Judgments

Decision Information

Decision Content

Tanasie Lazarov (Applicant)
v.
Secretary of State of Canada (Respondent)
Court of Appeal, Thurlow and Pratte JJ., Cho- quette D.J.—Montreal, May 9, 30 and August 1, 1973.
Citizenship—Judicial review—Rejection of application by Secretary of State on confidential police report—Right of applicant to be heard—Audi alteram partem.
Pursuant to section 10(1) of the Canadian Citizenship Act, the Secretary of State refused to grant applicant a certificate of citizenship although the Citizenship Court had found him a fit and proper person to be granted a certificate. In his decision, the Secretary of State referred to a confidential police report but did not disclose its contents. Applicant applied to set the decision aside.
Held, the decision of the Secretary of State should be referred back to him for reconsideration on the basis that the audi alteram partem rule was applicable with respect to any matter in the confidential report referred to in his decision upon which his further decision might be based and for redetermination after the applicant had been afforded an opportunity to be heard.
Dawhopoluk v. Martin [1972] 1 O.R. 311, disapproved; Durayappah v. Fernando [1967] 2 A.C. 337; Reg. v. Gaming Board, Ex p. Benaim (C.A.) [1970] 2 W.L.R. 1009; In re H.K. [1967] 2 Q.B. 617, discussed.
JUDICIAL review.
COUNSEL:
A. H. J. Zaitlin, Q.C., for applicant.
Alain Nadon for respondent.
SOLICITORS :
A. H. J. Zaitlin, Montreal, for applicant.
Deputy Attorney General of Canada for respondent.
THURLOW J.—This is an application under section 28 of the Federal Court Act to review and set aside a decision of the Secretary of State refusing to grant to the applicant a certifi cate of citizenship under the Canadian Citizen ship Act.
The particular provision of the Act under which the applicant applied for a certificate was subsection 10(1) which is one of several provi sions of the Act which confer on the Minister authority, in defined situations, to grant certifi cates of citizenship. Some of these provisions require the applicant to satisfy a court of certain pertinent facts while others leave it to the Min ister to determine the facts. In all cases, how ever, the wording used by the statute to confer the power is "The Minister may, in his discre
tion, grant a certificate, etc.".
Subsection 10(1) provides as follows:
10. (1) The Minister may, in his discretion, grant a certifi cate of citizenship to any person who is not a Canadian citizen and who makes application for that purpose and satisfies the Court that
(a) he has attained the age of twenty-one years, or he is the spouse of and resides in Canada with a Canadian citizen;
(b) he has resided in Canada for at least twelve of the eighteen months immediately preceding the date of his application;
(c) the applicant has
(i) been lawfully admitted to Canada for permanent residence and has, since such admission, resided in Canada for at least five of the eight years immediately preceding the date of application, but for the purpose of this subparagraph, each full year of residence in Canada by the applicant prior to his lawful admission to Canada for permanent residence is deemed to be one-half year of residence in Canada within the eight-year period referred to in this subparagraph,
(ii) served outside of Canada in the armed forces of Canada in a war in which Canada was or is engaged or in connection with any action taken by Canada under the United Nations Charter, the North Atlantic Treaty or other similar instrument for collective defence that may be entered into by Canada,
(iii) been lawfully admitted to Canada for permanent residence and is the wife of a Canadian citizen, or
(iv) had a place of domicile in Canada for at least twenty years immediately before the 1st day of January 1947 and was not, on that date, under order of deportation;
(d) he is of good character and not under order of deportation;
(e) he has an adequate knowledge of either the English or French language, or, if he has not such an adequate knowledge,
(i) he was forty years of age or more at the time of his lawful admission to Canada for permanent residence
and has resided continuously in Canada for more than ten years,
(ii) he was less than forty years of age at the time of his lawful admission to Canada for permanent residence and has resided continuously in Canada for more than twenty years, or
(iii) he is the spouse, the widow or the widower of a Canadian citizen;
(f) he' has an adequate knowledge of the responsibilities and privileges of Canadian citizenship and intends to comply with the oath of allegiance set forth in Schedule II; and
(g) he intends to have his place of domicile permanently in Canada.
