The Remedy
- The remedy that the appellants are seeking today is to give them an A/5 visa until the youngest daughter S. reaches the age of 18, so that she can stay with her mother and brother. When the youngest daughter reaches the age of 18. The Authority, on the other hand, argues that the court does not have the authority to grant the appellants this relief, for two reasons. The first reason is that since this is a remedy that was not originally requested in the appeal, and therefore the court does not have the authority to grant this remedy. The second reason is that this is a decision (in the humanitarian request) that is under the authority of the Authority, and the court is not authorized to step into the Authority's shoes and make a decision in its place. Therefore, the Authority argues that the matter should be returned to the Authority for a decision on the humanitarian request. The Authority's arguments should not be accepted.
- As for the remedies requested in the appeal when it was filed , it should be reiterated that the appeal was filed urgently, when the appellants had been in detention for about three weeks and were candidates for deportation (when they were even scheduled for a flight). In the appeal, which was filed as an urgent appeal, the court was asked to order the prohibition of deporting the appellants, their release from custody, and the examination of the child M., who was 9 years old at the time, by a psychologist. The appeal was filed on September 18, 2019, against a judgment of the Appeals Tribunal that morning, when the appellants were arrested on August 29, 2019. In the framework of the appeal, counsel for the appellants noted that in its response before the Appeals Tribunal, the Authority admitted that it had arranged a flight for the appellants, even though the appellants had announced their intention to file an appeal against the decision of the Border Control Commissioner. The entire appeal revolves around the issue of the best interests of the children, which was not examined at the time by the Authority.
- In addition, the humanitarian request was filed at the same time as the appeal, for the same reasons that it is in the children's best interest to receive status alongside their mother in Israel. The Appeals Tribunal that is the subject of this appeal was updated regarding the filing of the humanitarian application, but accepted the Authority's argument and ruled that the very filing of the humanitarian request does not prevent the deportation of the appellants from Israel. Therefore, when the appeal before me was filed, the relief requested was an urgent relief that concerned the release of the appellants from custody and their non-removal from Israel. Since at that stage the humanitarian request was pending, they further requested in the appeal to allow the Authority to decide on the humanitarian request while they were in Israel. In light of all this, it is clear that the remedy required today for obtaining status in Israel was not requested in the first place. The assumption at the time was that the Authority's decision on the humanitarian request would be given within a reasonable time, and not as actually happened. In addition, the Authority, which initially rejected the humanitarian request, agreed to reconsider it while the appellants were in Israel, and undertook to do so after the best interests of the children were examined by professionals. After failing to meet its obligations for more than three years, there is no reason to allow it to do so while leaving the children under a cloud of uncertainty that causes them very heavy damage (as detailed above). Therefore, the fact that the remedy of obtaining status was not originally requested in the appeal stems from the circumstances that existed at the time, and does not prevent the granting of the relief requested today.
- As for the court's jurisdiction - the Court for Administrative Affairs is authorized and obligated to provide any proper and just remedy in the circumstances of the case. Section 8 of the Administrative Courts Law, entitled: "Causes, Powers and Reliefs", states: "A court for administrative matters shall hear an administrative petition and an administrative appeal in accordance with the grounds, powers and remedies under which the Supreme Court, sitting as a High Court of Justice, will hear the necessary changes regarding an administrative petition and an administrative appeal." Section 15 of the Basic Law: The Judiciary establishes the authority of the High Court of Justice to grant any remedy for the sake of justice. Therefore, the court, in the circumstances of the case before us, is not limited to providing the remedies requested, and it must grant the remedies required for the sake of justice. Moreover, this is exactly the case in which the court must act in this way.
- As for the Authority's request that the matter be returned to its decision , the Authority breached many obligations imposed on it as an administrative authority. For about four years since the children's arrest, the authority has refrained from examining the children's best interests. Now, in the summaries, the Authority requested that despite the relief requested by the appellants - to receive an A/5 visa until the daughter S. reaches the age of 18, I will return the matter to its final decision on the humanitarian application. The Authority notes that if the humanitarian request is rejected again, the appellants will be entitled, according to the Authority, to exhaust internal appeal, appeal and appeal proceedings. I am of the opinion that in light of the Authority's many breaches of its duties, and the damage caused to the children so far by staying for a long time under the cloud of the threat of deportation, the relief to which the petitioners are now appealing should be granted.
In this regard, the words of the court in Administrative Appeal (Administrative Appeal) 25574-02-22 Ana Maria Duca v. State of Israel Ministry of the Interior (Nevo 18.8.2022), which refused to return the matter for reconsideration of the authority, which I will quote in the changes required for the case before me: "It is doubtful whether we erred in saying that it can be assumed that at the end of a long and tedious process, if I petition the Authority's request for a decision, the children will be granted permanent status. The questions that are difficult to answer are which further proceedings the appellants will have to undergo until they achieve this status, what will be decided in those proceedings, and most importantly, how many more years will pass before they are granted the desired status."
- If the Authority's arguments had been accepted, and the matter had been returned to its decision on the humanitarian issue, and in light of its conduct so far, it is difficult to assume that the interviews would have been conducted as required, or that a decision would have been made in a reasonable time. In addition, although I determined that it was in the best interest of the children to remain in Israel, this decision was made more than two years ago, in light of the Authority's failures, and based on opinions given at the time. Therefore, if the Authority's argument that it should be allowed to make a decision on the humanitarian request today, despite the fact that four years have passed in which it has done nothing, and despite its conduct and breach of its duties as an administrative authority, it would have been appropriate to examine the situation of the children today, by professionals. This matter alone, even if it had been carried out as required, would have taken time. Especially so, in the absence of any procedure that regulates the manner in which the child's best interests are examined in proceedings before the Authority. Since the Authority has not bothered to argue for an egalitarian and orderly procedure in this context, there is no reason to allow it, in the circumstances of the case before me, to continue to examine the best interests of the children, when it is not clear how this will be done (see also Ram Lopez on this matter).
- However, even if the matter had been returned to the Authority for a decision, determining that it was in the best interest of the children to remain in Israel, and making a new decision in light of this determination (and without examining their current situation), it can be assumed that a decision would have been made only after a few more months had passed. Even then, if the application had been rejected, the appellants would have had to start a new round of internal appeals, an appeal to the Appeals Tribunal and another appeal to the District Court, and perhaps even an application for leave to appeal to the Supreme Court, proceedings that would have left the children under the cloud of deportation for a long time, without mentioning the many resources required in this regard.
One way or another, it seems that in the end, in light of all the opinions presented, including an objective government committee, which attest to the real dangers that will be caused to the children as a result of their removal from Israel, it would have been possible for the children to remain in Israel as a family unit until S. reaches adulthood, and, in the words of Aharon Bass, to give them "a free place in the space," in Israel, at least as long as they are minors. Therefore, this must be done now.