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Seeking asylum in Israel: Deportation without due process

Instead of giving asylum seekers the benefit of the doubt, as international law prescribes, in Israel, the district courts find doubts, the Supreme Court approves their decisions, and persecuted peoples are deported before the merits of their cases can be examined. Everyone can sleep soundly.

Israel’s asylum system is designed to allow everyone, aside from asylum seekers, to sleep soundly. The chairman of the Advisory Committee on Refugees said in an interview last year that he sleeps soundly when he rejects asylum requests, because he knows that if he has erred, the court will rectify the mistake. District court judges who reject petitions filed by individuals who were not recognized as refugees sleep soundly because they mistakenly think that the asylum system is comprised of professionals with expertise, and because they likely think that the Supreme Court will rectify mistakes that they make. And Supreme Court justices sleep soundly because they too are convinced that professionals manage the asylum system, and that district court judges have thoroughly reviewed whether an appellant faces any danger. And since no one feels responsible for the fate of an asylum seeker if a mistake is made, everyone can sleep soundly, dreaming of an Israel free of foreigners.

Tel Aviv District Court Judge Kobi Vardy plays a central role in the national project of refugee denial and deporting “foreigners” in Israel, and the Supreme Court backs him. When a petition is filed against a decision made by the unit handling asylum seekers, the first to review it is Judge Vardy, who decides whether to grant an injunction preventing the appellant’s deportation until a decision on the appeal is made. In the past year Judge Vardy adopted the practice of rejecting dozens of appeals outright, without reviewing them, as he saw no grounds to do so.

Rejecting a legal proceeding outright is a practice that, in accordance with a Supreme Court ruling, is supposed to take place only rarely. But not when it comes to those claiming that their lives are in danger in their home countries; a significant number of asylum seekers are deported prior to any deliberations on Judge Vardy’s decisions.

A few months ago Judge Vardy rejected outright an appeal by a lesbian asylum seeker from Colombia who claimed that her life was in danger in her home country due to her sexual orientation. In the framework of an appeal to the Supreme Court, Justice Uri Shoham handed down a decision in November – which we only just heard about – stating that the likelihood of a successful appeal was low, and that the appellant had not proven that she faced any danger. Supreme Court Justice Shoham thus determined that there was no need for her to remain in Israel until the end of legal proceedings. Just like that, an asylum seeker was kicked out, before a court reviewed the judicial merits of the case.

We’ve already written about the manner in which the district courts and Supreme Court rule on matters pertaining to asylums seekers, with no knowledge of refugee law. They lack both the knowledge and the will to learn. Judge Vardy, of the District Court, insists that there was no evidence indicating that the asylums seeker’s life was in danger. It is unclear what evidence Judge Vardy sought. A letter from whoever she claimed might kill her, stating that he would slaughter her if she returned? A letter from the Colombian police admitting that it cannot protect lesbians who are persecuted? A note from her parents? Judge Vardy rules in the District Court; Justice Shoham approves his decision in the Supreme Court.

In many cases refugees cannot provide evidence of the danger that they face. Article 196 from the United Nations High Commissioner for Refugees Handbook explicitly notes that “cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule,” and that “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” This is the rule adopted by courts around the world; only Israel has determined that objective evidence of persecution must be presented, and if there’s any doubt – get out.

In his verdict Judge Vardy states that the asylum seeker presented a report on the human rights of homosexuals and lesbians in Colombia. He explains that the report is irrelevant as it addresses the rights of the gay community in 2009, while the asylum seeker left the country in 2007. What? The objective of assessing the situation in an asylum seeker’s home country is to determine what will happen if he or she returns, not what happened in the past. If there is evidence of lesbians being persecuted in Colombia after the asylum seeker left the country, they are certainly relevant. Judge Vardy rules and Justice Shoham approves.

Judge Vardy also reviewed the circumstances of the asylum seeker’s persecution before she left Colombia. He determined that the persecution was “not necessarily” because of her sexual orientation and “could be” due to her financial and business successes. Not necessarily? Could be? What did we say happens if there’s any doubt? Oh, yeah, around the world that would work to the asylum seeker’s advantage. In Israel it results in their deportation. One could expect that this doubt would at least lead Judge Vardy to the conclusion that the District Court must review the appeal rather than reject it outright. One could expect that the doubt would lead Justice Shoham to conclude that the Supreme Court must review the appeal and not deport the asylum seeker before her appeal is heard. No. Judge Vardy deports, Justice Shoham approves.

