Docket: IMM-1453-21
Citation: 2022 FC 64
Ottawa, Ontario, January 19, 2022
PRESENT: The Honourable Madam Justice Rochester
| BETWEEN:
|
| YUXIA GAO
YONG ZHANG
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicants, Mrs. Yuxia Gao [Principal Applicant] and her spouse Mr. Yong Zhang [Accompanying Spouse], are citizen’s of the People’s Republic of China. The Applicants have an adult daughter who, following her studies in Canada, became a naturalized Canadian citizen.
[2]
In 2014, the Applicants’ daughter applied to sponsor the Applicants for permanent residence under the Parental Sponsorship Program.
[3]
Prior to his retirement, the Accompanying Spouse was employed with the Overseas Chinese Affairs Office [OCAO] for a period of twenty years.
[4]
The Applicants seek judicial review of a decision by an immigration officer [Officer] at the Immigration, Refugees and Citizenship Canada [IRCC] office in Hong Kong finding the Applicants to be inadmissible under paragraphs 34(1)(f) and 42(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In particular, the Officer found the Accompanying Spouse to be inadmissible under paragraph 34(1)(f) of IRPA because he had been a member of an organization, OCAO. The Officer determined that there were reasonable grounds to believe that OCAO had engaged in acts of espionage that or that are “contrary to Canada’s interests”
as set out in paragraph 34(1)(a) of IRPA.
[5]
As the Officer had found the Accompanying Spouse inadmissible, the Principal Applicant was then found to be inadmissible pursuant to paragraph 42(1)(a) of IRPA, which renders a foreign national inadmissible where their accompanying family member is inadmissible.
[6]
For the reasons that follow, this application for judicial review is dismissed.
II.
Background
[7]
In 1983, the Accompanying Spouse was transferred from his position at the Overseas Chinese Travel Agency to OCAO, in Guangzhou, China.
[8]
The OCAO, Overseas Chinese Affairs Office, is a national level government body in the People’s Republic of China [PRC] responsible for overseas Chinese affairs. The overseas Chinese, according to the record, includes millions of ethnic Chinese who, over centuries, have moved to other parts of the world, adopted new nationalities, and who are now in their second, third, and later generations, along with more recent migrants and PRC nationals living outside the PRC.
[9]
According to an article by Dr. To, referenced by both parties, qiaowu, meaning overseas Chinese affairs work, may be described as follows:
Qiaowu is ostensibly a comprehensive effort that seeks to maintain, protect, and enhance the rights and interests of the OC [overseas Chinese]. Tasks include propagating OC policies, promoting OC affairs, researching their needs, and resolving their problems. In practice, however, qiaowu works to legitimise and protect the [Chinese Communist Party] CCP’s hold on power, uphold China’s international image, and retain influence over important channels of access to social, economic and political resources both domestically and abroad. To achieve this, qiaowu is conducted in view of two aims: to attract the OC back into the fold of the Chinese nation-state, and to convey and project to them the nation-state agenda. Implicit in these objectives is the elimination of potential threats and rival discourses that may challenge the CCP. (To, James (2012), Beijing’s Policies for Managing Han and Ethnic-Minority Chinese Communities Abroad, Journal of Current Chinese Affairs, 41, 4, 183–221. ISSN: 1868-4874 (online), ISSN: 1868-1026 (print) at p 185 [Dr. To, 2012], emphasis added).
[10]
The Applicants highlight, relying on Dr. To, that, according to OCAO’s website, OCAO describes its role as having several strategic and administrative tasks, which include drafting qiaowu policy and planning, drafting interrelated laws and regulations, supervising, inspecting and implementing affairs (James Jiann Hua To., Hand-in-Hand, Heart-to-Heart: Qiaowu and the Overseas Chinese (DPhil Thesis, University of Canterbury, Political Sciences, 2009) at p 70 [Dr. To, 2009]).
[11]
In their submissions, the parties also relied upon the statement by Dr. To that OCAO “has a role for intelligence gathering and dissemination: performing research on domestic and external [overseas Chinese] affairs, and delivering this information to the CCP and the State Council…”
(Dr. To, 2009 at p 70).
