2017 old 9030 Revocation of revocation of refusal to extend the period of stay

A

Since the plaintiff is a minor, the legal representative

Ministry of Parental Authority B;

MoC

Attorney Choi Jong-hee, Counsel for the defendant-appellant

The head of Incheon Immigration and Foreign Branch Office

October 10, 2018

o October 10, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of non-permission on September 13, 2017, such as extension of sojourn period, against the plaintiff, shall be revoked.

1. Details of the disposition;

A. On July 12, 2015, the Plaintiff entered the Republic of Korea with his/her parent as a short-term visit (C-3) sojourn status on July 12, 2015, and applied for refugee status with his/her parent on August 6, 2015. However, on August 20, 2015, the Plaintiff filed a lawsuit for the revocation of the decision not to grant refugee status (Seoul Administrative Court Decision 2016Gudan23533, Sept. 7, 2016) and stayed as other (G-1) sojourn status (G-1) sojourn status on September 22, 2017, and the period of sojourn expired on August 15, 2017.

B. On August 23, 2017, the Plaintiff filed an application with the Defendant for change of the status of stay as a foreign student (D-4-3) who was lower than a high school. However, on September 13, 2017, the Defendant notified the Defendant of the non-permission decision (hereinafter referred to as the “instant disposition”) on the ground that he/she was not subject to change of qualification, requirements, expenses, etc., and that he/she left the Republic of Korea until September 27, 2017, but the period of departure was postponed on the ground that the Plaintiff was in school at the elementary school and the litigation for cancellation of the non-permission of refugee status of the Plaintiff’s Plaintiff was pending under the Supreme Court Decision 2017Du

【Ground of recognition】 The fact that there has been no dispute, Gap’s 1 through 5, 6-1, 2, 8 through 14, Eul’s 1 through 7, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is an illegal disposition that deviates from or abused discretion in violation of the principle of equality and proportionality as follows.

1) Violation of the equality principle

A) Articles 2 and 28 of the UN Convention on the Rights of the Child of which Korea is a member of the United Nations shall guarantee the right to education for all children without any discrimination. Article 6 of the Constitution explicitly states that a foreigner is guaranteed his/her status in accordance with international law and treaties. Article 8 of the Framework Act on Education provides that all citizens have the right to receive elementary education for 6 years and secondary education for 3 years. Thus, the Plaintiff, as a child, must be protected pursuant to the above provisions. Nevertheless, it goes against the principle of equality to exclude the Defendant from the subject of qualification change for other (G-1) foreign students (D-4-3) whose status is lower than the elementary high school.

B) An internal rule is only an internal rule, and the Defendant shall not be in violation of the UN Convention on the Rights of the Child. In changing the status of stay of high school foreign students (D-4-3), a purely and group tourism (C-3-2) sojourn status, medical tourism (C-3-3), and other status of stay (G-1) sojourn (G-1), which is obvious that entry into the Republic of Korea only for the purpose of temporary and short-term stay, is excluded equally from the same status of stay is unlawful, without considering all other factors such as the background of individual entry and the purpose of stay (G-1) sojourn.

2) Violation of the principle of proportionality - ① The Plaintiff is deprived of the right to education of the migrant children themselves which can be enjoyed in the Republic of Korea due to the instant disposition. ② The Plaintiff’s political inclinations of the Plaintiff’s home country is possible due to the instant disposition; ④ The Plaintiff’s family member is unable to obtain gambling due to the political inclinations of the Plaintiff’s home country; ④ the Plaintiff’s family member’s application for refugee status cannot meet the financial requirements for staying in the Republic of Korea; ⑤ the Plaintiff’s use of the status of stay for high school foreign students (D-4-3) by applying for the change of the status of stay for high school foreign students (D-4-3) to the status of stay; ② The Ministry of Justice can sufficiently resolve such measures due to the restriction of certain curriculum up to the extent that it is possible to ensure the Plaintiff’s right to education of the migrant children to be enjoyed in the Republic of Korea.

