Administrative Appeal (Tel Aviv) 41621-09-19 A.A. v. Population and Immigration Authority, Ministry of the Interior - part 4

In this state of affairs, and in light of the children's situation, it is unclear whether the Authority's decision to instruct Applicant 1 [the Appellant] to report to the Authority's offices twice a week has passed once every two weeks.

The Authority's response is accompanied by an affidavit by November 7, 2021..."

26. On November 8, 2021, after the deadline set for submitting a response, a request for permission to postpone the date for submitting a response was filed, which was justified by the leave of absence of the person handling the case in the Legal Bureau of the Appeals Tribunal Unit. In my decision from that day, I determined that there was no room to submit the request after the deadline set for submitting the response.  I further determined that in light of the Authority's instruction to the Appellant to appear twice a week, there was no reason for the postponement, and I approved the extension of the deadline, beyond the letter of the law, to November 9, 2021.  I further determined that if the Authority wishes to extend the deadline, the appellant will return to appear once every two weeks, as was the case in the past, until a decision is made on the application.  It should be emphasized that up to this date the appellant was forced to appear two more times in Beit Dagan.
27. On November 9, 2021, the Authority's response was submitted, in which it was noted that beyond the letter of the law, until the application is decided, the appellant will return to appear once every two weeks, as was the case in the past. On the merits of the matter, the Authority argued that the matter would be examined in depth, but argued that the appellant does not cooperate in the production of documents, such as medical documents, and does not even promote the revocation of the Indian passport of her children.  In light of the above, I have instructed the Authority to reiterate the matter by December 1, 2021.  Two days later, on November 11, 2012, when the appellant appeared at the Authority's facility, still within the framework of the decision to report for a bi-weekly report, and in complete contradiction to the undertaking given by the Authority to the court, the Appellant was required to report for the renewal of her license once again on November 16, 2021, only 5 days after her last appearance, and her temporary license was renewed only until that date.  At the same time, she was informed that another hearing would be held in her case on November 25, 2021.
28. On November 14, 2021, the appellant's counsel filed a motion to cancel both the requirement to appear and the additional hearing, since he claimed that they constituted a violation of the court's decision, and were determined only in order to burden the appellant. On the merits, it was argued that the appellant invented everything required (and even produced references to the same).  He also claimed that the demand that a Nepalese citizen take action to revoke the Indian passports of her children is absurd, since as a citizen of Nepal she is not allowed to submit applications to the Indian embassy.  According to the appellants, the authority is abusing them, instead of examining their applications in good faith, as required by virtue of the authority's duty of fairness.
29. On November 16, 2021, my decision was given according to which: "The Authority's response, accompanied by an affidavit, has until tomorrow, November 17, 2021, at 12:00. The Authority will clarify why the applicant's next date of appearance will not be at least two weeks from the date of her last appearance, in light of her declaration in court, and it will also be specified why the hearing is required."
30. On November 16, 2021, an update notice was submitted on behalf of the appellants' counsel, according to which, in order not to violate the Authority's instructions, the appellant appeared in Beit Dagan on November 16, 2021, but on that date she received a summons for two days later, on November 18, 2021, despite the application that was filed in the matter. It was also noted on the temporary license issued to her that she was summoned to a hearing on November 25, 2021.  In other words, one summons after two days, and a second summons a week after the previous date, all in explicit violation of the authority's undertaking before the court.
