2016Guhap326 Revocation of a decision not to return refugee status

Suil ○○ (WAELO, January 1, 1996)

Jung-gu Incheon Airport 272, and the waiting room for departure (Seong Dong-dong)

Seoul Gangnam-ro 133, 12-story Foundation Foundation, Gangnam-gu, Seoul, Seoul, Seoul, Dongcheon-dong (Jinju Dong)

Attorney Lee Jae-chul, Counsel for the plaintiff-appellant

The head of Incheon Airport Immigration Office

The main effect of the litigation performer, the suspended interest in the official law officer, the immigration officer, the immigration officer, the immigration officer, the immigration officer;

May 27, 2016

June 17, 2016

1. On January 14, 2016, the Defendant’s decision not to return refugee status recognition to the Plaintiff is revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. On January 6, 2016, the Plaintiff, as a man of the nationality of the Republic of Syria (hereinafter referred to as "Syria"), submitted an application for refugee status to the Defendant on January 7, 2016 (hereinafter referred to as "the instant application").

B. On January 14, 2016, the Defendant rendered a decision not to return a refugee status review (hereinafter referred to as “disposition”) on the ground that: (a) the Defendant fell under a safe country of origin with no possibility of gambling; (b) the Plaintiff came from a safe country of origin with no possibility of gambling; or (c) the application for refugee status was solely seeking refugee status for economic reasons; and (d) there is no clear reason to do so; and (c) there was a reason not to return a refugee status review under Article 5 subparag. 4 and 7 of the Enforcement Decree of the Refugee Act.

[Ground of recognition] Facts without dispute, entry of Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant lawsuit is lawful

A. The defendant's main defense

1) The instant disposition is merely an internal decision-making, which is the premise of the non-permission decision, and thus, the substance of the disposition is denied. The disposition against such foreigner’s entry permission is an act of inherent discretion in a sovereign state under international law. Thus, the instant disposition cannot be subject to judicial review.

2) Although the refugee recognition application system at the port of entry and departure under Article 6 of the Refugee Act constitutes grounds for prohibition of entry into the Republic of Korea under the Immigration Control Act, it is a system that allows entry into the Republic of Korea in exceptional cases by humanitarian consideration. The Plaintiff’s application for refugee recognition through such a system is merely an anti-private interest arising in the process of establishing the legal basis for the system, and it cannot be deemed that the Plaintiff has a right under laws or cooking that allows the Plaintiff to request the submission of refugee recognition to the Defendant. Thus, the instant disposition cannot be deemed an administrative disposition subject to appeal litigation, and the Plaintiff is not entitled to standing to sue

3) Therefore, the Plaintiff’s instant lawsuit is unlawful.

B. Determination

1) We examine the following. ① The instant disposition was decided not to refer the Plaintiff to refugee status screening under Article 5 of the Refugee Act. The decision not to grant entry to the Plaintiff is based on Article 6 of the Refugee Act and its contents and legal effect are different. ② The instant disposition is based on Article 12 of the Immigration Act. The legal basis of the decision not to grant entry is also different. ③ According to Article 5(2) and (3) of the Enforcement Decree of the Refugee Act, the pertinent disposition agency notifies the applicant for refugee status of the decision not to grant entry to the applicant at entry and departure port. If the decision not to grant refugee status screening was made, it is necessary to conduct an entry inspection under the Immigration Control Act. However, in the entry inspection, the relevant disposition not to grant entry status to the applicant for refugee status at entry and departure port is not subject to judicial review, taking into account the fact that the relevant disposition is not subject to legal obligation to deny entry to the applicant for refugee status if there is no legal obligation to do so.

2) Furthermore, in full view of the following facts: (a) when the Defendant submits a decision to refer a refugee status to the Plaintiff, the Plaintiff shall not be deemed to have obtained entry permission pursuant to Article 5(3) of the Enforcement Decree of the Refugee Act; (b) the Plaintiff shall be granted the status of an applicant for refugee status to obtain legal benefits, such as the right to access and copy (Article 12) and materials, etc. (Article 16) under the Refugee Act; and (c) when the Plaintiff is recognized as a refugee in the course of refugee status screening, the Plaintiff shall be legally entitled to social security or education equal to Korean nationals as prescribed in Articles 30 through 43 of the Refugee Act; and (d) the Plaintiff shall not be deemed to have lost anti-private benefits arising from the Plaintiff’s deprivation of opportunity to receive confirmation as to whether he/she was a refugee status due to the instant disposition; and (e) it is reasonable to deem that the Plaintiff has legal benefits seeking the cancellation of the instant disposition.

3) Accordingly, the Defendant’s main defense is without merit.

