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With help of Supreme Court, Israeli asylum system reaches new lows

The Interior Ministry, which processes applications for asylum, is by now well-known in Israel and the world for its lack of credibility. But it has a friend in the courts.

We have discussed in the past the ways that the Supreme Court rules on refugee-related matters without any reference to refugee law. Since then, many similar decisions have been taken, and if it seems that we neglected to report on these rulings, it’s because they have become, in our eyes, trivial – courts are disinterested in refugee law. Judges purport to rule in accordance with international law without bothering to any document except for the Convention Relating to the Status of Refugees. Their manner of analyzing the cases before them indicates a lack of will to bother learning the relevant material, the many international documents on the subject and decisions handed down all over the world interpreting the Refugee Convention. Israeli courts, of course, aren’t bound to other countries’ interpretation of the Refugee Convention, but they don’t even try to research how the Convention is generally interpreted.

The decisions that reach the review of district courts and of the Supreme Court are those taken by the Ministry of Interior’s unit that processes asylum seekers in the Ministry of Interior, which decides on the recognition of asylum seekers as refugees. This unit, a “kingdom of lies,” is an administrative body that is not credible or professional in anyone’s eyes except for its own and those of the Justice Ministry. Oh right, and in the eyes of a few judges, who have ruled that this body is professional, based on statements of state prosecution officials who say it’s professional. So according to some judges, if they claim they’re professional, they probably know what they’re doing. But the Unit for the Treatment of Asylum Seekers, which has examined thousands of asylum requests in the three years and has only approved one (making it the lowest refugee recognition rate in the “western” world), is already famous in Israel and in the world for its lack of credibility and professionalism, and even groups that have participated in training its employees admit their failure.

As for the legal system, it is also losing credibility on everything related to asylum applications. To this day, of hundreds of petitions and appeals heard by the Supreme Court and district courts, the yield is as follows: zero rulings by the Supreme Court recognizing someone as a refugee; one ruling in which the Supreme Court overturned a Ministry of Interior decision not to recognize someone as a refugee (due to deficiencies in the translation, the Supreme Court ruled another interview should take place, and following the interview – surprise, surprise – the Interior Ministry again rejected the asylum request); one ruling in which the district court ordered the Ministry of Interior to recognize a woman as a refugee; and an additional ruling in which the District Court ordered the Ministry of Interior recognize someone as a refugee, only to be overturned by the Supreme Court. There is no other “western” country whose legal system is so passive toward asylum seekers. There is no doubt that the Ministry of Interior and the courts suffer the terrible phenomenon coined by attorney Omer Shatz from We Are Refugees as “denial of refugeeness.”

As we have written in the past, there is no connection between Israeli court decisions and refugee law. In fact, in most cases, the Supreme Court doesn’t even allow an applicant to stay in Israel pending a ruling on whether or not his deportation may put him at risk. See for example, the decision [Hebrew] handed down last Thursday by Supreme Court Justice Yitzhak Amit.

Justice Amit rejected the Nigerian asylum seeker’s application against his deportation, pending a decision on an appeal to the Supreme Court against the rejection of his asylum request. The asylum seeker claimed that a Nigerian militant group attacked him and is likely to kill him, and that the authorities of his state are unable to offer him protection. Among the explanations for rejecting the request for an interim injunction was that the asylum seeker “did not bring any evidence supporting his claim that he experienced violence at the hands of the members of any group or that he is being persecuted by them.”

We’ll never know what evidence Justice Amit expects someone being persecuted by a militant group to bring forward. Should he have been expected to supply a letter with the group’s letterhead, stating, “To Whom it May Concern, I hereby acknowledge that we intend to murder the person referred herein.” Did he expect the asylum seeker to fly witnesses in from Nigeria to Israel, if there even are any? Or did he expect to receive a memo from the Nigerian police, stating, “We are unable to provide the applicant with protection.” Exactly because there is often no way to supply objective evidence for persecution, the United Nations High Commissioner for Refugees states there is no requirement for such evidence in order for a person to be recognized as a refugee. The UNHCR handbook explains that a refugee who has escaped from his country will often be unable to present evidence of his persecution. This places the burden on the body examining the applications to find evidence, but also extends the benefit of the doubt to the asylum seeker in cases where it was not possible to supply such evidence. That is also the practice of the rest of the “western” countries that are party to the Refugee Convention.

