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Part 2A – An Annotated Review of Li and the Unforeseen and Unsettled Legal Consequences of Expanding the Definition of Espionage

 

Introduction

As promised, it is time for part II of my blog part series on the Federal Court decision of Li v. Canada (Citizenship and Immigration) 2023 FC 1753.

I will write this blog over several days. Today represents Part 2A which covers Sections I-V of Chief Justice Crampton’s decision.¬† Sections VI to VIII, which includes the issues and analysis, will form Part 2B. To keep this more accessible to a more general audience and given the broad implications of this decision, I will try my best to keep this as plain language as possible.

Today, I set the scene a bit with a lot of interesting preliminary discussions and factual/legal framing, in the next I engage the core of the legal analysis with a review of the issues, standard of review, and analysis sections of the decision (aforementioned Part 2B) and if you stay until third part (Part 2C) I will highlight some of the unforeseen and unsettled legal consequences created by the decision. This decision is simply a gamechanger for Canadian immigration law as we head to uncertain times.

I want to be clear at the outset that what I will also focus more on the substantive nature of the security regime and inadmissibility, rather than to try and analyze the judgment from a purely administrative law lens of fairness and reasonableness. As such, my concerns too are going to be centered and focused on the uncertainties created by an inadmissibility regime that punishes individuals not necessarily for what they have done, but for what they may do – and my call for a greater personalized and individualized assessment needed for such a finding to be made, given the severe consequences of being labelled as an individual inadmissible for espionage.

As a further prelude, I will say that what I have noticed from the Chief Justice’s last two major decision, Li and his decision in Sidhu,¬†involving the horrible Humboldt Broncos tragedy, shows a willingness to engage in the broader societal impacts of immigration’s administrative law consequences. I am aware that the triage system for selecting cases involves the Chief Justice choosing the assignment of certain cases among the judges. It is not surprising in my mind that he chose these two cases to take on, rendered in close succession, that have generated significant outside attention.

I suspect administrative law will receive more of this “public” attention moving forward, and will be asked to interrogate larger societal questions – involving issues such as racism, bias, technological developments, inadmissibility, Indigenous sovereignty, among other hot button issues. As the Federal Court becomes more accessible and even more relied upon, folks will pay more attention. Decisions that are more responsive, written for losing parties, and aware of the potential consequences of either trying to establish or avoid establishing precedent/precedential value will be very crucial.

Now without further ado, let’s get into Li.

 

The Li Decision

I. Overview

Similarly to Sidhu, the Chief Justice starts the decision off in paragraph 1 with quite a bold statement. After I read it the first time, I both knew this decision would be impactful but also had a gut sense before even reading the facts that this probably was a decision favouring the Government.

[1] As hostile state actors increasingly make use of non-traditional methods to obtain sensitive information in Canada or abroad, contrary to Canada’s interests, the Court’s appreciation of what constitutes espionage must evolve.

A couple things to note in this first paragraph.

First, the word¬†hostile¬†definitely raises flags. One asks what countries are currently hostile? What is the timeframe considered for the hostility. One also thinks of about Canada’s interests. A few years ago Canada’s interests were apparently economic trade-driven with certain countries. Those interests could change depending on window. In the criminality and equivalency context, Tran advised us about retroactivity/retrospectivity and ensuring alignment of individuals knowing the consequences at the time they commit an action. I think the national security context arguably skews this context signficantly, but here we have now seen individuals who are punished (in a non-criminal sense) for associations they may have had in the past and tying these to possibly forseeable future events that may occur in the future, without¬†even having committed any action per se.¬†We have seen cases like¬†Geng, from last year, where individuals who were once permanent residents of Canada having cleared security checks from years prior are being re-engaged by the systems as the investigative goalposts and geo-politics have shifted.

A reminder and as a framing point, this idea of “Canada’s interests” is from the legislation itself in s.34(1)(a) of IRPA.

Security

  • ¬†(1)¬†A permanent resident or a foreign national is inadmissible on security grounds for

    • (a)¬†engaging in an act of espionage that is against Canada or that is contrary to Canada‚Äôs interests;

Second, it is quite telling that the Chief Justice utilized the wording “Court’s appreciation.” To me it represents, and quite correctly so, at least a stated intention to not cross over to stepping into the role of the legislature or to re-litigate the case. He wants to portray this is a case about judicial intepretation. We can assess later how well the decision reflects this, in situ.

The following three paragraphs complete the overview, including summarizing the Applicant’s arguments – namely that the Officer adopted an overly broad definition of the word “espionage” and that evidence was misapprehended and ignored, and stating his decision to reject the application (paras 4-5).

