In the case of Yuekang Li v MCI 2023 FC. 1753 the Federal Court upheld a decision where an officer found that the applicant was inadmissible because as a Chinese student studying his PhD in Canada he might be coerced into providing scientific information that would be detrimental to Canada’s national security. Mr. Li had been accepted in a Ph D program at Waterloo University where he intended to study microfluidics related to nano technology and was interested in its potential uses in the pharma industry.
Mr. Li had applied for a student visa. After delays which led Mr. Li to seek mandamus, Mr. Li learned that the officer believed he was inadmissible because he had reasonable grounds to believe that Mr. Li may engage in espionage in that he may provide sensitive information related to his studies. Li was interviewed and denied any intention to spy. The officer found Li inadmissible concluding that there were reasonable grounds to believe that he would engage in espionage against Canada’s interests. The officer relied on open source information which indicated that China used its foreign students as a source for gathering information and on the fact that the applicant had studied at a university which was connected to the Chinese military. The officer noted that China had important strategic interests in the industries which used the technology the applicant was intending to study.
The Court first considered the definition of espionage. The Court determined that the definition of espionage was as follows:
[47] In summary, and having regard to the foregoing, I consider that the term “espionage” contemplates (i) the secret, clandestine, surreptitious or covert gathering of information on behalf of a foreign government or other foreign entity or person, or (ii) the reporting or communication of information, whether surreptitiously or publicly gathered, to such a recipient. I further consider it reasonable to include within the definition of “espionage” the unauthorized reporting or communication of such information to a third party acting as an intermediary for the transmission of the information to such a recipient. When such activity is against Canada or is contrary to Canada’s interests, it falls within the purview of paragraph 34(1)(a). This is so even if the information in question was gathered in public.This constitutes a expansion of the scope of the definition of “espionage”, as compared to the one contained in the current version of the IRCC ENF 1 manual. In September 2013, following the amendments to IRPA which created the current language for section 34, CIC updated the ENF-1 manual to reflect the statutory amendments.[1] At p 6 of the manual, CIC defines “espionage” as follows:
“espionage” is the practice of spying; that is, the gathering of information in a surreptitious manner; secretly seeking out information usually from a hostile country to benefit one’s own country. [2] [emphasis added]
The Court’s definition expands on the manual definition in at least two ways: (i) it departs from the traditional notion of espionage as a form of “spying”, which involves ‘surreptitious’ or ‘secret’ information-gathering, to include publicly gathered information; and (ii) it does not include the proviso that the information gathering is “usually from a hostile country.”
Although administrative-decision makers are not strictly bound to adhere published policy manuals and guidelines, such departures must be reasonable and justified by the administrative decision-maker in question.[3] However, in Li, it is the Court—and not the visa officer—who offers the justification for expanding scope of 34(1)(a) espionage. Moreover, the court does so without averting to the fact that it is departing from IRCC’s own definition of “espionage”. While the Court, at paras 68-69 does endorse other definitions from the ENF 2 manual – including “against Canada” or “Contrary to Canada’s interests” — it does not engage with the definition of “espionage” from p 6 of the ENF 1 manual.
Thus, the Court’s approach to interpreting “espionage”, as including the reporting of publicly-gathered public information, constitutes a significant departure from Vavilov principles – which recognize that it is the decision-maker (and not the Court) that is given interpretative primacy, and that it is for the decision-maker (and not the Court) to justify any departure from IRCC’s own policy on the scope of 34(1)(a).
Thus based on the definition in Li, a person can engage in espionage if the covertly gather information or report information whether covertly or publicly obtained, to a foreign entity or a person acting on behalf of such an entity even if the information in question is public. There is no requirement that there be a hostile intent. [4]
In Li in upholding the decision the Court relied on the following findings of the officer:
- China relied on its technology students abroad to gather information about technological advancements;
- The students would be able to take advantage of the open and collaborative nature of the Canadian economy;
- That the applicant’s area of studies although not military in application was a priority one for China. If the applicant provided information to Chinese authorities related to this field of study it would be detrimental to Canada’s interests;
- The officer relied on the fact that the applicant had studied at a university which was considered a high security risk due to its connections with the Chinese defense industry.
- The officer reasonably found that upon return to China the applicant could be coerced into providing information to the Chinese authorities.