Justice Amit also explained his decision with the fact that “the applicant could not explain why he did not pursue alternative living arrangements in Nigeria, which is a country that extends over enormous territory, and what is stopping him from living in other regions in Nigeria.” Indeed, a person who can find protection from persecution by relocating within his country is expected to return, since the international protection provided by the Refugee Convention is meant to substitute that of the country of citizenship. However, Amit’s decision (and countless other Ministry of Interior decisions) instructs us that in the State of Israel, an asylum seeker must positively prove that he no way to live anywhere in his country. This demand – that an asylum seeker who comes from a specific area must meet the burden of proving he will not enjoy state protection in every single city, town and village in his country – cannot stand.

For exactly this reason, the UNHCR position is as follows: when it is claimed that someone should not be recognized as a refugee on the grounds that he can receive protection in a different area in his country of citizenship, the burden of proving the existence of such a place falls on the state, which must identify the place in which the person can enjoy protection, and provide evidence that this alternative place constitutes a reasonable alternative.

The Interior Ministry declares from time to time in courts and in the media that it employs the same standards that UNHCR does in examining asylum applications. But this Supreme Court decision indicates two – of many areas – in which the Interior Ministry entirely ignores basic UNHCR standards in interpreting and implementing the Convention. The Supreme Court is not obligated to accept UNHR’s interpretation of the Convention, which it can say it is interpreting incorrectly. But such a determination cannot be a serious one. Nor is it serious to entirely ignore these standards, or for the Supreme Court to display a total lack of interest in how UNHCR and other countries interpret the Convention. As we wrote here, the State of Israel is a signatory to the Convention, which states in Article 35 that states are to cooperate with UNHCR, and enable it to carry out its supervision of the implementation of the Convention’s provisions.

For now, the Supreme Court continues to mostly help the Interior Ministry bring the State of Israel’s asylum system down to new lows.

Related:
An open letter to the incoming interior minister
Who cares about the UN?
Israel’s newest national project: Ridding the country of ‘foreigners’
Myths, facts and suggestions: Asylum seekers in Israel

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  • COMMENTS

    1. directrob

      For me as far as the legal system is concerned the absolute zero was captain ‘R’, after that there is no lower low. These cases low as they may be do not even come close. For non Jews in conflict with the state there is no justice to be found only alms.

      http://www.guardian.co.uk/world/2005/nov/16/israel2

      Reply to Comment
    2. Jonny

      I think it safe to assume that those in charge of the Unit for the Treatment of Asylum Seekers want 0 people being regarded as refugees. So in that sense the unit is a great success – although they have slipped up in 1 case.
      The courts being part of the state know what is expected of them.

      Reply to Comment
    3. Sowhat

      They are migrant invaders & nobody wants them in Israel. Tell that to your EU paymasters.

      Reply to Comment
    4. “Israeli courts, of course, aren’t bound to other countries’ interpretation of the Refugee Convention, but they don’t even try to research how the Convention is generally interpreted.” : Former Chief Justice Aaron Barak had an expansive interpretation of law, including reference to foregin court jurisprudence. I have the impression that after his retirement, and the post 2000 suicide bombings, the Knesset has appointed conservative Justices, with prior ones shifting their stance to the right as well.

      “in most cases, the Supreme Court doesn’t even allow an applicant to stay in Israel pending a ruling on whether or not his deportation may put him at risk” : This is absurd, as a court should not remove its power of redress prior to outcome. The stated reasoning of Justice Amit is irrelevant, for he was considering not the merits of the case but whether the applicant should be deported before the merits are determined. Baldly, it like executing someone before trial is complete.

      Refugees are classed politically as “infiltrators,” this category subsuming terrorists as well. The Court shows a high deference to security, esentially treating the State as immune from much oversight in this category. The corporate body of Israel, evolved through decades of war thought, has created a war council unwritten constitution which provides fief protection for each “seat” on the council. The interior seems to have thereby evolved immunity on the subject of refugees. They infect the corporate body, and must be resisted. Such is my guess.