3. Whether the disposition of this case is unlawful

A. The plaintiff's assertion

1) Claim in violation of the Administrative Procedures Act

As the Administrative Procedures Act applies to the instant disposition, when the Defendant takes the instant disposition, it shall be in writing and shall present the grounds and reasons to the Plaintiff (Articles 23 and 24 of the Criminal Procedure Act). The Defendant did not properly explain the grounds for the instant disposition to the Plaintiff while rendering the instant disposition, and did not deliver a document pertaining to the instant disposition. The instant disposition was in violation of the Administrative Procedures Act.

2) Grounds for deviation and abuse of discretionary power

The defendant's decision not to return refugee status review may violate Article 33 of the Convention on the Status of Refugees (hereinafter referred to as the "Refugee Convention") which provides for the prohibition of forced repatriation of refugees by failing to enter the Republic of Korea without a fair refugee status review. Thus, in order for not to violate the Refugee Convention, each subparagraph of Article 5 (1) of the Enforcement Decree of the Refugee Act should be interpreted only where there is no objective clear possibility of refugee status recognition.

Turkey, China, etc., where the Plaintiff was staying, has not been recognized as a refugee status or has been treated as a member of the country without guaranteeing the status of a refugee, and thus, it cannot be viewed as cases where the Plaintiff clearly safe country under Article 5 (1) 4 of the Enforcement Decree of the Refugee Act has been subjected to compulsory conscription from the Syria authority or Islamic countries (IS). Thus, it cannot be viewed as cases where the application for refugee status recognition under Article 5 (1) 7 of the Enforcement Decree of the Refugee Act is clearly without good cause.

Nevertheless, the Defendant issued the instant disposition on the ground that the Plaintiff constitutes a case stipulated in Article 5(1)4 and 7 of the Enforcement Decree of the Refugee Act, and thus, the instant disposition was erroneous in the misapprehension of the discretionary power on the decision not to return refugee status review.

(b) Related statutes;

As shown in the attached Form.

C. Determination on the assertion of violation of the Administrative Procedures Act

1) Whether the Administrative Procedures Act applies to a decision not to return refugee status review

A) Article 3(2) of the Administrative Procedures Act provides that "this Act shall not apply to any of the following matters." Article 3(2) of the Administrative Procedures Act provides that "The provision provides for conscription and call-up 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 matters deemed difficult or unnecessary due to the nature of the pertinent administrative action, such as conciliation, arbitration, finance, and other dispositions under the Acts and subordinate statutes aimed at mediating interests, and those prescribed by Presidential Decree which have gone through procedures equivalent to administrative procedures, are excluded from the application of the Administrative Procedures Act. Article 2 of the Administrative Procedures Act provides for "matters prescribed by Presidential Decree" under Article 3(2)9 of the Administrative Procedures Act at the time of delegation refers to any of the following matters:

In light of the legislative purpose of the Administrative Procedures Act, which aims to ensure fairness, transparency, and reliability in administration and to protect the rights and interests of the people, the application of the Administrative Procedures Act shall not be deemed to be excluded even if the provisions of the Administrative Procedures Act concerning a disposition by public official personnel management law are pertaining to the whole of the matters, but shall be limited to a disposition that is difficult to undergo administrative procedures or is deemed necessary due to its nature, or a disposition that is subject to procedures equivalent to administrative procedures (see, e.g., Supreme Court Decision 2011Du30687, Jan. 16, 2013). Such legal principle shall be applied to a foreigner’s application for refugee status as prescribed by the Administrative Procedures Act (see Article 3(2)9 of the Administrative Procedures Act and Article 2 subparag. 2 of the Enforcement Decree of the same Act), along with the “matters concerning a disposition by a public official personnel personnel management law” as well as the “matters concerning a foreigner’s application for refugee status” (see, e.g., Article 6 of the Refugee Act).

Therefore, the application of the Administrative Procedures Act should be excluded in cases where the application of the Administrative Procedures Act is not entirely excluded from the application of the decision to grant refugee status according to the application for refugee status at entry and departure ports, but only where it is deemed difficult or unnecessary to undergo due procedures due to the nature of the Administrative Procedures Act or where it is required to take procedures equivalent to administrative procedures.

B) Furthermore, in light of the following circumstances, the instant disposition, which is a decision not to refer to refugee status screening upon an application for temporary recognition at a port of entry and departure as prescribed by the Refugee Act, cannot be deemed to constitute a disposition deemed difficult or unnecessary due to its nature.

(1) ① The purpose of the decision not to refer a refugee status examination is to enhance the efficiency of the stage of refugee status examination by preventing applications from abusing the refugee status system in advance. ② According to the Refugee Act, the Minister of Justice must make a decision on whether to refer a refugee status examination within seven days from the date when the application is submitted (Article 6(3)). Thus, it is not necessary to make a decision on whether to refer a refugee status examination immediately upon the receipt of the application by the Defendant, but rather to grant a seven-day period from the date of receipt. ③ The Enforcement Decree of the Refugee Act provides that the Defendant may not, without delay, conduct an investigation into the applicant for refugee status at the port of entry and departure without an interview, and send it to the Minister of Justice, accompanied by the result (Article 3(2)). ④ Even in the Defendant’s assertion, the Defendant’s decision not to refer a refugee status examination to the relevant administrative agency, and thus, cannot be seen as making an excessive decision not to refer a refugee status examination or to make an oral decision not to grant a refugee status examination.

