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

 

 

Welcome back folks!

I had a bit of a busy several weeks since my last post – as I am taking an accountable computer systems course, learning about encryption, block chain, TOR and all the cool things I wish I knew earlier!

I have not forgotten about the Li decision. I will admit I have lost sleep over it, been confused over it, and had numerous client consultations over it. The recent development of the Named Research Organizations list, although in a much different context, have started to shed light on what institutions may be targetted and flagged. I presume many of these institutions (if not all) are risk indicators in the Integrity Trends Analysis Tool and may trigger the automation of the Security Screening Automation process.

Also, I should be on a podcast with Steven Meurrens and Deanna Okun-Nachoff talking about this decision shortly. I think it will be a fascinating conversation. Will share link!

For the purposes of this blog, however, let us jump back into the Federal Court’s decision in Li v. Canada (MCI) 2023 FC 1753 to get to the heart of the Chief Justice’s analysis.

Let’s start now with VI. Issues at paragraph 24. I do not yet have the benefit of the parties submissions to determination how the issues were framed in factums. Based on what the Chief Justice writes later in his VIII. Analysis at para 29, it seems like this question was framed by the Applicant.

Nevertheless, I think there might be some tension in the framing of the issues and then the setting out of the standard of review in VII. Standard of Review where the Chief Justice re-iterates that the Court’s limited role within the judicial context, the introduction the case itself, and the eventual function of attempting to carve out a definition for espionage.

I will note that this is not rare, however. We have seen it in many contexts, and indeed the Chief Justice has also engaged in a similar discussion of the role of a comparative approach in the s.25 H&C test in Huang v. Canada (MCI), 2019 FC 265.

Finally, for the purposes of this blog to keep it shorter I will focus only on paragraphs 29 to 50 and leave for the next blog the “Application to the Decision” section.

Moving to the Analysis in Section VIII.

The first issue is whether the Officer erred in applying an overly broad term ‘espionage’ under s.34(1)(a) IRPA¬†(see para 29). The Chief Justice notes that there is no definition of the term “espionage” in¬†IRPA,¬†or it appears, in any Act of Parliament. This is crucial because I think it highlights a clear legislative/policy gap that IRCC will need to look to fill.

There are some legislation that engage in for example a definition of economic espionage in the Security of Information Act, but the context of the act and who it has been used to prosecute does make it very different and difficult to translate to the immigration setting. I see this omission as an emerging gap for legislators to step in.

There are two key paragraphs in Li involving the definition of espionage, that frame the decision. The Chief Justice writes at paragraph 31 and 32:

[31]¬†However, Mr. Li submits that the term¬†‚Äúespionage‚Ä̬†has the following five characteristics:

(1) There is an aspect of secrecy, clandestineness, surreptitiousness, or covertness in the way the information in question is gathered.

(2) The information is collected without the other parties’ knowledge and consent.

(3) The collector, by the time they are actively engaging in information gathering, does so under the control and direction of a foreign entity.

(4) The information is regarded as secretive, as opposed to simply private.

(5) The act is against Canada or contrary to Canada’s interests.

[32]¬†I disagree. In my view, the jurisprudence supports a broader definition of¬†‚Äúespionage.‚Ä̬†At its most basic level, the concept of¬†‚Äúespionage‚Ä̬†contemplates the secret, clandestine, surreptitious or covert gathering¬†or¬†reporting of information to a foreign state or other foreign entity or person. When such activity is against Canada or is contrary to Canada‚Äôs interests, it falls within the purview of paragraph 34(1)(a).

There are several complications created by the definition generating process: (1) what constitues reporting? (2) what constitutes information? (3) what constitutes a foreign entity? (think of foreign-controlled companies operating in Canada for example) (4) who is a foreign person? (is it entirely immigration-status related or more than that?) (5) We also return back again to what are Canadian interests and are the relevant times of when actions occured and interests considered material?

Also, by way of the way it is gramatically structured does the reporting of information to a foreign entity/person have any modifier. It appears in the Chief Justice’s decision it can be public information, but surely the gathering or reporting of any public information to a foreign person would be an overbroad definition.