In the present case the applicant, a citizen of Rumania who was lawfully admitted to Canada as a landed immigrant in 1937 and who has resided and been domiciled in Canada contin uously since that time, applied to the Citizen ship Court in April 1972 and, notwithstanding the disclosure of a record of a number of con victions for criminal offences committed in Canada between 1945 and 1955, succeeded in satisfying the Court on the matters mentioned in paragraphs (a) to (g) inclusive of section 10(1). The Court went on to find in the terms of the Act and the form prescribed that the applicant was a fit and proper person to be granted Canadian citizenship. The Minister, however, declined to grant him a certificate by a decision expressed as follows:
Citizenship Application Tanasie (Tony) Lazarov
I have reviewed this, the third application for citizenship of Tanasie Lazarov. In the light of confidential information recently provided by the Royal Canadian Mounted Police I am, pursuant to the discretion vested in me under the Canadian Citizenship Act, rejecting this application.
It is agreed that this decision was taken with out the applicant having been given an opportu nity to be heard in respect thereof.
I should note at this point that the agreed statement of facts recites more convictions than the applicant's application, including one in 1959, but no point was made of this by counsel and it was not suggested that the decision turned on it.
The first submission put forward by counsel on behalf of the applicant was that the findings of the Citizenship Court on the matters referred to in paragraphs (a) to (g) inclusive of section 10(1) and the finding that the applicant is a fit and proper person to be granted Canadian citi zenship are final and binding on the Minister, that while the Minister has the right to consider the application from the point of view of mat ters of government policy he has no authority or right to review findings made by the Court or to adopt inconsistent findings on such matters, that if the Minister or the police had information indicating that the applicant was not a fit and proper person to be granted citizenship, such information ought to have been put before the Cit; 'enship Court for evaluation and that the Mis ister was without jurisdiction or authority to re-evaluate the evidence concerning the fitness of the applicant to be granted citizenship or to substitute his own opinion for that of the Court.
The question of the extent of the right of the Minister to disregard the findings of the Citizen ship Court on the specific matters referred to in paragraphs (a) to (g) inclusive of section 10(1) and to reach his own conclusions on such mat ters is a substantial one but I do not think it arises or requires decision on the material before the Court in the present case. In present ing the point counsel referred particularly to the Court's finding that the applicant was of good character, within the meaning of paragraph (d), and the finding that he had adequate knowledge of the responsibilities and privileges of Canadi- an citizenship and intended to comply with the oath of allegiance, within the meaning of para graph (f), as well as to the Court's conclusion that the applicant was a fit and proper person to be granted Canadian citizenship and sought to treat the Minister's decision as being in some way a reversal of these findings. This may con ceivably be true, or it may be that without implying a reversal of the Court's findings the Minister simply may have had reservations about them based on a reasonable suspicion that the applicant was not a fit and proper person to be granted citizenship either because of what had been disclosed to the Court or on the basis of other information which had reached him.
The decision, however, cannot be read as stat ing any more than it does state and it is idle to speculate on what it may imply. It refers to a confidential police report the contents of which are not stated in the decision and are not before the Court. The report may be concerned entirely with matters quite unrelated to those upon which the Citizenship Court has passed and without it or its contents it is not possible, as I see it, to affirm that there is in the decision anything which is necessarily inconsistent with the findings of the Citizenship Court.
I should add that in the course of argument counsel asked that the Court order production of the report but after some discussion as to why it had been omitted from the material set tled by the order for directions he expressed himself as content that the application be decid ed on the material as so settled.
The other principal submission put forward by counsel, though put in several different ways, was that the Minister was bound to observe the audi alteram partem rule with respect to the contents of the police report in question before rejecting the application on the basis of iY.
The answer of counsel for the Minister to this submission was that as the statute provides nei ther any norm or principle nor any form of procedure for the exercise of the Minister's discretion the function must be regarded as purely administrative in character and that since the applicant has no absolute right to a certifi cate and no existing right of his is being affected or interfered with by the decision the audi alteram partem rule does not apply.