Judge Vardy’s verdict is rife with additional assumptions. He focuses on the fact that the asylum seeker arrived in Israel in 2007 and only submitted her asylum request in 2009. Too bad no one told Judge Vardy that during those years the procedure for handling asylum seekers was not publicized, and anyone who did not contact a lawyer or a human rights organization had no idea whether or how to request asylum in Israel. Too bad no one told Judge Vardy that research on asylum seekers indicates that members of the LGBT community delay submitting asylum requests due to the difficulties entailed in appearing before the authorities and declaring, “I am a homosexual,” “I am a lesbian,” “I am a transexual,” etc., particularly when they are from countries in which members of the LGBT community are not protected by the authorities. Judge Vardy assumes, Justice Shoham approves.

Judge Vardy is also troubled by the fact that, according to the asylum seeker’s claim, she began to face persecution in 2000 and only left Colombia in 2007. So he concluded that her life is not in danger. First of all, the Refugee Convention does not stipulate that the refugee’s life must be in danger. It requires a well-founded fear of persecution (which the U.S. Supreme Court determined in 1987 to be a 10-percent chance that an individual’s life, freedom or other basic human rights be harmed). Second, the fact that a person resides in a country in which he or she is persecuted for seven years, and only leaves then, does not affect his or her credibility or determine whether he or she will be persecuted upon returning. The decision to leave your country, even when your life is in danger, is not easy. It requires a myriad of economic and emotional resources. When Jews in Germany suffered from brutal persecution and harsh legislation that targeted them from 1933-1939, they acted in different manners. Some chose to leave immediately, some left after a few years, and some chose to stay. The conclusion – those who chose to stay faced no danger, right? Judge Vardy concludes, Justice Shoham approves.

We can go on and on. It would be fun and entertaining if this wasn’t about legal decisions that have immediate implications for a person’s life, and which reflect the judiciary’s powerlessness in criticizing Israel’s damaged asylum system.

Judge Vardy certainly sleeps soundly. He knows that Justice Shoham reviewed and approved his verdict. Justice Shoham also sleeps soundly. He knows that Judge Vardy reviewed the case and handed down responsible verdicts.

Good night.

Here’s a cat.

Here’s a cat (Martin Cathrae / CC 2.0)

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    1. sh

      “Some chose to leave immediately, some left after a few years, and some chose to stay.”

      Chose to stay? Sorry, that grates. It’s an unfortunate way to phrase the inability to leave a place that endangers you even though you are desperate to. The gist is not lost with something like:
      “some chose to leave immediately, some left after a few years and some stayed because they couldn’t leave. The conclusion – those who stayed faced no danger, right?”.

      Whatever, the law’s an ass on paper. It’s up to the judiciary to put the human into it but there’s no clear direction because the country is led by opportunists. How did one of the Gatekeepers put it? They’re all tactics and no strategy.

      Reply to Comment
    2. Philos

      LP, if it’s possible I hope you can present information on what happened to some of the people Israel deported. I know that several south Sudanese children that were deported last year perished. The outcome of these decisions is just as important as how they were reached

      Reply to Comment
      • The Trespasser

        Hundred of thousands or even millions of children perish in Africa every year.

        1 – Israel is not responsible for either of this deaths.
        2 – No-one is responsible for this death but savage parents, relatives and compatriots of the perished.
        3 – Maybe they should try to give life to less children if they can’t feed them all?
        Why should I be held responsible for whatever comes out of millions of African wombs?

        Reply to Comment
        • “Maybe they should try to give life to less children if they can’t feed them all? Why should I be held responsible for whatever comes out of millions of African wombs.”

          You seem to have no idea you are hurting your cause. Simply advocate the abrogation of the refugee conventions. I suspect a simple majority Knesset vote could accomplish this.

          Reply to Comment
        • Joel

          The Sudanese children who perished died of infectious disease they contracted in their home countries.

          Sad,tragic, but not in any way Israel’s fault.

          Reply to Comment
    3. Kolumn9

      That’s a really cute cat. You should post more cat photos in your stories. Also, please post puppies. Cats are cute but puppies are just adorable!!!

      Reply to Comment
    4. The Trespasser

      A heart-breaking article.

      Until one bothers to check some facts…

      1986-1989: Groups of illegal anti-gay social cleansing were formed around the country to take actions against the LGBT community. The media reported a rising bigotry and about 640 related murders during this period. Some groups that attributed themselves the crimes were “Manonegra” (black hand), “Amor a Medellín” (love to Medellín), “Amor a Manizales” (love to Manizales) and “muerte a HOMOSEXUALES” (death to homosexuals).

