(My emphases - M.A.C.).
In other words, the initial burden is on the applicant, and to the extent that it is lifted, the authority must conduct an active inquiry and bring concrete evidence to the contrary. The Honorable Justice Ruth Ronen added on this matter (paragraphs 2-3 of her judgment):
"2. In my opinion, the decision in the dispute between the parties in the proceeding before us relates mainly to the question of the burden of proof. Indeed, as the respondent argued, the burden of proving compliance with the conditions of section 5(a) of the Citizenship Law, 5712-1952 (hereinafter: the Law), rests on the applicant for naturalization - i.e., the appellant in the present case. At the same time, as is well known, the burden of proof consists of two: the burden of persuasion and the burden of bringing evidence. The burden of persuasion is the main burden imposed on a litigant, in the framework of which he is required to prove the facts underlying his claims. The burden of bringing evidence is a secondary duty that accompanies the burden of persuasion. The party bearing the burden of persuasion must bring sufficient evidence in order to meet this burden, while the other party must bring evidence that will omit the basis for the evidence brought against it (Civil Appeal 6681/21 Kilker v. Noam, para. 20 [Nevo] (July 12, 2023); Civil Appeal 78/04 HaMagen Insurance Company in Tax Appeal v. Shalom Gershon Moving Ltd., IsrSC 61(3) 18, 36 (2006)).
While the burden of persuasion, as a rule, rests on the same party throughout the proceeding, the burden of bringing evidence may pass from one party to another. Thus, when the party bearing the burden of persuasion has brought sufficient evidence to prove his claim, the burden of bringing the evidence passes to the second party - who is required to bring evidence in order to refute the claim of the first party [references omitted].
- This is also the case with respect to a person who wishes to become a naturalized citizen: although, as stated, the burden of persuasion rests on his shoulders, the burden of bringing evidence can shift to the respondent's shoulders. This is what happens in my opinion when the applicant for naturalization meets all the conditions set out in the respondent's procedures. In such a case, the burden of bringing the evidence shifts to the respondent's shoulders, to explain why, despite the prima facie proof of these conditions set by him in the procedure, he is not willing to grant the request."
(My emphases - M.A.C.).
- and in the changes that are necessary for the matter before me. The appellants were incumbent on the appellants to lift the initial burden and show that the children's best interests require that they remain in Israel. After this initial burden has been lifted, the burden shifts to the authority to show that the opposite is true. Questioning the opinions submitted by the Authority's employees, who have no training in the field of mental health, is insufficient in the face of the professional, up-to-date and cumulative opinions submitted by the appellants. When a person approaches the Authority presents concrete evidence in support of his arguments, as was done in the case before me, at least, on the Authority, in the words of President Naor: "After the presumption of eligibility has been established 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 other words, the burden shifts to the authority to bring real evidence because this is not the case. This is not how the Authority acted in the cases before me. I will elaborate.
The Authority did not bring concrete evidence to the contrary
- The authority did not submit any contradictory opinion, and even refrained from examining the opinion or decision given by another public authority - the Ministry of Education's committee. In this regard, it was held in the High Court of Justice case 6781/96 MK Ehud Olmert v. Attorney General, IsrSC 50 (4), 793, 809 (1996) (hereinafter: the Olmert case):
"There can be no doubt that the principles of proper administration do not tolerate a situation in which the authority speaks two languages. An administrative authority is not a chameleon that changes its skin according to its convenience. The increased duty of fairness imposed on the authority is inconsistent with an inexplicable contradiction."