Administrative Appeal (Tel Aviv) 41621-09-19 A.A. v. Population and Immigration Authority, Ministry of the Interior - part 2

The question at the center of the appeal before me is whether appellants 1 and 2, children, should be removed from Israel, inter alia, after giving weight to the principle of the best interests of the child.  Today the son is 14 years old and the daughter is 9 years old.  Children who were born in Israel, grew up and were educated in educational institutions in Israel, and never left Israel.

Background and facts on the matter

1. The appellants are a citizen of Nepal and her two minor children. The son, M., born on 27 October 2010, is now 14, and the daughter, S., was born on 23 April 2015, is now 9 years old.  At the time of their arrest, the children were 9 and 4 years old (hereinafter: together the appellants and separately the appellant and the children, or , the son and S., the daughter, respectively).  The appellant entered Israel on a long-term care visa that was valid until 2011, and from then until she was arrested in 2019, she stayed in Israel illegally.  The children's father, an Indian citizen, lives in Israel separately from their mother and is in contact with them.  The father is not a candidate for deportation.  The children, who have Indian citizenship as their parents, were born in Israel and never left it, study in the Israeli education system and speak only Hebrew.
2. The appellants were arrested on August 29, 2019, more than five years ago, by the inspectors of the Population and Immigration Authority (hereinafter: the Authority), for being illegally owned by the Appellant in Israel, and custody orders and restraining orders were issued against them under the Entry into Israel Law, 5712-1952 (hereinafter: the Entry into Israel Law). They were released from custody on September 20, 2019, with the consent of the authority's attorney, after the required guarantees were deposited, and a temporary order was issued to prevent their removal until the appeal is decided.  Some of the conditions of the release were the deposit of a significant bail as well as the obligation of the mother, the appellant, to report once every two weeks to the authority's facility in Beit Dagan, in order to extend the validity of the temporary residence permit in which she holds.

I will emphasize that from the first moment, the argument of the appellants' counsel in all the proceedings that took place was that it was in the best interest of the children to remain in Israel, and that this question should be examined by appropriate professionals.  In the judgment of the Appeals Tribunal, the Tribunal noted (p.  2 of its judgment of September 16, 2019, p.  5 of the appendices to the appeal) that: "One of the main arguments of the appellant [the appellant in the court, the appellant before me] revolves around the application of the child's best interests." Already in the Appeals Court, the appellants requested that an interview be conducted in order to determine the best interests of the children and that a psychological evaluation be conducted for M., who was already suffering from difficulties at the time.  The court rejected this request due to a delay between the day of the arrest, 29 August 2019, and the hearing in their case, which took place on 9 September 2019.  (pp.  6-7 of the judgment).

3. On September 5, 2019, prior to their release from custody, the appellants' counsel filed a motion on their behalf to grant status to the appellants on humanitarian grounds. The humanitarian request also revolves primarily around the children's well-being, and the severe harm they will suffer from being displaced from the only environment they know, in which they were born and lived.  In the humanitarian application, the appellants emphasized the real developmental and emotional difficulties that the children face as a result of their deportation from Israel.  Counsel for the appellants also insisted in the application that the children's parents do not hold the same citizenship, and do not live together, so that their expulsion from Israel will necessarily lead to their separation from one of their parents.  He also stressed that since the children are citizens of the State of India, and the mother is a citizen of the State of Nepal, the mother and her children cannot be deported either to Nepal or to India.  In support of the humanitarian request, the opinion of a clinical psychologist (Enrique Mindlin) was attached, according to which the two suffer from anxiety, and M.  is required to continue psychological treatment (a copy of the humanitarian request was attached as part of the appellants' update notice of 22 October 2020).
4. On September 18, 2019, the appeal before me was filed against the judgment of the Appeals Tribunal that ordered the removal of the children from Israel. Alongside the appeal, a request for temporary relief was filed to prevent the removal and release of the children and their mother from custody.  In the appeal and in this application, too, the main argument relates to the best interests of the children.  On September 19, 2019, the Authority announced that it was willing to release them from custody in exchange for guarantees.  The Authority is also willing not to expel them until the appeal is heard [the Authority's notice refers to the petition], subject to the fact that an urgent hearing is scheduled.  The guarantees, which were collected from family members and friends, were deposited and the appellants were released (see the statement of the appellants' counsel of September 20, 2019).  As a result, and in light of the Authority's announcement, a decision was issued (the Honorable Judge Kobi Vardi of September 22, 2019), granting the appellants temporary relief according to which they would not be deported from Israel until a decision was made on the appeal.