(2) According to the Refugee Act, in relation to a refugee status examination, the Minister of Justice must determine whether to grant refugee status within six months from the date of receipt of the refugee status report. If he/she determines that an applicant for refugee status is not a refugee status, he/she shall issue a notice of decision on refugee status refusal to the applicant for refugee status within 30 days, specifying the reasons for the decision (including decision on the facts and legal arguments of the applicant for refugee status) and the deadline and method of filing an objection (Articles 18(2), 3, and 4). In the course of the examination, the applicant for refugee status shall be entitled to file an administrative appeal pursuant to Article 18(4) and (1) of the Refugee Act, including investigation by the refugee status examiner (Articles 8(4) and 10), attorney’s assistance (Article 12), (13) of a person in trust relationship, and (4) of a certain interpreter who is qualified, and (6) of the Administrative Appeals Act may file an objection to the decision on refugee status inspection and notification.

In addition, according to the Refugee Act, a foreigner who is located in the Republic of Korea pursuant to Article 5 may stay in the Republic of Korea until a decision to recognize a refugee becomes final and conclusive (Article 5(6)), and even when a decision to recognize a refugee is made or a decision to dismiss an objection is made, a foreigner may be granted a humanitarian stay permit pursuant to Article 2(3) of the Refugee Act (Article 2(1) of the Enforcement Decree of the Civil Act).

On the contrary, a foreigner who was not granted the status of the applicant due to a decision not to return the refugee status at a port of entry and departure as prescribed in Article 6, would be placed in the place where he/she will immediately be repatriated abroad without undergoing the refugee status examination itself. In addition to the decision not to grant refugee status, it is more necessary to give an opportunity for objection to the decision not to return the refugee status examination. Therefore, it cannot be said that there is no need for administrative procedures as to the decision not to return the refugee status examination under the Administrative Procedures Act.

C) Furthermore, with respect to an application for refugee status at a port of entry and departure, the Refugee Act provides for necessary matters, such as procedures for applying for refugee status status at a port of entry and departure, prescribed by Presidential Decree. “The head of office or branch office who has received the delegation thereof shall conduct an investigation into the applicant for refugee status status at the port of entry and departure without delay and send the results to the Minister of Justice along with the results of such investigation. If necessary in the course of such investigation, he/she may ask the applicant for refugee status status status at the port of entry and departure to question about matters necessary for determining whether to refer to the applicant for refugee status status, such as the name of aircraft or vessel name, personal information, entry country circumstances, and reason for such application, and the Minister of Justice shall inform the applicant for refugee status status at the port of entry and departure of the results thereof without delay. Article 6(3) of the Enforcement Decree of the Refugee Act provides for “The head of office or branch office, upon receipt of the delegation, shall not provide for the applicant for refugee status status status at the port of entry and departure.”

Therefore, it cannot be deemed that a decision to reject refugee status review for foreigners constitutes a disposition that requires the procedure corresponding to the administrative procedure.

D) If so, it is reasonable to view that the Administrative Procedures Act applies to the decision not to return refugee status review.

2) Whether the instant disposition violates the Administrative Procedures Act

A) Article 24(1) of the Administrative Procedures Act provides that when an administrative agency takes a disposition, it shall be made in writing, except as otherwise provided for in other statutes. This is to ensure clarity in the disposition and to prevent disputes over the existence or content of the disposition (see Supreme Court Decision 2012Du5985, May 9, 2013). In addition, Article 23(1) of the Administrative Procedures Act provides that when an administrative agency takes a disposition, the parties shall present the grounds and reasons therefor. The purport of this provision is to exclude arbitrary decisions of the administrative agency and allow the parties to properly face the administrative remedy procedure. Thus, considering the overall process until the administrative agency reaches the disposition, the grounds and reasons for the disposition should be presented to the extent that it does not interfere with the administrative remedy procedure (see, e.g., Supreme Court Decision 2012Du5985, Sept. 20, 2015).

B) The facts that the Defendant did not deliver a written disposition to the Plaintiff at the time of the instant disposition do not conflict with the Plaintiff, and there is no evidence to prove that the Defendant clearly notified the Plaintiff of the grounds for the instant disposition to the extent that there is no dispute as to the existence or content of the disposition (when the Defendant submitted a refugee recognition application at the entry and departure port, he conducts an investigation to the applicant through an interview, etc. without delay, and explain and makes a decision not to return the refugee status in the process, the result is interpreted and notified to the applicant in the language of the applicant." The Plaintiff did not submit any evidence that clearly notified the Plaintiff of the contents of the disposition at the time of the instant disposition. The Plaintiff did not specify the grounds for the instant disposition and the relevant laws and regulations until the instant disposition is filed, and the Plaintiff did not specify the grounds for the instant disposition and the grounds for the instant disposition, which were written by the Defendant, and did not comply with the grounds for the instant disposition and the grounds for the relevant laws and regulations, etc.

