[2000] 4 F.C. 71
IMM-5114-98
Yong Jie Qu (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Qu v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lemieux J.—Montréal, June 22, 1999; Ottawa, April 20, 2000.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Judicial review of visa officer’s refusal of visa application under Immigration Act, s. 19(1)(f)(i), prohibiting admission of persons who there are reasonable grounds to believe “have engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada” — Visa officer finding applicant, member of Chinese students association at Concordia University, engaged in constant pattern of reporting to Chinese Embassy in Ottawa, provided intelligence on activities of association members, attempted to subvert organization to meet goals, objectives of foreign government i.e. changing previous mission from pro-democracy activist association critical of Chinese authorities to one not speaking out against that government — “Reasonable grounds to believe” is bona fide belief in serious possibility based on credible evidence — Standard of review of factual findings patent unreasonableness — No basis for Court’s intervention in visa officer’s factual findings — Applicant’s activities constituted espionage, subversion within ordinary meaning of those words, nourished by examination of federal legislation in pari materia — Espionage is information gathering — Subversion means accomplishing change by illicit methods or for improper purposes — But must be directed against democratic government, institutions, processes as understood in Canada — Notion of democracy — Parliament restricting paragraph to public authorities elected by, responsible to constituency — Student association not democratic institution or process — Question certified: do reasons correctly interpret s. 19(1)(f)(i).
This was an application to review the visa officer’s refusal of the applicant’s permanent residence application. The applicant is a citizen of the People’s Republic of China, who came to Canada in 1991 as a graduate student. He was active in the Chinese Students and Scholars Association (CSSA) at Concordia University. The visa officer based his refusal on Immigration Act, subparagraph 19(1)(f)(i), which prohibits the admission of persons who there are reasonable grounds to believe “have engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada”. The visa officer found as a fact that the applicant had engaged in a constant pattern of reporting to the Chinese Embassy in Ottawa and provided intelligence on the activities of individuals in a Canadian student organization; he also attempted to subvert this organization to meet the goals and objectives of a foreign government. The elements of subversion which the visa officer had in mind were changing the previous mission of the CSSA from a pro-democracy activist association critical of the authorities in China to one which did not speak out at all against the government. The visa officer was of the view that the applicant’s activities in the CSSA, and his meetings or communications with Chinese Embassy officials in Ottawa about the CSSA and its members caused him to have reasonable grounds to believe that the applicant had engaged in acts of espionage and subversion against democratic governments, institutions or processes.
The applicant argued that the visa officer’s decision was perverse, unreasonable and unfounded in fact.
The issues were: what was the evidentiary test attached to the words “persons who there are reasonable grounds to believe” and what was the appropriate standard of review; and what is the proper interpretation of “espionage or subversion against democratic government, institution or processes, as they are understood in Canada”.
Held, the application should be allowed.
The reasonable grounds to believe test is more than a flimsy suspicion, but less than the civil test of balance of probabilities, and a much lower threshold than the criminal standard of “beyond a reasonable doubt”. It is a bona fide belief in a serious possibility based on credible evidence. The standard of proof is only relevant when a tribunal is called on to determine questions of fact. It is irrelevant when the issue is a question of law.
The standard of review of factual findings is patent unreasonableness as required by Federal Court Act, paragraph 18.1(4)(d). The applicant failed in his attacks on the visa officer’s factual findings or inferences drawn therefrom. Examining the visa officer’s CAIPS (Computer Assisted Immigration Processing System) notes, the applicant’s affidavit and the documentary evidence relied upon by the respondent, there was no basis for the Court’s intervention.
The applicant’s activities, as found by the visa officer, constituted “espionage” or “subversion” within the meaning of subparagraph 19(1)(f)(i) as those words are ordinarily understood and nourished as they are by an examination of federal legislation in pari materia. The meaning to be attributed to espionage and subversion is in their generic sense rather than being coloured by why or for what purpose the activity is being carried on. “Espionage” is simply a method of information gathering — by spying, by acting in a covert way. Its use in the analogous term “industrial espionage” conveys the essence of the matter — information gathering surreptitiously. “Subversion” connotes accomplishing change by illicit means or for improper purposes related to an organization.
