[1] Requirements to recognize a refugee as a refugee under the Convention on the Status of Refugees and the meaning of “persecution” among them / Whether the Minister of Justice bears the burden of proof as to the existence of a “sufficiently-founded fear” subject to persecution (=the applicant for refugee status) and the degree of proof

[2] In determining the illegality of an administrative disposition, whether it is affected by the amendment of the Act and subordinate statutes or changes in the status of fact after the disposition (negative), and whether it is the same as in a revocation lawsuit seeking revocation of the disposition of refusal to recognize refugee status (affirmative)

[1] Article 2 subparag. 3 (see current Article 2 subparag. 1) and Article 76-2(1) (see current Article 18(1) of the Refugee Act) of the former Immigration Control Act (Amended by Act No. 11298, Feb. 10, 2012); Article 1 of the Convention on the Status of Refugees; Article 1 of the Protocol on the Status of Refugees; Article 1 of the Protocol on the Status of Refugees / [2] Article 19 of the Administrative Litigation Act; Article 76-2(3) of the former Immigration Control Act (Amended by Act No. 11298, Feb. 10, 2012) (see current Article 18(2) of the Refugee Act)

[1] [2] Supreme Court Decision 2007Du3930 Decided July 24, 2008 (Gong2008Ha, 1242) Supreme Court Decision 2012Du14378 Decided April 25, 2013 (Gong2013Sang, 954)

Plaintiff (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Head of Seoul Immigration Office

Seoul High Court Decision 2014Nu66184 decided November 24, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In full view of the provisions of subparagraph 3 of Article 2 and Article 76-2(1) of the former Immigration Control Act (amended by Act No. 11298, Feb. 10, 2012; Act No. 11298, Jul. 1, 2013); Article 1 of the Convention on the Status of Refugees; and Article 1 of the Protocol on the Status of Refugees, the Minister of Justice shall recognize a foreigner within the Republic of Korea, who is unable to obtain protection of the country of his/her nationality or who does not want to obtain protection of the country of nationality, due to well-founded fear of persecution for reasons of race, religion, nationality, membership of a specific social group, or political opinion, as a refugee under the Refugee Convention, at the request of the foreigner. In light of such circumstances as “an act that seriously infringes or discriminates on the essential human dignity, including threats to life, physical freedom, etc.” (see, e.g., Supreme Court Decision 2000Du4780, Apr. 27, 2019).

In addition, the illegality of an administrative disposition in an administrative litigation shall be determined on the basis of the law and fact status at the time when the administrative disposition was taken, and it shall not be affected by the amendment or repeal of the law or change of fact status after the disposition, and this shall also apply to a revocation lawsuit seeking revocation of the rejection disposition of refugee recognition (see Supreme Court Decision 2007Du3930, Jul. 24, 2008, etc.).

2. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s application for refugee status in the Democratic Socialist Republic of Sri Lanka (hereinafter “Sri Lanka”), on the following grounds: “The Plaintiff, who was employed in the Republic of Korea, opposed to the Plaintiff’s husband’s marriage, but love marriage. The Plaintiff, despite having heard that her husband, who was employed in the Republic of Korea, was involved in an accident, requested her husband to return to the Republic of Korea; but her husband did not comply with her husband’s request to return to the Republic of Korea. The Plaintiff, upon the issuance of the visa from the Republic of Korea, was married to her religion with the help of a church. In the process of her husband’s entry into the Republic of Korea, the Plaintiff did not want to have her face on the ground that her husband was her husband’s birth and that she would not have died of her religion, and the Plaintiff did not have complied with the Plaintiff’s request for divorce as a whole on the ground that she would have died of her husband’s nationality.”

3. However, the above determination by the court below is difficult to accept in light of the following circumstances revealed by the records.

A. (1) The Plaintiff’s husband appears to have been in conflict with the Plaintiff, such as not responding to the Plaintiff’s request for return to the Republic of Korea even before the Plaintiff’s opening. Therefore, it is difficult to readily conclude that the Plaintiff’s intimidation, etc. arose from the religious cause of the Plaintiff’s opening to Sri Lanka at the time of entering the Republic of Korea. (2) In light of the Plaintiff’s statement, it seems that the Plaintiff would have been expected to return to Sri Lanka for her husband at the time of first entering the Republic of Korea, and that there was a high risk of stuffing the Plaintiff on the ground of opening. (3) Although there was a dispute between the French and the other minority, it is difficult to view that some of the disputes were in the form of attacking the Plaintiff’s believers, such as the Plaintiff’s religious life, and that there was no way to view that the Plaintiff had been aware of the fact-finding of the Plaintiff’s religious activities by taking account of the fact-finding of the Plaintiff’s religious activities, such as the Plaintiff’s religious life, and that there was no objective.

B. Nevertheless, the lower court did not sufficiently examine whether the Plaintiff’s statement is consistent and persuasive, and whether it is likely to be stuffed in Sri Lanka in light of the Plaintiff’s developments leading up to the instant disposition and the degree of religious activities at the time of the instant disposition, and determined that the Plaintiff constitutes a refugee solely for the reasons indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on recognition of refugee status, which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The

4. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)