In support of this position reference was made to Dawhopoluk v. Martin [1972] 1 O.R. 311 where the same question arose, though in a different way, on the same statutory provision. In that case Addy J. struck out a statement of claim which included inter alia a claim for "a declaration that the defendants grant the plain-
tiff a full and fair hearing including being. advised of the allegations against him and the cross-examination of witnesses with respect to the evidence if any under which the ministerial discretion is being exercised." The reason or reasons for the refusal of the Minister to grant a certificate had not been communicated to the plaintiff although attempts had been made by him from time to time to find out why he had been refused citizenship.
The position taken by the Minister that the audi alteram partem rule did not apply was upheld by Addy J. who held that section 10 clearly places upon the Minister a discretion to make a policy decision and that no judicial process or hearing is required or provided for, that the Minister cannot be compelled in cases such as this, when the discretion relates to the creation of a right, to disclose to the Court the grounds for his official action and that this type of ministerial discretion is clearly to be distin guished from cases where a discretion has been granted by statute involving the adjudication upon or the determination or abrogation of established rights.
This reasoning is broad enough to cover the present case as well but there is at least this distinction between the two that in the present case the decision of the Minister shows on its face that it is based on information that was not before the Citizenship Court.
With respect I am unable to conclude that the discretion conferred by section 10 is merely to make a policy decision or that the distinction between a discretion to deal with established rights and one which is concerned with the granting of rights makes any critical difference. As I see it what must be determined is whether the function of the Minister under the relevant subsection, which is plainly one of an adminis trative nature, is nevertheless one that is required to be exercised on a judicial or a quasi- judicial basis. For this purpose there is no single or sure test when the statute which creates the power does not expressly settle the point but a number of cases throw light on the problem and
point, perhaps somewhat uncertainly, to a solu tion of it.
In Durayappah v. Fernando [1967] 2 A.C. 337 the problem is discussed by Lord Upjohn as follows at page 348:
Upon the question of audi alteram partem the Supreme Court followed and agreed with the earlier decision of Sugathadasa v. Jayasinghe (1958) 59 N.L.R. 457, a decision of three judges of the Supreme Court upon the same section and upon the same issue, namely, whether a council was not competent to perform its duties. That decision laid down
as a general rule that words such as "where it appears to ..." or "if it appears to the satisfaction of ..." or "if the ... considers it expedient that ..." or "if the ... is satisfied that ..." standing by themselves without other words or circumstances of qualification, exclude a duty to act judicially."
Their Lordships disagree with this approach. These vari ous formulae are introductory of the matter to be considered and are given little guidance upon the question of audi alteram partem. The statute can make itself clear upon this point and if it does cadit quaestio. If it does not then the principle stated by Byles J. in Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 194 must be applied. He said:
A long course of decisions, beginning with Dr. Bentley's case, (1723) 1 Stra. 557; 8 Mod. Rep. 148 and ending with some very recent cases, establish, that, although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.
If the law were otherwise then such cases as Capel v. Child (1832) 2 Cromp. & Jer. 558 where the words are in fact very similar to the words of section 277, must have been differently decided. That case is in fact an important landmark in the history of the development of the principle audi alteram partem. The solution to this case is not to be found merely upon a consideration of the opening words of section 277. A deeper investigation is necessary. Their Lordships were of course referred to the recent case of Ridge v. Baldwin [1963] 2 All E.R. 66, H.L. (E) where this principle was very closely and carefully examined. In that case no attempt was made to give an exhaustive classifica tion of the cases where the principle audi alteram partem should be applied. In their Lordships' opinion it would be wrong to do so. Outside well known cases such as dismissal from office, deprivation of property and expulsion from clubs, there is a vast area where the principle can only be applied upon most general considerations. For example, as Lord Reid [1964] A.C. 40, 76, when examining Rex v. Electricity Commissioners 39 T.L.R. 715, C.A. pointed out, Bankes L.J. [1924] 1 K.B. 171, 198 inferred the judicial element from the nature of the power and Atkin L.J. did the same. Pausing there, however, it should not be assumed that
their Lordships necessarily agree with Lord Reid's analysis of that case or with his criticism of Nakuda Ali v. Jayaratne )6 T.L.R. (Pt. 2) 214 P.C. Outside the well-known classes of ases, no general rule can be laid down as to the application of the general principle in addition to the language of the provision. In their Lordships' opinion there are three mat ters which must always be borne in mind when considering whether the principle should be applied or not. These three matters are: first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circum stances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to inter vene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined. Their Lordships therefore proceed to examine the facts of this case upon these considerations.