B. Relevant legal principles

In light of the language, content, form, system, etc. of relevant statutes, such as Article 10(1) and Article 10(2) and Article 24(1) of the Immigration Control Act, Article 12 [Attachment Table 1] of the Enforcement Decree of the Immigration Control Act, permission to change sojourn status has the nature of a sort of permanent disposition that grants the applicant the right to engage in activities that fall under the status of sojourn different from the original status of sojourn. Thus, even if the applicant satisfies the requirements prescribed by the relevant statutes, the permission-granting authority has discretion to decide whether to grant permission in consideration of the applicant’s eligibility, purpose of sojourn, impact on public interest, etc. (see, e.g., Supreme Court Decision 2015Du4846, Jul

On the other hand, the court's judicial review on the discretionary act is to examine whether the act in question is a deviation or abuse of discretion by misunderstanding of facts, violation of the principle of proportionality or equality, or violation of the purpose or an illegal motive. However, if, as a result of the court's review, the administrative agency's discretionary act is deemed to be based on misunderstanding of facts, etc., it is an abuse or abuse of discretion, and it shall not be exempted from its revocation (see Supreme Court Decision 9Du8589, Jul. 27, 2001).

C. Determination

In light of the circumstances seen below, the Plaintiff’s assertion is not acceptable, on the sole basis of the circumstances alleged by the Plaintiff, since it is difficult to deem the instant disposition to be in violation of the principle of proportionality and the principle of equality, and there is no evidence to deem the instant disposition to be in violation of the principle of

1) A person who is legally staying in the Republic of Korea pursuant to Article 10(1) of the Immigration Control Act and Article 12 of the Enforcement Decree of the same Act and subparagraph 13 of the attached Table 13 of the Enforcement Decree of the same Act shall be granted a permit to change his/her status of stay to a foreign student (D-4-3), but pure and group tourism (C-3-2), medical tourism (C-3-3), and other qualification holders (G-1) shall be restricted to change his/her qualification, and a designated guardian shall meet the requirements such as the cost of stay in the case of a foreign student at his/her own expense. A guardian shall be granted a foreigner registration in the Republic of Korea if he/she is a foreigner, and the status of stay in the Republic of Korea shall be available for a long-term stay in the Republic of Korea. The guardian of a foreign student at the country of a multi-resident (21 country) shall meet the financial requirements of assets at least KRW 26 million per year, or at least KRW 140 million.

2) Whether the principle of equality is violated

The guarantee of educational rights and the granting of status of stay to the migrant children are separate issues, and it is difficult to view that the government has a duty to directly grant the migrant children the right to education for the migrant children regardless of whether or not they meet the requirements for status of stay, and the freedom of movement to foreigners is bound to be subject to certain restrictions pursuant to the Immigration Control Act, etc., and may be given a reasonable distinction between the status of stay. Other (G-1) status of stay is a status of stay recognized by the Minister of Justice as a person who does not fall under diplomatic (A-1) through visiting employment (H-2) and who has an exceptional, temporary, and supplementary nature, and thus, it is reasonable to place a difference from other general status of stay. Therefore, it is difficult to deem

3) Whether the principle of proportionality is violated

The instant disposition does not seem to be deprived of the Plaintiff’s right to education, but it is merely a failure to permit the change of status to the Plaintiff who failed to meet the requirements for sojourn status of foreign students (D-4-3) at high schools or lower, and does not necessarily require the Plaintiff to be mandatorily granted status of stay to the Plaintiff who failed to meet the requirements for qualification in order to guarantee the Plaintiff’s right to education. In light of the fact that the Plaintiff’s application for refugee status was not recognized, there is no possibility that the Plaintiff would be imprisoned on the grounds of the Plaintiff’s political view in his home country, and the Plaintiff may be guaranteed the right to education in his home country as well as the Republic of Korea. The Plaintiff may enter Korea with a visa again after departure from

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges' Authority