Parliament chose to confine the inadmissible class of persons entering Canada to those in respect of whom there were reasonable grounds to believe had committed espionage or subversion against a particular type of institution or process: a democratic one. The concept of democracy reaches back through history to Plato, Aristotle, Locke, Montesquieu, Rousseau and de Tocqueville. That history has been built on by the Charter of Rights and decisions of the Supreme Court of Canada. In short, democracy is a political system by which the citizens of a country govern themselves (in Canada at the federal and provincial levels, not to exclude the territorial, municipal or newly emerging aboriginal levels), where their elected representatives make laws; the executive branch administers those laws and is responsible for the way it does so. When Parliament spoke of democratic government, institutions or processes, it restricted coverage to those institutions or processes engaged in political governance or the system by which citizens organize and govern themselves in the State. It restricted the paragraph to public authorities elected by and responsible to the constituency. What Parliament seeks to protect are institutions exercising political (governmental) authority incorporating democratic values as to how citizens operate in organized society. These words have nothing to do with institutions or social organizations whereby individuals may otherwise interrelate with one another, such as church, school, work, sports. This conclusion was based on the common understanding of these words in Canada; the purpose of the enactment, which is exclusion from entry into Canada; the scope of the paragraph, which encompasses not only activities carried out on Canadian territory but abroad; the qualifier at the end of the paragraph where admission is permissible if the Minister is satisfied admission is not contrary to the national interest; the availability of other grounds of exclusion (such as criminality) contained in paragraph 19 and in other sections of the Act if a proper case is made out abroad. Based on this interpretation, the CSSA, a student organization at Concordia, is not a democratic institution or process within the meaning of those words in paragraph 19(1)(f)(i).
The following question was certified: do these reasons correctly interpret Immigration Act, subparagraph 19(1)(f)(i)?
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, s. 15(1) “subversive or hostile activities”.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 3, 4, 5.
Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, s. 2 “threats to the security of Canada”.
Criminal Code, R.S.C., 1985, c. C-46, ss. 59, 60.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(d) (as enacted by S.C. 1990, c. 8, s. 5).
Federal Court Rules, 1998, SOR/98-106, rr. 317, 318(3).
Immigration Act, R.S.C. 1970, c. I-2, s. 5(l).
Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(e) (as am. by S.C. 1992, c. 49, s. 11), (f) (as am. idem).
Official Secrets Act, R.S.C., 1985, c. O-5, s. 3.
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Jolly, [1975] F.C. 216; (1975), 54 D.L.R. (3d) 277; 7 N.R. 271 (C.A.); Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.); Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (1993), 107 D.L.R. (4th) 424; 21 Imm. L.R. (2d) 221; 159 N.R. 210 (C.A.); Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Wenberg, Eric Ray (1968), 4 I.A.C. 292 (I.A.B.).
DISTINGUISHED:
Al Yamani v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 433(T.D.).
CONSIDERED:
Shandi, Re (1992), 51 F.T.R. 252; 17 Imm. L.R. (2d) 54 (F.C.T.D.); Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; (1997), 204 A.R. 1; 121 Man. R. (2d) 1; 156 Nfld. & P.E.I.R. 1; 150 D.L.R. (4th) 577; 118 C.C.C. (3d) 193; 11 C.P.C. (4th) 1; 217 N.R. 1.
REFERRED TO:
Hussain v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 203; 45 Imm. L.R. (2d) 13 (F.C.T.D.); Rex v. Benning, [1947] O.R. 362 (C.A.); Reference re Secession of Quebec, [1998] 2 S.C.R. 217; (1998), 161 D.L.R. (4th) 385; 228 N.R. 203.
AUTHORS CITED
“China’s Ministry of State Security” (1992), 2 Contemporary Asian Studies Series.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Eftimiades, Nicholas. Chinese Intelligence Operations. Annapolis, Md.: Naval Institute Press, 1994.
Encyclopedia of Public International Law, Vol. 2. Amsterdam: North-Holland Pub. Co. 1995.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989.
Petit Robert 1: Dictionnaire alphabétique et analogique de la langue française. Paris: Le Robert, 1983.
APPLICATION to review the visa officer’s refusal of the applicant’s permanent residence application under Immigration Act, subparagraph 19(1)(f)(i), prohibiting the admission of persons who there are reasonable grounds to believe “have engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada”. Application allowed.
APPEARANCES:
Paul Duchow for applicant.
Jocelyne Murphy for respondent.
SOLICITORS OF RECORD:
Paul Duchow, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Lemieux J.:
BACKGROUND
[1] The applicant, Yong Jie Qu, is a citizen of the People’s Republic of China (PRC) who came to Canada in 1991 as a Master’s student at Concordia University in Montréal (Concordia). He was active in the Chinese Students and Scholars Association (CSSA) at Concordia.
[2] It is what he did in the CSSA and the contacts he had with officials at the Chinese Embassy in Ottawa related to his activities in the CSSA and its members that led visa officer Paul Whelan (the visa officer) to refuse the applicant’s permanent residence application on September 18, 1998, a refusal which he challenges in this proceeding.
[3] The visa officer based his refusal on subparagraph 19(1)(f)(i) [as am. by S.C. 1992, c. 49, s. 11] of the Immigration Act, R.S.C., 1985, c. I-2 (the Act), which is contained in that part of the Act dealing with exclusion and removal and is found in a section entitled “Inadmissible Class”.
