Ireland - High Court, 11 May 2010, S and Another v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform [2010] IEHC 177

Country of Decision:
Country of Applicant:
Date of Decision:
11-05-2010
Citation:
[2010] IEHC 177
Additional Citation:
2007 No.1410 J.R.
Court Name:
High Court (Cooke J.)
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Headnote: 

This concerned a claim of persecution as conscientious objector and the use of previous decisions. The first applicant claimed that he faced persecution in Israel because he was a conscientious objector. The Appeals Tribunal Member found that he was only a ‘partial’ objector and referred to a previous decision of his own in which he had entered into a detailed analysis the situation for conscientious objectors in Israel. This previous decision was not made available to the applicants or the legal issues raised were not flagged with the applicants’ legal advisors. The Court found that this previous decision was of such substance, importance and materiality that it ought to have been put to the legal representatives of the applicants for comment before the appeals were determined.

Facts: 

The first applicant was born in the USSR in 1974. In 1992, he emigrated to Israel. At the age of 18, he was conscripted into the Israeli Defence Forces for national service. He was called up every year for reserve training. In 2005, he served in the Occupied Palestinian Territories where he claimed he witnessed the killing of a civilian. When he was called up again in 2006, he refused to serve. He was prosecuted and given a suspended sentence by an Israeli court martial. He left Israel in October 2006 with his wife, L.S. (the second applicant) and came to Ireland to claim asylum.

The Refugee Applications Commissioner refused the refugee applications at first instance on the basis that the first applicant’s fear of returning to Israel and being obliged to take up military service was based on his combat experience and not a reason contemplated by the Geneva Convention on the Status of Refugees, 1951 and on the basis that the punishment the first applicant received for his refusal to serve was not persecution for the purposes of the Convention.

The applicants opted not to have an oral appeal hearing.

The Commissioner’s recommendation was affirmed by the Refugee Appeals Tribunal. In the decision, the Tribunal Member took the approach that the first applicant was only a ‘partial’ conscientious objector because he did not apply for an exemption from military service and/or that he would not face a serious punishment for refusing to do his military service because he would be protected by the Israeli Supreme Court. The Tribunal Member referred to one of his own previous decisions in which he had traversed in detail the Israeli policy with respect to ‘partial’ conscientious objectors. Although it dealt with a number of complex legal issues, and made a number of claims about then protection human rights in Israel, this previous decision was not furnished to the applicants in advance of the determination of their appeals. 

Decision & Reasoning: 

The appeal decisions were quashed by the High Court on the basis of a lack of fair procedures. The Court (Cooke J.) found:

A) The entitlement to answer a case made may involve an obligation to alert legal advisors to “legal issues”. This obligation does not impose upon the Tribunal an obligation to consult legal advisors in advance on all findings of law proposed to be made. It only arises where the Tribunal Member proposes to make a finding upon a new legal issue which will, in effect, come as a surprise to the appellant’s advisors and in respect of which counter arguments or submissions might have been made which, if accepted, would have altered the outcome of the appeal.

B) It follows that the obligation may be somewhat greater where no oral hearing takes place at which the legal issue might have been canvassed and discussed.

C) The excursion into the jurisprudence of the Israeli courts in the previous decision was applied for the purpose of demonstrating that remedies would be available to a conscientious objector or a soldier suffering mental trauma in Israel through military procedures and the legal system. It was being employed, therefore, to supply a factual basis for the resulting conclusion in relation to the conditions prevailing for such persons in the country of origin.

D) The previous previous decision in this case was, therefore, of such substance, importance and materiality that it ought to have been put to the legal representatives of the applicants for comment before the appeals were determined.

Outcome: 

The appeal decision was quashed.

Subsequent Proceedings : 

The subsequent appeals were successful and the applicants were granted refugee status.

Observations/Comments: 

The Court appeared to be sceptical about the Tribunal Member’s analysis of the legal issues surrounding the treatment of conscious objectors in Israel. While not specifically stating that the Tribunal Member was wrong in law, the Court certainly indicated that it would have expected the applicants’ legal advisors to contest many of the findings in the previous decision relied upon by the Tribunal Member.

Case Law Cited: 

Ireland - Re: Haughey (1971) I.R. 217

Ireland - High Court, 10 May 2005, V.I. v. Minister for Justice Equality and Law Reform [2005] IEHC 150

UK - Krotov v. Secretary of State for the Home Department [2004] 1 W.L.R. 1825

UK - Davidov v. Secretary of State for the Home Department [2005] CSIH 51