[12]
According to the Applicants, the Accompanying Spouse worked primarily as a computer technician from the time he was transferred to OCAO until 2002, when he was transferred to an administrative position. The Respondent notes that by the time the Accompanying Spouse retired in 2004, he was a chief staff member.
[13]
In 2014, the Applicants’ daughter applied to sponsor the Applicants.
[14]
In 2018, the IRCC requested additional information concerning the Accompanying Spouse’s work history.
[15]
On July 6, 2020, a procedural fairness letter was sent to the Applicants indicating that there were concerns that the Accompanying Spouse was a person described under paragraph 34(1)(f) of IRPA. The letter specified that the Officer had reasonable grounds to believe that the Accompanying Spouse was a member of OCAO, an organization for which there were reasonable grounds to believe had engaged in acts of espionage that are against Canada or that are contrary to Canada’s interests. The Applicants were provided with the opportunity to respond to the concerns. The Applicants submitted a response letter on September 29, 2020.
III.
The Officer’s Decision
[16]
By way of a letter dated April 14, 2021, the Officer refused the Applicants’ applications for permanent residence visas on the grounds that the Accompanying Spouse and Principal Applicant are inadmissible to Canada in accordance with paragraphs 34(1)(f) and 42(1)(a) of IRPA, respectively.
[17]
In the Global Case Management System [GCMS] notes, which form part of the reasons for the Officer’s decision, the Officer found that the Applicants had failed to assuage the concerns raised in the procedural fairness letter that the Accompanying Spouse was a member of OCAO, and that OCAO is an organization that has engaged in acts of espionage that are against Canada or that are contrary to Canada’s interests.
[18]
The Officer stated that intelligence gathering against the overseas Chinese and their activities is an integral element of the PRC’s foreign policy, and that the PRC relies on infiltrating overseas Chinese communities in order to put pressure on dissidents. The Officer found that intelligence gathering activities, when done in a covert way by OCAO, constituted espionage.
[19]
The Officer found that OCAO’s activities were contrary to Canada’s interests. The Officer highlighted that the IRCC’s Operational Manual - OP 18 (Evaluating Inadmissibility) provides guidance on activities that may constitute espionage that is “contrary to Canada’s interests”
, and includes, as quoted by the Officer: “espionage activity directed against Canada’s allies”
and “espionage activity committed inside or outside Canada that would have a negative impact on the safety, security or prosperity of Canada. Prosperity of Canada includes but is not limited to the following factors: financial, social, and cultural.”
[20]
The Officer considered the Applicant’s argument that the definition of “against Canada”
or “contrary to Canada’s interests”
had not been met, however the Officer concluded that “based on information from open credible sources, OCAO is known to have engaged in covert actions against overseas Chinese communities around the world and thus, it is reasonable to believe this includes overseas Chinese communities in Canada and allied countries which can be considered contrary to Canada’s interests.”
The Officer further noted “that OCAO has been identified as a threat to U.S. interests”
.
[21]
Finally, the Officer found that the Accompanying Spouse’s employment with OCAO for a period of nearly twenty years was sufficient to constitute being a “member”
of OCAO.
IV.
Issues and Standard of Review
[22]
The issue on this application for judicial review is whether the Officer’s Decision is reasonable. In particular, the Applicants raise the following sub-issues, namely did the Officer reasonably find: (i) that the OCAO engages in “espionage”
; and (ii) that such acts were “contrary to Canada’s interests”
? At the hearing, the Applicants withdrew the issue of whether it was reasonable to find that the Accompanying Spouse met the definition of a “member”
.
[23]
The parties agree that the applicable standard of review is reasonableness as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
[24]
The party challenging the decision bears the onus of demonstrating that it is unreasonable (Vavilov at para 100). Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13). For the reviewing court to intervene, the challenging party must satisfy the court that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
, and that such alleged shortcomings or flaws “must be more than merely superficial or peripheral to the merits of the decision”
(Vavilov at para 100).