[4] Specifically, the visa officer was of the view the applicant’s activities in the CSSA and his meetings or communications with Chinese Embassy officials in Ottawa about the CSSA and its members caused him to have “reasonable grounds to believe that you had engaged in acts of espionage and subversion against democratic governments, institutions or processes” [my emphasis]. Paragraph 19(1)(f) of the Act reads:
19. (1) No person shall be granted admission who is a member of any of the following classes:
…
(f) persons who there are reasonable grounds to believe
(i) have engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada,
(ii) have engaged in terrorism, or
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
(A) acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, or
(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; [Emphasis mine.]
[5] The record before the Court is not as it should be. The applicant had asked for the Tribunal’s certified record under rule 317 of the Federal Court Rules, 1998 [SOR/98-106] (the Rules), and this record was provided in part. The information not contained in the certified record was information “provided by CSIS, (the Canadian Security Intelligence Service) which has been edited out since release of this information would be injurious to national security”. The applicant could have but did not challenge this exclusion under subsection 318(3) of the Rules. The record, through the visa officer’s CAIPS [Computer Assisted Immigration Processing System] notes, however, does show some involvement by CSIS in this file. CSIS officials may have attended one of the interviews between visa officials and the applicant; the record shows the visa officer was in contact with CSIS on various occasions.
THE VISA OFFICER’S DECISION
[6] The visa officer’s refusal letter of September 18, 1998, reads:
In the matter of your application for permanent residence in Canada, this is to confirm that I have determined that you do not meet with the requirements for immigration to Canada. I originally advised you in person of this decision at your interview on September 17, 1998.
At your interview, I expressed to you my serious concerns that there were reasonable grounds to believe that you had engaged in acts of espionage and subversion against democratic governments, institutions or processes as they are understood in Canada. I pointed out that by your own admission during the interview, you had engaged in a consistent pattern of reporting to the Embassy of the People’s Republic of China in Ottawa; provided intelligence on the activities of individuals in a Canadian student organization known as the Chinese Students and Scholars Association (CSSA); and attempted to subvert this organization to meet the goals and objectives of a foreign government. At that time, I asked you to disabuse me of this concern, and advised you that failure to disabuse me of my concern would lead to the refusal of your application.
You responded by denying that you were an agent of a foreign government, but readily admitted your numerous contacts with Chinese diplomats over a protracted period when you were instrumental in “re-organising” the CSSA. You also admitted that you provided information to Chinese diplomats regarding individual members of the CSSA and admitted further that you were in open disagreement with pro-democracy students of this organization, that you had identified and reported on these individuals to the Embassy, and that you had sought to change the direction of the CSSA using funds provided by the Embassy in support of certain activities, to make it “sensitive to the Chinese Government and Chinese officials”. You argued that any congruence between the objectives and policies of the Chinese government and your activities was purely coincidental, and that you acted strictly out of personal conviction. I noted however, that your admitted activities were so clearly those of an agent that your argument lacked all credibility, and that I was obliged to treat your denial as self-serving. I noted that you were in receipt of one of only twenty tuition waivers awarded by the Embassy to Chinese students attending English-language institutions in the province of Quebec, and that the implications of a quid pro quo were too obvious for me to ignore.
It is my determination, therefore, that you have not disabused me of my concern, and that based on your own testimony, there reasonable grounds for me to believe that you are a person who has engaged in hostile and subversive activities on behalf of a foreign government, directed toward gathering information used for intelligence purposes, that relate to the Charter Rights of individuals in Canada.
Accordingly, I have found that you come within the inadmissible class of persons described in subparagraph 19(1)(f)(i) of the Immigration Act…. [Emphasis mine.]
THE APPLICANT’S AFFIDAVIT
[7] In support of this application, the applicant filed an affidavit, on which he was not cross-examined. He vigorously denies ever having acted as an agent for or in the service of the Chinese government. The applicant’s account of his participation in the CSSA and his relationship with officials at the Chinese Embassy is as follows:
7. I was a member of the Chinese Student and Scholar’s Association (CSSA) at Concordia University from December 1991 until April 1993. I and several other persons volunteered our services as CSSA members at a time when the organization had ceased to function because of a lack of volunteers. I was always an ordinary member and I never held an executive post in the CSSA;
8. The purpose of the CSSA at Concordia University during the time I was a member was to offer social and cultural services and activities to Chinese students. This was its purpose prior to my membership and has remained its purpose subsequent to my departure as a member. I never re-organized the CSSA, but rather volunteered my services to regenerate it through participation in activities which the CSSA had engaged in previously.
