In a case where the People's Republic of China and Lao nationality Gap entered the Republic of Korea and filed an application for refugee status recognition with the Government that it might be detrimental if they go back to China because they were engaged in supporting North Korean defectors in China, but the head of the competent Immigration Office issued a disposition of non-recognition of refugee status on the ground that "the head of the competent Immigration Office may not be deemed to have a well-founded fear that they would be harmful to A," the case holding that the above disposition is unlawful since Gap's entry constitutes a foreigner who could not be protected by the country of nationality or does not want the protection of the country of nationality due to a well-founded fear that he/she would be detrimental to the country of nationality on the ground

In a case where the People's Republic of China and Lao citizenship A entered the Republic of Korea and returned to China due to their economic motive, and thus, the government's refugee status application is likely to be harmful if they were to go back to China, but the head of the competent Immigration Office rendered a disposition of non-recognition of refugee status: "A shall not be deemed to have a well-founded fear that it would be harmful to A," and the case held that Gap engaged in the activity of supporting and aiding North Korean defectors in China for several years, and was arrested in the Chinese public domain and sentenced to imprisonment for this reason; on the ground that there is a high possibility that the suspicion of illegal organization is applied in accordance with the Chinese criminal law and return to China is likely to be subject to aggravated punishment if Gap returned to China; it is difficult to expect that the activities of North Korean defectors who were the grounds for criminal punishment against Gap were related to the pertinent case's nationality, and thus, it is difficult to expect that the aforementioned measures are unlawful because it constitutes a political expression of opinion concerning the pertinent case's nationality, and it is hard to expect that the aforementioned measures are unlawful.

Article 2 Subparagraph 1 of the Refugee Act, Article 18 of the Convention Relating to the Status of Refugees, Article 1 of the Protocol Relating to the Status of Refugees

Plaintiff (Attorney Kim Jong-jin, Counsel for the plaintiff-appellant)

Head of Jeju Immigration Office

November 15, 2017

1. On June 23, 2016, the Defendant revoked the decision to deny refugee status granted to the Plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff entered the Republic of China on March 12, 2016 and applied for refugee status on April 7, 2016.

B. On June 23, 2016, the Defendant issued a disposition of non-recognition of refugee status (hereinafter “instant disposition”) on the ground that the Plaintiff cannot be deemed as having a sufficiently-founded fear that the Plaintiff would suffer from persecution,” as stipulated in Article 1 of the Convention on the Status of Refugees (hereinafter “Refugee Convention”) and Article 1 of the Protocol Relating to the Status of Refugees (hereinafter “Refugee Protocol”) on the Status of Refugees, on the grounds that “the fact that the Defendant was unable to be injured by the Lao Government and cannot be found to be subject to gambling by the Lao Government at the time of returning to Korea.”

C. The Plaintiff dissatisfied with the instant disposition and filed an objection with the Minister of Justice on July 26, 2016, but the Minister of Justice dismissed the objection on February 24, 2017.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) Plaintiff

The plaintiff, who has been engaged in supporting North Korean defectors against China's domestic law and policies for North Korean defectors, such as helping North Korean defectors in China to escape from China, is likely to suffer from persecution by the government when they return to China. Nevertheless, the disposition of this case that did not recognize the plaintiff as a refugee is unlawful.

2) Defendant

Since the Plaintiff obtained the Lao nationality from China and lives in peace for a long time, it cannot be deemed that there was fear of persecutioning the Plaintiff. Meanwhile, the Plaintiff merely supported a person escaping from North Korea on the sole basis of economic benefits, and even if the Plaintiff was punished or is likely to be punished in accordance with the Chinese positive law on the ground of the above activity, this does not constitute gambling on the ground of political opinion. Furthermore, it is difficult to view that the Plaintiff is a person of Lao nationality and is in a position not entitled to protection of the country of nationality, such as being subject to gambling from the country of nationality.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) Circumstances of entry into Korea

A) While the Plaintiff was born and living in China, he was a pastor belonging to the ○○○○ Line, and was aware of the Nonparty, who was engaged in activities, such as supporting the departure of North Korean defectors in China. From 2006 to 2006, the Plaintiff was trying to help North Korean defectors in China leave the Republic of Korea through Lao. At that time, the Plaintiff received money from the Nonparty pastor in return for the aforementioned activities of supporting North Korean defectors.

B) On August 2008, the Plaintiff was arrested in the Chinese public forum on suspicion that he/she was involved in the other person’s illegal bordering. As a result of the trial, the Plaintiff was sentenced to imprisonment with prison labor (three years of imprisonment and five years of suspended execution) by the Chinese court around March 2009.