31. On November 17, 2021, the Authority's response was submitted, in which it was noted that: "After examining the application, it was decided that the Petitioner's temporary license would remain in effect until November 25, 2021, so that the Appellant would not need to appear at the Population Authority's office before November 25, 2021, a date to which she was summoned for a hearing anyway, and therefore she did not need to appear at the Respondent's office on November 18, 2021." In its response, the Authority did not address the fact that between 16 November 2021 and 25 November 2021, ten days passed, and not two weeks as it had promised before the court. With regard to the hearing, it was argued that: "The purpose of the hearing to which the appellant was summoned on November 25, 2021, is for the purpose of examining this issue.  In other words, the frequency of the obligation to appear, and the hearing will deal with this matter only." The Authority's counsel noted that a decision at the hearing would be made 14 days after the hearing and that the once-a-week arrangement would remain in effect and that the Authority would make sure that "this directive is implemented and implemented by the professionals." In my decision of 17 November 2021, I allowed the Authority to hold the hearing.  However, I determined that: "The applicant will appear before the Authority on November 25, 2021 solely for the purpose of examining the arrangement of appearance." I further determined that any summons between less than two weeks would constitute contempt of court.
32. On November 25, 2021, the hearing was held, and on November 30, 2021, a motion was filed by the appellants' counsel to disqualify the hearing. In this application, it was argued that on the aforesaid date, the appellant appeared for the hearing accompanied by her counsel, and that despite an explicit undertaking by the Authority that the hearing would deal only with the matter of the arrangement of appearances, and despite the court's decision that the hearing would be held solely for this purpose, the appellant was asked, as claimed in the application: "Questions that are not at all relevant to the arrangement of appearances, misleading, obstructionist, and humiliating, whose sole purpose is to abuse the applicant.  This was done while preparing a transcript that does not accurately reflect what happened at the hearing, despite the requests of the Applicant's counsel in real time." As an example, the appellant's counsel noted (paragraph 4 of the application) that immediately at the beginning of the hearing, the appellant was asked a number of times whether she would be willing to leave Israel after the matter of the children's best interests was examined by a social worker.  According to the application, the appellant replied honestly that her children were interested in staying in Israel, a country in which they grew up and that they were familiar, and that she had no home or family in Nepal.  Under the transcript, according to the request, "the commissioner raised his voice and said, 'So you're not cooperating.'" Counsel for the appellants further detailed in the application (para.  12) that the appellant was asked questions regarding her sleep problems and their impact on her functioning; How many times a day does she take pills and whether she has pills that she can present to her supervisor; Isn't she afraid that the children's father will kidnap them to India; Is she still in a romantic relationship with him and many other questions that have nothing to do with the question of how often she appears at the Authority's facilities, the sole purpose of which, according to them, is to abuse the appellant.
33. It was further argued in the motion that when the Applicant's counsel insisted that the questions should focus on the issues that had been determined and that the minutes reflect what had been said, they were removed from the room and the hearing continued in their absence, without legal representation for the Appellant. According to them, the commissioner explicitly said, "I am not willing to record your words in the minutes," adding, "I am allowed to say what I want even without documenting it in the minutes." In addition, at the end of the hearing, the appellant's counsel was summoned to the supervisor and asked the supervisor about questions that the appellant was asked in absentia, such as questions about her medical condition and the pills she was taking.  Counsel for the appellants asked the supervisor how these questions were related to the dates of her appearance, and the supervisor replied, according to the application, that the applicant's appearance twice a week would allow the supervisor to conduct medical follow-up on her.  Counsel for the appellant further noted that the Commissioner refused to provide the Applicant's counsel with a copy of the minutes of the hearing, and noted that it would be given to the court in the framework of a notice that would include his decision.
