CBSA thought he might be a Chinese spy. A federal judge called the intelligence 'dubious'

The federal government denied a 68-year-old Chinese citizen permanent residency last year afterarguing he had trained Chinese spies and might be one himself.

But a recent Federal Court ruling says the information the Canada Border Services Agency (CBSA)used in its assessment of Liping Geng's past was "dubious" and "overreaching," raising questions about the credibility of CBSA's intelligence wing.

AFederal Court judge has now quashed the CBSA's decision in the case ofLiping Gengand has ordered another immigrationofficer to review his case.

Gengtaught English at a school in China that as Federal Court Justice Richard Mosley wrote in a June 2 decision trained linguists employed by thesignals intelligence wing of China's People's Liberation Army (PLA), known asthe third department or "3/PLA."

According to Mosley's ruling, he was tasked with sifting through intelligence analysesto determine whether Geng's workteaching English to students some of whommay have been employed by one of China's spy agencies meant he was a member of an organization that"that there are reasonable grounds to believe engages, has engaged or will engage in acts of espionage against Canada, or that is contrary to Canada's interests."

"There is obviously a lot of importance in making these types of decisions and assessments, to protect the safety of Canada and Canadians and anyone who's in Canada," said Geng's lawyer Athena Portokalidis

"But I think that has to be balanced with making these findings based on credible and reasonable evidence."

According to the statement of agreed-upon facts tabled before the Federal Court, Geng was a member of the People's Liberation Army as a young man. While serving,he obtainedthe equivalent of a Bachelor's degreein Chinese, English, mathematicsand current events from the Luoyang Foreign Languages Institutes [LFLI].

He went on to work as a teacher and assistant lecturer in English at the institute from 1975 to 1987.

According to the statement of facts, Geng was allowed to come and go into Canada for a time, and once even held citizenship.

In 1989 he was accepted at the University of Toronto, where he studied for nine years and completed a PhD in English literature before teaching the subject at both the U of T and Memorial University in Newfoundland and Labrador.

He became a Canadian citizen in 1995, says the statement of facts.Deciding his full-time employment prospects were better in China, Geng returned in 2007 and renounced his Canadian citizenship (China does not recognize dual citizenship).

Geng still received visas to return to Canada every year to visit his family including a ten-year multiple entry visa.

CBSA claimed 'reasonable grounds' for spy claim

Things got complicated for him when, after his retirement in 2019,his wife applied to sponsor him for permanent residence so he could reunite with the family.

Behind the scenes, two of Canada's intelligence agencies had been amassing reports on him. One was written by the Canadian Security Intelligence Service's (CSIS) security screening branchand one camefrom the CBSA's national security screening division (NSSD).

The October 2020 CSIS report said the language institute where Geng taught"is a military training institute where officers and foreign affairs officials receive language training, including for the purpose of being assigned to listening posts."

A CBSA security assessment inApril 2021 cited the CSIS report and other documents found on the internet to conclude that the language school falls within the organizational structure of the Chinese signals spy agency "and that many graduates are assigned to 3/PLA monitoring and control stations, including those targeting the United States and Canada."

The CBSA report argued that "as a result of his employment as a lecturer with the LFLI, there are reasonable grounds to believe that the applicant is a member of an organisation, the 3/PLA, that has engaged in acts of espionage that are against Canada and contrary to Canada's interests."

"There are also reasonable grounds to believe that the applicant himself has engaged in espionage," said the CBSA report, quoted in Mosely's decision.

The CBSA assessment also relied on a statement Geng made during an interview at Pearson airport in Toronto in the summer of 2017 that he held the rank of "deputy commander" with the Chinese army between 1969 and 1987, before he moved to Canada.

Geng argued that he said that when he was pressed by the interviewer to suggest an equivalency between his status as a professor and a military rank.

"The applicant states he has never been a deputy commander in the PLA and could have provided more evidence if he had been made aware of this concern," said the Federal Court decision.