C) The Plaintiff, immediately after having been sentenced to a conviction as above, lived in Cambodia, Lao, and Thailand, and married to the spouse of the Lao nationality in the process. Meanwhile, the Plaintiff applied for refugee status to the Thailand government while staying in Thailand around October 2010, but the said application was not accepted.

D) On December 2012, the Plaintiff obtained the Lao nationality after having returned to Lao, and was also issued a passport of the pertinent country.

E) On March 12, 2016, the Plaintiff entered the Republic of Korea regardless of Lao.

2) Details of the Plaintiff’s statement during the process of refugee application or interview

A) The Plaintiff was born in the Chinese river of Gangseo-si, but around May 191, 191, the Plaintiff continued to engage in trade business, such as pharmaceutical products and local products, using Laos. From around 2004, the Plaintiff received money at the request of the Chosun-gu, which was living as above, and led North Korean defectors in China to escape from the Republic of Korea. In 2006, the Plaintiff continued to provide guidance and support for the departure of North Korean defectors from the Republic of Korea through the Lao of North Korean defectors. Since the introduction of the Nonparty’s pastors through North Korean residents around 2006, the Plaintiff exchanged with the ○○○○○ Association, a representative of the Nonparty pastors, and continued to receive some payments for the escape from the Republic of Korea.

B) Around April 2007, the Plaintiff was arrested in the Chinese official territory and detained for one month on the ground that he had attempted to engage in the illegal border of North Korean defectors. Around June 2008, the Plaintiff was demanded to provide information on North Korean defectors, etc. to China’s country of national security. However, the Plaintiff showed a dynamic attitude toward the above request for cooperation, and was arrested again on the same ground as the previous one around August 2008, and was released around that time.

C) On March 2009, immediately after the Plaintiff’s release, a person in charge of public peace, who was known to the general public, solicited the person to escape from Korea to a foreign country after having rendered a final order of inheritance. Accordingly, the Plaintiff transferred to a third country, such as Cambodia and Thailand. Among them, the Plaintiff applied for refugee status in Cambodia and Thailand, but did not recognize the status of refugee status.

D) After the Plaintiff’s settlement and living in Lao. Around December 2012, the Plaintiff provided money to a public official in charge and falsely reported personal information, such as the place of birth, and acquired the Lao nationality and passport. The Plaintiff was frequently transferred, during the period of sojourn in Lao, etc., to the Nonparty Do and the North Korean released from the Republic of Korea to the Republic of Korea from China, to the Republic of Korea.

E) Around March 2016, the Plaintiff was contacted to the effect that the Plaintiff would be able to be mitigated from punishment on the side of the Embassy of the Republic of Korea, and that North Korean defectors would voluntarily surrenders to China to North Korea. The Plaintiff considered whether to return to China, but at the time, the Plaintiff heard the phrase “to directly arrest the Plaintiff and the Ras and directly arrest the Plaintiff” through the relevant parties at the time, and instead of returning to China, entered the Republic of Korea with the help of the support organization for the North Korean defectors and applied for refugee registration.

3) Chinese policies and laws on support activities for North Korean defectors

A) According to the North Korean Human Rights 2005, the North Korean Human Rights 2005, the report on the North Korean Human Rights 2012, and the report on the forced repatriation of the North Korean Human Rights Information Center on December 10, 2013, China expressed its position on North Korean defectors on the basis of international law, domestic law, and the principles of humanitarianism, while China is unable to deal with North Korean defectors on the basis of economic problems, and as a result, it is difficult to deal with refugees as refugees, or "North Korea is due to serious food problems, and it is necessary to give priority to economic assistance to North Korea rather than the protection policy for North Korean defectors in order to solve the problem of North Korean defectors. In addition, according to each of the above reports and the report on the North Korean Human Rights 2016 by the U.S. Department of the State of the Republic of Korea on August 10, 2013, China has entered into a refugee agreement with North Korean defectors, but it does not recognize the existence of the North Korean residents' mutual detention policy as an official agreement with North Korean defectors.

B) Article 318 of the Chinese Criminal Code provides that a person who illegally forms another person to cross the border shall be punished by imprisonment with prison labor for not less than two years but not more than seven years and a fine. ① A person who has been organized by another person to cross the border several times illegally, or who has been organized by a large number of persons to cross the border illegally, ② a person who resists in the investigation by means of violence, threat, ③ a person who has a large amount of income unlawfully acquired, ④ a person who has a large amount of income unlawfully acquired, ④ a person who has a special reason, shall be punished by imprisonment with prison labor for not less than seven years or imprisonment for life, and fine or property shall be confiscated

C) Article 61 of the Chinese Public Security Punishment Act provides that a person who cooperates with a person who illegally makes an organization or transports another person beyond the national border shall be punished by penal detention for not less than 10 days but not more than 15 days and by a fine not less than 1,00 penal detention for not less than 1,00 but not more than 5,000 penal detention.

