The High Court has refused judicial-review applications by a brother and sister who challenged decisions rejecting their claims for refugee status over conscientious objection to Israeli military service.
In a judgment delivered on 29 July 2014, Mr Justice McDermott considered whether to quash Refugee Appeals Tribunal decisions made on 3 October 2008. The tribunal had accepted that both applicants had a genuine and absolute objection to military service, but found they had not tried to obtain exemptions in Israel before leaving.
The siblings argued that Israel’s exemption process could expose objectors to imprisonment and prolonged legal challenges. They feared that, if required to serve, they would have to kill or injure others, and that refusing service could lead to prosecution and imprisonment. The court noted that neither had applied for an exemption while in Israel.
The judge found that Israeli law allowed a full conscientious objector to apply for an exemption, but did not guarantee one. The decision rested with the defence minister, who had to balance conscience against public interest and national security. If an exemption were refused and an applicant then refused military service, prosecution and imprisonment could follow. The court also noted that the evidence before the tribunal did not establish that the applicants would be denied exemptions.
The judgment held that repeated prosecution and imprisonment could, in some circumstances, support a claim of a well-founded fear of persecution. But the siblings’ claims were premature because they had not first sought the available exemption. The judge was not satisfied that the tribunal had acted unreasonably in requiring them to pursue that remedy.
The court also addressed a separate challenge by the sister to the tribunal’s reliance on a provision concerning exemptions for women. It said that, even if that provision did not apply, her application could be considered under the same legal route as her brother’s. The error did not justify quashing the decision.
The court refused both applications. It did not decide whether the siblings would qualify for exemptions or whether either would face persecution after applying.