5. The appeal was set for a hearing before the Honorable Judge Y. Stupman on January 21, 2020.  It was rejected following agreed motions relating to the date of the hearing to March 15, 2020.  Prior to the hearing, on February 9, 2020, counsel for the appellants asked the court to instruct the Authority to hold a new hearing for the appellants, which would be in accordance with the guidelines issued by the Ministry of Justice regarding the manner in which the hearing should be held for families including minors.  Counsel for the appellants further requested that the restraining order be revoked, and that a hearing be held on this matter after the hearing.  Counsel for the appellants noted that if his request is granted, he is willing to delete the proceeding.  In February 2020, five years ago, counsel for the appellants requested that the authority hold a hearing regarding the best interests of the children, and it would have been right to delete the appeal if the authority had acted in this way.
6. On 25 February 2020, the Bureau's director made a decision to reject the humanitarian request out of hand. The proceedings regarding the humanitarian request were conducted in parallel with the proceedings before me, and at the end of the proceedings the appeal was dismissed, with the authority agreeing to examine the best interests of the children.  The proceedings regarding the humanitarian request will also be detailed below.  This is in light of the fact that in both proceedings the Authority was required to examine the best interests of the children, and therefore it is not always possible to distinguish between its actions in this matter in the proceeding before me, and its actions in the proceeding in the humanitarian application.  However, for the sake of clarity, when it is clear which proceeding is involved, I will note the relevant proceeding in describing the sequence of events.
7. In the humanitarian process, as noted, the PA rejected the humanitarian request without interviewing the children in order to determine their well-being. The decision was served on the appellants' counsel on March 15, 2020 (Appendix 1 to the appeal).  In the decision, it was determined that the application was rejected because the appellant had taken the law into her own hands and remained in Israel unlawfully, with no reference to the children's best interests (a copy of the decision was attached as part of the appellants' update notice dated October 22, 2020).
8. In the proceeding before me, on March 1, 2020, an agreed motion was filed to postpone the date of the hearing that was set before the Honorable Justice Stupman. The Authority's counsel who filed the application explained it as follows: "The respondents need an additional stay in order to respond to the appellants' request for instructions regarding the holding of an additional hearing for the appellants.  This stay is required in order to conduct additional tests and coordinate with a number of other parties." The hearing was adjourned to June 2, 2020, and the Honorable Justice Stupman instructed the Authority to submit a response to the appeal by May 15, 2020.
9. On March 15, 2020, the Authority submitted its response regarding the holding of such a hearing. The Authority responded that a social worker met with the minors during September, while they were still in detention, and was impressed by their situation.  According to the Authority, the social worker's opinion was not brought before the court because the minors were released from custody.  In light of the above, the Authority suggested in its response that: "The social worker will meet once again with the children and prepare a supplementary and up-to-date opinion on their matter.  This opinion will be brought to the attention of the Border Control Officer, who will consider the element of the child's best interest, while referring, inter alia, to the original and supplementary opinion of the social worker." However, the authority's counsel noted that since the children were 4 and 9 years old at the time, they were not required to have a hearing, which is required by the same guidelines only from the age of 12.
10. The appellants objected to the social worker's opinion, which was given while they were in detention, to be brought before the supervisor again, because, according to them, this opinion did not relate to the best interests of the children. Therefore, the appellants' counsel requested that a new hearing be held, and according to the instructions, the authority must take the best interests of the minors as a central consideration (their response of March 25, 2020).  In their response, the appellants insisted that according to the guidelines (which have since been partially incorporated into the Authority's procedures - as will be detailed below), the best interests of the child and his will should be taken "as central considerations", and that: "the best interests of the child must be examined and weighed even in the case of children under the age of 12", as the guidelines put it (para.  7 of the response).  They also argued that the minors have the right to be represented before the Director-General.  Counsel for the appellants noted that if the court decides that a hearing should indeed be held, the opinion of a social worker should be allowed as part of the factual basis, but not beyond that.  The court ruled that the hearing on this question will take place on the date of the hearing before it.
11. On May 18, 2020, the Authority requested that the date of the hearing be postponed due to the fact that during the COVID-19 pandemic, the Authority operated in a limited manner, and interviews were conducted only in exceptional cases, and therefore it would not have been able to hold a meeting with a social worker for the minors as the Authority itself had suggested. Counsel for the appellants objected to this in light of the fact that a hearing on the matter had not yet been held.  However, he added that: "Insofar as the Authority is interested in canceling the decision of the Border Control Commissioner in the case of the appellants, and to hold a new hearing for them, in which a new social opinion will also be presented on behalf of the Authority, the appellants agree to this, and this will make the proceedings in the case redundant.  However, to the extent that the authority wishes to circumvent the court's decision on the pending application on the grounds of a request to extend it, the appellants object to this." Subsequently, the hearing was adjourned to July 19, 2020.  The Honorable Justice Stoffman, in her decision of May 19, 2020, instructed the Authority to consider the proposal of counsel for the appellants.