[25]
A reviewing court should also refrain from reweighing or reassessing the evidence considered by the decision maker and must not, absent exceptional circumstances, interfere with factual findings (Vavilov at para 125). Nevertheless, Vavilov instructs that a decision maker “must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them”
(at para 126).
V.
Analysis
[26]
The determinative issues are whether it was reasonable for the Officer to find that there are reasonable grounds to believe that OCAO engaged in “espionage”
“contrary to Canada’s interests”
. Paragraphs 34(1)(a) and (f) of IRPA provide:
|
|
[27]
In order for the Officer to conclude that the Accompanying Spouse was inadmissible pursuant to 34(1)(f) of IRPA, three requirements had to be met: (i) the Accompanying spouse was a member of OCAO; (ii) OCAO engages, has engaged, or will engage in acts of espionage; and (iii) such acts of espionage are against Canada or contrary to Canada’s interests.
[28]
As noted above, the Applicants submit that requirements (ii) and/or (iii) were not met.
[29]
As to the standard of proof required, section 33 of IPRA provides:
|
|
[30]
The Supreme Court of Canada in Mugesera v Canada, 2005 SCC 40 [Mugesera] considered the meaning of the evidentiary standard that requires “reasonable grounds to believe”
finding that the “standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities”
(para 114). Reasonable grounds “will exist where there is an objective basis for the belief which is based on compelling and credible information”
(para 114). The reasonable grounds to believe standard applies only to questions of fact (para 116).
(1)
Espionage
[31]
The Respondent submits that the Officer had reasonable grounds to believe that the evidence before him established that OCAO engaged in acts of espionage.
[32]
The Respondent notes that “espionage”
is not defined in IRPA, but that the jurisprudence has defined it as information gathering in a covert way or surreptitiously. Peer v Canada (Minister of Citizenship and Immigration), 2010 FC 752 (aff 2011 FCA 91) established that unlike subversion, espionage does not have to have an illicit outcome as its goal (at para 34).
[33]
In addition to the discussion in the Decision, detailed in Section III (Decision) above, the Respondent highlights that the GCMS notes indicate that OCAO has representatives placed in Chinese embassies, consulates, and representative agencies around the world to liaise with the overseas Chinese communities. Relying on James Jiann Hua To, Qiaowu: Extra-Territorial Policies for the Overseas Chinese, Brill (2014) the GCMS notes state that OCAO (i) is involved in covert action vis-a-vis the overseas Chinese communities, including monitoring their activities and exercising political influence; and (ii) maintains policies on topics including “how to gain and consolidate trust amongst targets, how to actively manage targets and how to supervise their behaviour.”
.
[34]
The Applicants’ position is that while OCAO’s information gathering and “guiding”
that takes the form of propaganda may be unpalatable to Canadians, it is not covert in any way. The Applicants highlight that OCAO’s own website notes that it is involved in intelligence gathering on domestic and external overseas Chinese affairs and delivering this information to the Communist Party of China. The Applicants submit that the sources relied upon by the IRCC highlight the OCAO’s role in disseminating propaganda to influence overseas Chinese communities throughout the world, quoting, among others, Dr. To (2012)’s statement that “Qiaowu cadres and diplomats seek to gain and consolidate trust among their targets, actively manage them, and supervise their behaviour… to understand and infiltrate their inner workings without overtly intervening; and to influence through guidance rather than openly leading them… . Such principles [a “guided” relationship] make qiaowu an effective tool for intensive behavioural control and manipulation, yet qiaowu appears benign, benevolent and helpful.”
(at p 189).
[35]
During the hearing, the Applicants argued that a distinction may be drawn between a spy agency, such as the CIA, where the target does not know that the individual conducting intelligence gathering is from the CIA, and the OCAO, who openly target overseas Chinese communities and are open about the fact that they gather intelligence. The target, therefore, ought to be aware of who they are dealing with.
