[1] The legal nature of the act of recognizing refugee status by the Minister of Justice under Article 76-2 (1) of the Immigration Control Act

[2] Measures to be taken by the Minister of Justice when a foreigner applies for refugee recognition

[3] The meaning of gambling among the requirements of refugee under the Convention on the Status of Refugees ( July 28, 1951)

[4] The method of determining the basis for “probing gambling” in order to recognize as a refugee

[5] Location of the burden of proof as to the requirements of refugee and degree of proof

[6] The case holding that in a case where the Congo, who was engaged in the activities of the National Intelligence Service of the Congo, as an information personnel, applied for refugee status, the disposition rejecting the applicant's application for refugee status was unlawful on the grounds that the applicant had a sufficient fear of persecution on the grounds that the government of the Congo had a political opinion

[1] Article 76-2 (1) of the Immigration Control Act provides that a foreigner may be recognized as a refugee at the time of a request for recognition of a refugee from a foreigner, and does not provide for any provision as to which domestic legal status is granted to a foreigner recognized accordingly. However, it is reasonable to interpret that the purpose of subparagraph (b) granting a legitimate recognition of a refugee within a certain scope by the above act of recognition of a refugee is naturally included in the same act of recognition of a refugee. Therefore, it cannot be deemed that the act of the Minister of Justice under the above provision is merely a mere confirmation that the applicant satisfies refugee requirements stipulated in the Convention on the Status of Refugees, etc., and rather, it shall be deemed that a certain discretion is given to the Minister of Justice as to the act of recognition of a refugee.

[2] The Minister of Justice, upon receipt of an application for recognition of refugee status by a foreigner, shall first determine whether a foreigner satisfies the requirements under the Convention on the Status of Refugees, etc., and if it is deemed that the application satisfies such requirements, he/she shall exercise reasonable discretion as to whether a foreigner is forced to leave or continue to maintain protection status in a third country even if he/she recognizes a foreigner as a legitimate refugee under Article 76-2(1) of the Immigration Control Act, or as a refugee, and if he/she did not exercise all necessary discretionary power by making a fact-finding as to whether a foreigner satisfies the requirements under the Convention on the Status of Refugees before exercising his/her discretionary power, such disposition shall be revoked on the basis of the above reasons alone.

[3] A refugee status under the Convention on the Status of Refugees (hereinafter July 28, 1951) is a requirement for a well-founded fear of persecution on the grounds of race, religion, ethnicity, membership of a specific social group, or political opinion. There is no established opinion as to what meaning “persecution.” Although there is no established opinion as to what meaning “persecution,” it can be said that serious infringement of human rights, such as freedom of life or body, constitutes it, and the other unfair discrimination, pain, and coercion of disadvantage, etc., which are considered not to be permitted in a cultural and scenic society.

[4] In order to be recognized as a refugee, the applicant’s fear of gambling is insufficient, and sufficient grounds are required for such fear. If a reasonable ordinary person is placed in the overall experience and situation such as that given to the applicant, if it is determined that he would have caused fear of gambling, such fear shall be deemed to have sufficient grounds. In determining the overall experience and situation given to the applicant, the applicant’s general human rights situation in the country of nationality as well as the applicant’s general human rights situation in the applicant’s country of nationality should be considered, but in addition, it shall be examined whether the general situation of the applicant’s country of nationality can be connected with the applicant’s fear of gambling in any specific circumstance, and facts about this issue should be offered by the applicant himself/herself.

[5] The requirement for refugee status is the general legal principle that the person who submitted the applicant for refugee status bears the burden of proof. However, as a general rule, refugee status is not equipped with sufficient objective evidence on the content and possibility of brusity, and the reason, in light of the nature of the refugee status, it is not possible to require refugee status to prove the whole facts alleged by objective evidence, and the whole credibility of the statement is acceptable. However, in order to achieve this, it shall be at least consistent and persuasive as the facts alleged, and shall not be inconsistent with the facts generally known. Therefore, if the applicant’s assertion is considered to be reliable, a benefit by interpretation favorable to the applicant should be granted even if there is insufficient evidence, unless there is a considerable reason contrary to the assertion.