34. On December 1, 2021, I instructed the Authority to respond to the request by December 14, 2021. I further determined that: "The response will be submitted with an affidavit by the hearing editor himself.  A full affidavit (not in the High Court) will be submitted that will relate to all the questions that were allegedly asked by the appellant, whether she was indeed asked and how they are related to the question of the arrangement of appearance." Two days later, on December 13, 2021, even before the date for the Authority's response had passed, an update notice was filed on behalf of the appellants' counsel, according to which on December 9, 2021, the Appellant appeared in Beit Dagan in accordance with the Authority's order of November 25, 2021 (the date of the hearing).  At that time, she was informed by the Border Control Commissioner that he considered the system that had been submitted on her behalf to be a request to the court, and therefore she had to wait instead for the minutes of the hearing and the decision to be written.  According to what was stated in the application, the appellant was forced to wait for more than two hours, at the end of which she was given the minutes of the hearing (a hearing that had been held, as stated, two weeks earlier), as well as the decision of the Director-General.  As the minutes of the hearing indicate, it was indeed held two weeks after the date of the hearing.  Under the heading "Minutes of Hearing Arguments" it is written "dated December 9, 2021" (the minutes and the decision were attached to this update notice by the appellants).  In the minutes it is stated that the appellant's counsel was removed from the hearing due to disturbances, but the minutes do not specify the content of the disturbances.  In addition, the interview includes many questions (over two pages) regarding the appellant's medical condition and the pills she takes.  Subsequently, the Director-General's decision was issued, stating that the appellant must report again twice a week to the Authority's facilities in Beit Dagan, instead of once every two weeks as determined by the Authority's consent upon the appellants' release from custody.
35. On December 15, 2021, the Authority's response to the motion to disqualify the hearing was submitted. In response, it was argued that the hearing conductor has broad discretion regarding the questions asked at the hearing, as long as the decision is limited to the subject of the hearing.  It was further claimed that the minutes were put in writing on the day it was drafted, and were only incorporated as part of the decision given on December 9, 2021.  In the affidavit, contrary to the court's decision, all that was stated with regard to the questions asked by the appellant was: "In order to make a decision on this matter [the frequency of appearances], there is relevance both to general questions relating to the appellant's conduct vis-à-vis the Authority, and to questions relating to her personal situation.  Thus, for example, if she had proven that her or her children's medical condition prevented her from reporting to the Population Authority office, this would have been taken into account." In light of the aforesaid, I instructed in my decision of December 15, 2021 to the Commissioner to submit an additional full affidavit, and to refer therein as well to what was stated in the notice of update submitted by the appellants.  On December 16, 2021, the Authority filed a motion not to submit the additional affidavit because, according to it, the Commissioner had already addressed the matter in the affidavit he submitted.  In my decision from that date, I rejected the application and determined: "The affidavit that I ordered will be submitted, since not only was its submission not redundant, but there is significance to the reference to the contrary arguments made by the appellants in this context.  The affidavit that will be submitted will relate to each of the factual claims in the update notice and will be submitted on the date I have instructed."
36. On December 22, 2021, another affidavit was submitted by the Director-General, in which he confirmed that the Appellant had been forced to wait for the decision to be made, according to him, "until the text of the decision was approved". However, the commissioner stated that he had not made any changes to the minutes.  In light of the above, I have instructed the appellants' counsel to respond.  In their response, counsel for the appellants announced that the decision according to which the appellant must appear at Beit Dagan twice a week stands, and reiterated the motions to disqualify the hearing and the decision made in the framework thereof.  In my decision of January 9, 2022, I instructed the Authority to inform the court of the appellant's conditions of appearance, and whether a decision should be made on this matter.  On January 16, 2022, the Authority announced that the appellant must report to the Authority's facilities twice a week, and therefore the court must make decisions on the appellant's requests.
37. On January 17, 2022, I made a detailed decision, in which I noted the many flaws that occurred both in the interview itself and in the decision made in the framework of it. In summary, I stated as follows (pp.  7-8 of the decision, paragraphs 20-23):