12. In the humanitarian proceeding, on May 31, 2020, the appellant came with an intern from the Office of the Appellants' Attorney to the Authority's office in Herzliya, in order to file an internal appeal against the decision of the Bureau's director, who rejected the humanitarian request out of hand. According to counsel for the appellants, the director of the bureau rejected the application out of hand, in violation of the procedures.  On June 1, 2020, counsel for the appellants filed a motion that the court (in this proceeding) instruct the Authority to allow the counsel for the appellants to file an internal appeal.  In its response (dated June 7, 2020), the Authority claimed that the appeal was filed late, but in light of the restrictions that occurred during the COVID-19 period, it was appropriate to accept the internal appeal.  In light of this, and despite the fact that the appellants did not accept the Authority's position (response of June 14, 2020), the Authority's hatred of absorbing the internal appeal, the application was deleted.
13. The internal appeal claimed that the decision on the humanitarian request was made unlawfully, without examining the best interests of the children, and that the internal appeal be transferred to the Humanitarian Affairs Committee for consideration on its merits. Attached to the internal appeal was an up-to-date psychological opinion, which was given by an educational clinical psychologist, Dr.  Daniella Cohen.  The psychological opinion states that the trauma of incarceration and the horror of deportation led the child M.  to a feeling of loss of control and that he suffers from anxiety.  She also expressed her opinion that the experience of imprisonment also harmed the developmental continuum of the girl S.  (a copy of the opinion was attached to the appellants' notice of update dated October 22, 2020).
14. In the proceeding before me, on June 28, 2020, due to a change in the court's working procedures, the hearing was postponed, and at this stage the case was transferred to me for a hearing. A hearing on the appeal is set for October 29, 2020.
15. And again in the humanitarian proceeding, on 18 August 2020, in order for the Authority to have the full factual basis required to make a decision on the internal appeal in the humanitarian application, the appellants submitted an updated notice, with a request to conduct an interview. The appellants argued that it was important to have the updated notice, which includes the opinions of professionals, which corroborate the fear of severe harm to the children if they are deported from Israel.  Attached to the announcement was a decision of the Ministry of Education's Eligibility and Characterization Committee (hereinafter: the Ministry of Education Committee), which determined, after conducting a professional diagnosis of the girl, that the girl, S., was entitled to special education services, and that she suffers from anxiety, insecurity, developmental delay and behavioral disorder, all of which have been exacerbated by her incarceration.  In light of this, the committee decided to place them in a kindergarten for developmentally delayed people because it needs: "a broad and intensive support package" and emotional therapy for trauma.  The appellants argued that this is part of the factual basis that the Humanitarian Committee must consider.  This is especially the case when it comes to a professional statutory committee of the state itself (copies of the documents were attached to the update notice of October 20, 2020).  The internal appeal was also accompanied by an up-to-date supplementary opinion by the psychologist Enrique Medelin, who is accompanying the children, who gave an opinion on their matter at the time.  According to what was stated in his supplementary opinion, the children's condition has worsened since their incarceration and they suffer from anxiety and need a permanent and safe support.
16. On August 24, 2020, the Authority's decision rejecting the internal appeal was made. The decision did not refer to the opinion and the documents that the appellants sought to attach.  In light of this, on September 23, 2020, the appellants filed an appeal against the Authority's decision (Appendix A to the appellants' notice of update of October 22, 2020).  In the appeal, as in all their previous motions, the appellants emphasized the best interests of the children as a central consideration.  Counsel for the appellants insisted that the head of the desk did not refer to the latest opinion they submitted, nor to the decision of the Ministry of Education committee.  In addition, the appellants' counsel attached additional documents and affidavits to the appeal, including an affidavit of the children's father, who is in contact with them in Israel.  They also clarified that the children had been issued Indian passports like their father's, and that they had no status in Nepal.  This is because since the appellant and the father of her children separated upon their birth, she has no status in India; On the other hand, her request to the Nepalese embassy to receive Nepalese passports for the children was denied.  The appellants also noted the children's connection with the Janah family, which has become a kind of adoptive family for the appellants (although this is of course not a formal adoption, I will refer to them below as the adoptive family).
