2019Guhap50216 Action to revoke the decision not to return refugee status review

1. A (A)

2. B (B)

3. C (C)

4. D (D)

5. E (E)

6. F (F)

Plaintiff 3 through 6 is a minor, and a legal representative A, a mother B

[Defendant-Appellant] Plaintiff G and H

Law Firm (LLC) I, Attorney J

The head of Incheon Airport Immigration/Foreign Office

Litigation Performers K

April 4, 2019

April 25, 2019

1. The plaintiffs' claims are dismissed.

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

On January 9, 2019, the defendant revoked the decision not to refer to refugee status review rendered to the plaintiffs.

1. Details of the disposition;

The plaintiffs entered the Incheon State’s provision port on December 28, 2018 and undergo an entry inspection. The plaintiffs received a decision not to allow entry from the defendant on the ground that the purpose of entry is unclear and it does not meet the status of stay.

On December 28, 2018, the Plaintiffs filed an application for refugee recognition with the Defendant at an entry and departure port under Article 6(1) of the Refugee Act. On January 9, 2019, the Defendant rendered a decision not to return refugee status recognition (hereinafter referred to as “instant disposition”) to the Plaintiffs on the ground that the Plaintiffs’ application for refugee status constitutes “where there is no clear reason, such as the Plaintiffs’ application for refugee status solely for economic reasons” under Article 5(1)7 of the Enforcement Decree of the Refugee Act or for other reasons.

[Grounds for recognition] The entry of Nos. 1 and 6 Eul and the purport of the whole pleading

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

1) procedural illegality

The Defendant did not issue a written disposition to the Plaintiffs while rendering the instant disposition, did not present the grounds for the disposition, and did not notify the methods of filing a complaint against the disposition. Therefore, the instant disposition is unlawful as it violates Articles 23, 24, and 26 of the Administrative Procedures Act.

2) substantial illegality

A) Non-existence of the grounds for the disposition

The grounds for non-return to refugee status review under the subparagraphs of Article 5 (1) of the Enforcement Decree of the Refugee Act are strictly interpreted.

In addition, it is difficult to readily conclude that the Plaintiffs’ claim for refugee status clearly goes against the facts, such as that the contents of the Plaintiffs’ application for refugee status and the statement in the process of refugee status are consistent with the situation of Anrara, etc., and thus, the Plaintiffs’ application for refugee status does not constitute “where the application for refugee status is clearly groundless” under Article 5(1)7 of the Enforcement Decree of the Refugee Act. Therefore, the instant disposition is unlawful because there is no ground for the disposition.

B) Violation of the principle of proportionality

In light of the health condition and living conditions of the plaintiffs residing at the Incheon State's provision, compared to the public interest to be achieved through this case's disposition, the plaintiffs' interest from this case's disposition is much more high, so the disposition of this case violates the principle of proportionality and thus is unlawful.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

1) Whether the procedure is unlawful

A) Article 3(2) of the Administrative Procedures Act provides that "this Act shall not apply to matters falling under any of the following subparagraphs," and subparagraph 9 of Article 3 provides that "Article 3(2) of the Administrative Procedures Act shall not apply to cases where it is difficult or unnecessary to complete administrative procedures due to the nature of the relevant administrative action, such as conscription and call under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action and other dispositions under the public official personnel-related Acts and subordinate statutes, and mediation, conciliation, arbitration, finance, and other dispositions under the Acts and subordinate statutes aimed at mediating interests, and matters prescribed by Presidential Decree, which have undergone procedures equivalent to administrative procedures, are excluded from the application of the Administrative Procedures Act." Article 2 of the Administrative Procedures Act provides that "the matters prescribed by Presidential Decree under Article 3(2)9 of the Administrative Procedures Act refers to the matters falling under any of the following subparagraphs" and subparagraph 2 provides that "the matters concerning entry of foreigners, recognition of refugee status, naturalization, and reinstatement of nationality."

On the other hand, when a foreigner applies for refugee status at an entry and departure port, he/she may allow the applicant to reside at a certain place at the entry and departure port within seven days (Article 6(2) of the Refugee Act), and shall determine whether to refer to the refugee status examination within seven days from the date on which the application for refugee status is submitted, and if he/she fails to determine within such period, he/she shall permit the applicant to enter the port (Article 6(3) of the Refugee Act). In the process, he/she may ask the applicant about matters necessary for making a decision on whether to refer to the refugee status examination through an interview, etc., and request him/her to submit relevant data (Article 3(2) and (3) of the Decree of the Refugee Act at the time of the Refugee Act). When he/she decides whether to refer to the refugee status examination, he/she shall notify the applicant of the results thereof without delay (Article 5(2) of the Enforcement Decree of the Refugee Act). (Article 5(3) of the Enforcement Decree of the Refugee Act provides that the applicant may refer to the refugee status examination or entry permission.