II. Background

Starting at paragraph 6 we start to learn more aobut Mr. Li. He is a PRC citizen. He attempted to apply to the University of Waterloo for a PhD Program in Mechanical and Mechatronics Engineering. There were delays in background checks (a common issue I have recently commented about). The Applicant was given a last extension to obtain a study permit for a PhD project (para 7). This last extension nature may have eventually become a double-edged sword when it came to the matter covering into a JR of the final decision, but also in the parsing of a non-need to certify a question (as we will discuss in the next blog). We learn through the judgment as well that the decision was started by way of what was likely mandamus (para 8).

We learn also that the Minister applied for non-disclosure of certain information in the Certified Tribunal Record (“CTR”) under s.87 of the IRPA. Let us pause here to take a look at that provision.

Application for non-disclosure ‚ÄĒ judicial review and appeal

¬†The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 ‚ÄĒ other than the obligations to appoint a special advocate and to provide a summary ‚ÄĒ applies in respect of the proceeding and in respect of any appeal of a decision made in the proceeding, with any necessary modifications.

2001, c. 27, s. 87

2008, c. 3, s. 4

2015, c. 20, s. 60

For those interested in another s.87 redaction case where the matter got a bit more complex with the applicant having actually succeeded in removing the redactions, check out Kiss v. Canada (Citizenship and Immigration), 2023 FC 1147 (CanLII), <https://canlii.ca/t/jzwtx> at paras 21-34.

We learn that Mr. Li learns from this redacted certified tribunal record (“CTR”) that the Center for Immigration National Security Screening recommended that there are reasonable grounds to believe he is inadmissible under s.34(1)(a) of IRPA.

Another pause. What is the Center for Immigration National Security Screening? I will not go into too much detail here (a whole other blog topic) but for some light background reading I would suggest looking at the “Evaluation of the Immigration National Security Screening Program” posted by the CBSA.

I also have knowledge that they are utilizing technological automation in these cases through the Security Screening Automation (“SSA”) project, per the unreleased draft Algorithmic Impact Assessment (“AIA”).

 

What we likely think happened, and we know of several other institutions that have been tagged with risk indicators (using tools such as the Integrity Trends Analysis Tool).

Paragraphs 11 and 13 of the decision then provide some interesting context. We learn that the Respondent represented that it would not rely on redacted information for the purposes for the purpose of responding to the application for judicial review, but also that the Officer did not rely on any redacted information in making the Decision.

I am still awaiting a copy of the file record from the Federal Court, but I do question, especially getting the information we did about the risk indicators in Kiss through this preliminary decision on the Minister’s s.87 motion how it could not have been relied on in some way. Presumably, the redacted information was indicator information, showing how the particular institution was flagged that led to the investigation. How the school (Beihang, we learn in paragraph 15) was flagged, what information was provided to the flaggers, and the technology utilized is something I forsee will be a point of legal conflict moving forward.

The other point to take from this section is the mandamus application, it appears triggered the steps taken and in this case the Chief Justice actually ordered a decision to be made within three weeks (see para 12).

While I have had mandamus claims trigger negative action (a concern that is often, in my opinion, under-discussed as a possibility), I have not yet to date had the Federal Court judge direct a decision to judgement within one of my proceedings. What we learn is that this led to a procedural fairness interview four days before the deadline, and it appears a refusal shortly thereafter.

I question whether there was an opportunity (beyond an interview) for the Applicant to put in evidence, such as expert affidavits, to counter the Government’s position. However, I will note – based on my own experience as counsel – that attempting to gather evidence to […]

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A Window into the Humanitarian and Compassionate Grounds Judicial Review Outcomes 2018 – 2022

As we posted about in this blog below, we have received a recent data set from IRCC that appears to be first of its kind in tracking litigation at the Federal Court.

An Early “Lens” Into Predicting JR Outcomes by Country of Citizenship

Today I am going to look at Humantiarian and Compassionate Grounds applications specifically and how the outcomes for judicial review have shifted over time since 2018.

In 2018, there were pretty much two major outcomes – Dismissed at Leave and allowed with both of these outcomes making up nearly 75% of all cases. 14.8% of all decisions ended up in a discontinuance or either consent at leave. The leave dismissal rate was the highest of the five year period at 58.82%.

In 2019, we saw similar outcomes with 80% decisions ending up with this outcome and the other 20% ending up in discontinuances.  Leave dismissals were still high at 52.45%.