9. During the period of my membership, the CSSA at Concordia University organized movie shows, social parties, trips, and celebrations of Chinese festivals. The CSSA provided Chinese language reading material for students, which at that time was not widely available. This material as well as movies and copies of video tapes which were rented to students, was borrowed by the CSSA at Concordia University principally from the Embassy of the People’s Republic of China. Movies were also borrowed from the Representative Office of the Republic of China (Taiwan);
10. The scope of my activity was to help in the organization of these events and activities. For example, I was involved in finding a site for a CSSA organized New Year’s party in January 1992. I was also involved in 1992 and early 1993 in the CSSA organization of group trips to Ottawa, Toronto, Niagara Falls, Quebec City, New York, Washington D.C., Atlantic City, and Philadelphia;
11. My involvement with the CSSA at Concordia University was focused exclusively around the framework of a non-political and independent, socially and culturally oriented student organization;
12. On several occasions I had contact, both in person and by telephone, with the Educational Office of the Embassy of the People’s Republic of China. This contact was related exclusively to the activities referred to in paragraphs 8 through 11 of this affidavit;
13. I never reported to the Embassy of the People’s Republic of China nor did I provide any information whatsoever to the Embassy about the activities of CSSA members. I never stated during my interview at the Canadian Consulate General in Buffalo, New York or anywhere else that I reported to the Embassy of the People’s Republic of China or provided intelligence to the Embassy about CSSA members as was erroneously stated in the decision of Consul Paul Whelan dated September 18, 1998 ….
14. I was in contact with Embassy officials throughout the period of my CSSA membership for reasons outlined in paragraph 12 of this affidavit. I volunteered my services to regenerate the CSSA as is outlined in paragraphs 7 and 8 of this affidavit. The juxtaposing in the decision of Consul Paul Whelan of a reference to my contact with Chinese officials with his erroneous reference to my being instrumental in re-organizing the CSSA was perverse and the insinuation is false;
15. I had a disagreement with some other CSSA members about their view that the CSSA should endorse certain public talks that had a political character. I opposed this from the perspective that the CSSA was not a political body and that such endorsement would alter the purely social/cultural identity of it. Because the CSSA had no formal decision making structures, I believed that it was of paramount importance that it should be limited to offering social/cultural activities and events. I believed that the introduction of any political component would compromise the democratic rights of CSSA members who had no mechanism to debate issues and implement decisions;
16. I never sought to change the directions of the CSSA nor did I ever say that I did as was erroneously stated in the decision of Consul Paul Whelan. I only argued that the CSSA not endorse activities of a political nature, regardless of their ideological content. My perspective was consistent with the outlook of the CSSA prior to the period of my membership. It was because of my differences with other CSSA members on this issue that I ceased my CSSA membership in April 1993.
17. On several occasions the CSSA received small sums of money from the Chinese Embassy to defray the costs of certain social/cultural events. The CSSA also received larger amounts for this purpose from other sources such as the Chinese business community. These amounts were always specifically given for a particular event, and I never used any of this money for any other purpose as was erroneously stated in the decision of Consul Paul Whelan;
18. I was a recipient of a tuition fee waver [sic] which is derivative of a cultural exchange program between the Quebec Ministry of Education and the Chinese Education Department. This fee waver [sic] is awarded solely on merit and was awarded to me because I have maintained a high academic grade average of 3.43 throughout my studies at Concordia University. This is reflected in my academic record a copy of which is attached as Exhibit “B”;
19. Throughout the period of my membership in the CSSA I always acted through my own personal convictions and I never acted as an agent for or in the service of the interests of the Chinese government. There are no reasonable grounds to conclude that I am a person who engaged in hostile and subversive activities on behalf of a foreign government, directed toward gathering information used for intelligence purposes that relate to the Charter Rights of individuals in Canada as was erroneously stated in the decision of Consul Paul Whelan. The decision that I am a person described in subparagraph 19(1)(f)(i) of the Immigration Act was perverse and unreasonable and unfounded in fact. [Emphasis mine.]
THE AFFIDAVIT OF KENJI TAKAHASHI
[8] The applicant’s material includes the affidavit of Kenji Takahashi. The material part of his affidavit reads:
2. Between May 26 1989 and June 7 1989, I went to the PRC for business purposes. My original intention was to remain in China until June 10 1989;
3. I first met Mr. Yong Jie Qu at Yanxiang Hotel in Beijing. He was a tour guide for an American tour group which stayed at the same hotel;
4. Following the events at Tiennamen Square in Beijing on June 4, 1989 I decided to cut short my visit and to leave China as quickly as possible;
5. Because of difficulties in making arrangements to travel to the airport I asked Mr. Qu if he would take me in his tour bus to the airport. He agreed to do this for myself and several other persons who had made the same request. Due to the situation in Beijing, there were few means of transportation available. There were virtually no taxis nor the usually available hotel shuttle bus. Many other tourists staying at the above mentioned Hotel also asked Mr. Qu to take them on his bus to Airport.
THE RESPONDENT’S MATERIAL
[9] The respondent filed the affidavit of visa officer Paul Whelan who essentially attested to the accuracy of the CAIPS notes. The respondent also filed documentary evidence and, in particular, studies by Nicholas Eftimiades (the author) on Chinese Intelligence Operations, (Annapolis, Maryland: Naval Institute Press, 1994, chapter 4) and “China’s Ministry of State Security”, (1992) 2 Contemporary Asian Studies Series.