[Reasons for Recognition] Facts without dispute, Gap's statements as to Gap's 4 through 6, 8, 9, 20 through 25, 28 (including those with serial numbers; hereinafter the same shall apply), Eul's statements as to Gap's 1 through 6, and the purport of the whole pleadings

D. Determination

1) Requirements for recognition of refugee status

In full view of the provisions of subparagraph 1 of Article 2 and Article 18 of the Refugee Act, Article 1 of the Refugee Convention, and Article 1 of the Refugee Protocol, a foreigner in the Republic of Korea who is unable to be protected or does not want to be protected in the country of nationality due to well-founded fear of persecution on the grounds of race, religion, nationality, membership of a specific social group, or political opinion, shall be recognized as a refugee. “persecution” which is a requirement for recognition of a refugee refers to “any act causing serious infringement or discrimination against the essential human dignity, including threats to life, body or freedom,” and a foreigner who files an application for recognition of a refugee must prove that there is “comfortable fear” subject to such persecution (see Supreme Court Decision 2012Du14378, Apr. 25, 2013).

On the other hand, a foreigner who has filed an application for refugee status shall prove the existence of a "comfortablely-founded fear", but it is not possible to require the foreigner to prove the whole alleged facts based on objective evidence in consideration of the special circumstances of the foreigner. However, it is reasonable to recognize the alleged facts based on the credibility of the overall statement in light of the route of entry, the period from entry to the application for refugee status, the background of the application for refugee status, the state of nationality, the degree of subjective fears, the political, social, cultural environment of the region in which the applicant resides, the degree of fear fears experienced in the same situation, etc. (see Supreme Court Decision 2007Du3930, Jul. 24, 2008).

2) Whether a person is a refugee

In light of the above legal principles and the following circumstances revealed by comprehensively taking account of the evidence and the overall purport of arguments, including evidence as seen earlier and evidence Nos. 7, 10 through 19, 29 through 76, it is reasonable to view that the Plaintiff constitutes a foreigner who is unable to obtain protection of the country of nationality or who does not want protection of the country of nationality due to a well-founded fear of political opinion by mediating the act of assistance to North Korean defectors residing in China.

A) The probability of imminent harm

(1) The defendant does not deny that the plaintiff had been engaged in the activities of supporting and aiding North Korean defectors in China for several years from around 2004, and the plaintiff was arrested and sentenced to imprisonment by the Chinese public peace around August 2008 on the ground of such activities for supporting North Korean defectors. However, in view of the fact that the Chinese Public Security Management Punishment Act has only the penal provisions for detention or fines for those who merely cooperate in organizing and transporting illegal monthly landscape, there is a high room for the application of suspicion that actively organized illegal monthly landscape pursuant to the Chinese criminal law against the plaintiff at the time. Accordingly, the number of times or scale of organizing illegal monthly landscape in the past, depending on the number of times or scale of the plaintiff's illegal monthly landscape in the past, if the plaintiff returned to China for any reason in the future, it cannot be ruled out that the punishment aggravated by Article 318, etc. of the Chinese criminal law (the statutory punishment is imprisonment for more than seven years or life imprisonment for more than seven years) may not be ruled out.

(2) The non-party pastor who provided the opportunity that the plaintiff actively went to support North Korean defectors was arrested and detained in China on the same grounds of the same activity in around 2001, and appears to have been subject to large-scale activities for supporting North Korean defectors inside and outside the Republic of Korea through the ○○○○ Military Association, etc., whose representative was for a considerable period of time before and after the above time. Therefore, it is probable that not only the non-party pastor, but also the plaintiff who participated in the support activities for North Korean defectors, as well as the plaintiff who participated in the support activities for North Korean defectors, could have received the attention of the Chinese government. Accordingly, it is probable that the plaintiff who was subject to criminal punishment on the ground of the pertinent activities in March 2009, transferred China to another country, such as Ras, immediately after being subject to criminal punishment on the ground of the pertinent activities, the above attention of the Chinese government related to the existing support activities for North Korean defectors, such as the plaintiff's application for refugee registration No. 30 of the Chinese government (the plaintiff's application for refugee registration No. 309).

(3) Meanwhile, it is true that the Plaintiff entered the Republic of Korea around March 2016 after a considerable period of time from the time when he lives in the Republic of Korea, including China, immediately after being subject to criminal punishment as above. However, in light of the statement of the persons related to support activities for North Korean defectors, including the Nonparty pastor, and the contents of relevant articles or publications, etc., the Plaintiff continued to participate in support activities for North Korean defectors even after leaving China on March 2009, and it seems that the Plaintiff continued to publicly announce the details of his activities through an interview with the press organization and publishing company for the same period of time. After acquiring the Lao nationality around December 2012, the Plaintiff, who lived in the pertinent country, was recommended to enter the Republic of Korea on the basis of the phone number of the Plaintiff’s phone number at 10, including the Plaintiff’s cell phone number at 200, and then presented it for refugee status to the Republic of Korea (the Plaintiff’s phone number at 20,000).

