Court upholds decision to deny visa to student from China

The Federal Court of Canada (FCC) has upheld the 2022 decision of a visa officer to deny a Chinese national a visa that would have allowed him to enrol in a PhD science programme at the University of Waterloo (UW), one of Canada’s premier science and technology universities.

In his 28-page closely reasoned decision, the FCC’s Chief Justice, Paul Crampton, found that the visa officer was correct to believe that “there are reasonable grounds to believe that Mr [Yuekang] Li may engage in an act of espionage that is against Canada or contrary to Canada’s interests” and that such espionage includes “non-traditional means” such as reporting “open-source” information even after Li returned to China upon completion of his PhD.

Li’s visa application states that he wanted to improve China’s underdeveloped application of advances to point-of-care technology in the field of public health and that a central part of this required the study of microfluidics, an area of micro-nanoscale science and technology.

The visa officer argued, and Crampton agreed (para 54), that the study of microfluidics aligns with China’s strategic interests. Crampton was convinced of this link, in part, by a 2018 article, “Chinese Microfluidics Industry: A Fast-Moving Ecosystem”, cited by the visa officer.

The article says “the Chinese government is recalling Chinese executives, researchers and engineers . . . to lead innovative Chinese companies and increase their success in the microfluidics industry” – words quoted by the judge in agreement.

“This is a precedent-setting case,” said Wesley Wark, a senior fellow at the Waterloo, Ontario-based Centre for International Governance Innovation, and a retired professor from the University of Toronto’s Munk School of Global Affairs and Public Policy, as well as a former member of Canada’s Advisory Council on National Security.

“It’s the first time that the federal court has been required to rule on an admissibility decision with espionage implications under our Immigration and Refugee Protection Act (IRPA), which governs admissibility to Canada.

“It’s also a precedent-setting case in that the chief justice of the federal court, which is a fairly unique court in Canada, which deals with national security issues and has a very narrow remit, decided to take this case on himself.

“It sets out an expanded definition of what Canada’s concerns might be about espionage conducted by foreign states like China, which use non-traditional means. The decision focuses on Chinese espionage practices, as we understand them, and relates them to issues of how to best protect university research security in this country,” said Wark.

Institutional links

Li’s relationship with Beihang University in Beijing (BUAA and formerly known as the Beijing University of Aeronautics and Astronautics), where he took a BA in mechanical engineering, was a red flag for both the visa officer and the FCC.

In part, the visa officer relied on open-source information that, as Crampton wrote in agreement, showed a “strong relationship” between BUAA and “the defence industry in China”.

More telling, no doubt, for both the visa officer and the FCC was the fact that in 2018 the “Australian Strategic Policy Institute designated Beihang University as a very high security risk due to various vectors, including its strong relationship with the defence industry in China,” wrote the court.

The Chinese Defense University Tracker page for BUAA lists “fluid mechanics” (which includes microfluidics) as one of the 28 “Designated Defense Areas of Research” in the university.

Further, in the section of the decision titled, “Did the officer misapprehend or ignore important information?” Crampton shows that the visa officer was correct to consider Li’s relationship with BUAA as more recent than his bachelor’s degree days.

The visa officer’s only reference to “potential ongoing ties between Mr Li and the institution was made,” Crampton writes, “in response to Mr Li’s own statement that he had not maintained any such ties”. But, as the visa officer recorded, Li “stated in his interview that it was his academic advisor at Beihang University, Dr Peng, who influenced him to study at Waterloo University”.

Crampton found Li’s argument that since Dr Peng had left BUAA in 2020, “he (Peng) no longer has any links with the institution” to be immaterial.

Definitions of espionage

A central part of Crampton’s decision was his rejection of the arguments Li’s lawyer, Raymond Lo, put forward to support the claim that since the ‘espionage’ does not appear in the IRPA, denying Li a visa based on the fear of espionage was unreasonable.

In an article on the FCC’s decision published on 4 January in the Globe and Mail, Lo expanded on this argument, saying: “I think it is a shame that officers are refusing such talented individuals who have a lot to contribute to Canadian research based on what may possibly happen, largely relying on reports rather than the individual’s past actions.”

After reviewing several cases, Crampton wrote: “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 … This is so even if the information in question was gathered in public.”

Crampton continued: “Contrary to Mr Li’s submissions, 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 authorisation.”

Nor was Crampton swayed by Li’s claim that the visa officer erred by finding that he could commit espionage by providing China with information after he completes his studies and returns to China.