Meanwhile, Article 5(2) of the Enforcement Decree of the Refugee Act provides that “When the Minister of Justice decides whether to refer to refugee status screening pursuant to Article 6(3) of the Refugee Act, he/she shall, without delay, notify the applicant of the result thereof at the port of entry and departure, or the applicant for refugee status.” Since there is no provision regarding “the method”, such provision alone is difficult to deem that there is a special provision providing that the Refugee Act shall notify the applicant of non-sub-determination by means other than the document.

Therefore, the disposition of this case is illegal since it was conducted without issuing a written disposition under Article 24 of the Administrative Procedures Act.

C) Also, the following circumstances are revealed by comprehensively considering the purport of the statement No. 2 of the evidence No. 2, namely, ① there was no document issued by the Defendant to the Plaintiff as to the grounds for the disposition of the instant case, the grounds for the disposition, and the laws and regulations based on the disposition. The Plaintiff appears to have failed to properly known the grounds for the disposition, the grounds for the disposition, and the laws and regulations based on the disposition, ② it is difficult to expect that the Plaintiff, a foreigner, was specifically aware of the grounds for non-return to refugee status screening stipulated in the laws and regulations of the Republic of Korea. ③ Since the Plaintiff arrived at the Incheon Airport Immigration Office after its arrival, it was placed in a position where the Plaintiff did not receive legal assistance from the Do government in the course of repatriation, and ④ The above interview investigation was led by the employees of the Incheon Airport Immigration Office, and thus, was limited to the extent of the Plaintiff’s statement about the grounds for objection to the instant disposition, and thus, it cannot be seen that the Plaintiff’s actual grounds for appeal and reply were unlawful.

D) Sub-decisions

The instant disposition is erroneous in violation of the Administrative Procedures Act.

D. Determination on the deviation and abuse of discretionary power

1) The limitation of review of reasons for non-return to refugee status review and burden of proof

A) Article 6 of the Refugee Act separates from Article 5 on the application for refugee status after entry into a port of entry. Unlike Article 5 on the application for refugee status at a port of entry into a port of entry, the above provision is subject to examination of "A part of the application for refugee status status" as a prior stage. As such, the purpose of the Refugee Act separately provides for the decision on whether to refer a refugee status status status application at a port of entry into a port of entry into a port of entry into a port of entry into a port of entry into a port of entry into a port of entry into a port of entry to secure the status of an applicant for refugee status status within a limited period of time, while taking into account the rapid Section 1 before entry into a port of entry into a port of entry, if there is no ground for the application for refugee status status or if it is obvious that the applicant intends to abuse the refugee status system, thereby enhancing the efficiency of the refugee status screening process in the prior stage.

In addition to the purport of Article 33 of the Refugee Convention (a Contracting State shall not conceal or repatriate in the border in the territory where the right to life or freedom is likely to be threatened for reasons of race, religion, nationality, membership status of a particular society group, or permanent opinion by any means of a refugee, a decision not to return refugee status to an applicant at a port of entry and departure should be made only when it is clearly revealed that the applicant falls under a ground for non-return of refugee status under each subparagraph of Article 5(1) of the Enforcement Decree of the Refugee Act even through a simple review procedure, and it is reasonable to refer the applicant to the same effect as the applicant is deemed abused the refugee status system if specific determination is necessary, and to refer the applicant to the status of the applicant under Article 8 of the Refugee Act for a short period of time if specific determination is necessary.

B) The Defendant asserts that the discretion of an administrative agency should be widely recognized in making a decision on the refusal of refugee recognition at entry and departure ports, on the grounds that the Paris Terrorism case by the refugees, the Paris Terrorism case, the Glish, Klish, and Slish, the need to block the people’s request for strengthening refugee measures and the national interest to maintain national security, and the procedure for submitting refugee status applications, are of the nature as a pre-trial procedure for refugee status screening, and that the more relaxed standard should be applied. In order to prevent the abuse of refugee status status as a means to escape the entry inspection system at entry and departure ports, the Defendant’s discretion should be respected as much as possible.

① However, under different policy objectives from immigration management, the Refugee Act was enacted in consideration of the establishment of refugee norms in line with the international status of the Republic of Korea as a country protecting human rights. ② Restricted recognition in a case where the status as a refugee is deprived of the right to be recognized without specific and careful examination procedures accords with the purport of the Refugee Act. ③ “The legislative purpose of Article 6 of the Refugee Act is to stipulate the procedures for applying for refugee status in airport, port, port, etc. to prevent a situation rejected by arbitrary administration.” ④ Accordingly, the application for refugee status should not be subject to more restrictive interpretation than the case where the applicant’s application for refugee status is deemed to have been made in line with the purpose of the Refugee Act, and the application for refugee status should not be subject to more restrictive interpretation or discretionary application for refugee status than the case where it appears to have been made in line with the case where the applicant’s application for refugee status was made in accordance with the application for refugee status and entry inspection system, and there is no obvious reason for the application for refugee status in Korea.

