[1] Requirements for the recognition as a refugee by the Minister of Justice as a refugee under the Convention on the Status of Refugees

[2] Whether a person can be recognized as a refugee even in cases where there occurs a “founded fear of persecution” by expressing political opinions in a country of residence after leaving his/her country of nationality, or where he/she provided a cause of persecution to be protected as a refugee (affirmative)

[3] The person who bears the burden of proof as to the meaning of "persecution", which is a requirement for recognition of refugee status, and the fact that there is "sufficiently-founded fear" subject to such persecution (=the applicant for refugee status), and the degree of proof

[1] Articles 2 subparag. 2-2 and 76-2(1) of the Immigration Control Act, Article 1 of the Convention on the Status of Refugees, Article 1 of the Protocol Relating to the Status of Refugees / [2] Articles 2 subparag. 2-2 and 76-2(1) of the Immigration Control Act, Article 1 of the Convention on the Status of Refugees, Article 1 of the Protocol Relating to the Status of Refugees / [3] Articles 2 subparag. 2-2 and 76-2(1) of the Immigration Control Act, Article 1 of the Convention Relating to the Status of Refugees, Article 1 of the Protocol

[3] Supreme Court Decision 2007Du3930 decided July 24, 2008 (Gong2008Ha, 1242)

Plaintiff (Attorney Lee Ho-hoon et al., Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul High Court Decision 2007Nu1912 decided September 4, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

In full view of the provisions of Article 2 subparag. 2-2 and Article 76-2(1) of the Immigration Control Act (hereinafter referred to as the “Act”), Article 1 of the Convention Relating to the Status of Refugees (hereinafter referred to as the “Refugee Convention”), and Article 1 of the Protocol Relating to the Status of Refugees, the Minister of Justice shall recognize any foreigner in the Republic of Korea who is unable or does not want the protection of his/her country of nationality due to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as a refugee prescribed by the Refugee Convention, if so requested.

A refugee may be recognized even in the event of a “reasonable fear of persecution” as a result of an act such as expressing political opinions in a country of residence after leaving his/her country of nationality, and it does not change on the ground that he/she provided a cause of persecution to be protected as a refugee.

The term "persecution" which is a requirement for recognition of refugee status may be deemed as "act causing serious infringement of or discrimination against essential human dignity, including threats to life, body or freedom, and where it is reasonable to recognize the facts based on the credibility of the overall statement in light of the following factors: (a) the applicant for recognition of refugee status has consistency and persuasiveness in his/her statement, and considering the special circumstances of the refugee status, it shall be deemed that there is proof if it is reasonable to recognize such facts based on the credibility of the overall statement in light of the route of entry, the period between the applicant and the applicant for refugee status, the background of his/her application for refugee status, the situation of his/her country of nationality, the degree of fear of subjective fear, the political, social, and cultural environment of the region in which the applicant resides, the degree of fear of ordinary people in the region, etc.

The court below determined that the plaintiff cannot be deemed to have engaged in Myanmar or domestic political activities to the extent that the plaintiff can be recognized as "sufficient fear of persecution" in light of the adopted evidence, and that the plaintiff's application for refugee status is to continue to engage in economic activities in Korea. In light of the above legal principles, the court below is just and acceptable, and there is no violation of the rules of evidence or misunderstanding of the legal principles as to the concept of refugee status, such as the grounds for appeal.

2. As to the third ground for appeal

Inasmuch as the granting of humanitarian stay to foreigners in Korea and recognition of refugee status are carried out in accordance with separate requirements and procedures, it cannot be recognized that the Defendant granted a humanitarian stay to the Plaintiff by itself that the Plaintiff satisfied the requirements for refugee status, such as having a “sufficiently-founded fear of persecution.” Thus, this part of the grounds of appeal cannot be accepted to the effect that the Defendant satisfied the requirements for refugee status, such as the possibility of gambling, as long as the Defendant granted a humanitarian stay to the Plaintiff.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)