"Conclusion

20. The obligation to appear was intended to ensure that the authority was aware of the applicants' whereabouts, and constituted one of the conditions for their release from custody (along with a significant guarantee). Until the final decisions, the Applicant appeared at the Authority's offices once every two weeks.  Therefore, and since it was not claimed that there had been any change in the circumstances of the applicants' lives, there was no reason to change the frequency of the appearance without proper reasoning.  With regard to the medical documents and the presence of the children in the frameworks, it was held that the appellant did not prove that she would not be able to report twice a week.  Beyond the fact that it is serious in my opinion that a person who is not a doctor requires personal medical documents, the applicant does not have to prove that she cannot report twice a week, but the authority must clarify why she changed the frequency of her appearance without any change in circumstances.  Therefore, these two reasons cannot substantiate the decision.
21. The main reasoning was that the Applicant was not cooperating with the Authority. It should be emphasized that it was not claimed that at this time the Applicant was asked to do anything and refused.  On the contrary, the applicant is represented, appearing whenever she was required, even though in some cases this was done in explicit contravention of the court's decision.

The decision states that the lack of cooperation is expressed in the fact that the Applicant has declared that she will not leave Israel even if this is the decision that will be made.  Well, reading the transcript of the interview reveals a completely different picture.  At the beginning of the interview, in the presence of her counsel, the applicant was asked: "Are you willing to leave Israel after the authority examines the matter of the child's best interests by a social worker according to the procedure and if she receives an answer to leave Israel?" After the Applicant replied that her children's place is in Israel and that she is not interested in leaving, she was asked again: "This means that you are not willing to leave Israel with the children if you receive an answer to leave Israel after examining the best interests of the child according to the procedure." At this stage, the Applicant's counsel tried to argue that there was no reason to ask this question, it was an exclusion from the interview.  The interview resumed a few minutes later without the applicant's counsel.  Since the Applicant did not respond to the previous question in light of the dismissal of her attorney and the interruption of the interview for a few minutes, when the interview was resumed, she was asked again: "Are you willing to leave Israel if your request is rejected/refused for humanitarian reasons?" and she replied that her children were not interested in leaving Israel.  Then she was asked again: "I ask you, as the mother of your children, who is responsible for them, whether you are willing to go out with the children after receiving an answer from the authority.  Yes or no?" The Applicant responds that she does not want to go out with the children as well.  Then she asks again: "You have to understand that cooperation with the PA means doing everything you are told, but you firmly refuse to leave Israel if you get an answer from the PA to leave." It should be noted at this stage that this is not what the Applicant said.  She replied that she did not want to leave and that the children's place was in Israel.  The interviewer inserted words according to which he stated, already on the question that cooperation means that an affidavit will leave Israel if the PA decides so.  In response, time after time, after her lawyers were asked to leave the room, the appellant noted that her two children were born, raised and educated in the Israeli state education system, and that she wanted them to remain in Israel, which also arises from the application for status for humanitarian reasons.  The Commissioner saw this as a lack of cooperation, and not her.  Lack of cooperation means that the appellant refuses to cooperate with the authority in real time, and not a theoretical answer to the hypothetical question.

22. The Authority's decision is neither reasoned nor well-founded. As stated, the appearance was intended to ensure that the Authority would know the whereabouts of the respondents [the appellants or applicants].  In the past, the Authority made do with appearing once every two weeks, and there is no reason for the change, which is very burdensome on the Applicant unnecessarily.  It should be remembered that the Applicant's children study in state institutions to which they attend regularly.  In addition, as part of the conditions of his release, a bail of significant sums was deposited at the time.  Moreover, in the framework of the appeal itself, it was determined that the children must undergo an evaluation by therapeutic bodies, and it is clear that if the applicants disappear or do not cooperate with these parties, the appeal will be rejected in any case.  It appears that the requirement to appear twice a week is intended to "punish" the appellant, or her counsel, who turn to the court, when the authority acts contrary to the law and the explicit instructions of the court.
23. In light of the flaws in the hearing and the lack of reasoning in the decision regarding the frequency of appearances, I determine that the hearing that was held has no validity, and order the cancellation of the decision according to which the applicant must appear at the Authority's offices twice a week. The Applicant will report to the Authority's offices once every two weeks.  If the Authority believes in the future, in light of new circumstances that will arise, that a change in the dates of appearance is required, it will notify the Applicant's counsel at least 14 days in advance, prior to a hearing on the matter.  If such a hearing is held regarding the frequency of appearances, it will be held in the presence of the applicant's counsel, and the interview transcript will be provided to them at the end of the interview."

(emphases are not in the original).

