P.S. was born what was then the USSR in 1974. In 1992 he joined the large number of Jews from the former Soviet Union who 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 witnessed the killing of a civilian. When he was called up 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. and came to Ireland to claim asylum. The Refugee Applications Commissioner recommended that he not be declared a refugee because his 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 the punishment he received for his refusal to serve was not persecution for the purposes of the Convention. The couple waived their right to oral appeal before the Refugee Appeals Tribunal because the facts of their cases were not disputed by the Commissioner. The Commissioner’s recommendation was affirmed by the Refugee Appeals Tribunal, which relied on one of its own previous decisions, in which the same Tribunal member had traversed in detail the Israel policy with respect conscientious objectors. This decision was not furnished to the Applicants in advance of the determination of their appeals. The High Court granted leave to challenge the decisions of the RAT with respect to their appeals by way of judicial review.
The High Court, in its judgment on the substantive application for judicial review, found that the previous RAT decision dealing with the treatment of conscientious objectors in Israel upon which the RAT relied in rejecting the Applicants’ appeals 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. The High Court concluded that there had been a want of fair procedures in the determination of the appeals and quashed the decisions of the RAT.
When the Applicants’ appeals were reheard, the RAT recommended that they be declared refugees.