[10] Specifically, the respondent draws the Court’s attention to his summary of what the author said:
a) the Chinese Ministry of State Security (MSS) is responsible for collecting intelligence in foreign countries and is also combining espionage, counterintelligence and security functions,
b) an area of high activity of the MSS is the monitoring of Chinese dissident groups that were formed in response to the Tienanmen incident in June 1989. Overseas Chinese students and dissidents are being harassed and subject to surveillance by Chinese Embassy and consulate officials,
c) a former spy for the Chinese government, Xu Lin, who defected in Washington in May 1990, reported that as a secretary in the educational section of his embassy, he had the task to identify the « pro-democracy » activists and was responsible for monitoring student activities,
d) the MSS’s technique of infiltrating student and dissident organizations became public in June 1989. Someone is recruited by the MSS prior to his coming in the foreign countries and his task is to infiltrate the dissident organizations,
e) the MSS emphasis on the language abilities of its officers. [Emphasis mine.]
THE ISSUES
[11] Based on the arguments before me, three issues arise for determination:
1. What is the evidentiary test or standard of proof attached to the words “persons who there are reasonable grounds to believe”?
2. What is the proper meaning of the words “espionage or subversion against democratic government, institution, or processes, as they are understood in Canada”?
3. What is the appropriate standard of review in respect of these two questions?
[12] I see no need to deal with a fourth issue raised by the applicant who claimed the visa officer denied him the right to know the case he had to meet relying on Hussain v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 203 (F.C.T.D.). An examination of the record shows this argument has no merit.
[13] Moreover, I do not delve into the issue of the applicant being a foreign agent as this point was not argued as such and is not necessary for a proper determination of the issues before me.
ANALYSIS
(1) Issue one—The evidentiary burden
(a) The applicant’s attack
[14] Based on his affidavit, the applicant argues the visa officer’s decision is perverse, unreasonable and unfounded in fact and relies upon Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.) his position being the test set out there was not met because there was no evidentiary basis to support the following inferences:
(a) he was gathering information used for intelligence purposes; what he said was the information discussed was “not significant”;
(b) according to the visa officer, he had “engaged in a consistent pattern of reporting to the Embassy”. He rebuts saying he told the visa officer the sole purpose for his communicating with Embassy officials was to obtain support for non-political CSSA sponsored activities;
(c) that he had admitted to having attempted to subvert the CSSA to meet the objectives of the Chinese government; he told the visa officer he simply opposed the politicizing of the organization but never ran for office or held an official position;
(d) the finding of a “quid pro quo” arrangement between himself and the Chinese Embassy, i.e. he was the recipient of one of only twenty tuition waivers awarded by the Embassy for the Province of Quebec; such inference was unsubstantiated and based on speculation drawn unfairly from other unreasonable findings;
(e) the finding he participated in the “expulsion” of foreign tourists was inaccurate. He admitted only to helping tourists leave China during the Tiananmen Square troubles by offering them rides in his tour bus to the airport;
(f) there is no evidence to indicate the CSSA was a democratic organization and his opposition to its politicization was simply an expression of free speech, as opposed to an act of subversion.
(b) The test in Jolly
[15] The issue in Jolly, supra, was whether Mr. Jolly was associated with a U.S.-based organization, the Black Panther Party, which at the time of such association, advocated subversion by force of a democratic government, institutions and processes as they are understood in Canada within the meaning of paragraph 5(l) of the Immigration Act [R.S.C. 1970, c. I-2] then providing:
5. No person, other than a person referred to in subsection 7(2), shall be admitted to Canada if he is a member of any of the following classes of persons:
…
(l) persons who are or have been, at any time before, on or after the 1st day of June 1953, members of or associated with any organization, group or body of any kind concerning which there are reasonable grounds for believing that it promotes or advocates or at the time of such membership or association promoted or advocated subversion by force or other means of democratic government, institutions or processes, as they are understood in Canada, except persons who satisfy the Minister that they have ceased to be members of or associated with such organizations, groups or bodies and whose admission would not be detrimental to the security of Canada;
[16] A Special Inquiry Officer found as a fact Mr. Jolly was such a person. Thurlow J., as he then was, writing the reasons for the Court, observed “that what the Special Inquiry Officer found was not precisely what subsection 5(l) required. The subsection refers to ‘reasonable grounds for believing’, etc. The Special Inquiry Officer went further and found … in fact” (page 218).
[17] Thurlow J. at pages 225-226, said “where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained” (emphasis mine.) He formulated the following test at page 226:
It seems to me that the use by the statute of the expression “reasonable grounds for believing” implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. In a close case the failure to observe this distinction and to resolve the precise question dictated by the statutory wording can account for a difference in the result of an inquiry or an appeal. [Emphasis mine.]