38. In the humanitarian proceeding between me and me, in light of the Authority's notification to the Appellant that the application for status on humanitarian grounds had been closed, the Appellants' counsel approached the Authority in an attempt to clarify the grounds for closure.  According to him (paragraph 20 of the application of July 14, 2022), after repeated requests, it became clear that the application was closed illegally and without any reason, due to an alleged "technical" error.  As a result, the appellants' humanitarian request was reopened, in which the mother of the minors was interviewed only by the authority's clerk.
39. And in the proceeding before me - at this stage, the proceeding was conducted before me with regard to the manner in which the best interests of the children were examined by a social worker. It should be recalled that a move to which the Authority undertook, as stated, both in the framework of the proceeding before me and in the framework of the humanitarian process.  Although some of the documents state that this is an interview for the purpose of the humanitarian procedure, and in some of them there is a reference to my decisions in the framework of this procedure, I will not distinguish between the two things, since, as noted, the Authority's undertaking that the best interests of the children will be examined by a social worker was given in both proceedings.  The appeal in the humanitarian proceeding was dismissed in light of the parties' agreement that such an interview would be conducted, and in the proceeding before me, the question of how the best interests of the children should be examined and who is the appropriate professional body for this purpose was discussed.  Therefore, I will continue to describe on the timeline the continuation of the sequence of events, without further distinguishing between the proceedings.
40. On June 6, 2022, the appellants' attorney's office received a summons letter (dated June 2, 2022) in which the appellants were summoned to a meeting with a social worker on behalf of the Authority, which was scheduled to take place on May 16, 2022. The next day, June 7, 2022, the Authority clarified that the meeting was scheduled for June 16, 2022, and not May 16, 2022, as erroneously stated in the letter.  Since, in the opinion of the appellants' counsel, the format of the meeting as detailed in the summons letter did not conform to the court's instructions, and the opinion submitted by the appellants in the framework of the humanitarian request regarding the child's best interests, on June 9, 2022, the appellants' counsel sent a letter to the Authority in which she noted the failures that occurred, according to her, in the format of the planned meeting.  Counsel for the appellants further argued in her letter that this was in fact a hearing, and therefore it was appropriate to notify the appellants' counsel two weeks in advance.  She also stressed the obligation to take care of the interpreter and to prepare a protocol.  She also noted the importance of accompanying a person whom the children trust, and conducting the proceeding outside the offices of the Authority (the letter was attached as Appendix 6 to the appellants' request of July 14, 2022).  On June 13, 2022, the Authority's counsel informed the appellants' attorney that the meeting was canceled, and that a new date would be announced as soon as possible.  Subsequently, on July 6, 2022, a letter was received in the office of the appellants' attorney summoning him to a meeting on July 21, 2022.  The Authority did not address the arguments of the appellants' counsel regarding the format of the meeting, and reiterated that the meeting would be held without the presence of lawyers (the copies of the letters were attached as Appendices 7-8 to the application of July 14, 2022).
41. On July 10, 2022, counsel for the appellants again approached the Authority, reiterating that the best interests of the children should be examined in and of themselves, and also reiterating all of her arguments regarding the format of the meeting. She also raised questions regarding the format of the meeting, which would enable the children to be prepared for it (the letter was attached as Appendix 9 to the request of July 14, 2022).  In its response of July 13, 2022, the Authority continued to ignore these arguments and questions of clarification.  Instead, counsel for the appellants was asked to announce whether the children would appear for the interview within three days and that if they would not attend that meeting: "The request will be raised for discussion before the [humanitarian] committee without holding the meeting and without the social worker's conclusions, and we will view this as a lack of cooperation" (a copy of the authority's letter was attached as Appendix 10 to the appellants' request of July 14, 2022).  As stated, although according to the letter, this is a social worker's opinion regarding the humanitarian committee, the discussion of this question took place in the framework of this appeal, since even before me, the Authority undertook to examine the best interests of the children by a social worker on its behalf.
42. Following the Authority's decision, the appellants filed a motion for instructions to the court, in which they sought to instruct the Authority to hold a new hearing for the children, lawfully, before the Commissioner of Border Control, in the framework of the proceeding before me. In other words, to hold a hearing for them as stated in the guidelines set out in Procedure No. 5.2.0022 "Regulating the Work of the Inter-Ministerial Advisory Committee for the Determination and Granting of Status in Israel for Humanitarian Reasons" (hereinafter: the Humanitarian Committee Procedure).  The motion argues that the Humanitarian Committee's procedure does not include instructions for minors to have a meeting with a social worker on behalf of the Authority, and that such a meeting in the format set out in the Authority's summons violates the rights of the minor appellants, and in particular their right to have their best interests taken into account as a primary consideration in making decisions regarding them and the Authority's conduct vis-à-vis them.
43. According to counsel for the appellants, the Authority arranged a meeting for the children with a social worker on its behalf, which was described in the preliminary letter as a "procedure of a therapeutic nature", but nevertheless its purpose was defined in the letter itself as "a factual inquiry and nothing more". It was further argued that the meeting was to take place for the appellant and the children together, in the Authority's facility, without the accompaniment of an attorney or any other party on their behalf, and that the appellants' counsel learned that it would last only about half an hour (which, according to them, was not appropriate for any therapeutic procedure), and that all their attempts to find out who the social worker was and other details for the purpose of preparing the children and alleviating their fears had failed.  Attached to the request were the opinions of Prof.  Asher Ben-Arie and Prof.  Bilha Davidson Arad, experts in social work and welfare, who detailed that holding a meeting under these conditions may cause significant and critical harm to the children's situation, and will not assist in clarifying their best interests and needs (hereinafter: the experts and the opinion regarding the format of the meeting, respectively).
44. The experts recommended the fulfillment of six conditions in the context of the opinion regarding the best interests of the children: the meeting and the preparation of the opinion by an objective social worker (and not on behalf of the authority) who specializes in working with minors; holding the meeting in the children's natural environment and not in the PA facility, which represents for them fears of deportation and incarceration; separation between the children's meeting and the appellant's interview; dedicating a reasonable amount of time to each meeting (when the experts made it clear that a one-time meeting of half an hour is not enough); The authority must provide details about the meeting that will enable the children to be prepared for it (the identity of the social worker, the duration of the meeting, the expected course of events, and what they will be asked to do and say at it); The meeting will be accompanied by accompaniment, whether its purpose is therapeutic (and you are entitled to accompaniment similar to medical procedures), or it is factual (and you are entitled to legal representation).
45. On July 18, 2022, I determined that:

