‘Wild West’: Amid foreign meddling headlines, lawyers fear unfair immigration rulings

The federal government was unable to provide data on the number of related cases in time for publication.

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The Canadian Security Intelligence Service, Canada Border Services Agency and the Immigration Department are all involved in the security screening process. None of them provided comment in time for publication, including data on the number of related cases.

The Immigration and Refugee Protection Act allows officials to bar permanent residents or foreign nationals from entering Canada if they are engaged in terrorism or in espionage contrary to Canada’s interests. The Immigration and Refugee Board of Canada is the independent administrative tribunal that hears applications.

When people submit apply for visas, they are subject to background and security checks before being admitted to the country. If there are red flags, CSIS and CBSA can make reports to the board, which then decides what to do with an application.

“It is next to impossible to challenge the advice that security intelligence agents offer to the department,” said Sharry Aiken, a professor of law at Queen’s University.

Many people are screened out based on secret evidence that can’t be reviewed, which “often leads to egregious injustices,” she said.

“It’s really about how we interpret what constitutes a risk, and what sort of association actually renders someone inadmissible,” Aiken added. “What I would say is that in the immigration domain, it is pretty much a Wild West.”

People deemed inadmissible have the right to appeal their cases in Federal Court.

Earlier this year, Portokalidis successfully fought for a former Canadian citizen who had been denied permanent residency and deemed inadmissible on the basis that he allegedly taught English to Chinese spies and might be involved in espionage himself.

The allegations against Liping Geng, a 68-year-old Chinese citizen, were contained in a report prepared by the CBSA’s National Security Screening Division, which cited information from a CSIS report.

Court records show that as a young man, Geng was a member of China’s People’s Liberation Army. After completing school, he worked as an English teacher at an army-operated department that trained students in foreign languages.

Canadian officials argued that everyone who attended the school was “in or was linked to Chinese military intelligence,” and that the teachers were actively engaging in espionage.

Geng spent nine years completing master’s and doctoral degrees at the University of Toronto, where he went on to teach, documents say. His family was approved for permanent residence status in Canada and became citizens in 1995.

When Geng returned to China in 2007, he renounced his Canadian citizenship because China doesn’t recognize dual citizenship. Still, the court documents say, Geng regularly visited family in Canada in the years that followed. He chose to return permanently in 2019 after his retirement.

Federal Court Justice Richard Mosley found that the CSIS and CBSA reports used to accuse Geng of espionage were never disclosed to him, and that this was problematic because the documents “drove the decision-making process.”

Moreover, security officials were criticized for drawing upon newspapers and other open sources to build their case, rather than hard evidence.

Mosley wrote in a ruling quashing the Immigration and Refugee Board’s decision that the security assessments amounted to an “overzealous effort” to establish Geng as a member of the Chinese military.

Portokalidis said many people who find themselves in a similar position don’t have the means to fight it in court.

“Our client was fortunate enough that he had the resources and the means to hire a lawyer to assist him this process, but if you weren’t so fortunate, I mean, he might be facing a lifetime ban,” she said.

It wasn’t the first time that Portokalidis said she had seen a failure to disclose information.

“Mr. Geng’s not the only person, unfortunately, who’s been subjected to this,” she said. “It’s unfortunate, because we could have avoided the time and expense for everyone involved if he had just been properly advised of what the concerns were from the get-go.”

The matter has been punted back to the board for further review, which Portokalidis said could take months.

The push-and-pull between maintaining an open immigration system and prioritizing security can put people’s lives and futures on hold. But the law only vaguely defines what constitute security threats, and clearer definitions could prevent injustice, Aiken suggested.

“I would, in my view, assert that it has unfortunately been an invitation, all too often, for overreach,” she said.

Evidence that would otherwise not be admissible in a criminal or civil courtroom can be used in immigration proceedings. And unlike in a criminal courtroom, there aren’t parameters specifically detailing what constitutes guilt.

“Basically, little more than suspicion is enough to render you inadmissible,” said Aiken.

In 2020, the Federal Court overturned a 2019 decision to deport a 34-year-old Ethiopian citizen who had arrived in Canada in 2017 to seek asylum.

The reasons used to determine that Medhanie Aregawi Weldemariam should be rendered inadmissible were not relevant to Canada’s national security interests, the court found.

Weldemariam was a former employee of Ethiopia’s state security and intelligence agency. That line on his resume was enough to kick him out of Canada, officials argued.

Security officials made the assessment that the Information Network Security Agency had committed cyberespionage on Canada’s allies and targeted journalists outside of Ethiopia who worked for an outlet critical of its government.

But they did not establish why such surveillance was contrary to Canadian interests and made “too tenuous” a jump in finding that Weldemariam was involved in activities against Canada, Federal Court Justice John Norris found.

He ordered a new admissibility hearing, but the federal government challenged that decision.

The matter is currently waiting to be argued at the Federal Court of Appeal, pending the decision in a separate Supreme Court matter challenging how the federal government applies its “national security” provisions.

The case involved two people who were charged, but not convicted, of separate and unrelated violent crimes.

The federal government could not remove either one of them from Canada based on the charges because of the lack of conviction, but it tried using national security provisions in immigration law as a reason to deport the two men.

Their lawyers maintain that the Immigration and Refugee Protection Act should not be used as a catch-all for using criminal conduct to kick someone out of the country.

There are legitimate concerns about foreign interference in Canada, Aiken said. People who represent genuine threats are being screened out.

“But you know, there’s a line there,” she said.

“Not any and all tenuous connections to foreign interference should render somebody’s security inevitable.”

This report by The Canadian Press was first published July 13, 2023.

David Fraser, The Canadian Press

by Canadian Press

‘Wild West’: Amid foreign meddling headlines, lawyers fear unfair immigration rulings

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