C) Furthermore, as seen earlier, at the port of entry and departure as stipulated in Article 6 of the Refugee Act.

In order to improve the protection of the human rights of refugees, the purpose of this legislation is to provide the refugee status applicants at entry and departure ports with an opportunity to undergo refugee status screening prescribed in Article 5 of the Refugee Act. ② Accordingly, each subparagraph of Article 5(1) of the Enforcement Decree of the Refugee Act does not provide for the reasons for referral to refugee status screening, but only for the reasons for non-re-determination. The reason also requires considerable reasons or clear reasons for the decision even if it is based on specific facts or based on the judgment of the relevant disposition agency. ③ If it is deemed that the applicant for refugee status bears the burden of proving the non-existence of the reasons for non-return to refugee status screening, the applicant for refugee status is recognized as a relationship at entry and departure ports, as well as the attempt to secure necessary materials for refugee status applicants in most cases where it is highly probable that it is not easy to do so, and thus, it can be determined that each disposition agency is not able to obtain the opportunity to actually return refugee status status under Article 5(1) of the Enforcement Decree of the Refugee Act.

2) Whether it falls under Article 5(1)4 of the Enforcement Decree of the Refugee Act

(A) ① Article 5(1)4 of the Enforcement Decree of the Refugee Act provides that “Where a safe state is or has been safe from a country which has no possibility of persecution” means a reason for non-return of refugee status.” As seen above, Article 33 of the Refugee Convention prohibits compulsory deportation or repatriation of refugee status at the border in the territory where there is concern about threatening the life and freedom of refugee status. ② The decision not to refer a refugee status examination is completely deprived of the opportunity to undergo a refugee status examination at the pre-determination stage of the refugee status examination, which is clearly defined as reasons for non-return of refugee status under Article 5(1) of the Enforcement Decree of the Refugee Act, and the applicant is not likely to be subject to a national refugee status examination or non-replaceable for reasons of abuse of nationality, even if there is no clear reason for the application not being able to undergo a refugee status examination or non-replacement of the State.”

B) Comprehensively taking account of the overall purport of the statements and arguments in the Health Team, Eul evidence Nos. 1 and 2 as to the instant case, the Plaintiff resided in Turkey for about 14 months after departing from Turkey through an immigration inspection around October 23, 2014, and entered Turkey for about December 29, 2015, after having arrived at the Incheon National Airport on January 6, 2016, which was after having arrived at around Turkey via Turkey. The Plaintiff resided in Turkey. The Plaintiff’s assistance and living in Turkey or lusium in Turkey, the Plaintiff’s failure to apply for refugee status in Turkey, Turkey, Russia, and China.

However, in light of the following circumstances acknowledged by the overall purport of Gap evidence Nos. 29, 30, 32, and 33 (including number number), Eul evidence Nos. 6, and Eul evidence Nos. 6, the evidence submitted by the defendant alone is not sufficient to prove that Turkey, etc., which had been living before the plaintiff arrives at the Incheon National Port, was " safe country" under Article 5 (1) 4 of the Enforcement Decree of the Refugee Act, and there is no other evidence to support this ( even if the plaintiff did not file an application for refugee status even while residing in Turkey, etc. for a long time beyond Syria, which is a hostile State, even if the plaintiff resided in Turkey, etc., for a long time, while living in Turkey, etc., the mere fact that Turkey, etc. does not prove that Article 5 (1) 4 of the Enforcement Decree of the Refugee Act is a safe country designated as a non-return to the refugee status examination.

The reason for non-return to refugee status shall not be considered as the reason for refugee status review).

(1) In the case of Turkey, approximately 2.5 million Syria refugee status is accepted, but there are problems such as the mass accommodation of Syria refugee status, the failure to establish and operate a new Refugee Act, and the failure to properly guarantee refugee rights under the Refugee Convention.

(2) In the case of China, China has recognized the entry and sojourn of refugees to some extent, but it is argued that there is no proper system in accordance with the implementation of the obligations under the Refugee Convention, and that there is a passive position or responsibility for the issue of refugee occurrence in Syria and its related matters.

(3) In the case of Russia, there is no submission of data to determine the fact that the defendant is a safe state with no possibility of gambling.

3) Whether it falls under Article 5(1)7 of the Enforcement Decree of the Refugee Act

The term "gambling as a requirement for recognition as a refugee under the Refugee Act" can be deemed as "an act of seriously infringing or discriminating against essential human dignity, including threats to life, body or freedom," and it cannot be said that there was any cause of gambling solely on the ground that the refusal of compulsory conscription was made. However, if the refusal of conscription can be deemed as having expressed political opinions, such as by political motive, it can be deemed that there was a cause of gambling (see, e.g., Supreme Court Decision 2007Du3930, Jul. 24, 2008).

