However, in the reality of life, often, if not in the vast majority of cases, the foreign consideration is not the only consideration that the authority considers. This raises the question of how should the court act when it turns out that the Authority's decision was based on mixed considerations - some foreign and some pertinent?
- Over the years, case law has mentioned various tests in this regard: thus, for example, in some cases it has been determined that the question that must be asked is whether it can be assessed that the authority would have made the same decision even if the extraneous consideration had not been taken into account (see, for example: High Court of Justice 606/78 Ayoub v. Minister of Defense, IsrSC 33(2) 113,118-119 (1979); High Court of Justice 10356/02 Hess v. Commander of IDF Forces in the West Bank, OC Central Command, IsrSC 58(3) 443,459 (2004); High Court of Justice 10907/04 Solodoch v. Rehovot Municipality, IsrSC 66(1) 331,373 (2010) (hereinafter: the Solodoch case)); or whether the foreign consideration had a real influence on the authority's decision (see, for example: High Court of Justice 392/72 Berger v. Haifa District Planning and Building Committee, Haifa District, IsrSC 27(2) 764,773 (1973); Barak-Erez, vol. 2, pp. 667-668). However, over the years, case law has settled on one main test - the dominant consideration test - which examines the main goal that the authority pursued in its decision (see, for example: High Court of Justice 651/86 Malka v. Minister of Police, IsrSC 40(4) 645,659 (1986); High Court of Justice 7691/95 MK Gideon Sagi v. Government of Israel, IsrSC 52(5) 577,609 (1998) (hereinafter: the Sagi case); High Court of Justice 5769/18 Amitai v. Minister of Science and Technology, paragraph 5 of the opinion of my colleague Justice Stein [Nevo] (March 4,2019); Zamir, vol. 5, at p. 3527; Barak-Erez, vol. 2, at p. 668; For a different position, see: Dotan, at pp. 638-639, who believes that a more lenient test should be adopted from the perspective of those who wish to annul the decision, according to which it is sufficient for the court to be convinced that extraneous considerations were also taken into account at the basis of the decision, inter alia).
- Thus, when an extraneous consideration is the dominant consideration for which the authority made its decision, this decision is liable to be invalidated.
However, things are easier In theory rather than in practice. It is clear that the question of whether a certain decision was motivated by extraneous considerations is mainly a factual question. However, just as proving internal minds and motives is difficult in every field, so too it is with regard to proving the consideration of extraneous considerations. This difficulty is exacerbated by the fact that the administrative authority usually does not publicly declare that its decision is based on extraneous considerations, and naturally tends, when it has knowingly considered extraneous considerations, to conceal the real reasons that underlie its decision under the guise of justifications that appear to be kosher. The judge noted the A. A. Levy Noting that: