Espionage and Immigrating to Canada

Meurrens LawInadmissibility

Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests.  It is one of the most serious inadmissibilities in Canadian immigration law.

Guidelines

Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage.

Espionage is defined as a method of information gathering by 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.

Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage:

1. if the act of espionage is against Canada, or

2. if the act of espionage is contrary to Canada’s interests.

Espionage “against Canada” means espionage activities conducted by a foreign state or organization in Canada and/or abroad against any Canadian public or private sector entity on behalf of a foreign government. It may also include activities of a foreign nonstate organization against the Government of Canada, but does not include acts of industrial spying between private entities where no government is involved.

The following is a non-exhaustive list of activities that may constitute espionage that is “contrary to Canada’s interests”:

 Espionage activity committed inside or outside Canada that would have a negative impact on the safety, security or prosperity of Canada. Prosperity of Canada includes but is not limited to the following factors: financial, economic, social, and cultural.

 The espionage activity does not need to be against the state. It could also be against Canadian commercial or other private interests.

 The use of Canadian territory to carry out espionage activities may be contrary to Canada’s national security and public safety and therefore contrary to Canada’s interests.

 Espionage activity directed against Canada’s allies as it may also be contrary to Canada’s interests.

Note: These guidelines are intented to be dynamic as the concept of what is contrary to Canada’s interest may evolve or change over time.

Afanasyev v. Canada (Citizenship and Immigration)

Afanasyev v. Canada (Citizenship and Immigration), 2010 FC 737, is a helpful case in understanding inadmissibility for espionage.

The applicant was a citizen of the Ukraine. He applied for permanent resident status in July, 2000. During his interview, he explained that he had completed compulsory military service in the Soviet Army from 1985 to 1987. He said that he was responsible for telecommunications and intercepts, and denied any affiliation to the Russian or Ukrainian intelligence services. According to a CSIS brief, he was also responsible for listening to English language communications coming from US bases in West Germany, debriefing various frequencies and telegraph codes, and receiving training in NATO telegraphic code.

A visa officer found the applicant inadmissible under s. 34(1) of the Act. In her decision, she stated that:

Specifically, during your military service with the Soviet Army from 1985 to 1987, you were a member of the 82nd Special Communications Brigade, 11th Company, 1st Platoon.  You were trained in radio intelligence that consisted of propaganda, physical training, interception, grammar, spelling, audition, and special NATO telegraphic codes.  Your duties during your assignment in Torgau, East Germany entailed listening to English language communications coming from US bases in West Germany and identifying and debriefing various frequencies and telegraph codes.  I have reached this conclusion because you made these admissions during your background investigation interviews.

The applicant filed for Judicial Review.

Justice Montigny found the determination of inadmissibility pursuant to s. 34(1)(a) and (f) of IRPA to be problematic. First, he noted that it was not entirely clear what the applicant did. This was furthered by the Officer’s failure to discuss the discrepancy between a CSIS brief and the applicant’s version of what he did, the fact that there was no documentary evidence supporting what he did, and because the Officer selected parts of the applicant’s version and not others without providing an explanation for why she found certain parts of his testimony more credible than others.

Furthermore, Justice Montigny found that the Officer erred in finding that the applicant had engaged in espionage without offering a definition for the term.

Spying on Campus Organizations, Churches, Schools, etc. 

Qu v. Canada (Minister of Citizenship and Immigration), 2001 FCA 399) is the leading Federal Court of Appeal decision regarding what constitutes espionage under Canadian immigration legislation.

Mr. Qu was a citizen of the People’s Republic of China studying at Concordia University in Montreal.  He was active in the Chinese Students and Scholars Association, a campus group, and regularly reported on that group’s activities to officials at the Chinese Embassy in Ottawa.  The Federal Court of Appeal had to determine whether spying on a campus organization, as opposed to a formal institution of democratic government or process, constituted espionage under Canadian immigration legislation.

The Federal Court of Appeal determined that it did, that the definition of espionage should be interpreted broadly, and that the ability of individuals to freely belong to associations was integral to the democratic process in Canada. The Court went on to state that:

In Canada, a democratic institution is not limited to a political institution, it includes organized groups who seek through democratic means to influence government policies and decisions.

Canada is a pluralistic society with a variety of autonomous organizations independent of the government and to one and other.

As a free and democratic society, Canada values and protects democratic non-governmental institutions which enhance the participation of individuals and groups in society.

The Federal Court of Appeal accordingly held that an individual could be inadmissible to Canada for espionage if they engaged in spying against an organization that was engaged in lawful activities in Canada of a political, religious, social or economic nature, and as such that this was not limited to trade unions, professional associations and political parties.