[36]
The Respondent disagrees, submitting that while the OCAO admits they gather information from overseas Chinese communities and have revealed some of the purposes for which it is gathered, based on the record, it was reasonable to conclude that the manner in which the OCAO engages in information gathering is covert. The Respondent argues that the nature of OCAO’s interactions with the overseas Chinese communities, the information gathered, and the intended use of the gathered information is surreptitious. The Respondent highlights the information in the record referring to intelligence gathering, surveillance, and subversion against the overseas Chinese communities. Using the Applicant’s CIA analogy, the Respondent submits that it is well known that intelligence agencies around the world use information gathering techniques, but that does not detract from the fact that the agencies still operate and use their intelligence gathering techniques covertly.
[37]
Despite the able submissions of counsel for the Applicants, I agree with the Respondent. Based on the record before the Officer, it was reasonable for the Officer to conclude that OCAO engaged in covert action and intelligence gathering against the overseas Chinese communities and other minorities around the world.
[38]
The Applicants rely on Crenna v Canada (Citizenship and Immigration), 2020 FC 491 [Crenna] for the proposition that OCAO’s intelligence gathering is not “secret, clandestine, surreptitious or covert”
(para 78). In Crenna, the applicant disclosed information to a Russian intelligence agent with the knowledge and the consent of her Canadian superior. Justice Brown found that the applicant did so upon the instructions of her immediate Canadian superior, and consequently, the applicant’s actions did “not reasonably give rise to reasonable grounds to believe what the Applicant did was espionage. I reach this conclusion because the Court has concluded what the Applicant did was neither secret, clandestine, surreptitious nor covert”
(para 59).
[39]
If find Crenna to be distinguishable from matter at hand. It is common ground between the parties, based on Dr. To (2009 and 2012)’s work contained in the record, that the OCAO infiltrates the inner workings of the overseas Chinese communities, selectively imparts to them only what they need to know, and denies them access to information that may affect the success of the OCAO and the Communist Party of China’s qiaowu work. Based on the record, it was reasonable for the Officer to conclude that, in fact, there are reasonable grounds to believe that OCAO engages in covert and surreptitious intelligence gathering.
[40]
The Applicants draw attention to the Officer’s statement that “it has also been reported in open sources, that China relies on infiltrating OC communities in Canada and other countries in order to put pressure on dissidents and groups such as Falun Gong”
, and notes that following this statement the Officer cites an article in the Toronto Star. The Applicants state that the article attributes these activities to the China but does not attribute these activities specifically to OCAO. The Applicants therefore submit there was “no evidence or indication that OCAO was involved in these activities”
.
[41]
It is true that the specific article did not attribute the infiltration and pressure tactics on dissident communities such as Falun Gong to OCAO, but taking the record as a whole, the Officer’s decision in light of it was reasonable. The GCMS notes quote a 2001 statement by the then director of OCAO, Guo Dongpo, urging cadres to “strik[e] against the overseas forces of the ’Falun Gong’ cult, stop them from spreading, and eliminate their bad influence”
. Following the quote, the GCMS notes reference the 2008 Annual Report of the Congressional-Executive Commission on China (US Congress), which is in the record. The same section of the Annual Report also states (p 179 and 180 of the report):
Guo Dongpo, urged cadres to "wake up and see that the struggle with the ‘Falun Gong’ cult is a serious political struggle." Guo called for marshalling OCAO resources to "unite all powers that can be united . . . make them understand and support the Chinese government’s position and policy of handling the ‘Falun Gong’ problem according to the law." …An official report on the January 2007 OCAO directors’ meeting, in which OCAO provincial and municipal leaders gathered with the national leadership in Beijing, stated that the "OCAO also coordinates the launching of anti ‘Falun Gong’ struggles overseas by relevant departments."
[42]
Given the evidence in the record that links OCAO to the activities described by the Officer, it was reasonable for the Officer to conclude that there were reasonable grounds to believe that OCAO had infiltrated overseas Chinese communities in Canada and other countries and engaged in covert action and intelligence gathering. Consequently, I conclude that the Officer reasonably determined that such acts by OCAO fall within the definition of espionage.
(2)
Contrary to Canada’s interest
[43]
The Applicants rely on Weldemariam v Canada (Public Safety and Emergency Preparedness), 2020 FC 631 [Weldemariam] and Yihdego v Canada (Public Safety and Emergency Preparedness), 2020 FC 833 [Yihadego] and submit that acts of espionage that are contrary to Canada’s values and not necessarily contrary to Canada’s interests. The Applicants submit that a tangible connection to Canada’s national security interests must be established.