      1990: Manuel Velandia promoted the recognition of equal rights for HIV/AIDS-infected people.

      1991-1994: Reports of the media about several episodes of gay bashing against people leaving places suspected of being gay nightclubs in Bogotá, who were stripped, soaked with cold water and left in the top of Monserrate hill.

      1994: The first support groups for HIV/AIDS were created.

      1996: The first organized lesbian groups were created.

      1995: Psychologist Marina Talero created the first support groups for transgender people.
      During the early 2000s, the Colombian lawyer and LGBT Activist German Perfetti won legal actions for the achievement of important issues such as: social security for same-sex couples, the right to work for gay teachers, protection against unjustified job loss for LGBT–related causes, and the right to legal name change for transgender people.[5]

      2000: The first National LGBT Convention was celebrated in Bogotá.
      2001: Creation of Planeta Paz (the Planet Peace Project) for bisexual visibility.

      2002: May 1. A hand grenade was thrown against Manuel Velandia´s house, in the West Chapinero neighborhood of Bogota. Velandia was at the time running campaign for Chamber of Representatives of Colombia in representation of the Liberal Party and the sexual minorities.[6]

      2007: January 17. Manuel Velandia left the country and headed to San Sebastián, Spain, asking for Right to asylum with the aid of the Spanish Red Cross, The Spanish Commission of help for refugees (CEAR) and the GEHITU (LGBT association of the Basque Country). His case was finally presented to the provincial commissary of police on February, 2007.[7]

      7 February 2007: Colombian Constitutional Court recognizes proprietary equity (inheritance) rights for same-sex couples having lived together for more than 2 years and registered as a union in a public notary, thanks to the efforts of the public interest law group of Universidad de los Andes[8].

      March 2007: The president of the Catholic Bishop council, Pedro Rubiano, together with other ecclesiastic authorities, made press statements against the recognition of same-sex couples by the national government.[9]

      5 October 2007: The Colombian Constitutional Court rules that same-sex couples registered as a couple in a public notary must be granted the same social security (health care) benefits as those given to heterosexual couples.

      12 November 2007: The LGBT community center of Chapinero was closed for a month due to bureaucratic issues and lack of funds[10]

      December 2007: Several transvestites murdered in Bogota’s Santafé neighborhood. Reports of at least one million pesos (about 500 dollars) being paid in exchange for each murder.[11]

      17 April 2008: The Colombian Constitutional Court rules that same-sex couples registered as a couple in a public notary must be granted the same pension benefits as those given to heterosexual couples. This ruling, together with the ruling of 7 February 2007 on property rights (inheritance) and the ruling of 5 October 2007 on social security means Colombian same-sex couples have the same rights as heterosexual couples.

      27 January 2009: the Colombian Constitutional Court makes a general revision of the National Constitution in order to provide equality between same-sex civil unions and heterosexual ones. Also, in order to correct every single article where homosexual people and couple would be under discrimination.

      The lesbian has violated all applicable laws, obviously faces not more fear of persecution at home than in Israel and is free to apply for asylum in Spain, which happens to be on the way from Israel to Colombia.

      Good riddance. Pity that they couldn’t pack some Sudanese with her.

      Reply to Comment
    5. Deporting before appeal is exhausted denies appeal in principle; but it does so outside of substantive jurisprudence, leaving the refugee convention ostenstively intact. Thus the High Court’s prior stand on the convention is sustained yet never implemented.

      This detour around process is racially specific–or, rather, one race is immune from the detour. I have no doubt there were good reasons for the truncation of process in Israel’s early years. Now, however, such truncation, a part of the evolved constitution of the war council of Knesset, judiciary, political and administrative governments, and IDF/security apparatus is used solely for the social goal of racial purity. A judiciary cannot be independent while part of such a council. Minimally, independent courts should demand the refugee appeal play itself it. The outcomes might well be identical. But that judges refuse the appearance of due process suggests, to me, that war council complicity based on overarching racial protection is so fundamental as to be implemented unconsciously. That’s how responsible people get to their posts.

      Reply to Comment
    6. Zephon

      Right of Return for all – unless you’re black, African, or Palestinian.

      Reply to Comment
    7. my email doesnt work,but i have a torture technology in my body and it is telling me to claim asylum so i think i well.I want to be positive.

      Reply to Comment