section 13.1 of the Citizenship Act. His interpretation is based on the fact that the Citizenship Act does not contain section 13.1 in its version prior to August 1, 2014.
[27]
The Minister argues that subparagraph 31(1)(b)(iv) and subsection 31(2) of the Strengthening Canadian Citizenship Act provide for an immediate application of section 13.1 of the Citizenship Act to applications for citizenship still being processed and not yet finalized.
[28]
The Court acknowledges that the transitional provision poses interpretation issues. This is largely due to the fact that it is not static in time because it provides for a number of dates of entry into force. It is nonetheless the view of the Court that the interpretation proposed by the Minister is the correct one.
[29]
Section 31 of the Strengthening Canadian Citizenship Act contains three (3) subsections. Read in its entirety, this section refers to two (2) pieces of legislation and three (3) different reference dates.
[30]
First, the excerpt “[s]ubject to subsections (2) and (3)”
at the beginning of subsection 31(1) refers to the Strengthening Canadian Citizenship Act. The excerpt that follows and reads “an application that was made under subsection 5(1)”
refers to an application made under the Citizenship Act. Then, the excerpt “before the day on which subsection 3(7) comes into force”
pertains to the date on which subsection 3(7) of the Strengthening Canadian Citizenship Act came into force by Order in Council, that is, June 19, 2014, and is the reference point. Therefore, by making the necessary adaptations, the beginning of subsection 31(1) would read as follows as of June 19, 2014:
31(1) Subject to subsections (2) and (3) of the Strengthening Canadian Citizenship Act, an application that was made under subsection 5(1) of the Citizenship Act before June 19, 2014, the day on which subsection 3(7) of the Strengthening Canadian Citizenship Act comes into force, and was not finally disposed of before that day is to be dealt with and disposed of in accordance with . . . .
[31]
As for subsection 31(2), this provision governs the application of provisions that entered into force after June 19, 2014. It is provided that on the date on which section 11 of the Strengthening Canadian Citizenship Act enters into force, established by Order in Council to be August 1, 2014, the reference to subsection 3(7) contained in subsection 31(1) of the Strengthening Canadian Citizenship Act is replaced by a reference to this section 11. Therefore, once the necessary adaptations are made, the beginning of subsection 31(1) would read as follows as of August 1, 2014:
31(1) Subject to subsections (2) and (3) of the Strengthening Canadian Citizenship Act, an application that was made under subsection 5(1) of the Citizenship Act before August 1, 2014, the day on which section 11 of the Strengthening Canadian Citizenship Act comes into force, and was not finally disposed of before that day is to be dealt with and disposed of in accordance with . . . .
[32]
The same must be done for subsection 31(3) of the Strengthening Canadian Citizenship Act, which provides that upon the entry into force of subsection 2(2) of the Strengthening Canadian Citizenship Act, the reference to section 11 (prescribed by subsection 31(2) of the Strengthening Canadian Citizenship Act as a replacement for subsection 3(7) of the Strengthening Canadian Citizenship Act) must be replaced by subsection 2(2) of the Strengthening Canadian Citizenship Act, which is to enter into force by Order in Council on June 11, 2015. On pain of repetition, subsection 31(1) of the Strengthening Canadian Citizenship Act would read as follows as of June 11, 2015:
31(1) Subject to subsections (2) and (3) of the Strengthening Canadian Citizenship Act, an application that was made under subsection 5(1) of the Citizenship Act before June 11, 2015, the day on which subsection 2(2) of the Strengthening Canadian Citizenship Act comes into force, and was not finally disposed of before that day is to be dealt with and disposed of in accordance with . . . .
[33]
Having determined how to read the introduction of subsection 31(1), it is apparent that the legislator wanted applications that had already been made but were still being processed to be governed by two (2) provisions. First, at paragraph 31(1)(a), the excerpt “that Act”
and the sections listed refer to the Citizenship Act. In other words, in the matter at hand, applications for citizenship made before August 1, 2014, that are still being processed are governed by the Citizenship Act in its version prior to August 1, 2014, with the exception of section 3, subsection 5(4), sections 5.1 and 14, and paragraph 22(f).
[34]
However, subsection 31(1) then provides at paragraph (b) that these same applications will be subject to the provisions set out therein and henceforth incorporated into the Citizenship Act through the adoption of the Strengthening Canadian Citizenship Act. Section 13.1 of the Strengthening Canadian Citizenship Act, which entered into force on August 1, 2014, therefore applies to applications made before August 1, 2014, that were not finally disposed of.
[35]
At paragraphs 4 and 41 of his additional brief, the applicant argues that after the interview on November 5, 2014, he met all the preconditions for giving rise to the Registrar’s mandatory duty to forward the application to a citizenship judge so that he may be granted citizenship under subsection 5(1) of the Citizenship Act. Nonetheless, since his application for citizenship had not been finally disposed of before August 1, 2014, the applicant’s application for citizenship was governed by both the provisions of the Citizenship Act, as it existed prior to August 1, 2014, and section 13.1, as added to the Citizenship Act by the Strengthening Canadian Citizenship Act.
[36]
The Court cannot accept the applicant’s argument that only the filing date is relevant in determining which version of the Citizenship Act must be applied. The use of the word “and”
at subsection 31(1) suggests otherwise.
