Duty to Disclose under the Immigration and Refuge Protection Act (IRPA)

June 8, 2010
Jennifer Roggemann discusses in this article the Duty to Disclose under the Immigration
and Refuge Protection Act (IRPA).


40.(1)(a) IRPA a foreign national or permanent resident… is inadmissible for…
directly or indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in the administration of this Act.

Let’s break the section down to the elements as follows:

• A foreign national or Permanent Resident 
• Inadmissible  
• Directly or Indirectly 
•  Misrepresenting or Withholding 
• Material Facts 
• Relating to a relevant matter 
• Induce or could induce 
• An error in the administration of this Act.

Q. Who could be in trouble under this section?
A. Anyone!

Q. Does he or she need to show if any benefits were flowed from such misrepresentation or withholding?
A. No need to show!

Q. How can one get in trouble?
A. Directly OR indirectly

Q. If I am not asked any questions, do I have to tell?
A. YES, if such information is related to a relevant matter.

Before looking at the law of misrepresentation, the first question seems to be –
When do we have a duty to disclose what information?

Case law appears to indicate four categories of situations:

When you are asked a relevant question;
When there is a change of circumstances;
When a statute requires to disclose; and
When the surrounding circumstances require disclosure, even if no question is asked.

I would like to thank Mr. Maynard for bring the cases referred herein to my attention
during the 2009 CBA National Immigration Law Conference in Whistler, British Columbia.