The Chief Justice summarizes at paragraph 47:

[47]¬†In summary, and having regard to the foregoing, I consider that the term¬†‚Äúespionage‚Ä̬†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¬†‚Äúespionage‚Ä̬†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‚Äôs interests, it falls within the purview of paragraph 34(1)(a). This is so even if the information in question was gathered in public.

This is interesting as it then adds a modification of unauthorized, but is it a necessary condition. How does one seek authorization? Does it have to be in writing or could it be oral? If knowledge and consent is provided, is this information not authorized for disclosure?

It seems like the words on behalf of have significant play but does it apply to only foreign governments or as well entities or persons.

I think we will also eventually need to get some clarity as to what ‘such a recipient‘ means.

For example, if a permanent resident or international student goes home from a day of work to discuss a public university research project/grant with their foreign national spouse they are working on would that constitute espionage if the information transmitted potentially contrary to Canada’s interests? For example, if the spouse asks how much money the project is worth financially and how much they will get paid, could that constitute espionage under a specific fact patter?

What if the information being collected or gathered is on behalf of themselves but at risk of disclosure in the future (either intentionally or not) to a foreign entity or person that may benefit that entity or indiviudal. What if it is written in a resume or spoken of in a job interview with a potential foreign employer?

If a journalist is a foreign investigative correspondent paid by a foreign entity is looking into the Canadian Government’s international policy through publicly accessible ATIP information would that constitute espionage?

The only thing linking it all would be the act being Contrary to Canada’s interest and requiring some sort of intent to actually gather the information.

As the Chief Justice writes at paragraph 48.

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. 

This suggests that a lack of authorization is a key part of an espionage test, and that the other modifiers of secrecy, clandestineness, surreptitiousness, or covertness are not needed, that neither is control or direction of a foreign entity or person, nor the lack of knowledge or consent (para 48).

I will summize that I am not certain what constitutes espionage after reading this section of the case. For one, I think commas, subsections, and a list are needed for want of misinterpretation or incorrect reading.

I also wonder – had I been a permanent resident or foreign national (and not a Canadian citizen), whether my own advice to my foreign national clients, based on the information I have gathered from my investigative research of Canadian immigration practice and policy (publicly available information), might constitute espionage. I received releases from ATIP which were releasable to me, but certainly not giving me a broad authorization to share online and have it read potentially by foreign entities or persons. I use this information in the interests of access to justice and to critique the system I work in and hopefully transform it for public good. It is, however, arguably contrary to Canada’s interests to have knowledge of things such as Chinook and triage made public?

What about my colleagues who practice in immigration who are permanent residents? Are they committing espionage by advising their clients utilizing information they have gathered through ATIP and information requests?

By writing blogs and sharing them on online platforms am I communicating and reporting? What about posting a video on TikTok or WeChat or another foreign state-owned entity – is this considered communicating and reporting? What if one of my clients were a foreign entity or individual in a country deemed hostile by Canada?

Perhaps I am confused and missing the boat but I feel like I cannot competently advise a client right now Рfor example Рon whether or not to try and seek entry into Canada at this time in the event any past, current, or future action they may take could be deemed espionage.

Did it matter that Li came to study? What if he came to work at McDonalds? What if he came to see a loved one in Canada for two weeks? Is he still at risk to gather information and pass it on to a foreign entity just by his very presence in Canada?

While I will save the heart of my analysis on the reasonable grounds to believe standard to the next blog part where the Chief Justice looks at the application of the law to the facts […]

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International Students Making Refugee Claims: How Data + Chinook Might Meet

As a recent tweet from Steven Meurrens shows, the relationship between refugee claimants and international students is one that IRCC actively tracks.

Thanks to an Access to Information and Privacy (“ATIP”) request received earlier this year, we finally have our first look into the question of how this data might be operationalized and related to the use of the Chinook’s application processing system.

The example, we have is from January 2021 in a document titled “By the Books: Analysis of Sri Lankan Student Claimants” from IRCC’s Migration Integrity, Integrity Risk Management Branch. The document is highly redacted so we can only share what we know and speculate about what the document might otherwise also say. I have provide the document for review below

Pages from A-2021-18633AdditionalRelease (003) ‚Äď Sri Lankan Students

What the Document Says

The first part of the document summarizes four key takeaways, with part of the first and last two being redacted. Based on what we see, the summary captures the change in asylum claimants alongside changes in temporary residence and temporary resident visa issuance. This document coinciding with the pandemic, this also factors in. It is likely that the missing points pertain specifically to study permit holders, given the nature of the document and the redactions.

