And now to the substance of things.
The Authority's Duty of Fairness
The Authority's Conduct
- I have detailed the conduct of the authority above in detail, since it appears from this detail that the authority did not conduct itself as expected of an administrative authority. The Authority repeatedly asked for extensions for which it did nothing; undertook before the Appeals Tribunal to examine the best interests of the children in the framework of the humanitarian request, and undertook in this Court that it would do so and has not done so to date; changed the appellant's appearance dates without any reason, and repeatedly violated the court's decisions. Three of the Authority's arguments are particularly outrageous in this context. The first argument relates to the Authority's alleged explanation regarding the failure to interview the children. The Authority argues in its summaries on this matter that (paragraph 8 of the summaries): "An attempt to hold a meeting of a social worker on behalf of the respondent with the appellants, for the purpose of formulating an opinion on their matter - an attempt that was unsuccessful in light of the applications submitted on behalf of the appellants and decisions made by the honorable court that stopped the respondent's actions." Thus, no less, the Authority concludes four years in which it was given all possible opportunities, both to formulate a procedure for examining the best interests of the children, and to examine their best interests in this particular case by a social worker on her behalf. years in which the Authority did nothing in this regard, in blatant and repeated violation of the court's decisions. The Authority is trying to impose, unjustly, the responsibility in this matter on the appellants and the applications they submitted, and on the decisions of the court that were given in their wake. The Authority does not mention what should be emphasized, that the requests of the appellants' counsel related to the fact that it was the Authority that repeatedly violated the court's decisions and tried to conduct interviews in a flash, and in complete contradiction to the manner in which the interview was conducted as determined by the court. Therefore, this argument is rejected outright.
- The second argument relates to the question of why the PA refrained from deciding on the humanitarian request. The Authority further claims that it has not discussed the humanitarian request in light of the court's decisions. However, the Authority refrains from stating that it undertook to discuss the application after the best interests of the child were examined by professional bodies, and did not do so for years. The Authority does not note that it was only after a decision was made to submit summaries in this case that it asked the court to allow it to rule on the humanitarian request, even after it had not done so for years. Therefore, even this argument should not have been argued.
- The third argument relates to the Authority's claim regarding the redundancy of the proceeding. The Authority argued in its summaries that the proceeding is "not topical" as it put it, since the restraining orders are not enforced at this time. These circumstances, in which the restraining orders are not implemented, and the Authority's agreement to reconsider the humanitarian request, are also circumstances that have been known for years. The appellants were released from custody on September 19, 2019, and the Authority's agreement to reconsider the humanitarian request was given the force of a judgment in the Appeals Tribunal's decision of January 24, 2021. Despite this, as stated above, the Authority did not act all those years to reach a decision on the humanitarian request, and filed the request to delete the petition on these grounds on March 6, 2024, instead of submitting summaries on its behalf (after a previous request filed in late 2023 was rejected).
- I have given here only three examples, however, the details of the above proceedings, including the court's decisions, inter alia with regard to the Authority's requirement that the Appellant appear at the Authority's facilities once every two weeks, and the holding of an intrusive interview in this context, speak for themselves. The Authority's argument that the appeals have become redundant and that the appellants must continue to deal with the Authority for the purpose of examining the humanitarian request, after the Authority has refrained from doing so for about three years, constitutes a blatant contempt, not to mention a blatant violation of the Court's decisions. It appears that the Authority's conduct and its request to order the dismissal of the appeal due to its redundancy, in circumstances that were known as aforesaid, were intended to obviate the need to provide a principled answer to the question of how the Authority should examine the best interests of minors whose case comes before it (the Authority did so as well in the case of Administrative Appeal Leave Request 185/24 Population and Immigration Authority v. Ibrahim Kunda (Nevo, March 11, 2024, hereinafter: the Kunda case)), where the Authority agreed to examine the best interests of the minor in accordance with the procedure of the Humanitarian Committee, and in light of this, the Supreme Court ruled that there is no longer a need to decide the fundamental questions of the manner in which the best interests of the child are examined (more on this below).
The Authority's Duty of Fairness - General
- In many judgments in the past, I have discussed the duty of fairness of the administrative authority and the judicial review of the discretion of the Minister of the Interior and the Authority in this context (see, for example: Administrative Appeal (Administrative Appeals, Tel Aviv) 26443-07-21 David Dahan and Silvia Skorkhadova v. Population and Immigration Authority, Ministry of the Interior (Nevo 04.05.22); Administrative Appeal (Administrative Tel Aviv) 22493-02-20 Rashida Massimi v. Population and Immigration Authority - Ministry of Interior (Nevo, September 26, 2021); Administrative Appeal (Tel Aviv Administrative) 42495-02-22 Ofir Bakel v. Population and Immigration Authority, Ministry of Interior (Nevo, April 23, 2023) and Administrative Appeal (Tel Aviv Administrative) 15155-11-23 Sabina Ihushvili v. Population and Immigration Authority (Nevo, August 19, 2024)). I will emphasize here the main points.
- In a long series of rulings, the Supreme Court has addressed the duty of administrative fairness and its conceptual basis. For example, in the case of the High Court of Justice 685/78 Omri Mahmoud v. Minister of Education and Culture, IsrSC 33 (1) 767, 777 (1979), it was held that: "The principles of fairness that bind the administration are one of the main instruments developed by this court for safeguarding civil rights." It was further held, in the case of the High Court of Justice 164/97 Contram in the Tax Appeal v. Ministry of Finance, Customs and VAT Division, IsrSC 52(1) 289, 347 (1998, hereinafter: the Contram case) that: "The duty of general fairness is intended to ensure that the government does not realize its own 'self-interest,' but rather realizes the interest of the public. The duty of fairness does not come to establish 'rules of the game' between 'opponents'. It comes to establish the rules of behavior of 'friends'. It was further held: "The duty of fairness is intended to serve - alongside other means - as a brake on power and a restraint on power" (ibid., at p. 368).
In addition, as the Honorable Judge, later Deputy President Elyakim Rubinstein, wrote in Other Municipality Applications 3036/09 Sonol Canaan in Tax Appeal v. Carmel Municipality (Nevo, December 21, 2014), at p. 16: