The meaning of “specific social group” and sexual orientations under Article 2 subparag. 1 of the Refugee Act constitute a specific social group (affirmative with qualification)

In full view of the provisions of Articles 1 and 2 subparag. 1 of the Refugee Act, Article 1 of the 1951 Convention Relating to the Status of Refugees (hereinafter “Refugee Convention”), and Article 1 of the 1967 Protocol Relating to the Status of Refugees, the Minister of Justice shall recognize as a refugee under the Refugee Convention any foreigner who, owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is unable or does not want the protection of the country of his/her nationality, or who, owing to such fear, is unable or does not want to return to the country in which he/she had resided before entering the Republic of Korea.

In this context, “specified social group” means a group of individuals sharing a congenital characteristic, an irrecoverable common history, a characteristic or religious faith that constitutes an individual’s identity or conscience and that is perceived as different from that of another group in the social environment. The same sex orientation refers to a group of individuals sharing the part that may not be required to renounce it. If it violates the applicant’s moral norms or legal norms, it would be easy for the applicant to be exposed to gambling if it goes against the applicant’s country of origin, and the government of the country of origin refuses or is unable to protect it, it may be deemed a specific social group.

In addition, “persecution” means “an act causing serious infringement of or discrimination against essential human dignity, including threats to life, body or freedom.” If the sexual orientation or sexual identity of same-sex is disclosed externally, it may be faced with criticism and criticism from families, neighbors, and the public against the moral norm of the country of origin. In order to avoid such social criticism, non-refluence, and value, it may be an unfair social restriction. However, it does not constitute gambling stipulated in the Refugee Convention, i.e., gambling for refugee applicants, which requires international protection. However, if the applicant’s sexual orientation is beyond the ordinary level of social criticism on the ground of the applicant’s sexual orientation, it constitutes gambling as referred to in the Refugee Convention. Accordingly, in order for same-sex foreigners to be recognized as refugee status, it constitutes a person who has already been recognized as being subject to disclosure in the country of origin and has sufficient grounds for fear of harming the applicant’s sexual orientation from the country of origin and who entered the Republic of Korea.”

Articles 1 and 2 subparag. 1 of the Refugee Act, Article 1 of the 1951 Convention Relating to the Status of Refugees, Article 1 of the 1967 Protocol Relating to the Status of Refugees

[Plaintiff-Appellant] Plaintiff 2007Du3930 decided July 24, 2008 (Gong2008Ha, 1242)

[Judgment of the court below]

Head of Seoul Immigration Office

Seoul High Court Decision 2016Nu38619 decided October 6, 2016

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 Article 1 and Article 2 subparag. 1 of the Refugee Act, Article 1 of the 1951 Convention Relating to the Status of Refugees (hereinafter “Refugee Convention”), and Article 1 of the 1967 Protocol Relating to the Status of Refugees, the Minister of Justice shall recognize as a refugee under the Refugee Convention any foreigner who, upon his request, is unable to obtain the protection of his country of nationality or who does not want the protection of his country of nationality due to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or who, owing to such fear, is unable to return to, or does not want to return to, the country in which he had resided before entering the Republic of Korea.

In this context, “specified social group” means a group of individuals sharing a congenital characteristic, an irrecoverable common history, a characteristic or religious faith that constitutes an individual’s identity or conscience and that is perceived as different from that of another group in the social environment. The same sex orientation refers to a group of individuals sharing the part that may not be required to renounce it. If it violates the applicant’s moral norms or legal norms, it would be easy for the applicant to be exposed to gambling if it goes against the applicant’s country of origin, and the government of the country of origin refuses or is unable to protect it, it may be deemed a specific social group.

In addition, “persecution” means “an act causing serious infringement of, or discrimination against, essential human dignity, including threats to life, body, or liberty” (see, e.g., Supreme Court Decision 2007Du3930, Jul. 24, 2008). If the sexual orientation or sexual identity of the same sex is disclosed externally, it may be faced with criticism and criticism from a family member, neighbors, or the public against the moral norm of the country of origin. In order to avoid such social criticism, non-honorary, or figures, it may be an unfair social restriction. However, it does not constitute an imminent act requiring international protection of the applicant for refugee status.” However, if a foreigner’s sexual orientation or sexual identity is disclosed beyond the ordinary level of social criticism on the ground of his or her sexual orientation, it constitutes a person who already entered the Republic of Korea and is likely to be subject to disclosure of his or her own sexual orientation from the country of origin, and thus, constitutes a person who has been recognized as one of the grounds for fear and fear in the country of origin.”

2. The lower court determined that the Plaintiff had a well-founded fear from the Egypt government, etc. solely on the ground that the Plaintiff’s statement in the Plaintiff’s refugee interview investigation and the details of the Plaintiff’s statement in the Party’s personal examination were consistent and consistent with the background leading up to becoming aware of his gender identity, the conduct prior to entering the Republic of Korea, and sanctions against the same-sexs in the Egypt Republic of Egypt (hereinafter “Egypt”), and that the Plaintiff had a well-founded fear of persecution by the Egypt government, etc.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following circumstances.

(1) On April 5, 2014, the Plaintiff, a foreigner of Egypt nationality, entered the Republic of Korea as the status of stay for tourism and Tong (B-2) and stayed, and applied for refugee status to the Defendant on May 2, 2014.

(2) The Plaintiff stated in Egypt to Egypt to 11 to 20 years of age (round October 201, 201), in the refugee interview investigation and the party principal examination of the lower court, that he/she provided three-time same-sex intercourse. The time and the counterpart of Egypt to the refugee interview investigation and the party principal examination of the lower court are different.

(3) In the refugee interview investigation, the Plaintiff stated that he was aware of the fact that the Plaintiff was aware of the fact that he was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually, and that he was aware that he was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually, and that he was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually, and that he was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually, and that he was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually, and that he was sexually sexually sexually sexually sexually sexually sexually sexually sexual.

B. We examine the above circumstances in light of the legal principles as seen earlier.

(1) First, it is difficult to recognize the credibility of the Plaintiff’s statements on three occasions of Egypt in Egypt and on the other party due to lack of consistency and persuasive power, and it is difficult to deem that such statements were arising from the Plaintiff’s old and unstable psychological state, etc.

(2) Although the Plaintiff did not actively engage in the same-sex-related activities, the Plaintiff’s statement to the effect that the members of the Free Family were aware of the fact that the Plaintiff was the same-sex-related party, and that the Plaintiff was deprived of Nonparty 1 without any particular condition or any danger or injury to Nonparty 1 after confirming the departure from the Republic of Korea. Even according to the Plaintiff’s statement itself, Nonparty 1 was actively engaged in the activities for one to two years after joining the Free Family Party, and was engaged in the activities to narrow the truth of the Free Family Party. Therefore, it cannot be ruled out that Nonparty 1 was subject to retaliation against the act of resignation from or from the Party. Above all, it is difficult to recognize the credibility of the said statement because it is difficult to find out any objective data on the state’s circumstances that can confirm whether the Free Family Party has an objection to the same-sex-sexism and that it was a group with influence to gambling the same-sex-sex party.

(3) According to the objective circumstances of Egypt admitted by the lower court, it is likely that the Plaintiff would be subject to punishment if the Plaintiff’s statement itself was made known to the outside. However, even according to the Plaintiff’s statement itself, the Plaintiff did not disclose his sexual orientation and did not actively engage in the same-sex-related activities. From Egypt to Egypt to October 201, the Plaintiff terminated the same-sex-sex relationship between the two years and six months before entering the Republic of Korea on April 5, 2014, and did not engage in the same-sex relationship between the two years and six months until he entered the Republic of Korea, or did not suffer specific gambling due to the same-sex relationship. Therefore, it is difficult to determine that the Plaintiff has a well-founded fear that the Plaintiff was able to receive gambling with the attention of Egypt government or free from Egypt for the sole reason that he merely has the same-sex sexual orientation.

(4) In full view of the lack of consistency and persuasive power in the Plaintiff’s statement, the Plaintiff’s overall statement falls short of credibility, and there is insufficient evidence to verify whether the statement conforms to the objective circumstances of Egypt, it is insufficient to acknowledge that the Plaintiff has a well-founded fear of persecution from Egypt government, etc.

C. Nevertheless, the lower court determined that the Plaintiff constitutes a refugee by relianceing the Plaintiff’s statement without sufficiently examining whether the Plaintiff’s statement is consistent and persuasive, whether the Egyptary Party is actually engaged in active activities to gypting same-sexs in accordance with the strong order opposing the same-sexism, and whether the Plaintiff is merely one of the same-sexs and whether the Egypt Government or the free will party pay attention to the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the concept of refugee status and the standard for determining the credibility of the applicant’s statement, thereby adversely affecting the conclusion of the judgment, by failing to exhaust all necessary deliberations, and the allegation contained in the grounds of appeal on

4. Therefore, 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 Kim Yong-deok (Presiding Justice)