According to the overall purport of evidence Nos. 1 and 2 evidence and the argument, the plaintiff is recognized as having received a disciplinary action due to Syria War, and there is no reason to see that the plaintiff's main reason for applying for refugee status is a compulsory refusal of conscription. However, if the plaintiff returns to Syria, he will be allowed to participate in a war regardless of the plaintiff's will, if he returns to Syria. In light of the overall situation in Syria, it cannot be easily concluded that the refusal of compulsory conscription by the plaintiff cannot be evaluated as a political East or that there is no possibility of harm to the plaintiff. Thus, the plaintiff's application for refugee status cannot be viewed as a case where the plaintiff's application for refugee status cannot be deemed as a case where there is no clear reason, and it is necessary to make a specific judgment through a review of refugee status.

Therefore, the evidence submitted by the defendant alone is insufficient to recognize that the application for recognition of refugee status constitutes "where the application for recognition of refugee status is clearly groundless because the plaintiff wants to obtain recognition of refugee status solely for economic reasons" under Article 5 (1) 7 of the Enforcement Decree of the Refugee Act.

4) Sub-decisions

Ultimately, even though the grounds for the non-return of refugee status as stipulated in Article 5(1)4 and 7 of the Enforcement Decree of the Refugee Act regarding the Plaintiff’s application for refugee status are not recognized, the Defendant’s disposition of this case on the ground that the aforementioned grounds exist is unlawful as it deviates from or is in excess of the discretion to decide the non-return of refugee status status status review.

4. Conclusion

If so, the plaintiff's claim is reasonable, X which is decided as ordered by admitting it.

Justices Kim Tae-hun

Judges Park Jong-dae

Judges Yellow Jin-Jin

Site of separate sheet

Related Acts and subordinate statutes

Convention on the Status of Refugees (Convention Relating to the Convention on the Status of Refugees, July 28, 1951)

Article 1

"Refugee Definition of the terms ""

A. For the purposes of this Convention, the term "refugee" shall apply to:

(1) Any person who is recognized as a refugee by an agreement dated May 12, 1926 and June 30, 1928, or by the Protocol of 28 and February 10, 193 and by the International Refugee Organization Charter of 1939, or by the International Refugee Organization of 14 September 1939. Any non-conformity decision made by the International Refugee Organization during its activity shall not prevent the person from granting his status as a refugee if the person satisfies the conditions under (ii).

(2) As a result of the case occurred before January 1, 1951, a person who is outside the country of nationality due to well-founded fears that he is likely to be injured by reasons of race, religion, nationality, or membership status or political opinion of a particular social group, and is unable to be protected by such country of nationality or does not want to be protected by such country of nationality, and as a result of these cases, a person who is outside the country of nationality and who is unable to return to the country of nationality or who does not want to return to the previous country of residence or return to the previous country of residence with such fear. The term "state of nationality" means the country of nationality of which he is a member, and if he is not protected by any one country of nationality without justifiable grounds based on well-founded fears, it shall not be deemed that there is no protection of such country of nationality.

Article 33

Prohibition of Ratification or Repatriation

1.A Contracting State shall not in any way conceal or repatriate a refugee in any manner at the border of a territory in which his or her life or freedom is likely to be threatened, on the grounds of race, religion, nationality, membership status of a particular social group, or static opinion.

/ The Administrative Procedures Act

Article 3 (Scope of Application)

(1) Except as otherwise expressly provided for in other Acts, the procedures for dispositions, reports, pre-announcement of administrative legislation, pre-announcement of administrative dispositions, and administrative guidance (hereinafter referred to as "administrative procedures") shall be governed by this Act.

(2) This Act shall not apply to any of the following matters:

9. Matters prescribed by Presidential Decree, which are difficult or unnecessary to undergo administrative procedures due to the nature of the relevant administrative action, such as conscription call under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action and other dispositions in accordance with the Acts and subordinate statutes related to public officials' personnel affairs, mediation, 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, such as mediation, arbitration, and other dispositions;

Article 23 (Presentation of Grounds for Disposition)

(1) In rendering dispositions, administrative agencies shall present the basis and reasons for such dispositions to the parties, except in any of the following cases:

1. Where a disposition fully accepts the details of the application as they are;

2. Where a simple, repetitive, or minor disposition is that the parties can clearly understand the reasons.

3. Where it is necessary to take a disposition urgently.

(2) In cases of paragraph (1) 2 and 3, administrative agencies shall, after rendering dispositions, explain the basis and reasons therefor to the parties at their request.

