2013Guhap59040 Revocation of revocation of refusal to extend the period of stay

A

Head of the Seoul Southern Branch Immigration Office

April 11, 2014

May 20, 2014

1. The Defendant’s disposition of non-permission on September 6, 2013, such as the extension of the period of stay, against the Plaintiff, is revoked. 2. The litigation cost is assessed against the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, a foreigner of Mongolian nationality, entered the Republic of Korea with a short-term comprehensive visa (C-3) on November 20, 1998, entered the Republic of Korea with an exemption order on July 26, 1998, and left the Republic of Korea after having been subject to the specified stay period.

B. After that, the Plaintiff entered the Republic of Korea on August 20, 2001 with the status of stay for visit (F-1) and changed the status of stay into the qualification of marriage immigration (F-2-1) on the ground that he was married with B who is a national of the Republic of Korea on June 28, 2002.

C. Around April 26, 2011, the Plaintiff filed a divorce suit against B as the Daejeon District Court Branch of the Daejeon District Court Branch of 2011ddan2422. On August 11, 2011, the said court rendered a judgment that the Plaintiff and B were divorced on the ground that the marriage relationship was extinguished due to a cause attributable to B, and the said judgment became final and conclusive.

D. Meanwhile, on September 8, 201, the Plaintiff filed an application with the Defendant for change of the status of stay to permanent residence (F-5). However, the Defendant rejected the application for change of the said status of stay on July 25, 2012 on the ground that the status of stay was good and good, etc.

E. On July 25, 2013, the Plaintiff filed an application with the Defendant for extension of the period of stay for a married single-child status, but on September 6, 2013, the Defendant rendered a disposition denying the extension of the period of stay (hereinafter “instant disposition”) due to lack of objective data on the cause attributable to the husband B, who is the husband, on September 6, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, 3, and 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Despite the fact that the marriage life of the Plaintiff and B caused the failure due to the reasons attributable to B, the Defendant rejected the Plaintiff’s above application on the ground that there was insufficient objective data on the Plaintiff’s application for permission for extension of the period of stay due to the lack of reasons attributable to B. Thus

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 10(1) of the Immigration Control Act provides that “A foreigner who intends to enter the Republic of Korea shall have the status of stay prescribed by Presidential Decree.” Article 25 of the same Act provides that “A foreigner who intends to continue to stay in excess of the period of stay shall obtain permission for extension of the period of stay from the Minister of Justice before the period of stay expires, as prescribed by Presidential Decree.” Accordingly, Article 12 and [Attachment 1] 28-4 Item (F-6) of the Enforcement Decree of the same Act provides that “A foreigner who is married to his/her spouse and is recognized by the Minister of Justice as a person who is unable to maintain a normal matrimonial relationship due to his/her spouse’s death, disappearance, or any other cause not attributable to him/her while staying in the Republic of Korea under the condition of marriage with his/her spouse.

In light of the overall purport of evidence Nos. 1 and 3, Eul evidence Nos. 5, Eul evidence Nos. 5, and witness Eul's testimony and arguments as to whether the marital relationship between the plaintiff and Eul has failed without any cause attributable to the plaintiff, it is reasonable to view that the plaintiff, around May 2001, after the marriage with Eul, was married with Eul, and the plaintiff and Eul frequently got married at the domicile of B, due to economic difficulties during their marital life; Eul did not have a stable marital relationship during their marital life; and the plaintiff was unable to have a stable workplace during their marital life; and there was no living expenses for the plaintiff; although around September 18, 2009, the plaintiff and Eul decided to pay consolation money of eight million won to the plaintiff; however, since the plaintiff did not pay consolation money, it is reasonable to deem that the legal divorce between the plaintiff and Eul has been established by filing a divorce lawsuit against Eul; therefore, the plaintiff's claim that the marital relationship between the plaintiff and the plaintiff is not attributable to the plaintiff's normal spouse and the plaintiff's spouse during their marriage status met with reasons.

(2) Meanwhile, in light of the following circumstances, the permission period for extension of sojourn period is a discretionary act in which the permission-granting authority decides whether to grant a permission, taking into account the applicant’s eligibility, purpose of stay, influence on public interest, etc., in light of the following circumstances, which are acknowledged by comprehensively taking into account the evidence and the overall purport of arguments, it is reasonable to deem that the Plaintiff satisfies the sojourn status requirements under Article 12 and [Attachment Table 1] subparagraph 28-4 (c) of the Enforcement Decree of the Immigration Control Act, and that the Plaintiff’s living without any specific criminal records after entering the Republic of Korea in 201, and that the Plaintiff’s children are also entitled to continue sojourn beyond the original sojourn period, and that the permission period for extension of sojourn period is a discretionary act in which the Plaintiff and the Plaintiff’s children have long been affected by abuse of discretion after entering the Republic of Korea.

(3) Ultimately, the disposition of this case which rejected the Plaintiff’s application for extension of the period of sojourn is unlawful, and the Plaintiff’s assertion pointing this out is with merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

The presiding judge, the highest judge;

Judges Park Jong-il

Judge No. Doingk

A person shall be appointed.