A federal court judge has nullified an Immigration Appeal Division (IAD) ruling that allowed a former lieutenant-colonel of China’s People’s Liberation Army admitted into Canada.
Now, a new admissibility hearing will be held for 44-year-old prospective immigrant Huajie Xu, also a former lecturer at the PLA Information Engineering University, China’s chief military academy for cyber and electronic warfare.
The Minister of Citizenship and Immigration had initially opposed Xu’s entry into Canada on grounds he was a member of a group that conducts espionage against Canada. Xu also won the minister’s appeal case but the minister sought a judicial review, which was granted in the Feb. 19 court ruling from Justice Peter Pamel, in Vancouver.
The court heard how Xu had enlisted in the Chinese military in 1998, at age 18, and was eventually promoted three times by 2014. He studied military management at the Combined Arms Academy of the Armed Forces of the Russian Federation before his military theory and strategy teaching gig at the university’s Department of Combat Command.
The university was directed by the PLA and more specifically the PLA division responsible for signal intelligence and cyber espionage.
Pamel noted it is “uncontested” that the PLA division “has been recognized to have engaged in espionage against Canada and contrary to Canada’s interests.”
Xu arrived in Canada on July 10, 2021, with a valid permanent resident visa issued as part of his spouse’s sponsorship application. Xu declared upon arrival he was retired and now self-employed. Xu also declared he had been a 20-year member of the PLA and worked for the military university. The minister did not allege any misrepresentations on Xu’s part; however, it did claim he “minimized his involvement in the military.”
Upon arrival Xu was detained by the Canada Border Services Agency (CBSA) and questioned by a border services officer for “potential inadmissibility, on the grounds of possibly being a member of an organization that had engaged in espionage.”
Ultimately the CBSA determined he was not authorized to enter Canada, prompting an admissibility hearing with the Immigration Division of the Immigration and Refugee Board.
On Sept. 24, 2021, the division found that there were “no reasonable grounds” to believe that Xu was inadmissible because there was insufficient evidence to find that the [university] itself has engaged in espionage that is against Canada, or contrary to Canada’s interests
despite the university providing “material support for the cyber espionage efforts” of the PLA.
A key issue was the determination Xu was not a direct member of the PLA division conducting cyber espionage (he was only a member of the university).
But the minister argued it was reasonable to conclude Xu was teaching students who would go on to commit espionage against Canada. The immigration division ruled there was no proof Xu “would have known he was teaching students destined for the 3/PLA or espionage related sectors.”
The minister then appealed and lost, resulting in the judicial review.
During the appeal, the Immigration Appeal Division heard from Sida Liu, a socio-legal researcher and associate professor of sociology and law at the University of Toronto.
Liu’s expertise on China’s military was called into question by the minister, including assertions Liu made about the university given the PLA’s cyber espionage division is secretive.
“However, the IAD concluded that Mr. Xu’s limited teaching role at the [university], which did not include any courses in cyber espionage, did not constitute material support for the [PLA],” noted the judge, who later noted Liu, while a respected sociologist, had limited knowledge in cyber technology and espionage and the machinations of PLA involvement at the university.
And, the IAD concluded the university was not a military unit of the PLA and so Xu’s membership with the university was not grounds for inadmissibility.
The judge was left to ask if the IAD applied an incorrect test for membership and whether the IAD improperly relied on non-expert opinion to determine membership.
“The Minister is in essence asserting that the IAD’s assessment of the evidence was undertaken through the prism of Liu’s narrative of the [university] being a comprehensive university first, and a cyber intelligence epicentre second,” explained the judge.
The minister, the judge stated, asserted otherwise — that the university is primarily a vessel for the PLA’s espionage program.
And while the minister conceded not all PLA members are members of the espionage division, it asserted Xu was “actively contributing and committed to the objective of cultivating high‐level talent in the field of information warfare for the modernization of China’s national defence and military.”
And so, the judge wrote, “I find that the IAD improperly assessed Mr. Xu’s personal circumstances by limiting such assessment to the context in which Mr. Liu’s expertise was provided.”
Another key flaw in the IAD decision, according to the judge, was the ruling’s comparison of Xu’s case to that of a prospective Canadian immigrant who was a civilian university professor who taught English to prospective spies at the Luoyang Foreign Languages Institutes. In that case the professor was deemed inadmissible, but a federal judge overturned the decision.
“Here,” the judge stated, “the situation is that of Mr. Xu joining the PLA, in which he was a senior military officer with the rank of lieutenant-colonel and held a position as a lecturer in the Department of Combat Command of the [university]; he did not simply teach English.”
To conclude, the judge ordered the IAD decision set aside and the matter remitted back to the IAD for redetermination by a different panel.
