Canada's Security Intelligence Agencies vs Canada's Activist Courts

"What I'm kind of starting to notice is that ... whether it's explicit or not, they can be politically motivated. There might be a trend here. It may be too early to tell, but that's ... something that I've noticed and something that I've heard."

"Our client was fortunate enough that he had the resources and the means to hire a lawyer to assist him [in] this process, but if you weren't so fortunate, I mean, he might be facing a lifetime ban."

Athena Portokalidis, immigration lawyer, Markham, Ontario

 

"It is next to impossible to challenge the advice that security intelligence agents offer to the department."

"It's really about how we interpret what constitutes a risk, and what sort of association actually renders someone inadmissible."

"[Many people are screened out based on secret evidence that can't be reviewed, which] often leads to egregious injustices."

"What I would say is that in the immigration domain, it is pretty much a Wild West."

Sharry Aiken, professor of law, Queen's University

A recent Federal Court decision suggests the Canada Border Services Agency relied on unreliable intelligence when it chose to deny permanent residency to Liping Geng. (Darryl Dyck/The Canadian Press)

In Canada, a controversial discussion continues to rage around foreign interference, efforts by foreign entities in service to their governments to disrupt Canadian elections. At the same time two arms of the federal government routinely deport people suspected of engaging in espionage or terrorism. Or, they are barred from entry to Canada. Lawyers working within the immigration system anticipate a ramping up of these efforts by security officials, as a reflection of the heightened attention on the internal meddling by other countries in strictly Canadian affairs. 

But then, it is not the work of immigration lawyers to be aware of potential disruptions allied with the entry to Canada of foreign elements tasked with infiltrating Canadian academia, society, corporations and governments at all levels; their bread-and-butter is successful representation of the clients in whose service their professional credentials earn them both reputation and financial security. Their very business model is based on representing clients, not the security and welfare of Canada.

In the security screening process which determines who may enter Canada and which visa applicants may not, the Canadian Security Intelligence Service, Canada Border Services Agency and the Immigration Department are all involved. Officials are tasked with barring permanent residents or foreign nationals from entry to Canada through the Immigratuon and Refugee Protection Act, should they be engaged in terrorism or in espionage injurious to Canada's interests.

The Immigration and Refugee Board of Canada acts as the independent administrative tribunal hearing applications. Should there be red flags when people submit applications for visas, they become subject to background and security checks; CSIS and CBSA produce reports to the board, and how to manage an application then is up to the discretion of the Immigration and Refugee Board. Those applicants deemed inadmissible through this process have the right to appeal to the Federal Court.

A former Canadian citizen who had been denied permanent residence, deemed inadmissible on the basis that he taught English to Chinese spies and might be involved in espionage himself, was represented by immigration lawyer Athena Portokalidis. Liping Geng, a 68-year-old Chinese citizen's case was set out in a report prepared by the National Security Screen Division of CBSA, citing information from a CSIS report. Double-screening, in other words by two separate, but cooperative intelligence agencies.

According to court records, Geng was a member of China's People's Liberation Army as a young man. He worked as an English teacher after completing school, at an army-operated department training students in foreign languages. Everyone who attended the school was "in or was linked to Chinese military intelligence", Canadian officials stated; the teachers were actively engaged in espionage. Later, Geng spent nine years completing master's and doctoral degrees at University of Toronto.

From there he went on to teach, and his family was approved for permanent residence status in Canada, becoming citizens in 1995. Geng returned to China in 2007, choosing to renounce his Canadian citizenship, since China will not recognize dual citizenship. He continued to regularly visit his family in Canada in following years, then chose to return permanently to Canada after retirement, in 2019.

Security officials were criticized for taking their evidence from newspapers and other open sources to build their case to exclude the man, instead of acquiring hard evidence, leading Federal Court Justice Richard Mosley on appeal to find that CSIS and CBSA reports accusing Geng of espionage "drove the decision-making process". The justice then wrote a ruling that quashed the Immigration and Refugee Board's decision; that the security assessments amounted to an "overzealous effort" to establish Geng as a member of the Chinese military.

Federal Court Justice Richard Mosley found the the consequences of the decision to deny Liping Geng admission were 'particularly harsh.' (Sean Kilpatrick/Canadian Press)

 

But failing to take into account that China enacted a law calling on all its expatriate citizens wherever in the world they live, to be loyal to China and follow the Chinese Communist Party rules of engagement. Espionage, both commercial/scientific and military/government, along with academic, is a Chinese strategy long recognized to have robbed Western countries of trade and military secrets. Moreover, Chinese law empowers Beijing to hold Chinese who are citizens of other countries liable to China for maligning the CCP, or refusing to act on Beijing's behest.

"[A CBSA security assessment in April 2021 cited the CSIS report and other documents found on the internet to conclude that the language school falls within the organizational structure of the Chinese signals spy agency] and that many graduates are assigned to 3/PLA monitoring and control stations, including those targeting the United States and Canada."

"As a result of his employment as a lecturer with the LFLI, there are reasonable grounds to believe that the applicant is a member of an organization, the 3/PLA, that has engaged in acts of espionage that are against Canada and contrary to Canada's interests."

"There are also reasonable grounds to believe that the applicant himself has engaged in espionage."

CBSA report

 

"[The language institute where Geng taught] is a military training institute where officers and foreign affairs officials receive language training, including for the purpose of being assigned to listening posts."

CSIS report

People walk across a street near a large screen promoting the Chinese People's Liberation Army in Beijing.  Andy Wong/The Associated Press