The Background section then delves into a bit of a country-conditions summary of Sri Lanka coinciding with entry as a top 20 source country for asylum claims in Canada. Those who practice in refugee law, will draw similarities to some of the reports found in National Documeptatin packages here. One of the pinpoints of this particular document is of the Tamil diaspora, tying into the entry of Sri Lankan nationals in 2009-2010 from the much documented Ocean Lady and Sun Sea marine vessels.

Keeping in mind this was nearly three years ago, the amount of data in this document is staggering Рfrom tracking the mode of arrival (air versus other methods), versus the documentation of those with status in Canada. The document provides a graph comparing the number of TR approvals and asylum claims before pinpointing students as having the highest claim rate among TR business lines from Sri Lanka.

The data even tracks the time frame from TR (temporary resident) issuance to Asylum Claim date, showing the Government tracking that a majoirty of students intendes to claim when they acquired their study permit. The data further delves into what level of study the students are in. In a redacted section, this data also goes into what select educational institutions they are coming from, noting over half are at select universities.

Based on an unredacted foot note, there is a reference to “Fraudulently obtained S-1 TRVs for Cape Breton University by CBSA, November 2019.”

This data is then combined with nom-compliance and IRCC’s compliance reporting history, aligning with key indicators of potential non-compliance. While it is redacted, it would be interested to see how they tracked compliance alongside actual claims made, given once an individual makes a claim they acknowledge their inadmissibility and be motivated to discontinue studies. The redactions in this section make it difficult to parse this question of whether non-compliant studies led to claims, or claims led to non-compliant studies.

A fully redacted section called “Additional Observation: Address Clustering” presumably talks about the cities in which these claimants are living. This is another further factor that is likely built into the recommendation below.

The Recommendation of Chinook Module 5 Indicators

The Next Steps section is nearly fully redacted, but the first discussed step is not and is very telling in what it states:

Immediate Actions

  1. Creation and Distribution of Sri Lankan Student Indicators

Action: The MIT recommends the construction of indicators for use by visa processing officers in Chinook Module 5. Similar to indicators used in other lines of buisness in other source countries for claims, these indicators will assist officers in identifying potential high risk cases in the Sri Lankan cohort.

Based on the above document, one would suggest that the possible redactions might even pinpoint what those risk indicators look like. I am wondering also how the risk indicators would pick up an individual as Tamil (likely through language), but then also layer on the educational institutional they are attending, the city they are living in (the pockets) and possibly other factors that are discussed in the redacted sections.

 

Implications: Understanding How Risk Indicators are Created

While we have known for awhile that refugee claims are consideredadverse outcomes for international students, this document truly challenges the breadth and scope of the type of data being used to back the data-based systems within Chinook’s Module 5 Risk Indicators. It suggests that there are data-based calculations and equations being drawn and made of all applicants and form factors outside of an Applicant’s, and currently a reviewing court’s, control.

We have written about risk indicators in the past:

Why If There’s No “N/A” Risk Flag on Your GCMS Notes, You May Have Been Risk Flagged

In this blog, we talk about how these indicators feature prominently in the spreadsheet presentation used by Officers to determine cases.

We’ve also shared that these risk indicators are being flagged through automation and AI on files (see: Integrity Trends Analysis Tool Algorithmic Impact Assessment) and discussed how we have had our own experience litigating a case involving risk flags that were made visible (accidentally) in GCMS, and which may have contributed to a refusal rendered on entirely different grounds than the risk indicators indicated. Through my discussion of bulk decision-making, we discussed how refusals are grouped into buckets that could be informed by the presence of things such as risk indicators.

We know from the IRCC’s response to CIMM Study 8, the following:

  • For indicator management within the Chinook tool, risk indicators are used to notify officers oftrends that IRCC has detected or highlight a particular factor of concern, not to sort visaapplications. Keywords are also used to identify positive considerations such as applications thatmay require expedited processing (e.g. conferences, weddings).

  • Risk indicators are identified and submitted for entry into Chinook by IRCC officers. Indicatorsand keywords are not created by the Chinook tool.