[18] I accept the formulation of the test in Jolly, supra, expressed by Dubé J. in Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.), in which he described the reasonable grounds to believe test in these terms, at page 658:
… more than a flimsy suspicion, but less than the civil test of balance of probabilities. And, of course, a much lower threshold than the criminal standard of “beyond a reasonable doubt”. It is a bona fide belief in a serious possibility based on credible evidence.
[19] The Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306and in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 had an opportunity to contrast the words “there are serious reasons for considering” in Article 1(F) of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] incorporated in Canadian law with the words “reasonable grounds to believe” found in section 19.
[20] Ramirez, supra, is authority for the proposition the words has a “reasonable grounds to believe” requires a standard of proof less than the balance of probabilities.
[21] Robertson J.A. in Moreno, supra, considered both the Jolly and Ramirez cases. He established the proposition the standard of proof (less than the civil law burden) is only relevant when a tribunal is called on to make determinations which can be classified as questions of fact. This standard is irrelevant when the issue being addressed is essentially a question of law.
(c) Standard of review on this issue
[22] The applicant attacks the factual findings made by the visa officer or the inferences he drew from such facts. The standard of review of factual findings is patent unreasonableness as required by paragraph 18.1(4)(d) of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] where there was evidence before the decision maker. In addition, I am reminded of the often-quoted words of Décary J.A. in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) to the effect there is no basis for this Court’s intervention unless inferences are unreasonably drawn and not based on the evidence.
(d) Application to this case on this issue
[23] In my view, the applicant fails on this issue. His attacks are challenges to findings of facts; the evidentiary burden to make such findings is less than the civil law burden of the balance of probabilities and the standard of review is patent unreasonableness. Examining the visa officer’s CAIPS notes, the applicant’s affidavit and the documentary evidence relied upon by the respondent, I see no basis for this Court’s intervention.
(2) Issue two—The meaning of “acts of espionage or subversion against democratic government, institutions or processes”.
(a) Approach to interpretation
[24] The words in subparagraph 19(1)(f)(i) have not been interpreted by this Court. The principles of interpretation are set out by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, where Iacobucci J. adopted Elmer Driedger’s formulation in Construction of Statutes, (2nd ed., 1983) where he recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At page 41 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
(b) Definition of “act of espionage or subversion”
[25] The Immigration Act does not contain any definition of espionage or subversion and, as noted, there are no cases on point except the decision of the Immigration Appeal Board in Wenberg, Eric Ray (1968), 4 I.A.C. 292, which stated at page 307:
The words “espionage”, “sabotage” and “subversive activity” would appear to have no special legal meaning, and they must therefore be given their ordinary meaning.
“Espionage” is defined in The Shorter Oxford English Dictionary, 3rd ed., as “The practice or employment of spies”. “Spy” is defined as “to watch … in a secret or stealthy manner; to keep under observation with hostile intent … to make stealthy observations (in a country or place) from hostile motives.”
…
“Subversive” is defined as “Having a tendency to subvert or overthrow; tending to subversion”.
“Subvert” is defined as “To bring about the overthrow or ruin of (a person, people or country …)” [My emphasis.]
[26] As then, these words still have the same meaning today. According to the Oxford English Dictionary, 2nd ed., 1989, “espionage” means: “[T]he practice of playing the spy, or of employing spies”.
[27] According to the same dictionary “subversion” means: “The action of subverting or state of being subverted. Overthrow, demolition”.
[28] According to the Petit Robert 1: Dictionnaire alphabétique et analogique de la langue française, “espionnage” (espionage) means [translation]: “The act of spying. See Surveillance …. The occupation of spies … a secret organization existing in all nations and of which the function is to reveal the secrets of foreign or enemy powers.”
[29] “Subversion” (subversion) means [translation]: “The undermining of generally accepted beliefs and morals, the overthrow of an established system, especially in the political world.”
[30] In the Encyclopedia of Public International Law, Vol 2, “espionage” is defined at pages 114 and 116 as:
Espionage is a method of information gathering. There are basically three major categories of covert sources of intelligence: aerial and space reconnaissance (Military Reconnaissance), electronic eavesdropping and the secret agent ….
…
Some authors consider that what applies in wartime does not apply in peace-time. They argue that the legitimacy of espionage in time of war arises from the absence of any general obligation on belligerents to respect the territorial sovereignty or government of an enemy State, and from the lack of any specific convention prohibiting it. In times of peace, however, espionage, like any other penetration of the territory of one State by agents of another in violation of municipal law, is also a violation of the rule of international law which imposes a duty upon States to respect the territorial integrity and political independence of other States. This rule is one of the basic principles of the law of nations and a cornerstone of the United Nations Charter. From this point of view, espionage is an indirect or subversive intervention, and is as unlawful as a direct or open intervention, such as armed invasion … [My emphasis.]
[31] A number of statutes enacted by Parliament have defined related concept. In the Access to Information Act, R.S.C., 1985, c. A-1, “subversive or hostile activities” is defined as follows at subsection
15. (2) …
“subversive or hostile activities” means
(a) espionage against Canada or any state allied or associated with Canada,
(b) sabotage,
(c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states,
(d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means,
(e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and
(f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada. [Emphasis mine.]