In Reg. v. Gaming Board, Ex p. Benaim (C.A.) [1970] 2 W.L.R. 1009, the question was whether a Board, whose consent was necessary before a party might apply to justices for a gaming licence, was bound to observe the prin ciples of natural justice when dealing with an application for its consent. Lord Denning M.R., with whom the other members of the Court of Appeal agreed put the matter thus at page 1016:
Mr. Hogg put his case, I think, too high. It is an error to regard Crockford's as having any right of which they are being deprived. They have not had in the past, and they have not now, any right to play these games of chance— roulette, chemin -de -fer, baccarat and the like—for their own profit. What they are really seeking is a privilege—almost, I
• ight say, a franchise—to carry on gaming for profit, a thing ,.ever hitherto allowed in this country. It is for them to show that they are fit to be trusted with it.
If Mr. Hogg went too far on his side, I think Mr. Kidwell went too far on the other. He submitted that the Gaming Board are free to grant or refuse a certificate as they please. They are not bound, he says, to obey the rules of natural justice any more than any other executive body, such as, I suppose, the Board of Trade, which grants industrial de velopment certificates, or the Television Authority, which awards television programme contracts. I cannot accept this view. I think the Gaming Board are bound to observe the rules of natural justice. The question is: What are those rules?
It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject- matter: see what Tucker L.J. said in Russell v. Norfolk (Duke of) [1949] 1 All E.R. 109, 118 and Lord Upjohn in Durayappah v. Fernando [1967] 2 A.C. 337, 349. At one time it was said that the principles only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v. Baldwin [1964] A.C. 40. At another time it was said that the principles do not apply to the grant or revocation of licences. That too is wrong. Reg. v. Metropolitan Police Commissioner, Ex parte Parker [1953] 1 W.L.R. 1150 and Nakkuda Ali v. Jayaratne [1951] A.C. 66 are no longer authority for any such proposition. See what Lord Reid and Lord Hodson said about them in Ridge v. Baldwin [1964] A.C. 40, 77-79, 133.
So let us sheer away from those distinctions and consider the task of this Gaming Board and what they should do. The best guidance is, I think, to be found by reference to the cases of immigrants. They have no right to come in, but they have a right to be heard. The principle in that regard was well laid down by Lord Parker C.J. in In re H.K (An infant) [1967] 2 Q.B. 617. He said at p. 630:
... even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immi grant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immi grant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.
Those words seem to me to apply to the Gaming Board. The statute says in terms that in determining whether to grant a certificate, the board "shall have regard only" to the matters specified. It follows, I think, that the board have a duty to act fairly. They must give the applicant an opportu nity of satisfying them of the matters specified in the subsection. They must let him know what their impressions are so that he can disabuse them. But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, as in Ridge v. Baldwin [1964] A.C. 40; or depriving him of his property, as in Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180. After all, they are not charging him with doing anything wrong. They are simply inquiring as to his capability and diligence and are having regard to his character, reputation and financial standing. They are there to protect the public interest, to see that persons running the gaming clubs are fit to be trusted.
Seeing the evils that have led to this legislation, the board can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad who
know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their informant in peril or otherwise be contrary to the public interest. Even in a criminal trial, a witness cannot be asked who is his informer. The reason was well given by Lord Eyre C.J. in Hardy's case [Rex v. Hardy] 24 State Trials 199, 808:
... there is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed.
And Buller J. added, at p. 818: "... if you call for the name of the informer in such cases, no man will make a discovery, and public justice will be defeated." That rule was emphati cally reaffirmed in Attorney-General v. Briant (1846) 15 M. & W. 169 and Marks v. Beyfus (1890) 25 Q.B.D. 494. That reasoning applies with equal force to the inquiries made by the Gaming Board. That board was set up by Parliament to cope with disreputable gaming clubs and to bring them under control. By bitter experience it was learned that these clubs had a close connection with organised crime, often violent crime, with protection rackets and with strong-arm methods. If the Gaming Board were bound to disclose their sources of information, no one would "tell" on those clubs, for fear of reprisals. Likewise with the details of the infor mation. If the board were bound to disclose every detail, that might itself give the informer away and put him in peril. But, without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not, these courts will not hesitate to interfere.
