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Two recent decisions put security over other immigration benefits | Lorne Waldman

By February 5, 2024No Comments

By Lorne Waldman · Listen to article
Law360 Canada (January 25, 2024, 2:14 PM EST) —

Canada has received considerable attention within two vastly different contexts. A recent Federal Court ruling upheld a decision to refuse a student visa on the ground that the applicant, a People’s Republic of China (PRC) citizen, would likely engage in espionage. This decision raises concerns about the propriety of adopting an overly broad definition of “espionage” to address worries that the PRC is using students and researchers to obtain confidential and sensitive information while studying in the West. At the same time, Canada’s decision to offer emergency visas to Gazans has been criticized for over-emphasizing security at the expense of the safety of those fleeing a humanitarian catastrophe.

There is no doubt that protecting Canada’s national security is an important objective of immigration law. The Federal Court, which reviews decisions by immigration officials, has repeatedly emphasized the importance of that concern when interpreting provisions of the Immigration and Refugee Protection Act (IRPA). However, it is important to remember that national security is but one objective set out in the legislation. The IRPA also names among its objectives: family reunification, strengthening our economy and the promotion of international justice.

The Canada Border Services Agency (CBSA) is the primary agency that oversees the security screening of applicants to Canada. The CBSA’s national security bureau writes briefs advising visa officers charged with evaluating visa applications on whether an applicant might be inadmissible. In the case of PRC students, the bureau has taken an aggressive approach to the IPRA inadmissibility ground of “espionage.” It has rendered negative recommendations based on reports from CSIS and other organizations that the PRC sometimes recruits students and researchers in order to obtain valuable and often confidential information while studying abroad. This, together with evidence that a visa applicant intends to study in a field that may enable them to glean desirable information, and evidence that the applicant previously studied at a university known to be connected to the PRC’s defence industry, has been used to justify the denial of a student visa on the ground that the applicant “will engage in an act of espionage” in the meaning of the IRPA.

A recent decision of the Federal Court upheld this broad approach to the meaning of the term espionage. In Li v. Canada (Minister of Citizenship and Immigration), 2023 FC 1753, the court concluded that a visa officer’s conclusion that Yuekang Li is inadmissible for espionage was reasonable. Li indicated in his visa application that he intended to study microfluidics at the University of Waterloo. In refusing the requested visa on espionage grounds, the officer relied on open-source information indicating that the PRC sometimes uses foreign students as a means for gathering information, and on the fact that the applicant had studied at a university that 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. Ultimately, the court held that “espionage,” under the IPRA, could include a student’s possible future disclosure of publicly available information to the authorities in their home country. This decision appears to diverge from the requirement in previous jurisprudence that espionage be covert in nature and from a recent Supreme Court case (Mason v. Canada (Citizenship and Immigration), 2023 SCC 21) that would suggest the disclosure of information must be contrary to Canada’s national security in order to justify a finding of “espionage.”

In my view, the approach by CBSA and the court in Li relies on speculation and cannot — absent more — justify a finding that a student will engage in “espionage” under any sensible interpretation of that term. Rather than adopting such a broad approach to the definition of espionage, Canada should instead set out clear and transparent guidelines regarding areas of concern. The government’s recently announced Policy on Sensitive Technology Research offers an example of such an approach. The policy lists institutions and research fields of concern, and establishes that funding should be withheld if the researchers are affiliated with listed organizations and are conducting research in sensitive areas, including: artificial intelligence, weapons, surveillance, quantum science and robotics.

A similar overly broad approach to scrutinizing immigration applicants may be seen in the security screening of Gazan visa applicants who are relatives of Canadians and are seeking Canada’s temporary protection. The onerous questionnaires required of such applicants demand details related to all their social media accounts; details related to any scars and injuries suffered in the past; and even particulars for grandparents. Such information is not part of the usual application process for temporary resident visas. Given the urgency of the situation, more flexibility should be taken to allow Gazans who have close relatives in Canada to find temporary safety here.

Concerns over national security ought not be used as a reason to frustrate a program designed to give urgent protection to those who desperately need it. Under the program, successful applicants are only afforded temporary status; and if they ultimately choose to apply to remain in Canada, they will be subject to the more stringent security screening that applies to all foreign nationals applying for permanent residence in Canada. The government should do all it can to ensure that the close relatives of Canadian residents who wish to find safety in Canada can do so quickly. This will require a flexible approach to security issues and lobbying by Canada to ensure that the responsible authorities allow those with Canadian visas to exit Gaza safely.

These two cases offer examples of how concerns over national security can frustrate other priorities of our immigration program. An overly broad application of the term “espionage” will make it difficult for our universities to attract the best students to conduct the research that we will need to allow us to succeed in the years to come. Similarly, an approach that is too restrictive in the consideration of visa applications from Gaza will thwart our efforts to provide a humanitarian response to the situation.

Lorne Waldman has been practicing exclusively in the area of immigration and refugee law since 1979, the year he opened his own law practice, Waldman & Associates. He is the author and editor of Immigration Law and Practice, a two volume, loose leaf service published by LexisNexis in 1992. He has appeared very frequently at all levels of the courts in Canada, including the Supreme Court of Canada, the Federal Court and the Federal Court of Appeal where he has argued many of the leading cases in immigration and refugee law. He was made a Member of the Order of Canada for his contribution to immigration and refugee law.