Consequences 'are particularly harsh': judge

In late 2021, Geng was sent a letter by an Immigration, Refugees and Citizenship Canada officer laying out concerns about whether his work with the language institute meant hewas a member of China's third department.

On Jan. 17, 2022, his application for permanent residence was denied.

Geng appealed, arguing an immigration officer in Hong Kong made "unfounded inferences and ignored critical evidence."

He argued it "was unreasonable for the officer to hold that the LFLI is an espionage organization simply because a few reports claim that former LFLI students have gone on to pursue careers in 3/PLA."

The office of the Attorney General of Canada argued, on behalf of the minister of immigration, that the evidence showed that "everyone who attended the institution where the applicant taught was in or was linked to Chinese military intelligence" and that the "teachers were actively engaging in espionage."

Mosley didn't buy it.

"The applicant is a 68-year-old retired language professor who was once accepted as a landed immigrant and granted citizenship in Canada and now wants to return here to share his retirement years with his wife and daughter, both of whom are Canadian citizens," he wrote.

"The consequences of the decision to deny him admission in these circumstances are particularly harsh. In my view, the officer failed to adequately grapple with those considerations."

Mosley ruledthat the conclusions made by both the CBSA's national security screening division and the immigration officers were not backed up by evidence.

"In my view, both the NSSD assessment and the officer's reasons for decision demonstrate an overzealous effort to establish that the applicant was a member of the 3/PLA and, as such, inadmissible," he wrote.

The justice zeroed in on the CBSA unit's conclusionthat there were "reasonable grounds" to believe Geng was a spy himself. Mosley called that an act ofoverreach.

"This assertion is based on a dubious analysis of the concept of facilitation in the context of espionage," he wrote.

"In my view, there is no merit to the notion that the applicant engaged in espionage merely by teaching English to members of the 3/PLA who were later assigned to monitor intercepted communications at listening posts in China or abroad."

Jacqueline Roby, a spokesperson for the CBSA, said the agency will not comment on a Federal Court judge's decision.

She said that security screening assessments go throughtwo layers of internal review by senior national security screening analysts before coming toa formal recommendation.

"Our national security screening analysts possess comprehensive knowledge in the security screening domain, regularly enhanced through skilled training and continuous professional development," she wrote.

A spokesperson for Immigration, Refugee and Citizenship Canada said that department also couldn't comment "due to privacy legislation."

"Applications are assessed on a case by case basis," added department spokesperson Jeffrey MacDonald. "Decisions are made by highly trained officers who carefully and systematically assess each application against the criteria set out in the Immigration and Refugee Protection Act (IRPA) and its regulations."

CBSA intelligence issues

Portokalidis said she's hearing from more and more colleagues reporting the use ofquestionable intelligencein immigration cases.

"Thankfully, when clients retain legal representativesor lawyers who can help them navigate this process, there are solutions. You can get a resolution. But for people who just don't have that means or don't have those resources available, it can be quite devastating," she said.

Wesley Wark, a senior fellow at the Centre for International Governance Innovation, saidCBSA officials "clearly struggled to conduct research."

"Open source research conducted by CBSA was very limited and unprofessional," he said.

"It has scant internal knowledge of foreign state intelligence practices."

Wark said the Geng case is similar to that of Elena Crenna, a former Russian translatoraccused by the CBSA's war crimes investigation unitof being a post-Cold War spy.

In 2020 the Liberal government quietly abandoned its case against her after a Federal Court judge essentially challenged Department of Justice lawyers and border agency officials to read the legal and dictionary definition of espionage.

"It is remarkable to me how similar the errors that were made in judgment by CBSA about the Liping Geng case were to those made in the Elena Crenna case, which also revolved around 'membership' in an espionage organization and the facilitation of espionage," Wark said.

"Officials involved in immigration decisions these days will naturally be inclined to zero in on any dimensions of a case that suggests connection with Chinese espionage, no matter how marginal. Failure to do so would be considered serious.

"But equally, such cases involve the need to take special care, to avoid politicization and over-zealousness."