Article 24 (Method of Disposition)

(1) When rendering dispositions, administrative agencies shall do so in writing, except as otherwise expressly provided for in other Acts and subordinate statutes, and in cases of electronic documents, the consent of parties, etc. shall be required: Provided, That where it is necessary to deal promptly or a matter is insignificant, it may do so orally or by other means. In such cases, upon the request of the parties concerned, the administrative agencies shall give the documents

(2) Documents in which disposition is taken shall include the affiliation, name, and contact information (referring to telephone numbers, facsimile numbers, e-mail addresses, etc.) of the administrative agency responsible for the disposition and the person in charge of the disposition.

/ Enforcement Decree of the Administrative Procedures Act

Article 2 (Exclusion from Application)

The term "matters prescribed by Presidential Decree" in Article 3 (2) 9 of the Act means the matters falling under any of the following subparagraphs:

2. Matters concerning the entry and departure of foreigners, recognition of refugee status, naturalization, and reinstatement of nationality;

3. Matters concerning disciplinary action and other dispositions pursuant to Acts and subordinate statutes related to the personnel management of public officials;

Refugee Act

Article 1 (Purpose)

The purpose of this Act is to prescribe matters concerning the status, treatment, etc. of refugees pursuant to the 1951 Convention Relating to the Status of Refugees (hereinafter referred to as the "Refugee Convention") and the Protocol Relating to the Status of Refugees, 1967 (hereinafter referred to as the "Council of Refugees"), etc.

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

1. "Refugee" means a foreigner who is unable or does not want to be protected or to be protected by a country of his/her nationality due to well-founded fear that he/she may be disadvantaged on the grounds of race, religion, nationality, status as a member of a specific social group, or political opinion, or a stateless foreigner who, due to such fear, is unable to return to, or does not want to return to, a country in which he/she resided before entering the Republic of Korea (hereinafter referred to as "state of residence");

3. The term "person who has obtained a humanitarian stay permit (hereinafter referred to as "human resident")" means a foreigner who does not fall under subparagraph 1 but has a reasonable ground to believe that his/her non-humane treatment, punishment, or other circumstances may substantially infringe on his/her life, body freedom, etc. due to his/her humanitarian treatment, punishment, or other circumstances, and who has obtained a stay permit from the Minister of Justice, as prescribed by Presidential Decree;

Article 3 (Prohibition of Compulsory Repatriation)

A recognized refugee, a humanitarian resident, or a refugee applicant shall not be repatriated compulsorily against his/her will in accordance with Article 33 of the Refugee Convention and Article 3 of the Convention on the Prevention of Inhuman or Duplicative Treatment or Punishment of Advisors and other cruel Treatments.

Article 5 (Applications for Recognition of Refugees)

(1) A foreigner in the Republic of Korea who intends to obtain refugee status may file an application with the Minister of Justice for refugee status. In such cases, the foreigner shall submit an application for refugee status to the head of the Regional Immigration Service.

(6) A refugee applicant may stay in the Republic of Korea until a decision on whether to recognize refugee status becomes final and conclusive (where any administrative trial or administrative litigation is underway against a decision on non-recognition of refugee status, until such procedure is completed).

Article 6 (Application Filed at Port of Entry and Departure)

(1) Where an alien intends to apply for refugee status when undergoing an entry inspection, he/she shall submit an application for refugee status to the head of the Regional Immigration Service having jurisdiction over the port of entry and departure under the Immigration Control Act.

(2) The head of a Regional Immigration Service may require persons who have submitted an application for refugee status at a port of entry and departure pursuant to paragraph (1) to reside at a certain place at a port of entry and departure within seven days.

(3) The Minister of Justice shall determine whether to refer a person who has submitted an application for refugee status pursuant to paragraph (1) to refugee status screening within seven days from the date on which such application is submitted, and where he/she fails to determine within such period, he/she shall permit such applicant to enter the Republic of Korea.

(4) Refugee applicants at ports of entry and departure shall be provided with basic food, clothing and shelter during the period referred to in paragraph (2), as prescribed by Presidential Decree.

(5) Except as otherwise expressly provided for in paragraphs (1) through (4), necessary matters, such as procedures for applying for refugee status at entry and departure ports shall be prescribed by Presidential Decree.

Article 8 (Review of Refugee Recognition)

(1) Upon receipt of an application for refugee status under Article 5, the head of a Regional Immigration Service or the head of a Regional Immigration Service shall conduct an interview without delay and conduct fact-finding investigations on the applicant for refugee status, and shall report the results thereof to the Minister of Foreign Affairs, along with the application for refugee status.

(4) The Minister of Justice shall appoint refugee screening officers to take exclusive charge of interviews and fact-finding investigations at the Regional Immigration Service. Matters concerning the qualifications for and duties of refugee screening officers shall be prescribed by Presidential Decree.

Article 10 (Fact-Finding Investigations)

(1) In order to determine whether to recognize refugee status or to cancel or withdraw refugee status under Article 22, the Minister of Justice may, if necessary, have a public official exclusively in charge of refugee status within the Ministry of Justice or a refugee examiner of a regional immigration office or foreign agency investigate the fact.

