In a case where Party A, who is a Myanmar nationality, applied for refugee status after entry and filed an objection for refugee status review, and the period of permission for activities outside the status of stay has expired but it was discovered that Party A continued job-seeking activities, and the head of Immigration Office issued a compulsory departure order and protection order, the case holding that Party A’s disadvantage is significantly unjust compared to the public interest to be achieved through the above disposition.

In a case where Party A, who is a Myanmar nationality, applied for refugee status after entering the Republic of Korea, received a disposition of non-recognition of refugee status, and filed an objection to the Minister of Justice to the recognition of refugee status while continuing employment activities despite the expiration of the period of permission for non-recognition of refugee status, and the head of the Seoul Immigration Office issued a deportation order and protection order pursuant to Article 46 (1) 8 of the Immigration Control Act on the ground of the violation of Article 18 (1) of the Immigration Control Act, in full view of all the circumstances, the case holding that the Seoul Immigration Control Office’s issuance of a deportation order on the ground that Party A, who is a refugee applicant, was extremely limited from one year after the date of the application for refugee status without livelihood support and did not extend the period of permission after the decision of non-recognition of refugee status, is unilaterally emphasized only the character and convenience of administration, and the dignity of the refugee applicant as a human being, and thus, Party A’s disadvantage, compared to the public interest to be achieved through

Articles 18(1), 46(1)8, and 63(1) of the Immigration Control Act

Plaintiff (Attorney Seo-gu et al., Counsel for the plaintiff-appellant)

Head of Seoul Immigration Office

September 12, 2013

1. On February 22, 2012, the Defendant’s deportation order and protection order issued against the Plaintiff is revoked.

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 is a member of chin who was a minority ethnic friendship (C-3) with his/her nationality. On June 16, 201, the Plaintiff entered the Republic of Korea as a short-term visit (C-3) sojourn status, and applied for refugee status to the Defendant on the 28th day of the same month. Accordingly, the Defendant changed the Plaintiff’s sojourn status to other (G-1) qualification granted to the refugee applicant on the 30th day of the same month.

B. From August 5, 2012 to the 20th day of the same month, the Plaintiff was discovered to be engaged in simple labor by receiving 60,000 won daily remuneration from ○○ enterprise located in Geumcheon-gu Seoul ( Address omitted) from around August 5, 2012. The Defendant: (a) on August 21, 2012, the Plaintiff’s act of the Plaintiff violated Article 18(1) of the Immigration Control Act; (b) in consideration of the first fact, the Plaintiff issued a notification disposition of KRW 1 million in penalty pursuant to Articles 94 subparag. 8 and 102(1) of the Immigration Control Act; and (c) on the 22th day of the same month, the Plaintiff permitted ○ enterprise to engage in job-seeking activities from the same day to December 28 of the same year pursuant to Article 20 of the same Act.

C. On November 13, 2012, the Defendant: (a) did not engage in any activity opposing the Plaintiff’s government; (b) did not have been subject to surveillance, arrest, detention, etc. from its government; (c) was restored to multilateral parliamentary politics through the general election in 2010; and (d) was taking a series of democratization measures, such as the release of all political offenders and permission for peaceful demonstration, etc. after the Myanmar’s recent political situation, the Defendant issued a disposition to deny refugee status by deeming that it does not constitute a refugee since it is highly likely that the Plaintiff would be subject to political gambling; and (c) the Plaintiff raised an objection against the Minister of Justice on December 24 of the same year and is currently under examination.

D. On December 24, 2012, the Plaintiff applied for the extension of the period of stay and the extension of the permission to engage in activities outside the status of stay to the Defendant. The Defendant made a decision to extend the Plaintiff’s period of stay to March 28, 2013 on the same day, but the extension of the permission to engage in activities outside the status of stay was denied on January 4, 2013.

