As for the girl S. (who was in the second grade at the time), the opinion indicates a more difficult situation: "She immediately realizes how overwhelmed she is with fears, 'Someone is down under the bed... A ghost who does that. And she can eat them. her.' If it is possible to think that she has fears that are appropriate for her age or a younger age, she is not misleading, and the fears take on more of an aspect of trying to process traumatic experiences of the reality of her life, the arrest. And so she goes on to tell about dreams that come back - there's someone knocking on the door, soldiers, and then we hid and then they found us and I thought they killed me, and they killed me and I couldn't open my eyes."
The opinion summarizes the children's situation as follows:
"The children of the A, S. and M. family underwent severe and complex trauma when they were arrested more than two years ago, which continues to be part of their lives as they have no status in Israel. M. has managed to organize an internal defensive system that allows him to integrate into the education system and among friends, but the defensive effort reduces his natural developmental ability. S., with reduced initial powers due to her language impairment, is overwhelmed by fears that occupy a large part of her day and night.
The fact that they are stateless, with the constant threat of expulsion and the dismantling of the only structure of the system of life that is familiar to them, poses a danger to their continued proper development."
- I will emphasize that in the case before me, as can be seen from the opinion, we are not only dealing with difficulties caused by moving from one country to another, nor even from a developed country to developing countries. These opinions clearly and unequivocally indicate that the children have suffered and continue to suffer significant damage, both as a result of the arrest and in light of the cloud of deportation that has hung over their heads ever since. Therefore, in addition to the fact that the consideration of the child's best interest is a primary consideration, in this case, from the psychological opinions given by two psychologists, on two different dates, and from the diagnosis of the Ministry of Education committee, it emerges that all the risks discussed by the experts are not potential risks, but have already been realized in part, and may be realized even more strongly if the children are removed from Israel. The professional opinions that were presented to the Authority along the way determined that the damages that have already been caused and that may continue to be caused by the removal of the children in this case are particularly serious.
- Burdens of proof in administrative proceedings
Admittedly, the burden of proving the appellants' arguments that their removal from Israel would cause them significant damage rests first and foremost on the appellants, who should, both in the framework of the proceeding before me, and in the humanitarian request to produce evidence in this regard. However, when they did so, and produced four psychological opinions that relate to the children's condition over time, and a summary protocol within the framework of the Ministry of Education's Characterization and Eligibility Committee, the burden shifts to the Authority. I will elaborate. The court needed the question of the burden of proof in the context of applications submitted to the Authority. Thus, in the case of the High Court of Justice 5493/11 Almihu Bizuyahu v. Minister of the Interior (Nevo, August 6, 2014), the question of who bears the burden of bringing administrative evidence to establish a prima facie entitlement to status by virtue of the Law of Return was discussed. The Honorable Vice-President, later President, Miriam Naor, ruled that an applicant to receive an immigrant visa by virtue of the Law of Return must bring administrative evidence to prove his entitlement in this matter, and when he did so, a presumption of eligibility arose in his favor that the authority must refute (paragraph 23 of its judgment): "The primary burden of bringing sufficient administrative evidence to establish his prima facie eligibility rests, as stated, on the applicant to immigrate to Israel by virtue of the Law of Return [reference to references omitted] However, where the applicant met the initial burden and brought sufficient administrative evidence, a "presumption of entitlement" arose for the applicant. This presumption does not obligate the Ministry of the Interior to accept the request, but when there is no evidence to the contrary, this presumption can crystallize into a right....". The Honorable Justice Naor further ruled that when the applicant lifts this burden, the burden to contradict this presumption shifts to the shoulders of the Ministry of the Interior. Then, she ruled, it was not enough to bring preliminary evidence to the contrary (para. 25 of her judgment): "After the presumption of entitlement has arisen for the applicant, the burden of contradicting this presumption shifts to the shoulders of the Ministry of the Interior. At this stage, it is not enough to bring preliminary evidence to the contrary, but it is necessary to bring real evidence."
- In the appeal of Petition/Administrative Claim 2249/23 Najlaa Tawil v. Minister of the Interior (Nevo, November 4, 2024), this question of Natalim was discussed, in the context of an application for naturalization by a resident of East Jerusalem who had the status of a permanent resident, who had to prove that her current center of life was in Israel and that she intended to settle in Israel. The Honorable Justice Dafna Barak Erez clarified regarding the burdens (paragraph 44 of her judgment) that:
"In conclusion, the appellant raised the initial burden imposed on her to prove that she met the conditions set out in section 5(a) of the law in a manner that establishes a 'presumption of entitlement' to naturalization, while the respondent failed to lay a sufficient evidentiary basis to contradict her claims. Indeed, as the Respondent has stated in his arguments more than once, the burden of proving compliance with the said conditions is on the applicant to become a naturalized citizen. However, once a sufficient basis has been laid for this, in the form of all the references and explanations required (according to the Authority's procedures), an application cannot be rejected on the basis of mere hypotheses, and an active inquiry must be carried out by the Authority in order to verify the matter."