2020’s COVID-19 year saw a major statisical shift. While the rate of leave dismissals went down, so drastically too did the allowed rate. Was this a result of compassion fatigue from COVID itself? or did the discontinuances (including consents) lead to weaker cases being heard by the Court. The motivation to consent or seek discontinuance during COVID-19 could also have been spurred by trying to limit the number of cases requiring hearing. It is a very interesting year to try and study and breakdown especially in light of how a future Global pandemic could impact Court processes.

In 2021, the leave dismissal rate stayed consistent around 45.96% but the Allowed rate went back up to higher than pre-pandemic numbers. Discontinued – withdraw and consent rates also went back to pre-pandemic numbers.

The year 2022 is when it starts getting really interesting. In this year, and for the first year ever, to have a higher percentage of Allowed cases than any other year. If we are looking at pandemic impact, perhaps this year is when many of the Applicants who had stayed in Canada during the 2020-2021 year and made applications finally had their decisions made and challenged at Court.

Dismissal at leave was at a five-year low and the discontinuance rose slightly.

So what happened in 2023. Interestingly enough, another type of outcome – withdrawn at leave – has been number one (up until June 2023 of this year). Are these because folks are no longer interested in pursuing JRs? Are they leaving Canada or are they being removed? These numbers are even higher than in 2020 during the pandemic when travel restrictions were in place. How many of these are from successful reconsideration requests?

This year’s data (to-date) raises several correspondingly interesting issues.

To me, these stats highlight the inconsistencies and ebbs and flows. It further suggests that in terms of automated data-based decision-making, humanitarian and compassionate grounds decisions and judicial reviews probably should not be implemented until greater understanding of why numbers have been discrepant year to year.

What are your thoughts? What stands out with respect to the data for you?

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Why the 30-Year Old Florea Presumption Should Be Retired in Face of Automated Decision Making in Canadian Immigration

In the recent Federal Court decision of Hassani v. Canada (Citizenship and Immigration), 2023 FC 734, Justice Gascon writes a paragraph that I thought would be an excellent starting point for a blog. Not only does it capture the state of administrative decision-making in immigration and highlight some of the foundational pieces, but also I want to focus on one part of it that I may respectfully suggest, needs a re-think.

Hassani¬†involved an Iranian international student who was refused a study permit to attend a Professional Photography program at Langara College. She was refused on two factors – [1] that she did not have significant family ties outside Canada and that [2] her purpose of visit was not consistent with a temporary stay given the details she had provided in her application. On the facts, it is definitely questionable that this case even went to hearing given the Applicant had no family ties in Canada and all her family ties were indeed outside Canada and in Iran. Nevertheless, Justice Gascon did a very good job analyzing the flaws within the Officer’s two findings.

There is one paragraph, 26, that is worth breaking down further – and there’s one foundational principle cited that I think needs a major rethink.

Justice Gascon writes:

[26]¬†I do not dispute that a decision maker is generally not required to make an explicit finding on each constituent element of an issue when reaching its final decision. I also accept that a decision maker is presumed to have weighed and considered all the evidence presented to him or her unless the contrary is shown (Florea v Canada (Minister of Employment and Immigration),¬†[1993] FCJ No 598 (FCA) (QL) at para 1). I further agree that failure to mention a particular piece of evidence in a decision does not mean that it was ignored and does not constitute an error (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),¬†1998 CanLII 8667 (FC), [1998] FCJ No 1425 (QL) [Cepeda-Gutierrez] at paras¬†16‚Äď17). Nevertheless, it is also well established that a decision maker should not overlook contradictory evidence. This is particularly true with respect to key elements relied upon by the decision maker to reach its conclusion. When an administrative¬†tribunal¬†is silent on evidence clearly pointing to an opposite conclusion and squarely contradicting its findings of fact, the Court may intervene and infer that the¬†tribunal¬†ignored the contradictory evidence when making its decision (Ozdemir v Canada (Minister of Citizenship and Immigration),¬†2001 FCA 331¬†at paras¬†9‚Äď10;¬†Cepeda-Gutierrez¬†at para¬†17). The failure to consider specific evidence must be viewed in context, and it will lead to a decision being overturned when the non-mentioned evidence is critical, contradicts the¬†tribunal‚Äôs conclusion and the reviewing court determines that its omission means that the¬†tribunal¬†disregarded the material before it (Penez¬†at paras¬†24‚Äď25). This is precisely the case here with respect to Ms. Hassani‚Äôs family ties in Iran.¬†(emphasis added)

 

What is the Florea Presumption?

