The applicants were brother and sister. They were born in Kazakhstan in the early 1990s and were ethnic Russian and Orthodox Christians. They left for Israel in 2006 with their parents, and became Israeli citizens, being entitled to do so because at least one of their grandparents was Jewish. They remained there for one year and two months before leaving with their parents and making their way to Ireland, where they claimed asylum. They claimed that they were full conscientious objectors and said that they feared being forced to participate in compulsory military service in Israel once they reached the age of eighteen years.
The Refugee Applications Commissioner rejected the claims and they appealed to the Refugee Appeals Tribunal, which affirmed the recommendation. It found that there was a right to apply for an exemption from military service in Israel from the Minister of Defence, and that the applicants were obliged to exhaust domestic remedies in that regard before claiming asylum. Leave was obtained from the High Court to challenge the Tribunal’s decision on three grounds, the third of which concerned the female applicant only. The grounds were as follows:-
(i) The Tribunal erred in finding, in relation to mandatory military service that there was a right to genuine absolute objection in Israel.
(ii) The Tribunal acted unreasonably in finding that the applicant should have exhausted domestic legal remedies, where country of origin information showed that availing of them might involve the possibility of imprisonment and prolonged legal challenge over the course of several years.
(iii) The Tribunal erred in holding that Israeli law granted a special exemption from military service for female, as opposed to male, conscientious objectors, as the law in question had been struck down by the Israeli Supreme Court.
The court at the post-leave stage upheld the Tribunal’s decision.
In respect of the first ground, it noted that it was clear from the materials before the Tribunal, that the Israeli Minister of Defence had discretion to exempt a person claiming “full” conscientious objection from service in the Israeli Defence Forces, though there was no absolute right to exemption. It therefore held that the Tribunal did not err in stating that there was a “right to genuine absolute objection” in Israel. Viewed in context, the Tribunal was aware of the limitations on the exemption. This included the possibility that the applicants could be drafted and, if they refused to enlist, would be subject to prosecution and punishment.
The court rejected an alternative argument by the Tribunal in relation to the first ground that there was no consensus in refugee law that full conscientious objectors were persons entitled to refugee status. It held that s. 2 of the Refugee Act 1996 was to be interpreted in accordance with the right to freedom of conscience under Article 40.3 of the Constitution and required that international protection should be accorded to a full conscientious objector who has a well-founded fear of persecution on that basis. It considered that caselaw of the European Court of Human Rights supported that conclusion.
Turning to the second ground, the applicants contended that the requirement that they exhaust remedies was unreasonable because country of origin information demonstrated that availing of such remedies might involve the possibility of imprisonment or prolonged legal challenge over the course of several years.
The court pointed out that there was no evidence before the Tribunal to suggest that decisions of the committee established to consider claims for exemption were so compromised or flawed as to be inherently unfair or biased. The evidence suggested that it would have to exercise judicial discretion informed by respect for freedom of conscience, balanced against other matters of public interest and national security when appropriate. It held that the question of prosecution and/or imprisonment only arose following the rejection of an application for an exemption and a failure to present for military service when directed. The process was subject to the rule of law and the exercise of judicial review. It did not necessarily follow that a refusal of an exemption or a subsequent prosecution and short term of imprisonment would, in itself, amount to persecution within the meaning of s. 2 of the Act of 1996, if matters were not taken any further. The repeated prosecution of a person who refused on a number of occasions to present for military service when directed might give rise to an accumulation of numerous terms of imprisonment which, over time, might be regarded as so oppressive as to reach the level of persecution, if it were established that the accused was a full conscientious objector who was refused an exemption and/or alternative civic service by the prosecuting state. However, it held that the applicants’ submissions in that regard were based on the unproven proposition that they would be refused an exemption for which they never applied. Their claims for refugee status were premature. Accordingly, the second ground was not made out.
Finally, the court held that the third ground had not been substantiated either, as the female applicant’s basis for an exemption from military service fell, under current Israeli law, to be dealt with under a provision which applied to males and females alike.
The court accordingly refused the reliefs sought by the applicants and upheld the Tribunal’s decision.