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Israel: Jerusalem District Court Decision on Repatriation of South Sudanese

(June 26, 2012) On June 7, 2012, the Jerusalem District Court, sitting as a Court for Administrative Matters, rejected a petition to void a decision of the Minister of Interior, thus upholding the policy to end recognition of “collective protection” from repatriation for all South Sudanese in Israel to any place in South Sudan. The Court held that the petitioners in the case had not proved that the Minister's decision to replace the collective protection policy with an individual assessment of asylum requests, in accordance with specific grounds in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (hereinafter the Refugees Convention), was unreasonable or unproportional and therefore the Minister's decision could not be repealed. (Administrative Petition 53765-03-12 (6/7/12), Association for Assistance for Refugees v. the Minister of Interior [in Hebrew] (hereinafter Petition), Nevo Legal Database [by subscription]; Convention and Protocol Relating to the Status of Refugees, United Nations High Commissioner for Refugees website.)

The petitioners based their claims on legal as well as on factual arguments. Their main legal argument was that the Minister must continue the policy of collective protection of South Sudanese nationals based on the principle of “complimentary protection,” or, as it is sometimes termed in judgments and in comparative law literature, “temporary subsidiary protection.” This principle, the Court determined, was a separate (and according to the petitioners, complimentary) ground to the protection offered by the Refugees Convention. The Court noted that Israel's Supreme Court had recognized this principle in its 1995 decision in the Al Tai case, in which the Court recognized that persons who entered and stayed in Israel unlawfully should not be removed to a place where there is a danger to their life or liberty. (Petition, supra; H.C. 4702/94 Al Tai v. Minister of Interior, 49(3) Piske Din [Decisions of the Supreme Court] 843 (1995).

The Jerusalem District Court further held, and the petitioners agreed, that any references to international, European Union, and other comparative law sources that had been submitted in the case all indicated that the threat of danger to the repatriated person is a precondition of extending complimentary protection. The petitioners also agreed that if the Minister instituted a system of individual reviews of persons subject to repatriation, as he stated that he would, the argument for recognizing the complimentary protection would lose its strength. (Petition, supra.)

Recognizing the Minister's stated commitment to individual reviews of claims, the Court also accepted the claim that “there is no legal difficulty in removal of an [asylum] applicant to his/her country of origin – as long as such removal does not pose a threat to his/her life – even if the removal will be to a different place in that country which is not his place of origin.” (Id.) The Court noted that international refugee law (the principle of “internal flight”), as well as the laws of “complimentary” removal recognize the relevance of consideration of a reasonable safe alternative place for removal to a place other than the original place of residence, where the removed person can face a danger that does not enable his repatriation. (Id.)

Having reviewed the evidence that was submitted in the case, the Court determined that there was not sufficient proof to substantiate a claim that there was a situation of active combat or danger to any Sudanese national, whoever he was, throughout the whole or even most of the territory of the country of South Sudan. (Id.)

While rejecting the petition to void the Minister's decision to replace the policy of collective protection of South Sudanese nationals in Israel with individual assessments, the Court stated that it was not making any determination on the proper scope of complimentary protection or on whether it should apply to situations when removal may harm a person's “socio-economic conditions, shortage of food and appropriate medical treatment.” (Id.) In an obiter dictum, however, the Court stated that the precedent that was set by the Supreme Court in the Al Tai case referred exclusively to non-refoulement based on danger to life and liberty. (Id.)