National Post (National Edition)
BIKER GRANTED ASYLUM SUING
First known refugee from Australia
OTTAWA • Stevan Utah fled to Canada in 2006, on the run from an Australian biker gang he said was out to kill him. A former informant for an Australian intelligence agency, Utah said he was outed that year by the very authorities who had employed him and nearly murdered by members of the Bandidos motorcycle club before fleeing the country.
Last fall, more than a decade after arriving in Canada, Utah was granted refugee protection in a decision that pointed to “corruption, ineptitude and structural difficulties” within the Australian agencies he has accused of blowing his cover. Australian media reports have labelled him the first known refugee from that country.
The case of Stevan Utah is highly unusual, if not unique. Though Canada eventually granted him refugee status last fall, the 50-year-old believes Canadian officials didn’t take him seriously because he was a white asylum claimant from a developed nation. And in an unlikely twist, he’s now suing the federal immigration department and the Canada Border Services Agency (CBSA), arguing they were negligent in allowing his claim to drag on for years and leaving him in what one of his lawyers called “legal limbo.”
The Canadian government, meanwhile, says Utah’s criminal history — including his involvement in an Australian murder case and Canadian fraud charges that were later withdrawn — demanded a thorough investigation before his refugee claim could be allowed to proceed.
“Nothing will ever feel like home to me,” Utah told National Post in an interview. “It’s left a very sour taste in my mouth.”
To try to understand the mystery of the first Australian refugee, the Post reviewed the decision from the Immigration and Refugee Board (IRB) granting Utah protection, as well as Utah’s statement of claim in his Federal Court lawsuit and the government’s defence. Together, the documents shed light on the violence that brought Utah to Canada, the danger that convinced a refugee judge to let him stay, the concerns border officials had about his criminal history and the efforts they made to send him back.
According to a 2008 book about Utah co-authored by Duncan Mcnab, a former Australian detective who spoke at his refugee hearing, Utah served as a soldier in the Australian Army from 1985 to 1992. Utah first encountered the Australian national president of the Bandidos outlaw motorcycle club in the mid-1990s, Mcnab told the Post, and though the ex-soldier never became a full member of the gang, Mcnab said the connection would later give Utah “remarkable access” as an informant.
According to Mcnab, Utah was present at the 2000 killing of 54-year-old Earl Mooring, which he has claimed was committed by Bandidos members. Utah arrived on the scene “just as (Mooring) was expiring,” McNab said, then helped dump the body some 1,000 kilometres away. In 2004 Utah was charged with Mooring’s murder, but the charges were later dropped, and to date nobody has been convicted in Mooring’s death.
That same year, Utah led investigators to Mooring’s body. Mcnab said Utah went on to infiltrate the Bandidos network, feeding police information about drug and
firearm trafficking operations. His Federal Court lawsuit describes him as a “paid informant … known as a ‘registered agent,’” operating under immunity from criminal prosecution.
But Utah said he was exposed in 2006, after a newspaper story about biker gang violence reported that the Australian Crime Commission (ACC), the intelligence
agency for which he said he was working, had begun an intelligence operation the previous year. Gang members quickly deduced that he was a likely informant, he said. “Everything pointed back to me.”
Soon after, he claimed in his refugee hearing, he was taken to a remote area and given a horrific beating from which he barely escaped. He
fled to Canada in June 2006, and claims the ACC offered him no protection. In 2007, he filed a refugee claim.
In a statement to the Post, a spokesperson for the Australian Criminal Intelligence Commission, which has replaced the ACC, said the organization doesn’t comment on operational matters. However, Mcnab’s 2008 book quotes an ACC statement denying the organization outed anyone. “The ACC refutes the suggestion that it provided information to the Sunshine Coast Daily that compromised any individual,” it reads.
In the September 2017 decision that granted Utah refugee protection, IRB adjudicator Jodie Schmalzbauer found that “the Australian authorities failed to adequately protect him.” She also pointed to a “broader pattern” of “corruption, ineptness and structural difficulties.”
“I do find that the claimant would more likely than not face a serious risk to his life, almost immediately on his return to Australia,” Schmalzbauer wrote.
Still, Utah is far from satisfied with his treatment at the hands of Canadian authorities. He’s now suing the immigration department, the CBSA and the two CBSA officers involved in his file, claiming they delayed his case for nearly a decade out of “pure, sheer incompetence” — and because he comes from Australia.
“When I first came here, the CBSA not only could not believe that a white Australian could be a refugee, they wouldn’t entertain it,” he said.
Utah’s lawsuit, filed in Federal Court in June and seeking $2.55 million, claims the two CBSA officers, Darryl
Zelisko and Darryl Kane, allowed his refugee claim to stall for years.
The case revolves around concerns the CBSA had about Utah’s criminal history. If officers believe a refugee claimant should not be admitted to Canada due to criminality, the agency can file a report to the immigration minister, who can then order an inadmissibility hearing prior to a refugee hearing.
But in this case, court documents allege, the officers failed to prepare an inadmissibility report, leaving Utah’s case suspended from 2007 until 2015. “We say that was negligent at the very least and as a result he has suffered because he has been in this legal limbo,” said William Klym, one of Utah’s lawyers in Canada.
While Utah waited, the claim contends, he was unable to work, get a social insurance number, open a bank account, get a driver’s licence or receive health care. His file only got back on track, the claim says, after Zelisko was removed from the file in June 2015 and Kane told Utah he would have to “start his refugee claim over … from ‘scratch.’ ”
In a statement of defence filed last week, however, the federal government claims the CBSA officers began an investigation into Utah’s criminal history to determine his admissibility to Canada after he filed his claim in 2007, and found there was a possibility that new charges of accessory after the fact might be laid against him in Australia for his involvement in the 2000 murder. “It was not until August 2009 that CBSA officials found out that no further charges would be laid against the plaintiff,” the
court documents say.
Utah’s case was delayed again, according to the statement, because of multiple fraud charges laid against Utah in Canada. The Post has confirmed that someone named Stevan Utah was charged with two counts of unauthorized use of a credit card in 2007. The charges were withdrawn “after restitution was paid,” according to the defence statement. Utah declined to comment on the charges.
When Kane took over the file from Zelisko in 2015 he immediately prepared an inadmissibility report, but wasn’t successful in convincing the IRB he shouldn’t be allowed in the country. Given Utah’s “previous criminal history their actions were justified,” the statement of defence claims. Utah told the Post the government’s statement is “delusional, unsubstantiated (and) self-serving.”
Toronto immigration lawyer Matthew Jeffery called Utah’s case “very unusual,” and said if officials had concerns about a claimant’s criminal history the CBSA’S normal practice would be to file a report right away — not to wait for eight years. He said the delay was “obviously unacceptable and far in excess of the time that they needed to investigate the matter.”
Utah told the Post he’s still not working much and is seeing a counsellor. “I’ve seen a lot of very bad, nasty things,” he said. “Some people say I have an apathy for my own life. I’m in constant, serious danger. Constant. But at the end of the day, they’re my choices.”