This will be the first of a two-part post about a recent Federal Court decision named Li v. Canada (Citizenship and Immigration) 2023 FC 1753. Li is a seminal decision rendered by Chief Justice Crampton with respect to a study permit applicant who was found inadmissible for espionage, in which the Chief Justice opens the door to a broader interpretation of espionage.
This first post talks about how the Applicant, Li, and statements he made in his study plan, one that would be concerned normal and strong statements in most cases, contributed to the Officer’s reasoning and the judge upholding the finding of espionage. For the purposes of this particular post, I will not go into the elements of the legal test for espionage. I will save this for part 2, which will be a more comprehensive breakdown/study of the decision itself.
As set out in paragraph 6 of the decision, Li sought to undertake a PhD program in Mechanical and Mechatronics Engineering at the University of Waterloo. His specific interest was in microfluidics, micro/nanoscale science and technology to “dedicate his career to improving China’s underdevelopment of the application of advances to point-of-care technology in the field of public health.” On the surface, and considering if the Applicant had been from most countries that do not currently have “hostile interests” to those of Canada, one can see a student like this getting a huge international student scholarship and being championed. I did some further research and found this individual is now studying in Hong Kong and is focusing on the use of microfluids to research treatments for cancer. God knows the benefit he could have had on the Canadian healthcare industry.
Unfortunately for Li, he had taken undergraduate Engineering studies at an institution (Beihang) that created concerns and is documented in concerns of intelligence reports and suspected Chinese military ties. I would add briefly here, that when it comes to ‘intelligence’-based research it is difficult to challenge. These disclosures thesmelves are often based on what can be accessed and those former intelligence agents/experts who are often writing with a very specific audience in mind. The only way to reasonably counter is by showing proof of Chinese media or websites for example, is fraught with perceived credibility concerns. To me, this adds further concerns to a low threshold legal test based on reasonable grounds to believe – as it is near impossible in most cases to reasonably counter.
Given my own knowledge through similiar cases that I am working on and have written on, I have grounds to believe there are certain schools that have been flagged as risk indicators. This school appears to be on that list.
Study Plans
Study Plans (often also called Statements of Purposes (SOP), Letters of Explanation (LOE), or Statement of Intent, among other names) is considered in most study permit applications the one document that can influence an Officer on a discretionary basis to consider the specific ‘story’ of the applicant.
The document is not mandatory for all study permit applications, and is listed in different forms based on visa office specific instructions. However, particularly for folks who have negative history, refusal history, or unique circumstances (such as being a mature student or switching professions), it is common to write details explaining how one sought to pursue their particular studies. Often times, this document will also be used to explain also issues such as one’s family ties back in the country of citizenship, one’s employment situation, and one’s financial situation.
I know in our own practice this has always been a key part of our study permit representation. Indeed, there are also those (often non-immigration reps) who write study plans on behalf of students. Over the past few years, the study plan arguably has become a bit less important with the imposition of data-based decision-making and the use of Chinook to extract factors primarily from forms rather than letters. However, with the continued implementation of technology to automate the reading and extraction of this content and the shifting role of pre-assessment, it will continue to be a key factor in the 50/50 cases that make up much of the study permit regime.
Li’s Study Plan
Based on the Chief Justice’s decision (I am still in the process of ordering a copy of the documents themselves from the Court), the Officer did reasonable consider and link Li’s study plan to a finding that there were reasonable grounds to believe he may commit espionage, namely by being targetted and coerced into providing information that would be detrimental to Canada or contrary to Canadian interests.
The Applicant’s study plan is first cited in paragraph 15 of the decision:
[15] Regarding Mr. Li’s education, the Officer noted that he obtained a bachelor’s degree in Mechanical Engineering from Beihang University, and then a Master of Mechanical Engineering from the University of Colorado Boulder, where he studied remotely due to the COVID-19 pandemic. The Officer further noted that Mr. Li has a strong interest in microfluidics, a branch of micro/nanoscale science and technology, and that he indicated in his study plans that he wanted to dedicate his career to improving China’s underdevelopment of the application of advances to point-of-care technology in the field of public health. (emphasis added)
Next, Chief Justice Crampton cited to the Officer’s finding that Li’s studies in Canada would generate him opportunities in China.
[55] 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 (emphasis added). 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.
Ramifications: The Study Plan Can Be a Double-Edged Sword
The Officer appeared to use the wording of the applicant’s study plan against them in making the case that they may commit espionage. I think this case offer some pause on not only what subjects it may make sense for certain individuals to pursue as studies in Canada but also how the ability to leave Canada at the end of one’s stay and future employment prospects cannot be blindly written.
I would recommend applicants consider their country of citizenship, any potential bilateral of international relations concerns, any possible Governmental experience of institutional concerns (past work/study) before writing their study plans. When proving so hard as applicants do that they will return home to work, consider what that industry might be and how Canada may view that process of knowledge transfer.
Some of these factors will certainly be outside of one’s control and knowledge, but being aware of emerging security trends of concern will be important. One should also be aware that this risk flagging process is currently still more art than science. I have helped several computer scientists, mechanical engineers, software developers, etc. from traditional countries of concern such as Iran or China obtain study permits. Sure recent technological developments have cast a wider a net of concern, but I would not assume these systems and Officer analysis is necessarily reasonable. There were (and still are/continue to be) numerous grounds to scrutinize and challenge a decision like Li.
We will explore this more in our next blog – which will be longer, dorkier, and need more time (likely at least my next weekend).
For now, the big takeaway – be cautious when writing study plans and discussing future employment prospects and your future plans.