In In re H.K. (An Infant) [1967] 2 Q.B. 617, to which Lord Denning referred, Salmon L.J. said at pages 632 and 633:
I have no doubt at all that in exercising his powers under that section, the immigration officer is obliged to act in accordance with the principles of natural justice. That does not of course mean that he has to adopt judicial procedures or hold a formal inquiry, still less that he has to hold anything in the nature of a trial, but he must act, as Lord Parker C.J. has said, fairly in accordance with the ordinary principles of natural justice. If, for example, and this I am sure would never arise, it could be shown that when he made an order refusing admission he was biased or had acted capriciously or dishonestly, this court would have power to intervene by the prerogative writ. There are, as my Lord has said, a good many cases in which the view has been expressed that unless a person exercising a power is
acting in a judicial or quasi-judicial capacity the courts cannot intervene. Of course, an immigration officer is acting in an administrative rather than in a judicial capacity. What, however, is a quasi-judicial capacity has, so far as I know, never been exhaustively defined. It seems to me to cover at any rate a case where the circumstances in which a person who is called upon to exercise a statutory power and make a decision affecting basic rights of others are such that the law impliedly imposes upon him a duty to act fairly. When Parliament passed the Commonwealth Immigrants Act, 1962, it deprived Commonwealth citizens of their right of unrestricted entry into the United Kingdom. It laid down conditions under which they might enter and left it to the immigration officers to decide whether such conditions existed. Their decision is of vital importance to the immi grants since their whole future may depend upon it. In my judgment it is implicit in the statute that the authorities in exercising these powers and making decisions must act in accordance with the principles of natural justice.
I turn now to the considerations referred to by Lord Upjohn in Durayappah v. Fernando and the provisions of the Citizenship Act. It is, I think, clear that the present case is outside what are referred to as the well-known classes of cases, that is to say, dismissals from office, deprivation of property and expulsion from clubs, and falls within the vast area within which the principle can only be applied upon most general considerations and wherein no ground rule for the application of the principle has been laid down "in addition to" (which I interpret as meaning "other than") the language of the relevant provisions.
Adverting to the first of the three general considerations, the nature of the subject-matter, there is, as I see it, no reason to doubt that it is of great importance to a person who has lived in this country for a long time to have the advan tages and status of Canadian citizenship and to have open to him a procedure for acquiring it. That, moreover, appears to me to be the pur pose of the several provisions of the statute with respect to applications to be made by per sons who are not Canadian citizens. In all of these several provisions the grant is in the dis cretion of the Minister but as already pointed out in many of them the facts are determinable not by the Citizenship Court but by the Minis-
ter. In these instances the whole question is thus for him to decide and it seems to me that the right to a hearing for such applicants with respect to all the problems arising upon their applications is clearly to be implied. It would therefore, as I see it, involve no great departure from a course required in such instances nor would it do violence to the language of subsec tion 10(1) if a right to answer were implied in respect of facts or information considered to warrant refusal of the application under that provision and particularly so in the case of matters upon which the Citizenship Court has not been called upon to pass. In this connection it may be noted that with respect to matters upon which the Citizenship Court is concerned to pass provision has been made in Regulation 12' 1 that an application may be referred back to the Court for clarification of any matter remain ing in doubt or for further evidence. The same regulation requires the applicant to furnish the Minister with any proof or to clarify any matter as the Minister may require.
Leaving aside any question of declining the grant of certificates to particular classes of per sons on grounds of broad general policy, which as I see it, it is not necessary to consider, it seems to me that whenever the reason for con templating refusal of an application is one that is peculiar to the particular applicant the nature of citizenship and its importance to the individu al are such that the applicant ought at least to have an opportunity of some kind and at some stage of the proceedings to dispute its existence.
