Israel’s judges rarely question whether the Interior Ministry may not actually be an expert on immigration matters, or whether it might be making decisions without asking the right questions – even when someone’s life is on the line.
The courts generally accept any, or nearly any, factual claim provided by the Interior Ministry regarding individuals whose requests for status in Israel were rejected. Judge Daphne Barak Erez’s dissenting opinion in the verdict recently handed down by the Supreme Court reveals (a small portion of) the techniques used by the Interior Ministry to review facts. The dissenting opinion, presented in light of the ruling handed down by Judge Uri Shoham, also clarifies why despite the Interior Ministry’s unprofessional conduct, appealing to the courts is rarely beneficial. Furthermore, the dissenting opinion presented by Judge Barak Erez, who is an expert on administrative law, demonstrates how classic administrative law generally prevents an honest examination of the injustices carried out by state authorities.
Tatiana, the heroine of the verdict, is a Ukranian national (a Ukranian “subject,” as per Judge Shoham, as if referring to a heroine from feudal times). Tatiana was involved with an Israeli citizen; she was arrested, deported to the Ukraine, then married her Israeli partner and returned to Israel. Following various delays, she began the “gradual process” – in the framework of which she was granted a temporary residence permit – that was to conclude with her being granted citizenship after four and a half years. But her husband passed away before the process concluded.
In accordance with its procedures, the Interior Ministry conducted a hearing to determine whether the death of Tatiana’s husband should result in her deportation from Israel or whether she may be permitted to continue to reside in the country. According to Interior Ministry regulations, the option of remaining in Israel in such a case is granted to those who prove that their bond with Israel exceeds their connection to their home country. But not one person explained to Tatiana what she had to prove. Had she known that her connection to Israel, as compared to her bond to the Ukraine, was the crux of the matter, she may have brought forth evidence. How can you prove your connection to Israel when you don’t even know that that is being asked of you?
In the framework of the petition to the district court, Tatiana requested to provide evidence and letters, which she believed could prove her claim. But Judge Nava Ben Or did not allow the provision of additional evidence, because it was not presented to the Interior Ministry when it made a decision on Tatiana’s case. The court dismissed Tatiana’s petition, after which she appealed to the Supreme Court, which also rejected the appeal.
When reading the majority opinion handed down by Judge Uri Shoham, one can understand the verdict – the woman was interviewed, did not prove a bond with Israel, end of story. But the dissenting opinion ruins Judge Shoham’s narrative, and perhaps illustrates how important judicial selection is in regards to facts worth referencing in the verdict, as compared to facts that need not be mentioned at all. Judge Barak Erez states that Tatiana was not asked questions that could direct her to shed light on her connection to Israel. Barak Erez insists that, “It is unclear whether it was conveyed to Tatiana that the main issue that would determine whether she could stay in Israel is her bond with Israel and the people here” and that “The questions presented to the appellant do not give her the opportunity to provide a complete picture of her connection to Israel.” Barak Erez notes that, “She wasn’t asked, and it is regrettable, about her friendships in Israel, what she does in her free time, and what stands behind her strong desire to stay in Israel.” Judge Barak Erez suggested that the court accept the appeal and that the Interior Ministry be instructed to properly review the request. But Barak Erez was the dissenting opinion.
The rules used by the courts in their criticism of state authorities create an inherent advantage for the state in everything regarding the establishment of facts. As opposed to civil proceedings, in which the state must prove evidence of factual claims, in criticizing the administrative process the court provides almost unlimited space for the factual determinations of the administrative authority and may reject an appeal without any evidence, even without a deposition from the government worker certifying the facts. Unlike civil proceedings, in which parties may bring expert opinions on which the court may rule, in a judicial review of an administrative decision, total preference is given to an expert simply because he or she was brought by the state, even if there is a completely contradictory expert opinion.
There may be a a certain logic to some of these rules, but it is important to be critical of the the state’s complete control of the factual narrative that we read in such verdicts. Furthermore, the courts in Israel, particularly the Supreme Court, have taken a far-reaching step in this regard. Factual statements made by lawyers in court (which in some cases were later found to be errant) are accepted by judges with no need for additional statements. District or Supreme Court criticism of Interior Ministry decisions, in which mistakes could cost someone his or her life (for example, a decision on a case in which an individual claims that his or her life as a refugee is in danger) occur with virtually no doubts pertaining to the factual allegations.
Proceedings in which factual determination are made by the Interior Ministry are distorted. Clerks make the determinations based on irrelevant questions and hunches. Nevertheless, courts generally do not bother to delve into these factual determinations. In a roundabout way, the courts determine time and again that because the Interior Ministry is the body authorized to make the decision, it is therefore the expert authority, and because it is the expert, it is authorized to make the decision, and therefore the decision should be left up to its discretion. They delude themselves that experts are making the right decisions, and therefore they can rest easy. Judges rarely question whether the Interior Ministry might not really be an expert, and whether it might be making decisions without asking the right question.