  • The release of specific keywords connected to investigative techniques, trends, and risk profilescould encourage fraud or facilitate the commission of an offence, and are therefore not releasedper section 16(1)(b) of the Access to Information Act.

  • Statistics on the use of indicators and keywords are not tracked globally. If indicators or keywordsare present on an individual application, they would appear in notes in GCMS. Where there are noindicators or word flags on a case processed with Chinook, a ‚ÄúN/A‚ÄĚ (not applicable) would appearin the relevant field in GCMS.

However, because of the function of the information being redacted, in only rare ‘accidental’ disclosure cases have we seen what these look like and so far, without the detail of the actual words or combinations flagged.

As far as I am aware, this is the first case where we have seen the actual directive or recommendation to create risk indicators as a function of data, and in cases where the risk (or adverse outcome) is seen as a student making a refugee claim.

My big question is about the data. I provided one example above where I challenge an alleged causation between refugee claimants and non-compliant studies. I can think of other issues, such as how IRCC collects data on whether someone is Tamil are not (presumably through language), but from my own personal knowledge of agents playing a large role in applications arising from Sri Lanka, are there possible assumptions being made on forms that are not competently filled out? Are there missing disaggregations?

The follow-up question is data-vetting. If these indicators are not being tracked, but simultaneously there are is a six month review period for these indicators, who (if anyone) is in the room to interrogate this data or allege possible bias or problematic collection?

Given the power of these indicators to essentially take applications out of the assembly line to approval, I would suggest much more transparency, and a robust and publicly explainable data review process, needs to be published by IRCC to alleviate concerns that myself and other colleagues have about this process.

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Delaying Decisions on Post-Graduate Work Permit Refusals Have Cruel Implications + Creates Backlogs

(First of all – Happy New Year! I might not be very happy in this post, so I’ll get it out of the way first).

For the past month, we have been dealing with several inquiries from folks who have been refused Post-Graduate Work Permits (PGWPs).

These have mostly been for small administrative issues such as a failure to send a proper final transcript, pay appropriate fees, or uploading issues. Some other cases are those where there is one semester that was not a final semester and that was part-time, usually do to some school scheduling or academic issue. Many had increasing mental health challenges due to COVID-19 related issues, such as the passing away of family members and the need to travel back for those arrangements.

The crux of the problem is that these applications are being refused more than 180 days after the Applicant completes studies. Why is this significant? Well, even though an Applicant is able to restore their status within 90 days of losing their status, at 180 days after the completion of studies, the restoration to PGWP option ceases to exist. Applicants are required to apply for a PGWP within 180 days of completing studies.

Restoration, becomes therefore meaningless as an option outside of the 180 day window. This leads to two applications flooding the system.

  1. Reconsiderations Р many of which (time and time again I find) fail to address the legal test for reconsideration as set out by IRCC and as I have discussed in this past blog.
  2. Temporary Resident Permits –¬†we have been retained for several of these of late and unfortunately it is heading to the 8 month + range for a just graduated student to wait which is simply not feasible for most.
  3. Unnecessary Return to Studies with Unclear Implications of Past Studies Рmany students go back to school Рwhich makes sense from a Diploma to Bachelors level (perhaps) but for many who graduated from a Bachelors or higher, it really makes little sense to force them to take another program. These decisions are being made rushed, finances are being secured urgently (but with huge impact to families) Рall to have to remedy a small admin or one part-time semester issue. It truly is overdoing things.

IRCC needs to urgently render timely decisions on study permit refusals – I would argue 90 days from a student’s completion of studies (i.e. less time if the student applies later) is an absolute maximum time that can be taken (freeing up another 90 for restoration in a feasible time). Given the use of Artificial Intelligence (“AI”) in this space, it should free up Officers to consider some of these cases where there may be admin issue to see if it can be addressed in reconsideration or in applying discretion, rather than having to put students in the loop. Right now, the Courts, are taking a position there is no discretion so litigation is of limited use to force change.

If in fact, the refusal of PGWPs is now a policy directive to try and tackle the backlog or filter the number of PGWP holders perhaps this should be communicated. Students could choose to transition out of classes back home, or return back after graduation, rather than stick around in limbo waiting for a TRP.

