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.

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