(My emphasis - M.A.C.).
- The content of the duty of fairness varies from case to case and according to the circumstances, and while it is broad, it is vague. The Supreme Court's rulings and the legal literature include a reference to this, for example the words of Prof. Zamir (Yitzhak Zamir, The Administrative Authority, Vol. 2 - The Administrative Procedure, Sha'ar Six, The Administrative Procedure, Chapter 30, Fairness and Efficiency, p. 999 (2011):
"Administrative fairness is an attitude that stems from a proper perception of the public position. What is this perception? The public servant must be aware that as a public trustee, he must, in the performance of his duties, serve the public; that the public is made up of human beings and therefore
the public servant must serve the person; that every person is endowed with the right to dignity, by his very nature, and also according to the law; and therefore the public servant is obligated to fulfill his public role in human dignity... There is no single form of fairness, but many facets that vary according to the circumstances of the case, but it can be said that there is a complex of fairness... and a public servant is supposed to exercise his authority within this compound."
And later on:
"Fairness is expressed mainly in the area of the administrative procedure (i.e., the procedure). In this area, it requires the administrative authority to conduct itself on the way to making the decision in a manner that respects the person...However, fairness can also be expressed in the realm of discretion..... In this sense, fairness is difficult to define, but it is easy to discern. It involves the concept of honesty and contradicts the concept of injustice, it requires consideration and respect, and it rejects arrogance and contempt....".
(My emphasis - M.A.C.).
The Authority, in the case before me, acted in complete contravention of what is described and this obligation.
- The principle of fairness is the foundation and inspiration for the creation of legal rules, whether in legislation or case law. Many rules have been derived from the duty of fairness, both on the procedural level (the right to plead and the duty to hear, the obligation to base decisions on an appropriate factual basis; the duty to allow the individual to review the documents relating to him, the duty to act within a reasonable period of time, and the duty to give reasons), and the rules for exercising discretion (not taking into account extraneous considerations, reasonableness, etc.). These duties, and many others, fulfill the duty of fairness with concrete content, and thus pour content into it.
- Administrative fairness is intended to prevent arbitrariness, protect human rights, foster a relationship of trust between the public administration and the citizen, and improve the administrative process and promote public administration. Administrative fairness is therefore required of every administrative authority, and certainly of the state authorities themselves, towards every person and in all areas of its activity, due to the power disparities between it and those in need of its services, and in light of the critical importance of its decisions regarding access to resources, their use and the enjoyment derived from them (see: Yitzhak Zamir, Administrative Authority, Volume 2 - The Administrative Procedure, Sha'ar Six, The Administrative Procedure, Chapter 30, Fairness and Efficiency, p. 998 (2011) and Dafna Barak Erez, "Loyalty, Trust, and Fairness in Administrative Law," in: Duties of Trust in Israeli Law, 171 (Ruth Plato-Shinar and Yehoshua (Shuki) Segev, eds., 2016). Thus, as a rule, this is certainly the case in the case before me, where those in need of the Authority's services are among the most disadvantaged populations in society, so it is certainly and certainly when the rights at stake are at the core of human rights, including the rights of children.
- In the case before me, the authority acted the opposite of this obligation. In the meantime, for example, she took irrelevant procedures, such as requiring the appellant to report to the Authority's facilities twice a week instead of once every two weeks without any change in circumstances, and was even asked irrelevant questions in her interview, thus also violating the mother's rights. In these actions, the Authority undermined the trust between the Public Administration and those in need of its services. At the very least, the Authority has refrained from making decisions and examining the best interests of the children by appropriate professionals for years, and thus certainly did not improve the administrative process. In the case before me, not only did the Authority not protect human rights, it refrained from discussing the best interests of the children, and thus violated their rights over time, as will be detailed in detail below.
- The Authority breached the duty of fairness in the case before me, both in its general conduct vis-à-vis the appellants, as detailed above, and in addition it breached concrete duties derived from the duty of fairness, such as the duty to base a decision on an appropriate factual basis, the duty to act on equality vis-à-vis those who apply to the Authority, as well as the duty to act within a reasonable period of time. The actual delay in handling the children's case, in violation of this obligation, caused them significant damage and harmed their well-being, in violation of the provisions of the Convention on the Rights of the Child (more on this below).
The Obligation to Base a Decision on an Appropriate Factual Basis
- One of the main duties imposed on an administrative authority when making a decision is to base the decision on an appropriate factual basis, taking into account the circumstances of the matter and the rights involved. In order to establish this factual basis, the Authority must take into account the relevant evidence, especially when it comes to a decision that relates to the core of human rights, such as the decision before me, which deals with children's rights. The burden placed on the authority to base its decisions on a proper factual basis becomes heavier in cases where the administrative decision is liable to violate human rights in general and the core of rights in particular, as in the case before me. In such a case, we are dealing with circumstances that require the administrative authority to present a more solid and convincing evidentiary basis for its decision or actions. Thus, it was held in the case of the High Court of Justice 987/94 Euronet Golden Lines (1992) in Tax Appeal v. Minister of Communications, IsrSC 48 (5) 412, 439 (1994), that: "The degree of reasonableness requires that the weight of the data before the authority be heavier the more complex the administrative decision or the more severe its harm is. A particularly severe violation of a basic right must be based on particularly reliable and convincing data" (ibid., at p. See also: Election Appeal 2/84 Moshe Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225, 250 (1985); High Court of Justice 3379/03 Aviva Mustaki v. State Attorney's Office, IsrSC 58(3) 865, 899 (2004) and Dafna Barak Erez, Administrative Law, Vol. 1, 447-449 (2010)).
- In light of the above, the Appeals Tribunal must examine the factual basis that underpinned the administrative decision, in order to determine whether it was made on the basis of the required factual basis. The role of the appellate court is not to re-examine the factual basis presented by the appellants, but rather its role, in accordance with the rules of administrative law, is to examine whether the judgment of the Appeals Tribunal is based on the factual basis that was before the Authority when it came to making a decision, and whether it was reasonably made. Therefore, even though the court does not put itself in the shoes of the court, nor even in the shoes of the authority, in order to decide the appeal, it is necessary to examine in depth the factual basis that underpinned the authority's decisions.
As will be detailed, the appellants brought a number of expert psychologists' opinions, and even a decision by the Ministry of Education committee, from which the children's difficult situation under the cloud of deportation emerges as well as the significant damage they will cause if they are deported from Israel. The Authority, on the other hand, did not bring an opinion on its behalf, despite the many opportunities given to it to do so. Below I will discuss the opinion submitted by the appellants and the burden of proof regarding the child's best interests.