17. And in the proceeding before me, on October 22, 2020, an update notice was submitted on behalf of the appellants in the framework of the appeal, in which they discussed the sequence of events up to that stage, including in the proceedings in the humanitarian application. The appellants insisted on the arbitrary decision, as they put it, of the Authority, which was made in the framework of the humanitarian proceeding, and insisted that even though two years had passed since their release from detention, the best interests of the children had not been examined by the Authority in any proceeding.  On October 27, 2020, two days before the date set for the hearing before me, a request was filed on behalf of the Authority to postpone the date of the hearing "for the purpose of exhausting proceedings in this proceeding".  The application states that on March 12, 2020, the Authority proposed that a social worker on its behalf meet with the children, and that in light of the appellants' objections, it was determined at the time by the Honorable Justice Stupman that the application would be heard in a hearing before her.  Therefore, the Authority requested this, since a hearing has not yet taken place, and since the social worker did not meet with the children due to the coronavirus, there is no point in holding a hearing on the appeal.  The Authority argued that: "The last opinion on behalf of the social worker was given on September 18, 2019, and it is very important that the court hear the parties based on an up-to-date factual basis, and therefore the court is requested to postpone the hearing by 45 days in order to prepare an up-to-date opinion."
18. Counsel for the appellants objected to the request, arguing that the authority was trying to circumvent the court's decision, which is supposed to discuss the exact question of how the best interests of the children should be examined. Counsel for the appellants emphasized that the hearing held at the time for the appellants in the facility where they were held in custody, including the opinion of the social worker that was given in the framework of it, is contrary to the law, and should not be relied upon in any way.  Counsel for the appellants also referred to the judgment of the Supreme Court inR.  8707/19 Tina Lopez v.  Population and Immigration Authority, paragraph 36 of the judgment of the Honorable Justice, later Acting President, Azi Fogelman (Nevo, October 15, 2020, hereinafter: the Lopez case), which was given shortly before the filing of the motion for postponement by the Authority.  In the Lopez case, the Authority's argument was rejected, in similar circumstances, that omissions that occurred in the hearing can be corrected by submitting additional materials at a later stage of the decision.  On the same day, I rejected the request to postpone the date of the hearing, and ruled that as the Honorable Justice Stupman had determined in her decision, the matter of the opinion of a social worker on behalf of the Authority would also be discussed in the framework of the hearing of the appeal before me.  I also noted that on the merits of the matter: "In light of the appellants' objection and the Supreme Court's ruling [in the Lopez case], there is no reason to postpone the hearing of the reasons raised by the authority."
19. On October 29, 2020, the hearing of the appeal was held on its merits. At the beginning of the hearing, I recommended to the Authority: "In light of the children's situation, as it arises, inter alia, from the Eligibility and Characterization Committee of the Ministry of Education and the psychological opinions, as well as in light of Ram Lopez, that a new hearing be held for the appellants, in accordance with the law." After the break, the authority's counsel announced that the authority accepted the court's recommendation to summon the appellants to a new hearing, at the end of which a decision would be rendered.  At the end of the hearing, it was determined, with the consent of the Authority, that a new hearing would be held for the appellants regarding deportation from Israel, after which a detailed decision would be made, which would include reference to all the opinions and all the arguments of the appellants.  It was also determined that the appellants would be entitled to be represented at the hearing and submit up-to-date documents.  With regard to the opinion of a social worker on behalf of the Authority, it was determined that if the Authority is interested in doing so, it will coordinate, through the appellants' counsel, a meeting for the children with a social worker or other caregiver.  The decision also explicitly stipulated that notice of the hearing would be given to the appellants' attorney, and not to the appellant, at least two weeks before the date of the hearing.  This is the Authority's first commitment to re-examine the best interests of the children.
20. In the humanitarian proceeding - in the request to delete the appeal, which was filed by the Authority on January 21, 2021, more than three months after the appeal was filed, the Authority's counsel clarified that the documents attached to the internal appeal against the rejection of the humanitarian request - an up-to-date psychological opinion and the decision of the Ministry of Education Committee - even though they were submitted on August 18, 2020, prior to the decision in the internal appeal, were not before the head of the desk when she gave her decision on August 24, 2020. The Authority states as follows in its notice to the Tribunal (paragraphs 7-8 of its notice):

"After receiving all the documents in the file, the respondent [the Authority - M.A.G.] learned that the documents submitted by the appellants to the Bureau on August 18, 2020, concerning a supplementary opinion on behalf of a psychologist as well as a decision regarding the appellant's entitlement to special educational services - were not forwarded to the head of the desk prior to the decision was made, and therefore no reference was given to her.