[32] In the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, Parliament has defined “threats to the security of Canada” in section 2:
2. …
“threats to the security of Canada” means
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). [Emphasis mine.]
[33] In the Official Secrets Act, R.S.C., 1985, c. O-5, Parliament has also covered the situation where a Canadian citizen acts for a foreign country as a spy. A description of spying is outlined in section 3:
3. (1) Every person is guilty of an offence under this Act who, for any purpose prejudicial to the safety or interests of the State,
(a) approaches, inspects, passes over, is in the neighbourhood of or enters any prohibited place;
(b) makes any sketch, plan, model or note that is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power; or
(c) obtains, collects, records or publishes, or communicates to any other person, any secret official code word, password, sketch, plan, model, article, note, document or information that is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power.
…
(4) In any proceedings against a person for an offence under this section, the fact that that person has been in communication with, or attempted to communicate with, an agent of a foreign power, whether within or outside Canada, is evidence that that person has, for a purpose prejudicial to the safety or interests of the State, obtained or attempted to obtain information that is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power. [Emphasis mine.]
[34] This provision was frequently invoked during the Second World War and during the Cold War with the Soviet Union. (See Rex v. Benning, [1947] O.R. 362 (C.A.).)
[35] The Criminal Code, R.S.C., 1985, c. C-46, sanctions the crime of sedition; sedition is defined as followed:
59. (1) Seditious words are words that express a seditious intention.
(2) A seditious libel is a libel that expresses a seditious intention.
(3) A seditious conspiracy is an agreement between two or more persons to carry out a seditious intention.
(4) Without limiting the generality of the meaning of the expression “seditious intention”, every one shall be presumed to have a seditious intention who
(a) teaches or advocates, or
(b) publishes or circulates any writing that advocates,
the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada.
60. Notwithstanding subsection 59(4), no person shall be deemed to have a seditious intention by reason only that he intends, in good faith,
(a) to show that Her Majesty has been misled or mistaken in her measures;
(b) to point out errors or defects in
(i) the government or constitution of Canada or a province,
(ii) Parliament or the legislature of a province, or
(iii) the administration of justice in Canada;
(c) to procure, by lawful means, the alteration of any matter of government in Canada; or
(d) to point out, for the purpose of removal, matters that produce or tend to produce feelings of hostility and ill-will between different classes of persons in Canada. [My emphasis.]
[36] Cullen J. in Shandi, Re (1992), 51 F.T.R. 252 (F.C.T.D.), at page 258 had this to say about the meaning of espionage and subversion:
Espionage and subversion are not limited to the actual act but to be engaged in these activities the words envisage participation by one who assists or facilitates the objective as one who commits the actus reus. Any act that is intended to contribute to the process of overthrowing a government is a subversive act. It perplexes me that so much has been written about subversion, or that the word should not be used because it runs contrary to a person’s rights under the Charter to be a dissident. Certainly CSIS investigators must be aware of the difference (which may not always have been the case), but subversive acts are not difficult to distinguish from acts of protest that should not be subject to investigations. For example, if funds are raised or guns sent to the I.R.A. from Canada, is that not clearly subversion? However, vocal comment or written treaties on the “Struggle” are clearly protected under the Charter. Examples of subversive acts are not difficult to find.
Initially, I had intended to list and categorize the particular activities which I’m sure led the Ministers to move as they did and which convinced me that their action was correct. On reflection I decided it would not be particularly productive given that some of the data is top secret and could not be revealed in these reasons in any event. Also, I was guided by the words of s. 19(1)(e) of the Act as provided by Mr. Joyal in argument (p. 133 of Dec. 18 transcript). [Emphasis mine.]
[37] I do not think the recent decision by Gibson J. in Al Yamani v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 433 (T.D.) is applicable. Gibson J. was faced with a constitutional challenge to paragraph 19(1)(e) of the Immigration Act being void for vagueness. I faced no such difficulties.
(c) Definition of “democratic government, institutions or processes”
[38] The espionage and subversion referred to in subparagraph 19(1)(f)(i) must be directed against “democratic government, institutions or processes, as they are understood in Canada”; these words in the French text read “contre des institutions démocratiques, au sens où cette expression s’entend au Canada”.
[39] The French text does not speak of “government or processes” but simply refers to democratic institutions. These differences in the official languages are not, in my view, of any significance. Parliament has made clear the dominant theme is the notion of democracy which I would, as a matter of construction, apply ejusdem generis to institutions and processes.
[40] The concept of democracy is well known throughout political history reaching back to Plato and Aristotle, Locke, Montesquieu, Rousseau and de Tocqueville (to mention a few), and we have had the advantage, through the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and in the Supreme Court of Canada’s decision in Reference Secession of Quebec, [1998] 2 S.C.R. 217, of building on that history to appreciate some of its more fundamental aspects reflecting and reaffirming long-standing political and constitutional understandings.