Article 12 (Right to Obtain Assistance of Attorneys)

A refugee applicant shall have the right to have the assistance of attorney.

Article 13 (Presence of Persons in Trust Relationship)

Upon request by a refugee applicant, the refugee screening officer may allow a person in a fiduciary relationship to sit in company with the refugee applicant to the extent that does not impede the fairness of the interview.

Article 14 (Interpretation)

Where a refugee applicant is unable to express his/her intent in Korean language, the Minister of Justice shall have an interpreter who has certain qualifications prescribed by Presidential Decree interpret the refugee applicant in the course of interview.

Article 16 (Perusal and Duplication of Data, etc.)

(1) A refugee applicant may request perusal or reproduction of materials he/she has submitted and refugee interview records.

(2) An immigration control official shall, upon receiving a request for inspection or reproduction under paragraph (1), comply with such request without delay: Provided, That the immigration control official may restrict the perusal or reproduction where there is a clear reason to believe that such request may substantially interfere with the fairness of examination.

(3) Detailed methods and procedures for perusal and duplication under paragraph (1) shall be prescribed by Presidential Decree.

Article 18 (Recognition, etc. of Refugees)

(1) When the Minister of Justice deems that an application for refugee status is well-grounded, he/she shall decide to recognize the refugee status and deliver a refugee status certificate to the refugee applicant.

(2) Where the Minister of Justice determines that an application for refugee status is not a refugee, he/she shall issue a notice to the applicant for refugee status indicating the reason therefor and the purport that he/she may file an objection within 30 days.

(3) A notice of decision on non-recognition of refugee status issued under paragraph (2) shall clearly state the grounds for the decision (including the fact-finding of refugee applicants and judgments on the head of a legal state), the deadline, method, etc. for raising an objection.

(6) A refugee applicant or his/her agent through the head of a regional immigration office or foreign agency, or a notice of decision to deny refugee status issued under paragraph (1) and paragraph (2) shall be sent pursuant to Article 14 of the Administrative Procedures Act.

Article 21 (Filing Objections)

(1) A person who has been determined to recognize refugee status pursuant to Article 18 (2) or 19 or whose status as a refugee pursuant to Article 22 has been revoked or withdrawn may file an objection with the Minister of Justice within 30 days from the date he/she is notified of such decision. In such cases, a written objection shall be filed with the head of a regional immigration office or the head of a regional immigration office, along with materials proving the grounds for

(2) Where an objection is filed under paragraph (1), no administrative appeal under the Administrative Appeals Act shall be filed.

(4) The Refugee Committee prescribed in Article 25 may conduct fact-finding investigations directly or through refugee investigators prescribed in Article 27.

(5) Other detailed matters concerning procedures for deliberation by the Refugee Committee shall be prescribed by Presidential Decree.

(6) The Minister of Justice shall determine whether to recognize refugee status pursuant to Article 18 after deliberation by the Refugee Committee.

/ Enforcement Decree of the Refugee Act

Article 2 (Temporary Staying Permission)

(1) Where a person who has applied for refugee status (hereinafter referred to as " refugee applicant") falls under any of the following subparagraphs, the Minister of Justice may grant permission for humanitarian stay pursuant to subparagraph 3 of Article 2 of the Refugee Act (hereinafter referred to as the "Act"):

1. Where he/she determines that he/she is not a refugee pursuant to Article 18 (2) of the Act;

2. Where he/she makes a decision to dismiss an objection under Article 21 (1) of the Act pursuant to Article 11 (1) of this Decree. Article 5 (referring to refugee applicants at the port of entry and departure to refugee status screening)

(1) Where a refugee applicant at a port of entry and departure falls under any of the following cases, the Minister of Justice may choose not to refer such person to refugee status screening:

1. Where it is impossible to identify a person because he/she fails to respond to an inquiry, etc. related to his/her personal information, etc.;

3. Where refugee status is sought by concealing a fact, such as submitting a false document: Provided, That this shall not apply where the principal voluntarily reports such fact without delay;

4. Where he/she has been from a safe country with no possibility of gambling or has been brought from a safe country;

5. Where a person who has failed to obtain refugee status or whose refugee status has been revoked intends to obtain refugee status again without changing significant circumstances.

6. Where there are reasonable grounds to believe that a case falls under any of the subparagraphs of Article 19 of the Act.

7. Where an application for refugee status is clearly groundless, such as where he/she intends to obtain refugee status solely for economic reasons.

(2) Where the Minister of Justice determines whether to refer to refugee status screening pursuant to Article 6 (3) of the Act, he/she shall notify the refugee applicant at the port of entry and departure of the result without delay

(3) The head of the office or branch office shall allow a person determined to refer to refugee status screening pursuant to paragraph (2) to undergo an entry inspection under the Immigration Control Act without delay.

Finally,