“I disagree. It is not necessary for activities that would otherwise constitute ‘espionage’ to be conducted while the individual in question is in Canada … The gathering of information within Canada and its subsequent reporting, outside Canada, to a foreign government or other foreign entity or person, is within the purview of the term ‘espionage’, as it is used in … the IRPA,” Crampton said.

Five Eyes intelligence alliance

Crampton’s decision cites President Donald J Trump’s Executive Order No 10043 (29 May 2020), which limited Chinese nationals’ access to visas “to study or conduct research in the United States [that] would be detrimental to the United States”.

Under these rules, Li was denied a visa to enter the United States to attend the University of Colorado, Boulder, where he had been accepted for an MA in Mechanical Engineering; however, Li was still able to study at the university and complete his MA because classes were moved on-line due to the COVID pandemic. The Biden administration has left these rules in place.

It would, however, Wark explains, be a mistake to view Crampton’s decision as indicating that Canada was mindlessly aligning itself with American visa regulations.

“The federal court does cite, among different pieces of evidence [about China’s use of non-traditional espionage], not only the US executive order but various committee studies that have been undertaken in the United States, which Canada pays attention to about threats of Chinese espionage. Technology theft and intellectual property theft are shared concerns both between the United States and Canada, and their allies,” said Wark.

When asked to speak to the wider question of espionage, Wark said there is a clamp-down going on amongst the Five Eyes (the intelligence alliance made up of Canada, the UK, the US, Australia and New Zealand).

“We’re seeing a tightening of approaches to dealing with Chinese espionage, in particular, in sensitive sectors of research. That’s shared across the Five Eyes. At the same time, there is, it’s fair to say, an ongoing effort to try to maintain some of the principles of open science and collaborative research.

“The challenge for all countries in the Five Eyes is to determine those areas where high levels of scrutiny and protection need to be placed around sensitive research and those areas where there’s less of a national security concern,” said Wark.

Areas of less concern are the humanities or social sciences, Wark told University World News. However, it should be noted that this is not the view from Beijing. In 2020, President Xi Jinping’s government restricted foreign investment in 25 sensitive areas: alongside rare earth and radioactive mineral exploration and ocean mapping are social science research and the humanities.

According to Wark, academics, including scientists, tend to construe national security too narrowly.

“I read the letter in the federal court decision from the researcher at the University of Waterloo who had been in charge of accepting this student and who said that her lab doesn’t deal with anything that has military applications. But that’s too narrow a definition of security risk.

“It’s not just military applications; it’s a broader kind of national security risk around how research in a particular field, particularly anything to do with nanotechnology, which to my understanding, would include microfluidics. Anything to do with nanotechnologies is on that cutting edge, which has all kinds of applications across multiple fields and has to be a matter of national security concern,” said Wark.

A need for information-sharing

While Crampton’s decision expands the definition of espionage to include potential acts, it does not change the mechanism by which international students apply for student visas. Under Canada’s balkanised higher education system, universities and colleges accept international students and only then do the prospective students apply for visas and are vetted.

In a media release, Nick Manning, UW’s associate vice-president of communications, said that UW “will review the language of this decision carefully as it contains helpful guidance on the government’s interpretation of risk that will help us in assessing applicants in future”.

He went on to thank the university’s partners in the federal government for their expertise when it comes to matters of immigration and protecting Canada’s national security interests. “We rely on their expertise and decision-making in cases such as these,” he said.

In an interview with University World News, Manning went further, saying that a major impediment to universities being more proactive is the fact that because of provisions in the acts governing them, Canada’s security agencies are unable to share intelligence with universities.

As does Manning, Wark hopes that the present review of Canada’s security laws will lead to changes that will allow the country’s intelligence agencies to share information with universities.

At the same time, Wark underscores, while Canadian universities have been “upping their game” by creating research security positions in the administration, sometimes at a pretty high level, there is still a culture clash within universities concerning national security and intelligence.

“Universities are fundamentally anarchic institutions. Individual academics, especially tenured academics, have a lot of freedom, as they should, to conduct their own research and choose their own partners. That’s a cherished principle, and university administrations are not always regarded as friends of faculty members.

“There’s a lot of building to be done in terms of structures between governments and universities, and a lot of cultural change within universities that has to take place,” said Wark.

Manning ended our interview by noting that UW – and by extension all Canadian research universities – are caught behind the eight ball.

Referring to Wark’s contention in the Globe and Mail article, that the “student should never have been admitted to the University of Waterloo in the first place”, Manning told University World News: “Without intelligence to inform us, it’s a very difficult situation.”