      Reply to Comment
    5. XYZ

      I don’t understand why the Palestinians didn’t welcome all the Jewish asylum seekers that came to the country before 1948. After all, according to the “progressive” world of which 972 is such an important part, the Palestinians are a much more noble people than the Zionist Jews are.

      Reply to Comment
      • Your comment has nothing to do with this post, although it does follow standard operating procedure in redirecting everything to the relative merits of the two races in a zero sum game. Palestinians are not more noble than Jews. After all, some Jews are progressives.

        On point, however, why not advocate that Israel abrogate the relative treaty and be done with the legal crtique toto?

        Reply to Comment
        • rsgengland

          XYZ has a point.
          Everyone demands that Israel does this,
          that and the next.
          But when something is raised to show the hypocracy prevalent in certain though patterns, it is deemed to be irrelevant or off topic.

          Reply to Comment
          • Simply advocate the abrogation of the relevant treaty(s). If not, why not?

            The focus herein is on Israeli jurisprudence, which goes to the heart of a courty’s law and ethics. It is quite common everywhere to silence dissent by evoking dangerous outsiders. But that then defines what you are through those outsiders. Decide what you are for yourself.

            Reply to Comment
      • XYZ, you seem to read any commentary on Israeli power in the OPT (which is total) as a hymn to Palestinian virtue. They are not the same things. No one on +972 has made this claim about Palestinians being ‘far more noble people’. If they had it would be every bit as offensive as claiming that Palestinians are somehow morally defective, as it carries the dual insinuation that a.) being oppressed makes you a paragon and b.) you have to be a paragon before you deserve the freedom that everyone else takes for granted. There was nothing particularly noble and good about the aggressive taxi driver who tried to rip me off the other day, but he deserves his rights, and I won’t wait for him to sprout wings and a halo before I help him to acquire them. If I don’t feel the need to add a disclaimer about his character flaws to all my anti-occupation activism, it’s not because I view him as perfect, but because they aren’t relevant. You didn’t have to pass any niceness test before they allowed you to vote and move around freely and not have soldiers arresting your kids, and neither should he.

        Using your logic, Palestinians who didn’t welcome Jewish asylum seekers during the Holocaust years could easily blame the British Mandatory authorities, or point at all the other reluctant countries who imposed a quota on Jewish refugees. Finger-pointing and blame-shifting and ‘why-should-I-care-they’re-no-better’, over and over again. When you find people who have already suffered greatly being mistreated by your country’s authorities, is this really what you want your response to be? To find someone else who has behaved as badly or worse, and to take them for your model? The sole purpose of this approach seems to be to make you feel better, not to address the needs of those people – and the second is more important, given that they’ve usually faced serious threats to their lives and gone through great physical and emotional hardship. You feel antagonised by left-wing online commentary that reads to you like a personal insult, and are prone to getting defensive because of it. If I think poorly of you here, it’s not because you aren’t a ‘noble Palestinian’ or even because you’re a dreaded Zionist, but because you can’t seem to let go of that defensiveness long enough to express the smallest kindness or understanding for those unfortunate people.

        I’ve been reading this site and your comments long enough to know that it’s not that you have no compassion to spare. You clearly have. I can think of two or three specific comments that showed me that. But at the same time I’m painfully aware that the reason why these stand out so clearly in my memory is because they’re not as common as they could be.

        Reply to Comment
        • “There was nothing particularly noble and good about the aggressive taxi driver who tried to rip me off the other day, but he deserves his rights, and I won’t wait for him to sprout wings and a halo before I help him to acquire them.” : I believe there is a phrase in Christianity, that God is “no respector of persons.” It is precisely because halos are not well defined that rights are blind to them. Fundamentally, rights recognize that the world is not like me–or anyone else.

          Reply to Comment
        • Hm, I’ve just reread what I wrote and I want to apologise to XYZ for the last paragraph. I shouldn’t have said that. It was unfair.

          Reply to Comment

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