Intelligence Gathering vs. Espionage

In Peer v. Canada (Citizenship and Immigration), 2010 FC 752, the Federal Court asked the following certified question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

Mr. Peer was a member of Pakistan’s Corps of Military Intelligence and its Inter-Services Intelligence Directorate.  They would monitor individuals, including those from democratic countries, when they were in Pakistan.  Mr. Peer argued that his gathering of intelligence on the activities of foreign nationals was simply intelligence gathering and as it was on domestic soil did not constitute espionage against Canada.

Both the Federal Court and the Federal Court of Appeal disagreed. While the Federal Court of Appeal did not provide any reasoning, Justice Zinn at the Federal Court level wrote:

I have no doubt that many centuries ago one could not easily engage in espionage unless one travelled to a foreign land to gather the relevant information because there was no other way the information could be obtained.  That is quite simply not the case now, if it ever was.  If I were to accept the submission of the applicant that one cannot engage in espionage while remaining in one’s own country, I would have to accept that intelligence agents who monitor telephone and internet communications from the safety of their country are engaged only in “intelligence gathering” and not in espionage, even when the information they gather relates to sensitive state secrets.

The applicant might suggest that those agents are engaged in an illegal activity and thus fall outside his proposed definition of espionage.  However, while the interception of these communications may be an offence in the country from whence the communications originate, I have no doubt that the actions of these interceptors will be perfectly legal and, in fact, are sanctioned in their own country.

….

What matters in this case is the applicant’s surreptitious gathering of information, or spying, on foreign nationals in Pakistan.  The applicant’s motive or his location when doing this spying is entirely irrelevant in determining that his activities on behalf of Pakistan intelligence constituted “espionage.”

Finally, in Geng v. Canada (Citizenship and Immigration), 2023 FC 773, Justice Mosely reiterated that the test is not whether someone was a spy, or a member of an organization that committed espionage, but rather whether someone was a spy, or a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of espionage against Canada or that is contrary to Canada’s interests.

Spying Against Individuals

In Weldemariam v. Canada (Public Safety and Emergency Preparedness), 2020 FC 631, Justice Norris certified the following question of general importance:

Is a person inadmissible to Canada pursuant to paragraph 34(1)(f) of the Immigration and Refugee Protection Act for being a member of an organization with respect to which there are reasonable grounds to believe it has engaged in, engages in, or will engage in acts of espionage that are “contrary to Canada’s interests” within the meaning of paragraph 34(1)(a) of the Act if the organization’s espionage activities take place outside Canada and target foreign nationals in a manner that is contrary to the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of Canada, including the fundamental freedoms guaranteed by section 2(b) of the Charter?

In Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers, 2024 FCA 69 and Canada (Public Safety and Emergency Preparedness) v. Yihdego, 2024 FCA 70, the Federal Court of Appeal ruled that the phrase “contrary to Canada’s interests” requires a nexus to Canada’s national security or the security of Canada.

Membership

In Canada (Minister of Citizenship and Immigration) v. Xu, 2024 FC 267, set aside an IAD decision that someone was not a member of an organization that committed espionage against Canada or contrary to Canada’s interest. Justice Pamel held:

I accept that after the restructuring in 2016, Mr. Xu only spent the last two years of his career at the PLAIEU and was then decommissioned. However, the evidence is that as a division of the GSD, the 3/PLA controlled the PLAIEU while Mr. Xu taught at the university. The IAD only said that the nature and extent of the control prior to the restructuring was not clear, and focused on the general student output at the PLAIEU. I think such a focus missed the mark. The IAD should have been focused on the extent, if at all, to which the teaching efforts of Mr. Xu supported the 3/PLA by training the core students who, without such training, could not undertake their roles for the 3/PLA. It may well be that the courses that Mr. Xu taught were also taught at other universities, or that in the Department of Combat Command track rather than in a technical track, Mr. Xu was teaching freshman officers about command and not giving specialists technical training in cyber espionage, but what is not clear from the analysis is whether what Mr. Xu was doing at the PLAIEU was a vital and necessary piece in the development of the recruits for the 3/PLA so as to make him a member of the 3/PLA and its successors, on a reasonable grounds to believe basis – that is, whether Mr. Xu, through his activities, his commitment level, his knowledge, and his involvement and contribution, did enough so as to show that there are reasonable grounds to believe that he was a member of the cyber espionage unit of the PLA.

Prospect of Future Espionage

In Li v. Canada (Citizenship and Immigration), 2023 FC 1753, the Federal Court expanded the definition of espionage, as, to quote the Court, “hostile state actors increasingly make use of non-traditional methods to obtain sensitive information in Canada or abroad.”