B) Grounds for gambling

(1) It is difficult to deny that the Plaintiff had been moving out of China since 2004 to North Korean defectors, including economic motive. Furthermore, the Plaintiff appears to have been paid some of the payment during the process of participating in the support activities for North Korean defectors in full Do. Accordingly, the Defendant is likely to find out the difference between the Plaintiff and the Plaintiff’s common business relationship with the Nonparty and the Nonparty, as it was engaged in the support activities for North Korean defectors in good economic reasons.

(2) Where a specific person is punished or is likely to be punished under the positive law of the pertinent country for any act, it may be an issue of whether it can be viewed as an stuffing based on a political opinion.

However, even if a specific person committed an act in violation of his own positive law based on the economic or humanitarian motive, it is not easy to clearly distinguish the motive inherent in the act of violating the positive law from the economic, humanitarian or political character. In particular, the issue of support for North Korean defectors in China and North Korea, which are at issue in this case, is a sensitive policy issue that is associated with the political interests of both North Korea and China, and it is difficult to simplify it as a simple issue of immigration control of a specific country (the National Assembly of the Republic of Korea is a punishment for relief activities, such as migration of North Korean defectors outside Korea, and it is a punishment for a violation of the positive law of the China, and it is not easy to clearly distinguish the motive inherent in the act of violating the positive law of the Republic of Korea from the economic, humanitarian or political character, and there is no criticism that the government of the international society has urged to propose for the release of North Korean defectors who were arrested and detained due to the suspicion of violation of the positive law of the China, and that the government of the Republic of China has urged the implementation of the policies and measures of China.

(3) In full view of the aforementioned circumstances, including the period and scale of the Plaintiff’s participation in the support activities for North Korean defectors, the Nonparty’s pastors or ○○○○○ Association, etc., and the formation of policies in China on the status and issues of North Korean defectors, etc., which the Plaintiff or an individual or organization has participated in the relevant activities, it may be deemed that the past activities of supporting North Korean defectors, which were the grounds for criminal punishment against the Plaintiff, include the meaning of China’s political opinion as to the relevant matters.

(C) the expectations for the protection of nationality countries;

(1) For the same reasons as examined in the above A, the Plaintiff seems to be likely to be subject to criminal punishment under the Criminal Act, etc. on the grounds that the Plaintiff’s return to China, which is a nationality state, will be subject to criminal punishment on the grounds of support activities for

However, the Plaintiff married to the spouse of the Lao nationality as seen earlier while staying in China immediately after being detained on the ground of the activities supporting North Korean defectors, and he also acquired the Lao nationality. However, the Plaintiff’s statement on the grounds that the Plaintiff acquired the Lao nationality was written in the Plaintiff’s passport, including the circumstances in which the city in the Lao (PHONGSAL) is written as the place of birth, which is not the actual place of birth of the Plaintiff’s Chinese birth (it is difficult to confirm that the Plaintiff’s evidence submitted to this court alone satisfies the legitimate requirements for acquisition of nationality as prescribed by the Lao’s relevant laws at the time), and the Lao nationality acquired by the Plaintiff is highly likely to be an issue of legal effect. Accordingly, on the premise that the Plaintiff’s country of nationality is a Lao, the legality of the instant disposition on the ground that the Plaintiff does not pose any risk of harming the Plaintiff’s experience or future gambling by the Lao government.

(2) The Defendant also emphasizes that “the Plaintiff’s Lao nationality is presumed to have been acquired in an abnormal manner in light of the anti-state circumstances,” on the other hand, “the Plaintiff resided in the Lao without any special problem, and freely entered and depart from China using a passport issued by the pertinent country.” However, as long as the Plaintiff is sufficiently anticipated to be harming China due to activities to support North Korean defectors, etc. such as the Plaintiff’s aforementioned activities, even if there is no specific disadvantage, including criminal punishment, for the same reason, by the Lao government, which is the country where the passport was issued, this is irrelevant to the recognition of refugee, and it is difficult for the Plaintiff to objectively expect protection from China, which is the country of nationality.

E. Sub-decision

Therefore, the instant disposition that did not recognize the Plaintiff as a refugee should be revoked in an unlawful manner.

3. Conclusion

If so, the plaintiff's claim shall be accepted with due cause, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judge Kim Jin-young (Presiding Judge) and Kim Jin-hee