Just before Christmas, the federal court released a judgement with respect to the case of a Chinese student applying to a Mechanical Engineering PhD program at the University of Waterloo and whether or not an immigration official was justified in denying a visa on national security grounds.  The decision has some enormous and (I think) deleterious ramifications for graduate student recruitment in Canada. 

The background to this issue, obviously, is the rising concern about espionage in universities, in particular by the People’s Republic of China.  Measures have been taken in the US, in the UK and in Australia to combat this.  In Canada, for a variety of reasons (including pushback from universities), measures have been relatively weak.

The Dec 22 judgement was an appeal of an immigration officer’s decision to deny a visa to a Mr. Yuekang Li, who had been accepted into a Mechanical Engineering program (specifically, one related to the field of microfluidics) at the University of Waterloo.  Because it was an appeal, what was at stake was whether or not the officer had gone beyond his/her remit in deciding what constituted national security grounds. 

If I can sum up the judgement, it really comes down to two questions.  First, how well (and on what basis) can you assess individuals as security risks?  And second, what is it exactly that creates a threat to national security?

On the first question, the immigration officer’s central concerns were twofold.  First, the student’s undergraduate education was at Beihang University, which is a top-notch science university with a lot of ties to the defence industry (and which outranks any Canadian university in Mechanical Engineering).  Now, I have no idea how Beihang works – maybe it churns out a lot of spies, maybe it doesn’t.  But a rule that simply says “Canada will not allow any Beihang graduate in to study in Canada” has the benefit of clarity.  It would be a rule that was easy to understand and to follow. 

Unfortunately the immigration officer did not stop there, and neither did the judge.  Let me quote from the decision:

The Officer cited credible, open-source reports stating that the PRC relies on non-traditional collectors of information to target non-governmental organizations in Canada, including academic institutions and businesses. Such non-traditional collectors were identified as including individuals without formal intelligence training who have relevant subject matter expertise, including scientists and business people. The Officer noted that “the PRC heavily relies on their science and technology students to advance the goals of the Chinese Communist Party.” Among other things, that publication describes the PRC’s reliance on overseas Chinese students and scholars for its national development goals, [which would allow the PRC to] “be able to take advantage of the collaborative, transparent and open nature of Canadian government, economy and society” by obtaining “sensitive and proprietary information or leading-edge technologies.” 

I agree that a person cannot be found to commit espionage if they are unaware that they are, or may be, engaging in activities that fall within the definition of that term. Nevertheless, the Officer’s finding that Mr. Li could provide the PRC with information “unknowingly” did not render the Decision unreasonable. This is because the Officer also reasonably concluded that, if he were granted his visa to study at the University of Waterloo, there are reasonable grounds to believe that he may be coopted or coerced into providing sensitive information to the PRC.

In effect: not every Chinese national seeking to study in Canada is knowingly a spy, every Chinese national can be turned into a spy post-hoc, so every Chinese national is, in effect, a potential national security threat, and thus subject to be denied entry at the whim of any immigration officer.

(Let me just stop here and remind everyone that students from the PRC represent just under 20% of all graduate students in Canada.)

So, ok.  Maybe this ruling doesn’t mean a potential blanket ban on Chinese graduate students.  Maybe there is some kind of limitation based on what constitutes “national interest”; that is: maybe some fields are more in the national interests than others.  Except…no.  It does nothing of the sort.  Li’s PhD supervisor wrote to explain that their lab at Waterloo was not doing and would never do anything with military applications.   But this carried no ice either with the immigration officer or the judge, because:

The officer then linked Mr. Li’s field of study, microfluidics, with China’s strategic interests. In this regard, the Officer discussed open-sourced articles reporting upon the importance of the microfluidics industry to China’s strategic ambitions. According to one of those articles, entitled Why is China Becoming a Microfluidics Manufacturing Superpower?, the development of microfluidic devices has created important new opportunities for medical research. These opportunities dovetail with China’s Made in China 2025 plan, which targets 10 high-tech industries, including “biopharma and advanced medical products.” A second article, entitled Chinese microfluidics industry: a fast-moving eco-system, notes that the Chinese government is recalling Chinese executives, researchers and engineers who have worked overseas, to lead innovative Chinese companies and increase their success in the microfluidics industry.

and:

the focus of the Officer’s concerns was on the PRC’s use of information he might provide, for its use in “biopharma and advanced medical products,” which the Officer also described in terms of “new science, advanced technologies, and biomedical engineering and more”. This is readily apparent from the following two passages that appear towards the end of the Decision (which read:) After reading the articles the applicant stated that he has never heard of Made in China 2025 and that he did not know about the landscape of the microfluidics industry until now. However, in his study plan he wants to dedicate his career to improve China’s underdevelopment in the field of public health. 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.

If you can find an operationalizable principle at work here, you’re better at this than I am.  The way I read this, “Canada’s interests” is not something tangible based on our own benefit; rather, it consists in denying the PRC anything that it might desire.  And since the PRC’s interests are rather broad, that could include a lot of things.  The Communist Party is really interested in improving the country’s education system, too: does that mean Education programs are areas of national security? 

(And while we’re at it – given the way the decision is written, there’s no reason why the PRC is the only foreign country with respect to which we might want to impose these kinds of rules.  I mean, India apparently feels comfortable conducting assassinations on our soil – does that mean anything the Indian government wants needs to be denied as well?)

Now, one can’t conclude from all this that Immigration, Refugees and Citizenship Canada intends to deny visas to all prospective Chinese graduate students.  But one can conclude that the Federal Court has empowered CIC to deny such visas more or less at whim.  And also, that IRCC does not have a very specific or operationalizable definition of what constitutes “national interest”. 

This is not good.  Canadian universities need to have clear rules that allow them to recruit international graduate students with a reasonable certainty that these students will be allowed to enter the country.  After the chaos this decision has shown, it seems clear that we’re going to need new legislation or regulations to return some stability to the system.