As stated by Justice Gascon, the principle in Florea v Canada (Minister of Employment and Immigration),[1993] FCJ No 598 (FCA) pertains to a Tribunal’s weighing of evidence and the presumption that they have considered all the evidence before them. It puts the onus on the Applicant stating otherwise, to establish the contrary.

As the Immigration and Refugee Board Legal Services chapter on Weighing Evidence states:

Rather, the panel is presumed on judicial review to have weighed and considered all of the evidence before it, unless the contrary is established. (see: https://irb.gc.ca/en/legal-policy/legal-concepts/Documents/Evid%20Full_e-2020-FINAL.pdf)

This case and principle is often cited in refugee, humanitarian and compassionate grounds matters, inadmissibility cases, and IRB matters.

Reviewing case law for the last two years (since 2021), I did find a handful of the thirty-cases I reviewed that did engage this case and principle in a temporary resident context.

See e.g. study permit JR РMarcelin v. Canada (Citizenship and Immigration) 2021 FC 761 РMadam Justice Roussel at para 16 [JR dismissed]; PNP Work Permit РShang v. Canada (Citizenship and Immigration), 2021 FC 633 at para 65 citing Basanti v Canada (Citizenship and Immigration), 2019 FC 1068 at para 24  РMadam Justice Kane [JR allowed];  Minor Child TRV Refusal РDardari v. Canada (Citizenship and Immigration) 2021 FC 493 at para 39 Рadding the portion Рand is not obliged to refer to each piece of evidence submitted by the applicant РMadam Justice St-Louis [JR dismissed];

Related to this is the long-standing and oft-cited decision of Cepeda-Gutierrez v. Canada (Citizenship and Immigration) 1998 FC No 1425 in which Justice Evans re-iterated that an Agency stating they considered all evidence before it (even as a boilerplate statement) would usually be enough to suffice and assure parties and the Court of this. He writes:

[16]      On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

(emphasis added)

 

Why the Florea Presumption Should Be Reversed For Temporary Resident Applications and Any Decision Utilizing Advanced Analytics/AI/Chinook/Cumulus/Harvester

My argument is that this presumption that all evidence has been considered, as well as the boilerplate template language stating that it was considered, should not apply universally in 2023.

We know enough (again not enough about the system writ large) but enough to know that systems such as Chinook were created to facilitate the processing of temporary resident applications in hundreds of seconds, to extract data into excel tables for bulk processing, and to automate eligibility approvals. These were done specifically allow Officers to spend less time and consider enough, not all, of the evidence before them to render a decision.

I think the fact that applications are being auto-approved for eligibility, simply on a set of rules that are inputted primarily based on biometric information of an applicant should be enough to raise concerns that the systems even require consideration of most of the evidence submitted by an applicant.

All the materials on bulk processing that IRCC has released in the past few years, has been focused on the fact that not all documents need to be reviewed (not wording that states: review Additional Documents, as required).

 

IRCC Officer Training Guide Obtained Through ATIP

 

IRCC Visa Office Training Guide Obtained Through ATIP

If you look at the Daponte Affidavit and the original Module 3 Prompt that was created, it does not add confidence to the requirement that all documents needed to necessarily be reviewed:

Daponte Affidavit from Ocran

We learned that in response to concerns, they added to Chinook a prompt reminder for Officers to review all materials, but it is clear Chinook has gone far beyond ‘review and initial assessment’ to bulk processing.

Even with Cumulus, it is clear that if some docs that are not coverted to e-Docs they have to be pulled up separately in GCMS, the very tedious process that tools such as Cumulus seek to avoid.

Cumulus Training Manual Obtained Through ATIP

I would presume that it would be much easier for an Officer to make decision based on these summary extractions then to go into the documents.

Cumulus Training Guide Obtained Through ATIP

The documents are viewed below, much more akin to a ‘preview’ mode.

Cumulus Training Guide Obtained Through ATIP

Harvester, a tool that facilitates the conversion of documents into a reviewable format is similarly based on what documents can be extracted.

Harvester User Guide Obtained Via ATIP

Based on the way it is described and how some offices can exclude certain documents, it already suggests not all documents make it to the purview of the Officer.

Most importantly, as a constraint is time. As Andrew Koltun has uncovered, IRCC spends 101 seconds on average, with Chinook processing. https://theijf.org/nearly-40-per-cent-of-student-visa-applications-from-india-rejected-for-vague-reasons#

Respectfully, 101 seconds cannot be enough to consider but one or two documents – max – before rendering a decision. The future use […]

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About Us
Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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