[44]
In this regard, the Applicants argue that the Officer misinterpreted the evidence, in particular the Congressional hearing on June 9, 2016, on China's Intelligence Services and Espionage Operations, before the USA-China Economic and Security Review Commission (Washington, 114th Congress, 2nd Sess) during which Mr. Peter Mattis, then Fellow at the Jamestown Foundation, stated, among other things, that:
Other Chinese bureaucracies are involved in covert action, such as political influence, and intelligence, such as monitoring ethnic Chinese and minorities; however, their role in targeting the U.S. Government directly is limited. These include the Ministry of Public Security, Liaison Department of the PLA’s Political Work Department, the party’s United Front Work Department, and the Overseas Chinese Affairs Office. Though these organizations and others do represent a threat to U.S. interests, their activities are beyond the scope of this testimony and require a different kind of discussion. [Emphasis added]
[45]
The Applicants submit that based on the foregoing, and contrary to the Officer’s determination, the United States government is not directly affected by OCAO. Moreover, the Applicants argue that the Officer did not draw a connection between Canada’s interests and OCAO’s monitoring activities and intelligence gathering in the United States. Consequently, the Applicants plead that there was no rational chain of analysis that lead to the Officer’s conclusion that actions taken by OCAO can be considered contrary to Canada’s interests.
[46]
The Respondent also relies, among other things, on the quoted passage above, and submits that the evidence demonstrates that while knowledge of OCAO’s role in targeting the United States government directly is limited, OCAO’s covert actions, political influence and intelligence gathering represent a threat to the interests of the United States. The Respondent references the IRCC’s Operational Manual - OP 18 (Evaluating Inadmissibility) (quoted in para 19 above) which states that espionage activity directed against Canada’s allies may be contrary to Canada’s interests, and Weldemariam, where Justice Norris stated that the “targeting of an ally can easily be understood as engaging Canada’s national security”
(para 74). To the extent that the targeting of the United States is indirect, this was nevertheless sufficient to establish a nexus between OCAO’s activities and Canada’s national security.
[47]
Moreover, the Respondent pleads that the nexus to national security is not required. In a recent judgment Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 [Mason], the Federal Court of Appeal determined that the Immigration Appeal Division’s conclusion that paragraph 34(1)(e) of IRPA operates whether or not there is a connection to national security was reasonable. In so finding, the Federal Court of Appeal overturned the Federal Court which had determined that a nexus with national security was required to bring the matter within paragraph 34(1)(e) of IRPA (note that it is paragraphs 34(1)(a) and (f) which apply in the matter at hand). In Weldemariam, Justice Norris adopted the reasoning of the Federal Court in Mason, having not had the benefit of the Federal Court of Appeal’s decision, when he concluded that a nexus with national security is required to bring a matter within the scope of section 34(1) of IRPA generally. Consequently, the Respondent argues that Weldemariam is not good law on this point, and no nexus to national security is required under 34(1) of IRPA.
[48]
The Applicants reply to this point is that even if a connection to national security is not required, a connection to Canada’s interests, albeit a lesser standard, is still required. The Applicants submit that the evidence in record is not sufficient to meet the Minister’s burden that there are reasonable grounds to believe that OCAO engages in acts of espionage contrary to Canada’s interests.
[49]
The Applicants are in essence seeking to have this Court re-weigh the evidence, which I decline to do (Vavilov at para 125). Taking into account the evidentiary record before the Officer, I am not persuaded that the Officer’s decision was unreasonable. The two primary reasons for this finding are as follows.
(a)
Overseas Chinese Communities in Canada
[50]
First, I find the Officer’s conclusion that there are reasonable grounds to believe that OCAO engaged in espionage against overseas Chinese communities in Canada to be determinative.