Thus, based on this decision a person can be found inadmissible for espionage if there are reasonable grounds to believe that they will obtain information and provide it to authorities in their country regardless of whether the information is secret or publicly available. As the evidentiary threshold is reasonable grounds the officer need not have any direct evidence that the person will provide information. Nor does the officer have to be satisfied that it is more likely than not that the person will provide the information. Reasonable grounds merely requires some evidence which would allow the officer to conclude that there is an objective basis to believe that they will share the information at some point in the future. In the Li case, the combination of his past affiliation with a university connected to the Chinese Defense industry, coupled with the applicant’s field of studies and the generic evidence that Chinese relied on Chinese foreign students to obtain information was considered sufficient.
This definition of espionage is so broad that it could apply to any non Canadian researcher or post graduate student who conducts research in any field related to science or technology. Given that there is no requirement that the evidence be secret, a person can be found inadmissible if they have access to public information, if the Canadian official believes that they will share that information with officials of their country. However, if the information is publicly available, why would the foreign authorities require the assistance of a graduate student to obtain it??
Moreover this definition is far broader than the one contained in the Security of Information Act. Economic espionage is defined in that legislation as
- (1)Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign economic entity, fraudulently and without colour of right and to the detriment of Canada’s economic interests, international relations or national defence or national security (a) communicates a trade secret to another person, group or organization
Thus espionage is understood to be the communication to a foreign entity of a secret.
A graduate student who comes to Canada to conduct research and publishes their studies in a thesis is acting openly and not surreptitiously. The information they gather will be publicly available because it will be published as part of the applicant’s thesis. Finding a student inadmissible on grounds of espionage based on their being a graduate student in technology or science without more substantial evidence of covert or surreptitious activity creates an extremely broad ground of inadmissibility, one which could hamper the free flow of scientific research and ultimately be contrary to Canada’s long term interests.
In the United States President Trump issued Proclamation 10043 which barred Chinese students from certain universities from being issued visas to the United States based on concerns that the students might steal valuable intellectual property. If the Government of Canada is concerned that students from a given country will engage in espionage then the Minister of Immigration has the power under IRPA to issue Ministerial Directions which could direct officials to take into account Canada’s national interest when foreign nationals apply for student visas. This is a preferable course as opposed to interpreting section 34 (1) so that it could apply broadly to virtually any student who engages in research in technology or science. [5]
Another question that must be considered when assessing inadmissibility is how reporting to foreign authorities on publicly available information could be against Canada’s national interest and how this could be considered espionage. As noted by the Court in Crenna a person cannot be considered to engage in espionage if they have permission to provide the information. If information has been intentionally made available to the public, then the clear implications is that the person who has published it has given permission to others to disseminate it. Based on Crenna sharing of such information could not be espionage. By the same token it would be difficult to conclude that sharing of publicly available information could be against Canada’s interest given that no further harm could result from providing foreign entities information which they themselves could access because it is publicly available. [6]
The Li decision constitutes an expansion of the definition of espionage. Whether other Justices of the Court will find the reasoning persuasive remains to be seen. But there are strong arguments that its reasoning should not be applied. First, the court did not have clear evidence of Li’s intentions and relied on generic evidence in order to meet the reasonable grounds threshold. Clear evidence as to a lack of intention could be presented to refute this generic evidence. In addition, the Court did not clearly address how the disclosure of evidence which is already publicly available would be contrary to Canada’s national interests.
[1]CIC, ENF-1: Inadmissibility, rev. 4 September 2013, p 2, online: https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf01-eng.pdf
[2] Ibid, p 6.
[3] Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157 at paras 39, 58; Crook v. Canada (AG), 2022 FC 1670 at para 17.
[4] The Court distinguished the situation in Li case from that of Crenna. 2020 FC 491. In Crenna the applicant had provided information to Russian intelligence officers. However, the Federal Court had concluded that the applicant did not engage in espionage because in Crema the gathering of information was authorized by the applicants superiors.
[5] The decision maker in this case an IRCC officer, received a briefing note from an official with the CBSA National Security Division. The CBSA officer had recommended that the applicant be found inadmissible for spying and the IRCC officer followed this advice. This decision of the IRCC officer was uipheld by the Federal Court.
[6] In order to find an applicant inadmissible for espionage there would have to be evidence that the applicant was surreptitiously gathering secret information with a view to providing it secretly to a foreign entity.
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