E. In the event that the Plaintiff continued to work at ○○ Company after the lapse of the period of permission to engage in activities outside the status of stay, and again was discovered on February 21, 2013, the Defendant, on February 22, 201, violated Article 18(1) of the Immigration Control Act, and issued a deportation order and a protection order in accordance with Articles 46(1)8 and 63(1) of the same Act (hereinafter collectively referred to as “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 8, 17

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff not only is still under review of the objection against the current disposition of non-recognition of refugee status, but also it is inevitable for the Korean government to take part in the job-seeking activities for the purpose of maintaining livelihood because the Korean refugee applicant does not have any living support despite the long-term necessity of refugee screening. The defendant asserts that the defendant's issuance of a deportation order for job-seeking activities by the plaintiff who is a refugee applicant is illegal because it goes beyond the discretionary scope or abused its discretionary power, and it is also illegal and illegal as it is based on the premise of a deportation order.

(2) As to this, the Defendant asserts that, even if the Plaintiff was discovered to be engaged in illegal employment activities on August 20, 2012 and received a disposition of notice from the Defendant, it is possible to issue a deportation order within the scope of Article 33 of the Refugee Convention if it violates the domestic law of the country of residence even though the Defendant is in the position of the refugee or refugee recognition applicant, it is possible to issue a deportation order within the scope of Article 33 of the Refugee Convention; the Defendant is not a country of nationality until the procedure of filing an objection is completed; the Plaintiff may enjoy sufficient opportunity to claim the right in the procedure of filing an objection against the non-recognition of refugee status or subsequent litigation proceedings; the Plaintiff, who stays in the Republic of Korea in the state of protection of the Defendant or temporary release from protection; the case of abuse of refugee application for refugee status where job-seeking activities are permitted without any restriction; and the support for the refugee applicant may result in more difficulty. In full view of the public interest to achieve the disposition of this case, the disposition of this case may not be deemed to exceed the scope of discretion of this case.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

(1) Whether the deportation order is unlawful

Comprehensively taking account of the following circumstances, the Defendant’s issuance of a deportation order on the ground that the Defendant unilaterally emphasizes the validity and convenience of administration and the dignity of the refugee applicant as a human being, as a result, is significantly unlawful compared to the public interest to be achieved by the Defendant, without livelihood support, to allow the Plaintiff, who is the refugee applicant, to work outside the status of sojourn, and does not extend the period of permission after one year has passed since the date of refugee application, and after the decision on the refusal of refugee status is rendered.

(A) Article 192 (vii) of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (hereinafter “Refugee”) provides that “An applicant shall be allowed to stay in that country during the period of review unless the applicant proves by a competent authority that his application is not clearly abused. In addition, during the period of filing an objection with a superior administrative agency or court, the applicant’s stay in that country should be recognized.” The refugee manual is a working-level guide concerning the recognition of the status of a refugee issued by the United Nations Senior Office of Refugees ( UNHCR, its abbreviation, the United Nations Refugee Organization). Since the manual is described in the preamble that it was made to be used as a guide for government officials of the Contracting State, it is not bound by the contents of the refugee manual, but considering that the government of the Contracting State is obliged to provide the specialized refugee agency with convenience in the application of the Convention on the Status of Refugees (hereinafter “Refugee Convention”), Article 5(1) of the UN Convention, the State’s duty of interpretation and performance of the refugee Convention should be respected.

(B) Pursuant to Article 76-8(3)2 of the former Immigration Control Act (amended by Act No. 11298, Feb. 10, 2012; hereinafter the same) and Article 88-9(4) of the former Enforcement Decree of the Immigration Control Act (amended by Ordinance of the Ministry of Justice No. 24618, Jun. 21, 2013); the Defendant permitted refugee applicants to engage in job-seeking activities outside the status of stay only after one year has passed since the applicant applied for refugee status; and the Defendant does not need to extend the period of permission for job-seeking activities outside the status of stay after the disposition of non-recognition of refugee status was taken. In addition, prior to the enactment of the Refugee Act by Act No. 11298, Feb. 10, 2012; the Republic of Korea government did not provide livelihood support to refugee applicants until the enforcement of the Refugee Act from July 1, 2013. All of these circumstances in which job-seeking activities are denied should be in violation of the State’s dignity.