As above, the Refugee Act provides that when deciding whether to refer a refugee recognition application at a foreigner's entry and departure port, the applicant shall be notified of the result without delay, and the issuance of such decision and notification of the reasons for the decision shall not be provided. The decision whether to refer a refugee status examination through a refugee status examination, etc. for a short period of not more than seven days in order to promptly resolve the unstable situation of the applicants who need to wait at the entry and departure port and to wait for the decision of whether to refer a refugee status examination. When deciding whether to refer a refugee status examination, the applicant must immediately face the applicant and directly notify the applicant of the purpose of and reasons for the decision. Thus, the decision whether to refer a refugee status examination application at the foreigner's entry and departure port is based on the consideration that it is more efficient administrative work process, and it is difficult to submit the refugee status examination application at the foreigner's entry and departure port due to its nature or any other similar administrative procedure, and it is not reasonable to apply the Administrative Procedures Act separately from the administrative procedure.

B) However, even if the Administrative Procedures Act applies to the determination as to whether to refer a refugee recognition application at the port of entry and departure of foreigners, considering the following circumstances, it is reasonable to view that the Defendant issued a disposition stating the grounds for the disposition in the instant case to the Plaintiffs, and presented the grounds and reasons for the disposition. Thus, it cannot be deemed that there was a procedural error in violation of Articles 23, 24, and 26 of the Administrative Procedures Act.

① Comprehensively taking account of the overall purport of arguments in the statements and videos Nos. 6, 7, and 8 of the evidence, the Defendant directly informed the Plaintiffs of the purport and reason for the decision not to refer a refugee status review, and prepared and delivered a notice of non-return to refugee status to the Plaintiffs (Evidence No. 6). In the relevant notice of non-return to refugee status, the fact that the application for refugee status status is clearly well-founded, such as “where the application for refugee status is not clearly well-founded,” which is the reason for non-return to refugee status review, and other economic reasons, the fact that the applicant made a decision not to refer to refugee status review as it falls under “where there is no counter-proof.”

The Plaintiffs responded to questions related to the grounds for non-return to refugee status review while visiting the Defendant and refugee status review, and thereafter sought an explanation from the Defendant on the purport and reason of the non-return to refugee status review, and received a notice of non-return to refugee status review stating the grounds for non-return to refugee status review. As such, the Plaintiffs could have known how the instant disposition was made on the grounds and reason, and there seems to have been no difficulties in disputing the illegality of the instant disposition.

② Article 14(1) of the Regulations on Promotion of Administrative Efficiency and Collaboration stipulates that a document sent in the name of the head of an administrative agency shall be stamped. This purport is to indicate that the document was sent by the administrative agency with authority, clarify the content of the document, make the interested parties easily aware of the fact and secure evidence thereof, thereby preventing future disputes in order to ensure legal stability (see Supreme Court Decision 2005Du6201, Mar. 29, 2007).

In light of the following circumstances acknowledged by the statement No. 6 and the purport of the entire pleading, namely, the defendant's notice of non-return to refugee status issued by the defendant to the plaintiffs (Evidence No. 6), but the defendant's name and date of preparation are stated, and the defendant directly informed the plaintiffs of the purport and reason of the decision to non-return to refugee status status, and delivers the above decision to non-return to refugee status status status, it can be sufficiently recognized that the above decision of non-return to refugee status was made by the defendant, who is an administrative agency authorized to decide whether to refer to refugee status status status, and thus, even if the above decision of non-return to refugee status was not stamped by the defendant, such circumstance cannot be viewed as a defect that may affect the validity of the disposition of this case.

③ Even if the Defendant did not notify the Plaintiffs of the method of appeal, etc. under Article 26 of the Administrative Procedures Act at the time of the instant disposition, insofar as the Plaintiffs filed the instant lawsuit within the filing period and asserted that the instant disposition was unlawful, such circumstance alone is insufficient to deem that there was an error in the procedure to the extent that the instant disposition should be revoked.

2) Whether the substance is unlawful

A) Whether there is a reason for the disposition

According to Article 6 of the Refugee Act, Articles 3 and 5 of the Enforcement Decree of the Refugee Act, etc., ① The purpose of Article 6 of the Refugee Act, which provides that the Refugee Act may decide whether to refer a refugee recognition application at a port of entry into and departure from foreign countries, is to promptly grant the applicant entitled to refugee status examination as a refugee applicant under the Refugee Act by promptly providing not only the foreigner who has already entered into the Republic of Korea but also foreigners at a port of entry into and departure from Korea with an opportunity to apply for refugee status examination, and by promptly implementing the procedure, to promptly grant the applicant eligible for refugee status examination as a refugee applicant under the Refugee Act. Meanwhile, the purpose of Article 5(1) of the Enforcement Decree of the Refugee Act is to enhance the efficiency of refugee status examination by excluding an application for recognition as a refugee applicant who clearly lacks any grounds or who abuse the refugee status system from the subject of refugee status examination. In light of Article 5(1) of the Enforcement Decree of the Refugee Act, there is no need to proceed with refugee status examination per se, or the content of such application does not require any specific grounds to be applied.