"There is no place to hold the meeting of the minor children in the Authority's facility until the format of the meeting is clarified.  Therefore, the meeting scheduled forJuly 21, 2022 will be postponed to a later date, after a decision has been made on application G.  The Authority will ask, accompanied by an affidavit byAugust 4, 2022, what is the format of the meeting, in the presence of whom, and whether this format is compatible with the examination of the best interests of the child to whichT."

46. On August 4, 2022, a detailed response was submitted on behalf of the Authority, in which it was claimed that the planned meeting for the children with the social worker was intended to understand the harm that could be caused to them if they were required to leave Israel. The social worker will prepare an opinion that will be presented to the professional bodies for the purpose of deciding on the humanitarian request, after which a separate interview will be conducted for the appellant.  It was further argued that the appellants, the social worker and a Nepalese interpreter were invited to the meeting, and that it was an indirect, quasi-therapeutic meeting, similar to a medical or paramedical examination in the framework of an expert opinion, and therefore there was no room for the presence of the appellants' counsel or even the representatives of the Authority.
47. In response, it was further stated that the meeting was scheduled in accordance with the directive of the Authority's Director General to conduct a pilot for 10 families, so that even in applications for status in Israel for humanitarian reasons by families with stateless minors in Israel aged 8-12, the children will meet with a social worker, under the conditions and resources available to the Authority, and she will prepare an opinion that will serve as an additional unmediated tool for examining their claims, inter alia in terms of the child's best interests. It was argued that although the directive is not anchored in the committee's procedure, the pilot was determined in connection with the Authority's Procedure 10.3.0001 regarding the issuance of restraining and custody orders under the Entry into Israel Law, which includes meetings of this type in accordance with Procedure No. 10.7.0002 for the operation of the custody facility at Ben Gurion Airport (hereinafter: the Ben Gurion Airport Procedure), which is operated when minors are staying there after restraining and custody orders have been issued for them and their families.  When families with minors are held in the custody facility at Ben Gurion Airport, a social worker meets with the minors and prepares an opinion that is submitted to the person authorized to issue the removal order, which examines whether it can change the family's original removal decision.
48. It was further argued that the considerations that the authority holder must consider in connection with the best interests of the child in accordance with Procedure 10.3.0001 are related to the very cessation of the stay in Israel, and whether, beyond the inherent difficulty that each child who is uprooted from the place to which he has been accustomed to another place, the displacement in the individual case involves excessive harm, which is difficult for that minor and justifies his stay in Israel. It was further argued in response that the meeting was intended to advance the appellants' interests, and that there was no reason to intervene in the Authority's decision in this context, and it was emphasized that they were entitled to waive the meeting, but if they did so, their claim that the best interests of the child had not been considered would not be heard.
49. On 07.08.2022, I determined:

"In the hearing before me, which took place nearly two years ago, on October 29, 2020, it was agreed upon an outline for completing information regarding the appellants, and inter alia, obtaining the opinion of a social worker regarding the minors.