(C) Article 40 of the Refugee Act and Articles 17 and 18 of the Enforcement Decree of the same Act provide that a refugee applicant may be provided with living expenses, etc. by the Minister of Justice within six months from the date of application for refugee status, and where six months have passed from the date of application for refugee status, a refugee applicant may be granted employment permission by means of permission to engage in activities other than sojourn status under Article 20 of the Immigration Control Act. This is due to reflective consideration of the problems of the past refugee-related legislation, which, without livelihood support, has been extremely limited after one year from the date of application for refugee status for refugee status, for refugee applicants who have been granted employment activities other than sojourn status, extremely limited after the date of application for refugee status. However, Article 2 of the Addenda of the Refugee Act provides that "this Act shall apply from the date of application for refugee status first after this Act enters into force, such as living expenses, etc., the purport of granting refugee applicants the preparation period for support activities such as living expenses, etc., is not legitimate prior to the date of application for refugee status.

(D) Such irregularities, like the Plaintiff, have been determined more than one year after applying for refugee status as in the case of the Plaintiff, and even if the Minister of Justice has filed an objection to the Minister of Justice, are extremely revealed in the situation of an administrative body where one year has to pass again. In reality, there is a considerable number of persons abusing the application for refugee status in order to extend the period of domestic stay even if the applicant is not an actual refugee. However, one of the major causes is one of such administrative body. Since such administrative body does not cause a good refugee, the issue of prolonged period is not to be returned to the disadvantage of the applicant for refugee status. The issue of abuse of the application for refugee status is to be prevented by significantly reducing the period of review by expanding the period of review by providing other institutional complementary devices, and preventing abuse of the refugee status. This is because it is not because it does not infringe on the duty of justice or justice that makes it impossible to render livelihood support without being presumed to be a refugee until the refugee status is recognized.

(E) Comprehensively taking account of the overall purport of the arguments in Evidence Nos. 3 through 9, 13 through 20, friendlys can not be readily concluded that the Plaintiff abused his/her application for recognition of refugee status until the end of the litigation procedure, unless special circumstances exist to enable the Plaintiff to enjoy the Plaintiff’s non-approval of refugee status and disposition, even though the Defendant did not have any possibility of booming the Plaintiff or abused his/her application for recognition of refugee status until he/she completed the litigation procedure.

(F) Although the Defendant may not enforce a deportation order against the Plaintiff pursuant to Article 62(4)2 of the former Immigration Control Act to respect Article 33 of the Refugee Convention until the procedure for raising an objection to the non-recognition of refugee status is completed, the illegality of the deportation order itself is not cured solely based on the postponement of enforcement pursuant to the relevant statutes. [In addition, where a refugee lawsuit is instituted after the completion of the procedure for raising an objection, the former or the Defendant does not specifically state whether the enforcement of the deportation order should be postponed until the period during which the lawsuit is pending, and this can be understood to the purport that the enforcement of the deportation order can be carried out unless there is a separate decision of the court. However, since the refugee applicant is not recognized as a refugee in the procedure for raising an objection to the non-recognition of refugee status without immediately filing a lawsuit against the deportation order, the issue of non-recognition of the enforcement order cannot be seen as being in force only in the first time after the enforcement of the Immigration Control Act’s non-acceptance of status under Article 62(4)2 of the former Immigration Control Act.

(G) As a more fundamental issue, Article 62(4) of the former Immigration Control Act provides, “Where a person subject to a deportation order falls under any of the following, the person who has applied for refugee status shall not be repatriated: Provided, That this shall not apply where a person who has applied for refugee status threatens or is likely to endanger the public safety of the Republic of Korea.” However, in light of the legal text and the structure of the provisions, whether a refugee applicant under a deportation order impairs or is likely to endanger the public safety of the Republic of Korea is prescribed as a matter of determination at the stage of enforcement of the deportation order. However, Articles 32 and 33 of the Refugee Convention allow refugee status only if there are extremely exceptional reasons for deportation, not the requirements for enforcement of the deportation order, but rather the requirements for the deportation order itself, it is reasonable to include the refugee status as a requirement for the deportation order. This is because, in principle, it is difficult to interpret that the Plaintiff could not be subject to a request for refugee status without delay due to an exceptional circumstance where the Plaintiff could not have been subjected to refugee status examination without delay.

(2) Whether the protective order is unlawful

To the extent that the deportation order against the plaintiff is unlawful as seen above, the protection order against the plaintiff is also unlawful.

3. Conclusion

The plaintiff's claim is justified, and all of the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Han Jin-hun (Presiding Judge) and Lee Jin-jin