Too many mental health issues are being burdened by students who simply are going things that students go through, such as taking part-time classes to better their education outcomes or to save money. Students are making honest mistakes following confusing immigration application instructions. They should not be punished the way they currently are under our Canadian immigration system.

Agree? Disagree? Feel free to engage with me on Twitter or email me at info@heronlaw.ca with your thoughts.

#intled #cdnimm

 

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[Legal Rant] Addressing “Gaming the System” Concerns – Indian Study Permit Applicants and the SDS Example

 

Perhaps this post is inevitable. The reach of s.91 IRPA might be difficult to both control or manage from here inside Canada. Other than bulk refusing the applicants of certain unauthorized practitioners/agents that are found (and it appears only in egregious cases), it is highly unlikely we will see any enforcement. We will try and cut off the Canadian links, but too often they go under the surface Рa quick Use of Rep signed here, a quick portal creation there, and the situation goes unnoticed by the applicant and our system-defending officers.

What is increasingly troublesome, however, is that there appear to be ways the system is being effectively gamed – or at least it is being marketed this way. As part of my work I am quite public on Twitter and Social media, and invite those with tips and leads to tell what is going on – ground level. This is one of those tips I received.

Here is one case that I think should trouble some folks.

Canada’s Student Direct Stream (SDS) has been lauded by many in the policy space for creating a subcategory of ‘ready-to-study’ students with good language scores, funds to pay for first year tuition, and a GIC. While I do not have recent stats and need to obtain them, the benefits of these programs have historically been faster processing and higher (10-12%) approval rates to reward students who did the leg work. One of the unique features of the SDS Application is that the approval (and refusal) is issued at Case Processing Centre (“CPC”) Edmonton in Canada, taking a large weight off the local visa offices and triaging cases more effectively.

I also want to give a bit of a context for writing this piece. A study permit was refused and the individual decided to go to an unauthorized representative for the subsequent follow-up application. That agent told the individual that previous counsel had provided too many explanations and letters and that the key to approval was to ensure the Visa Application Centre (“VAC”), and by extension the local visa office, could flag the file after submission. They recommended against submitting another SDS application.

Based on my credible source, who has canvassed other immigration agents from India, who confirmed same – the on the ground knowledge now is that SDS Applications will now take significant longer than regular applications and that to get approvals, the best thing to do is to get the office processed at the local level, at Delhi.

The way to do this is two fold:

  1. Make sure the language test done is the PTE – so that the file has to be processed locally in Delhi; and
  2. Make sure that only first semester and not first year tuition is paid to avoid SDS processing and keep the file local.

This is not the first time we have heard of a perceived preferential processing for non-SDS applications. Similarly for applicants from Philippines and Pakistan we have heard similar things in the past – along with Applicants that have taken various tips to try and get their cases triaged differently. These seem to be amplified concern of Applicants by the fact September school deadlines are starting and applicants need quicker decisions rendered than the SDS ones that have been taking several months. Agents are telling students (and apparently results are showing) approvals at the local office level.

RANT: I think we have to get to a point now, where we ask ourselves why we would create a stream like SDS only to have it take longer to process and perhaps offer less competitive processing.

Without the stats at this stage, I can only pass over the anecdotes I am hearing, but there is enough of a concern on the ground (I am not going to use the word qualitative this week – it doesn’t work) that applicants are being guided by unauthorized practitioners into ‘gaming the system.’ I believe it is enough of a concern that someone should step in to ensure transparency and proper communication.

Either there should be no discrepancy in processing times (thus removing the incentive of speed) or there should be a clear policy aim to have significantly higher approval rates for SDS than non-SDS streams, as should be the case on the basis of the required documentation to be submitted and obtained prior to application.

As IRCC moves to implement technological changes and institute these rules that will triage applications, it must be very aware of those who may have unauthorized access to or are learning how these rules work so as to want to circumvent them. If the data also comes out (beyond anecdotal) to support certain actions, applicants will adjust their behaviours and will be led to do so by unauthorized reps.

If SDS is the superstar program, worthy of global expansion, it is marketed as – there’s no reason it should take longer and make one’s applicant less likely to succeed. The doors of exploitation open up if there’s not consistency in this.

[End of Rant]

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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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