The suspected war criminal swept up in the High Court crisis

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A suspected war criminal who sent boys on missions for the Tamil Tigers during Sri Lanka’s long-running civil war – some of which proved to be suicide bombings – was freed into community detention by the Coalition two years ago after being stricken with cancer.

Never tried in any country, the former immigration detainee, known as GZCK, has been living in legal limbo because his shocking past had been flagged as a concern by ASIO, while he also feared persecution if returned to his home country.

Sri Lankan asylum seekers on their boat in 2009.Credit: Irwin Fedriansiyah

While he was already living in the community when the High Court last month overturned indefinite immigration detention, GZCK has been caught up in emergency laws passed since the ruling and now must wear an ankle bracelet monitor and abide by curfews despite poor physical and mental health and a downgraded ASIO profile.

His case captures the complexity of the detention debate: he arrived on a boat during the Rudd years and was released from detention under the Coalition. And as both sides of politics fight to show they’re tough on borders, one constitutional expert says the tale of GZCK illustrates the challenges of writing new preventative detention laws to deal with those whose violent pasts have, in some cases, never been tried in courts.

The government is now facing three High Court challenges to the strict visa restrictions legislated rushed through parliament last month after the Asylum Seeker Resource Centre lodged a case on behalf of a 30-year-old man who they claim is being subjected to punitive conditions.

GZCK spent 20 years with the Tamil Tigers – who fought against the Sri Lankan government from the 1970s to 2009 to establish a separate Tamil homeland on the island – eventually becoming a senior intelligence officer. He said he was forcibly recruited at the age of 17 because of threats to kill his family and was not told the details of the missions he sent boys on.

“I didn’t do this because I want to do it, they asked me to do it. If I don’t do this they may send me to the battlefield,” the man told authorities during his fight to stay in Australia, after he arrived by boat in 2009 aged 36.

In 2011, an ASIO assessment found he was involved in the “facilitation and provision of logistical support for LTTE ‘Black Tigers’ suicide missions” and was likely to continue supporting the movement while in Australia.

But despite the ASIO warning, GZCK was able to apply for temporary asylum along with thousands of other boat arrivals after a 2015 legal change by then-immigration and border protection minister Peter Dutton as a way of processing protection claims.

His visa bid was knocked back in 2017, triggering four years of legal battles that ended in a Federal Court dismissal in December 2021.

However, a month earlier, he had been released into the community due to his cancer diagnosis under then-immigration minister Alex Hawke, who declined to comment on the case. Dutton’s office also declined to comment.

According to an independent security report sought by the man in 2013, GZCK participated in battles against Sri Lankan government troops in the early 1990s before being recruited into the Tamil Tigers’ intelligence wing under a militant known as Brother Charles, who planned suicide attacks, including the notorious 1998 Temple of the Tooth truck bombing that killed more than a dozen people.

“Asked about his role in the attack, the applicant said that he was responsible for sending one of the boys,” the 2021 Federal Court judgment says.

Of the other missions, GZCK said that he was not told explicitly what they were doing, but “figured it out”. According to the judgment, he said it became obvious because within days of the boys leaving, there would be a news story about an attack, and the boys often didn’t return.

Buddhist monks inspect the damage after a truck bomb exploded outside the Temple of the Tooth in Kandy, Sri Lanka in 1998. Credit: Reuters

“The applicant was also asked about the bombing of the Colombo central bank in 1996, the bombing of the Dehiwala train in 1996, the bombing of the World Trade Centre building in Colombo in 1997, and the attack on Colombo international airport in 2001. The applicant said he had heard of these attacks but everyone in Sri Lanka had.”

The man told interviewers he only ever observed and reported on interrogations by the Tamil Tigers and did not participate in them.

“On occasion, he had ensured that people were kept awake as part of a sleep deprivation technique. He said that he had seen people being electrocuted, suspended by their feet and beaten, and having their fingernails pulled out,” the judgment said.

Justice Angus Stewart backed an earlier Administrative Appeal Tribunal finding against GZCK in concluding “there are serious reasons for considering that the applicant committed the war crime and the crime against humanity of murder and on that account is ineligible for a protection visa”.

Labor and the Coalition have this week feuded over border protection, as parliament uses the year’s last sitting fortnight to pass laws to put the worst of the 142 people affected by the High Court’s ruling back behind bars under a preventative detention regime similar to that used for terrorists.

Constitutional expert George Williams said the case of GZCK, who sources say is part of the cohort captured by the November 8 High Court decision, raised questions about the application of preventative detention where no conviction had been recorded.

“In the absence of that, it gets constitutionally more difficult,” he said, adding it would also have to be demonstrated there was a future risk rather than past concerns.

“This is an interesting case and it illustrates the difficulties of applying any regime to the whole group without case-by-case assessments,” he said.

A government spokesman said: “As is longstanding practice, the government does not comment on individual cases.”

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