In the instant case, comprehensively considering the following circumstances acknowledged by the respective statements and arguments in the evidence Nos. 1, 13, 14, 29, 35, 36, 37, and 39 as a whole, it is reasonable to view that the Plaintiffs’ application for refugee status was harmful to “where the application for refugee status is clearly groundless” under Article 5(1)7 of the Enforcement Decree of the Refugee Act. Thus, the instant disposition was deemed to have the grounds for the relevant disposition [the Plaintiffs were known within the Ararara Government’s application for refugee status within the Arara Government’s attention. This constitutes a fear on the grounds that there is sufficient grounds for harming the Plaintiffs’ application for refugee status, which constitutes an unlawful disposition. However, whether an administrative disposition was unlawful under the administrative litigation should be determined based on the status of the facts at the time when the administrative disposition was taken, and the Plaintiffs’ application for refugee status did not affect the amendment or abolition of the statutes or due to changes in the circumstances after the disposition was made (see, e.g., Supreme Court Decision 2008Du374.

① Plaintiff A (hereinafter referred to as “Plaintiff A”) and Plaintiff B (hereinafter referred to as “Plaintiff B”) expressed that they did not intend to apply for refugee status after being asked the Defendant about whether they intended to apply for refugee status in the course of undergoing a national examination of entry by the Defendant, but they received a decision to refuse entry from the Defendant on the ground that the purpose of entry is unclear, and that the purpose of entry is not consistent with the status of stay.

② The Plaintiff and B asserted within Anrara that the collective discrimination and pressure against the nationality of the Republic of Korea, as the result of such discrimination and pressure, Plaintiff A was unlawfully detained by the border, and Plaintiff B was under imminent harm, such as being raped by the police. However, it is apart from the compulsory departure measures taken by the Government of Anrara, for the Republic of Korea, on the part of the Republic of Korea, in Anrarara, in Anrarara, who was working in the area northwestwest, in the Republic of Korea, in the Republic of Korea. It is difficult to recognize that there was collective discrimination and pressure against the nationality of the Republic of Korea as claimed by the Plaintiffs, such as the police, or that such discrimination and pressure are being committed by a state organ (i.e., the Plaintiffs’ assertion during the process of performing the so-called "O pressure or self-harm recovery of their nationality."

③ Even according to the plaintiffs’ assertion, it is doubtful whether the plaintiff A escaped from illegal confinement in the police, and the plaintiff A was raped by the police, and the plaintiff A disposed of the housing owned by the Republic of Korea, and decided to move to the Republic of Korea by avoiding breath from the 2018.11 and from the 25.205. The plaintiff disposed of the housing, and prepared documents necessary for issuing the visa, and applied for the issuance of the visa to the Embassy of the Republic of Korea on December 5, 2018. As such, it is questionable whether a series of processes, such as the decision to move to the Republic of Korea, and the planning and plan to move to the Republic of Korea, may take place within a short time period of time due to the weak draft.

Furthermore, among the documents submitted by the Plaintiffs upon their application for visa issuance to the Embassy of the Republic of Korea on December 5, 2018, the Plaintiff’s certificate of employment (No. 10 of the evidence No. 35) directly acknowledges that the Plaintiffs are false documents, and Plaintiff’s bank balance certificate (No. 12 of the evidence No. 35) appears to be false documents (No. 37 of the evidence No. 37). According to the fact-finding survey conducted by the consul of the Republic of Korea Embassy Republic of Korea Embassy, the Plaintiff’s husband and wife of the housing leased in Anrara, and the Plaintiff’s husband and wife stated that the Plaintiff had been released from the construction company around June 2018, and the Plaintiff’s Plaintiff’s Plaintiff’s 21 had been stated in the Plaintiff’s house No. 99 for the reason that he and she had been able to move to the Republic of Korea police station for her reasons, such as job seeking, etc., and that the Plaintiff had not claimed otherwise from the Plaintiff 21.

B) Whether the principle of proportionality is violated

As seen earlier, the Plaintiffs’ application for refugee recognition constitutes cases where there is no clear reason. As long as it appears, public interest, such as enhancing the efficiency of refugee recognition examination, which is to be achieved by suppressing the application for refugee recognition at the port of entry and departure that abuse the refugee recognition system, cannot be deemed to be less unfavorable than that of the Plaintiffs due to the instant disposition. Therefore, even if considering the various circumstances alleged by the Plaintiffs, the instant disposition is not deemed to be in violation of the principle of proportionality.

3. Conclusion

The plaintiffs' claims are dismissed as they are without merit. It is so decided as per Disposition.

The presiding judge shall complete the judges

Judge Oral Records

Judges Park Jae-sung