[37]
Admittedly, the statutory interpretation cannot be based merely on the wording of a piece of legislation. The words of an Act must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. This is Driedger’s modern principle of statutory interpretation (Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at paragraph 15; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at paragraph 21; Valenzuela v. Canada (Citizenship and Immigration), 2016 FC 879 at paragraph 26 [Valenzuela]; Zhao v. Canada (Citizenship and Immigration), 2016 FC 207 at paragraph 25).
[38]
The interpretation of the immediate application proposed by the Minister is in line with the legislator’s intention, as evidenced by an excerpt from parliamentary debates regarding the bill on June 3, 2014. The Parliamentary Secretary to the Minister indicated at the time that “[t]he new authorities under proposed sections 13.1 and 13.2 [would] apply to applications that are under processing at the time of the coming into force of these provisions”
(Standing Committee on Citizenship and Immigration, CIMM Number 031, 2nd Session, 41st Parliament, Evidence, Tuesday, June 3, 2014, at page 9).
[39]
Furthermore, this interpretation is also consistent with the summary of the Strengthening Canadian Citizenship Act, which states that the amendments to provisions governing the processing of applications and the review of decisions aim to expand the number of cases where the processing of an application may be suspended and modify the period for the suspension (see paragraph (b) of the third section of the summary).
[40]
Lastly, the Court is of the opinion that had the legislator taken the applicant’s position, it would have been simpler to provide for applications for citizenship to be governed by the version of the Citizenship Act that existed at the time of their filing. Rather, the legislator provided for a provision allowing not only applicants to retain a vested right for their application to be governed by residency criteria applicable at the time that their application is made, but also authorities to have the tools and time they need to investigate the eligibility of an applicant to make an application for citizenship.
[41]
As for the case law proposed by the applicant, the Court is of the opinion that it does not support the applicant’s position (Valenzuela, cited above; Valverde v. Canada (Citizenship and Immigration), 2015 FC 1111 [Valverde]; Godinez Ovalle v. Canada (Citizenship and Immigration), 2015 FC 935 [Ovalle]).
[42]
In Valverde, the application for citizenship had been made in June 2012, and the applicant had passed her citizenship test on August 15, 2013. Her application was suspended the same day and her file was referred to the CBSA for a cessation of refugee protection procedure. However, the Court determined that the criteria for issuing a mandamus were met because the Minister of Citizenship and Immigration did not have the authority to suspend her application for citizenship on August 15, 2013. On that date, the applicant met all the citizenship requirements, and section 13.1 of the Citizenship Act had not yet come into force.
[43]
The same circumstances were present in Ovalle. The applicant’s file was completed on February 14, 2014, and his application was suspended on March 12, 2014. Again, section 13.1 of the Citizenship Act had not yet come into force when the applicant’s file was complete.
[44]
The applicant’s case in the matter at hand differs from these cases because his application was not complete when section 13.1 of the Citizenship Act came into force.
[45]
As for Valenzuela, the issue was the interpretation to be given to the term [translation] “filed
.” The applicant had sent his application for citizenship on June 9, 2015, and it was received on June 12, 2015. However, on June 11, 2015, the new provisions came into force and changed the citizenship requirements.
[46]
Since the applicant did not demonstrate that the Minister did not have the legal authority to suspend his application for citizenship, the first criterion for the issuance of a mandamus is not met. It is therefore of no use to continue the analysis further because the criteria are exhaustive.
V.
Certified question
[47]
During the hearing, the Minister proposed to the Court to certify the following question:
Does section 13.1 of the Citizenship Act, R.S.C., 1985, c. C-29, apply immediately to applications for citizenship received by Immigration, Refugees and Citizenship Canada that have yet to be finalized on the day of its coming into force?
[48]
In order to enable the applicant to take a position on the question, the Court granted the parties additional time to submit written representations in support of their respective positions.
[49]
The applicant opposes the certification of the question as proposed by the Minister on the ground that it deals only with section 13.1 of the Citizenship Act, whereas the refusal to end the suspension of the applicant’s application for citizenship stems from the interpretation of subparagraph 31(1)(b)(iv) and subsection 31(2) of the Strengthening Canadian Citizenship Act. However, the applicant acknowledges that the question raised by the application for judicial review is important and proposes that the question read as follows:
Do subparagraph 31(1)(b)(iv) and subsection 31(2) of the Strengthening Canadian Citizenship Act, S.C. 2014, c. 22, allow for the suspension of applications for citizenship under section 13.1 of the Citizenship Act, R.S.C., 1985, c. C-29, for applications for citizenship prior to August 1, 2014?
[50]
Paragraph 22.2(d) of the Citizenship Act provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment on an application for judicial review, the judge certifies that a serious question of general importance is involved and states the question. The Federal Court of Appeal recently confirmed the criteria applicable for a question to be duly certified in Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, at paragraph 36, and Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, at paragraphs 15 and 16. The question must be dispositive of the appeal and transcend the interests of the immediate parties to the litigation, as well as contemplate issues of broad significance or general importance. This means that the question must have been dealt with by the Federal Court and must necessarily arise from the case itself.
[51]
Although the parties do not agree on the wording of the question to be certified, the Court is of the opinion that the question of immediate application, or not, of section 13.1 of the Citizenship Act to applications for citizenship being processed but not finally disposed of before August 1, 2014, nonetheless raises an important question that transcends the interests of the parties in this case and would be determinative in an appeal. However, the Court is of the opinion that the questions proposed by the parties should be rephrased as follows:
Does section 13.1 of the Citizenship Act, R.S.C., 1985, c. C-29, allow the Minister to suspend an application for citizenship made before August 1, 2014, that was not finally disposed of before that day?
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