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Israeli court challenges UNHCR’s evidence withholding policy, orders government to disclose case assessment

June 13, 2008

A Jerusalem judge on 1 June ordered the Israeli Ministry of Interior to disclose to an Ethiopian asylum-seeker UNHCR’s assessment  of his refugee application, effectively challenging a UN policy that withholds evidence and assessments from applicants in refugee status determination cases.

Contrary to its own advice to governments, UNHCR withholds from asylum-seekers transcripts of their own interviews, assessment of their cases, and other evidence considered in refugee status determination (RSD). UNHCR also does not require its offices to give rejected applicants detailed reasons for decision, although they prepare detained internal case assessments. UN agencies cannot normally be challenged in domestic courts, so UNHCR’s evidence withholding policy is not subject to any direct judicial challenge in most of the 80 countries where UNHCR conducts RSD.

But Israel has a mixed RSD system where UNHCR assesses applications for asylum, and then makes recommendations to the Ministry of Interior. A rejected Ethiopian asylum-seeker challenged the Ministry’s decision in his case, and demanded access to UNHCR’s assessment, which the Ministry argued was internal.

Judge Musia Arad, who serves as president of the Jerusalem District Court, ruled that Israel’s Freedom of Information Law required disclosure, ruling: “The petitioner has a real interest in revealing the position of UNHCR. Without knowing the reasons for UNHCR’s recommendations, the petitioner can’t review those reasons and, if the need arises, answer them and prevent mistakes.”

The judgment, available in Hebrew here, illustrates that UN immunity does not necessarily prevent asylum-seekers from using courts to challenge governments that rely on UNHCR. Judge Arad wrote that “in this case the recommendations of UNHCR were adopted by the respondent [Israeli government], so the reasons for the rejection of the petitioner’s application are actually UNHCR’s reasons.” This meant that UNHCR’s recommendations to the state were effectively covered by Israel’s rules on dislosure.

Similarly, the Hong Kong Court of Final Appeal ruled in 2004 that the Government of Hong Kong would violate the Convention against Torture if it relied on “UNHCR’s unexplained rejection of refugee status, with the Secretary being in a state of ignorance of the reasons for such rejection.” (Secretary for Security v. Sakthevel Prabakar, Final Appeal No. 16 of 2003 (Civil) at ¶ 48 (8 June 2004)).

In 2006, the European Court of Human Rights criticized UNHCR’s rejection of an Iranian couple’s refugee application in a case against Turkey, where the Turkish Government had relied on UNHCR. In that case also UNHCR based its rejection based on evidence that it refused to disclose.

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