[51]
As the Respondent submits, the Officer considered, based on the IRCC’s Operational Manual - OP 18 (Evaluating Inadmissibility), that espionage includes activity inside or outside Canada that would have a negative impact on the safety, security, or prosperity of Canada. Such prosperity includes, but it is not limited to, financial, social and cultural factors. Given the evidence in the record, it was not unreasonable for the Officer to find that infiltrating overseas Chinese communities in Canada and engaging in covert action and intelligence gathering against them was contrary to Canada’s interests.
[52]
In Weldemariam, Justice Norris distinguished a case raised in the officer’s case review, Karaboneye v Canada (Public Safety and Emergency Preparedness), 2014 CanLII 99224 (CA IRB) [Karaboneye], on the basis that in Karaboneye “the particular act of espionage on which the finding of inadmissibility was based was gathering information in Canada on behalf of the Rwandan Patriotic Front regarding another Rwandan woman who was a student at Laval University in Quebec City. Obviously, there is no such nexus to Canada in the present case. Notably, in Karaboneye, the ID relied expressly on paragraph 65 of Agraira in determining that the act of espionage in issue there was contrary to Canada’s interests. This makes sense given that the woman on whom Ms. Karaboneye was spying was entitled to the protections of Canadian law while she was in Canada”
(para 65, emphasis added).
[53]
Given the record in the present matter, I find that the Officer reasonably determined that there was sufficient connection to Canada’s interests in light of the finding that there were reasonable grounds to believe that information gathering was taking place in Canada against overseas Chinese communities, as defined in paragraph 8 above. Consequently, I need not determine whether a connection to “national security”
is required under 34(1)(a) of IRPA and whether it has been met in this case.
(b)
A Threat to United States’ Interests
[54]
Second, I find that the Officer took the evidentiary record into account when noting that “OCAO has been identified as a threat to U.S. interests”
.
[55]
As pointed out by the Applicants during the hearing, the quote cited in paragraph 44 above, mentions that OCAO will not be the focus of that particular testimony. That does not mean, however, that the references to OCAO, both in that particular testimony, and other testimony given during the Commission, could not be taken into account by the Officer in order to come to his conclusion. I note that additional testimony from this hearing mentioned OCAO, including in relation to tracking Chinese dissidents overseas who have relationships with Chinese communities in major United States cities. As noted previously, among the sources in the record are an earlier Commission (2008) and two of Dr. To’s papers (2009 and 2012), all of which speak to intelligence gathering and covert action against dissident groups, notably Falun Gong and Taiwanese groups. The Officer also referenced one of Dr. To’s papers (2009) in support of the statement that OCAO has been identified as a threat to U.S. interests. Dr. To’s 2009 paper addresses, among other things, steps taken against anti-CCP movements and references Anne-Marie Brady, “China’s Propaganda and Perception Management Efforts, Its Intelligence Activities that Target the United States, and the Resulting Impact on US National Security”
, Testimony to the US-China Economic and Security Review Commission, 30 April 2009.
[56]
Consequently, I am satisfied that the Decision is justified in light of the evidentiary record (Vavilov para 126). There is an objective basis in the record for the Officer’s belief that the actions of OCAO are contrary to the interests of Canada’s ally, the United States. I find that the Respondent has demonstrated that the information in the record meets the threshold as set out in Mugesera (para 114).
VI.
Conclusion
[57]
For these reasons, this application for judicial review is dismissed.
JUDGMENT in IMM-1453-21
THIS COURT’S JUDGMENT is that :
This application for judicial review is dismissed, without costs.
"Vanessa Rochester"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
|
IMM-1453-21
|
| STYLE OF CAUSE:
|
YUXIA GAO, YONG ZHANG v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| PLACE OF HEARING:
|
Montréal, Quebec by way of videoconference
|
| DATE OF HEARING:
|
january 12, 2022
|
| JUDGMENT AND REASONS:
|
ROCHESTER J.
|
| DATED:
|
January 19, 2022
|
APPEARANCES:
| Me Jacqueline Bonisteel
|
For The Applicant
|
| Me Clare Gover
|
For The Respondent
|
SOLICITORS OF RECORD:
| Jacqueline Bonisteel
Kanata, Ontario
|
For The Applicant
|
| Attorney General of Canada
Ottawa, Ontario
|
For The Respondent
|