[41] The Charter speaks of “democratic rights”: (a) section 3 providing the right to vote in elections to the House of Commons and to the provincial legislatures; (b) section 4 establishing a sunset clause to legislative existence of five years (subject to wartime exception) between elections; and section 5 requiring an annual sitting of the House of Commons and the provincial legislatures.
[42] The Supreme Court of Canada, in Reference re Recession of Quebec, [1998] 2 S.C.R. 217, stressed the following principles about meaning and principles of democracy: (a) supremacy of the sovereign will of the people; (b) representative government in the sense of freely elected legislative bodies; (c) responsible government in the sense that the executive branch is responsible to the legislature (in a parliamentary democracy).
[43] Simply put, democracy is a political system by which the citizens of a country govern themselves (in Canada at the federal and provincial levels, not to exclude the territorial, municipal or newly emerging aboriginal levels), where their elected representatives make laws; the executive branch administers those laws and is responsible for the way it does so. The Supreme Court of Canada in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, further elaborated on “the democratic nature of Parliamentary governance” and the role of the judiciary in that system.
(d) Application of these principles to this case
[44] Two questions must be answered. First, were the activities of the applicant, as found by the visa officer, encompassed by the words “espionage” or “subversion”? My answer is yes. The second question is whether those activities unfolding in the context of the CSSA and its members aim at democratic government institution or processes? My answer is no.
(i) Espionage and subversion
[45] The visa officer found, as a fact, the applicant had engaged in a constant pattern of reporting to the Embassy of China in Ottawa and provided intelligence on the activities of individuals in a Canadian student organization; he also attempted to subvert this organization to meet the goals and objectives of a foreign government. The elements of subversion which the visa officer had in mind are changing the previous mission of the CSSA from a pro-democracy activist association critical of the authorities in China to one which did not speak out at all against that government. As noted, these findings of fact or inferences drawn from them were not successfully challenged by the applicant.
[46] I have no hesitation in concluding that the applicant’s activities, as found by the visa officer, constitute espionage and subversion within the meaning of subparagraph 19(1)(f)(i) of the Act as those words are ordinarily understood and nourished as they are by an examination of federal legislation in pari materia.
[47] The meaning to be attributed to “espionage” and “subversion” is in their generic sense rather than being coloured by why or for what purpose the activity is being carried on.
[48] “Espionage” is simply a method of information gathering—by spying, by acting in a covert way. Its use in the analogous term “industrial espionage” conveys the essence of the matter—information gathering surreptitiously.
[49] “Subversion” connotes accomplishing change by illicit means or for improper purposes related to an organization.
(ii) Democratic government, institutions or processes
[50] In this paragraph of the Act, Parliament chose to confine the inadmissible class of persons entering Canada to those in respect of whom there were reasonable grounds to believe had committed espionage or subversion against a particular type of institution or process: a democratic one. Not all organizations or institutions are covered by this term. Moreover, the possibility of such activities taking place in the future is covered by another paragraph of the same section.
[51] In my view, when Parliament spoke of democratic government, institutions or processes, it restricted coverage to those institutions or processes (such as the right to vote and elections) engaged in political governance or the system by which citizens organize and govern themselves in the State. In short, Parliament restricted the paragraph to public authorities which are elected by and are responsible to the constituency. These words have nothing to do with institutions or forms of institutional or social organizations in which individuals may otherwise interrelate with one another, such as church, school, work, sports, etc.
[52] I arrive at this conclusion for several reasons. First, the common understanding of these words in Canada; second, the purpose of the enactment which is exclusion from entry into Canada which is for a limited purpose; third, the scope of the paragraph which encompasses not only activities carried out on Canadian territory but abroad and necessarily limits the operation of the paragraph; fourth, the qualifier at the end of the paragraph where admission is permissible if the Minister is satisfied admission is not contrary to the national interest which conveys interests related to the State; fifth, the availability of other grounds of exclusion (such as criminality) contained in paragraph 19 and in other sections of the Act if a proper case is made out abroad, etc.
[53] Based on this interpretation, the CSSA, a student organization at Concordia, in respect of whom the applicant conducted his activities including reporting on its members to the officials of the Chinese Embassy in Ottawa, does not fall within the definition of “democratic government institutions or processes” within the meaning of those words in the relevant paragraph. The meaning of these words is confined to the application both here and extraterritorially, and what Parliament seeks to protect are institutions exercising political (governmental) authority incorporating democratic values as to how citizens operate in organized society.
CONCLUSION
[54] For all of these reasons, this judicial review is allowed, the decision of the visa officer is set aside and the matter is returned for reconsideration by a different visa officer. I certify the following question:
Do these reasons correctly interpret subparagraph 19(1)(f)(i) of the Immigration Act?