Mr. Li was a resident of the People’s Republic of China.  In April 2022, the University of Waterloo accepted him into its PhD program in Mechanical and Mechatronics Engineering.  A visa officer was concerned that Mr. Li had studied at Beihang University, which apparently has a strong relationship with the defence industry in China.  The Officer concluded that there are reasonable grounds to believe that Mr. Li may be targeted and coerced into providing information that would be detrimental to Canada or contrary to Canada’s interests, as set forth in paragraph 34(1)(a) of the IRPA.

The Chief Justice found that the concept of “espionage” contemplates the secret, clandestine, surreptitious or covert gathering or reporting of information to a foreign state or other foreign entity or person. In addition to gathering information, the Court found that “espionage” also includes the secret, clandestine, surreptitious, covert or unauthorized disclosure or reporting of information to a foreign state or other unauthorized entity or person.

The Court concluded by stating 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. It also includes 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.

It is not necessary to demonstrate that the impugned activity be under the control and direction of a foreign entity, or that the information be regarded as secretive in nature. It is also not necessary to establish that the information in question was collected without the knowledge and consent of the person(s) whose information was gathered and reported. It will suffice if that information, even if publicly available, was communicated or reported upon to a foreign state or other foreign entity or person, without any authorization.

“Espionage” includes activities that are carried out on behalf of a foreign government, or other entity or person, pursuant to the laws of the foreign jurisdiction in question.  It does not contemplate any element of hostile intent, or that the person engaging in the impugned activity have an appreciation of how the gathered or reported information may be put to later use by its recipient(s).   It also does not contemplate that such activity have an illicit outcome as its goal.

The Chief Justice went on to note that:

The Officer cited credible, open-source reports stating that the PRC relies on non-traditional collectors of information to target non-governmental organizations in Canada, including academic institutions and businesses. Such non-traditional collectors were identified as including individuals without formal intelligence training who have relevant subject matter expertise, including scientists and business people. The Officer noted that, according to a report of the U.S.-China Economic and Security Review Commission, entitled Overseas Chinese Students and Scholars in China’s Drive for Innovation [the “US Report”], “the PRC heavily relies on their science and technology students to advance the goals of the Chinese Communist Party.” Among other things, that publication describes the PRC’s reliance on overseas Chinese students and scholars for its national development goals. It also describes the “sprawling ecosystem of [PRC] programs and incentives designed to ensure the scientific know-how and technologies these students and scholars acquire abroad are absorbed to advance its military-civil fusion strategy, benefitting China’s commercial and defense sectors”: US Report, at page 5.

The Officer also noted that, through the non-traditional information collectors identified in the Decision, “[t]he PRC would then be able to take advantage of the collaborative, transparent and open nature of Canadian government, economy and society” by obtaining “sensitive and proprietary information or leading-edge technologies.” The Officer added that the loss or unauthorized disclosure of such information could damage Canada’s interests.

The officer then linked Mr. Li’s field of study, microfluidics, with China’s strategic interests. In this regard, the Officer discussed open-sourced articles reporting upon the importance of the microfluidics industry to China’s strategic ambitions. According to one of those articles, entitled Why is China Becoming a Microfluidics Manufacturing Superpower?, the development of microfluidic devices has created important new opportunities for medical research. These opportunities dovetail with China’s Made in China 2025 plan, which targets 10 high-tech industries, including “biopharma and advanced medical products.” A second article, entitled Chinese microfluidics industry: a fast-moving eco-system, notes that the Chinese government is recalling Chinese executives, researchers and engineers who have worked overseas, to lead innovative Chinese companies and increase their success in the microfluidics industry.

Regarding Mr. Li’s interest in microfluidics, the Officer observed that Mr. Li stated that he wanted to dedicate his career to improving China’s underdevelopment in the application of advances to point-of-care technology in the field of public health. The Officer also noted that Mr. Li stated that he would prefer to study in Canada because he will have better opportunities to collaborate with industries and to deal with real-world problems. Given the foregoing, the Officer stated:

Having a specialization in an industry that the PRC has named as one of their top 10 targeted high-tech industries (biopharma and advanced medical products) raises concerns that the applicant may be targeted by the PRC for use in their non-traditional methods of espionage that could lead to information being provided to the PRC that is contrary to Canada’s interests.

Given all of the foregoing, the Officer did not err in concluding that Mr. Li’s gathering of information regarding microfluidics research and developments in the microfluidics field in Canada, on behalf of the PRC, would constitute “espionage” within the meaning of paragraph 34(1)(a). The same would be true with respect to the reporting or communication of such information to the PRC. It was not unreasonable for the Officer to so find.

The Federal Court wrote that “the foregoing considerations provided reasonable grounds to believe that Mr. Li may be recruited or coerced by the PRC to engage in the espionage activities described above and in greater detail in the Decision.”

The case is the first to hold that a visa officer can reasonably find someone inadmissible to espionage because they “may be coopted or coerced into providing sensitive information to the PRC.”