Upon the second of the three general consid erations, in what circumstances the discretion arises, it is apparent that the discretion con ferred on the Minister arises whenever an application comes before him and that it is unfettered in the sense that no specific direc tions are found in the statute as to the basis on which certificates are to be granted or refused to persons who have the prescribed qualifica tions. It would be difficult to conceive of a broader discretion but even it, as I see it, is subject to the precept expressed by Lord Hals-
bury L.C. in Sharp v. Wakefield [1891] A.C. 173 when he said at page 179:
An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and "discre- tion" means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Case 5 Rep. 100, a; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man com petent to the discharge of his office ought to confine him self: Wilson v. Rasta!? 4 T.R. at p. 757.
and by Lord Greene M.R. in Associated Provin cial Picture Houses Ltd. v. Wednesbury Cor poration [1948] 1 K.B. 223 when he said at page 229:
. a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own atten tion to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.
See also Padfield v. Minister of Agriculture [1968] A.C. 997 at p. 1007. However, having said this with respect to the nature of the discre tion all that I can see in the circumstances in which it arises which appears to bear on the problem of whether it must be exercised on a judicial or a quasi-judicial basis is that the Min ister is to consider the application of a person who applies on a form prescribed by him and which presumably gives the information he requires from the applicant and from the Citi zenship Court and that this suggests that if the Minister is to consider other facts the applicant should have an opportunity to be heard with respect to them. Nothing precisely or nearly comparable to what was considered on this point in Durayappah v. Fernando appears to be present.
On the question of the sanction there is little to add to what I have already said. It is not a case of depriving a person of his property and it is true that the applicant can apply again after two years, but the status of citizenship carries with it rights and advantages and to refuse the application of a person to whom it would other wise be granted on the basis of matters of which
he is not apprised and which he is given no opportunity to dispute is shocking to one's sense of justice, even though he may lawfully apply again after a comparatively short time. It suggests that the applicant is not being fairly dealt with and that fairness demands that he at least be afforded an opportunity to state his position on them.
As a further general consideration there appears to me to be no persuasive reason why the rule should not be applicable in a matter of this kind. The function which the Minister is called upon to perform is undoubtedly a sensi tive one involving responsibility to the Canadian public for withholding the grant of citizenship to aliens who are for one reason or another not desirable as citizens and his task should not be made any more difficult than it is. On the other hand citizenship is not a condition of the individual's right to live in Canada and the task of determining when to grant and when to refuse it does not seem to be more sensitive or difficult than that of the Gaming Board in the case referred to, to which it bears some consid erable similarity. Of the two kinds of situations I should think the reasons why the law should require compliance with the principles of natu ral justice are at least as strong in a citizenship case as in one of a person seeking a licence to operate a gambling establishment.
In my opinion therefore the rule audi alteram partem applies whenever the Minister proposes to exercise his discretion to refuse an applica tion on the basis of facts pertaining to the particular applicant or his application and where he has not already had an opportunity in the course of the proceedings before the Citizenship Court he must be afforded a fair opportunity in one way or another of stating his position with respect to any matters which in the absence of refutation or explanation would lead to the rejection of his application. That is not to say that a confidential report or its contents need be disclosed to him but the pertinent allegations which if undenied or unresolved would lead to rejection of his application must, as I see it, be
made known to him to an extent sufficient to enable him to respond to them and he must have a fair opportunity to dispute or explain them.
I would set aside the decision of the Minister and refer the matter back to him for reconsider ation on the basis that the audi alteram partem rule is applicable with respect to any matter in the confidential report referred to in his deci sion of November 23, 1972 upon which his further decision may be based and for redeter- mination after the applicant has been afforded an opportunity to respond to or state his posi tion on such matter.
* * *
PRATTE J. and CHOQUETTE D.J. concurred.
12. Where a Court has endorsed on the form provided by the Minister that it is satisfied that a person referred to in subsection (1) of section 9 meets the requirements of sub section (1) of section 10 of the Act
(a) the Minister may direct that the application be referred back to the Court for the clarification of any matter remaining in doubt or requiring further evidence; and
(b) the person shall furnish the Minister with any proof or clarify any matter that the Minister may require.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.