[6] The case holding that in a case where the Congo, who was engaged in an information personnel of the National Intelligence Service of the Congo, applied for refugee status, the disposition rejecting the applicant's application for refugee status was unlawful on the grounds that the applicant had a sufficient fear of persecution on the grounds that the Government of the Congo had a political opinion

[1] Article 76-2 (1) of the Immigration Control Act / [2] Article 76-2 (1) of the Immigration Control Act / [3] Article 2 of the Immigration Control Act, Article 1 of the Convention on the Status of Refugees ( July 28, 1951) / [4] Article 2 of the Immigration Control Act, Article 1 of the Convention on the Status of Refugees ( July 28, 1951) / [5] Article 2 of the Immigration Control Act, Article 1 of the Convention on the Status of Refugees ( July 28, 1951) / [6] Articles 2 and 76-2 (1) of the Immigration Control Act, Article 1 of the Convention on the Status of Refugees ( July 28, 1951), Article 19 of the Administrative Litigation Act

Plaintiff (Law Firm Vindication et al., Counsel for the plaintiff-appellant)

The Minister of Justice

December 12, 2007

1. The defendant's disposition of denying refugee status made against the plaintiff on June 7, 2005 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;

The following facts shall not be disputed between the parties, or may be acknowledged in each entry in Gap evidence 1, Eul evidence 2 and 3, by integrating the whole purport of the pleadings:

A. On September 16, 2002, the Plaintiff applied for refugee recognition based on Article 76-2 of the Immigration Control Act to the Defendant on November 20, 202, who is a national of the Democratic Republic of Congo (hereinafter “Congo”), and entered Korea on September 16, 2002.

B. Accordingly, on June 7, 2005, the Defendant rendered a disposition denying the recognition of refugee status against the Plaintiff (hereinafter “instant disposition”) on the ground that the Plaintiff cannot be deemed to have a well-founded fear that is stipulated as the requirements for refugee under the Convention Relating to the Status of Refugees (hereinafter “Refugee”) and the Protocol Relating to the Status of Refugees (hereinafter “Refugee Protocol”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, as a staff member, raised issues such as corruption of the Congo division plan and the government official fees and policies on regional discrimination, and provided information to UDPS, who is a party, in two times or more by means of NDR, an intelligence agency of the Government of the Congo, which is an information agency of the Government of the Republic of Congo. This may be deemed as persecution by political opinion. Considering the above persecution and the poor human rights situation of the Congo, there are sufficient grounds for fear of gambling that the Plaintiff would be entitled to receive from the Government of the Congo, if the Plaintiff re-returns to the Congo, its own country of nationality.

Therefore, the Plaintiff constitutes a person who does not want to be protected by the country of nationality due to well-founded fear of persecution by the Government of the Congo, and the disposition of this case is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap's evidence 6, Gap's evidence 1, 2, 3, 11-1 through 14, Gap's evidence 12-1, 2, Gap's evidence 13, Gap's evidence 14-1, 2, Gap's evidence 15 through 18, Gap's evidence 19-1, 2, Eul's evidence 1-2, 1-3 through 10, Eul's evidence 2, 3, 4, and witness's testimony.

(1) The Plaintiff’s birth and growth background

(A) On October 15, 1967, the Plaintiff: (a) was born between Nonparty 1 and Nonparty 2, the father, and the mother, in the Katan village in the Danan area of the Danan-do of the Republic of Korea on 15 October 1967.

(나) 원고는 1983.경부터 키크윗에 소재한 푼구고등학교를 졸업하면서 초등학교 교사자격증인 교육학 자격증을 취득한 다음, 1991.경부터 킨샤샤자유대학교에서 경제학을, 1995.경부터 고등철학문학학교에서 정보학을 각 전공하였다.

(다) 원고가 대학생 신분이던 1991.경부터 콩고의 최대야당인 UDPS(민주주의와 사회발전을 위한 연합, Union pour la Democratie et le Progres Social)의 당원으로 활동하였고, 킨샤샤자유대학교 졸업 전에 ANR(국가정보원, Agence National des Renseignements)의 인턴으로 근무하게 된 것을 계기로 2001. 10. 5. 정식직원으로 채용되어 ANR의 정보원으로서 정보를 수집하고 정보의 진위를 가려 고위 관료들에게 보고하는 업무를 담당하였다.

(2) The plaintiff's activities within the NNR

(A)The General Manager of NNR was the Director General of the Agency for Accounting Affairs, the Director General of the Agency for Accounting Affairs, the Director General of the Agency for Domestic Information, the Director General of the Bureau for Foreign Safety, the Director General of the Bureau for Foreign Safety, the Director General of the Information Analysis Team (the Department of Foreign Safety) to which the Plaintiff belongs was Maya, and the head of the Information Analysis Team (the Department of Foreign Safety) to which the Plaintiff belongs was Maya, and the Plaintiff was Kaba

(B) Around 202. Around 2002. Around the year when the Plaintiff was active as information personnel, a regional discrimination policy in theNR where the Kayas, the president’s place of origin, gives preferential treatment to local residents, and a report distortions by using Kayas as a regional language official language, and submitted it to the President’s office and the Director-General of the NDR.

(C) The Plaintiff’s report was arrested on April 23, 2002 by the staff of the NNR, and was detained on May 15, 2002 on a confidential house within the NNR, and during the above period, the Plaintiff was compelled to hold the Plaintiff’s hinterland to “a statement about the Plaintiff’s hinterland” and directed the Guta and the adviser.

(라) 원고의 석방 무렵 콩고 북부에서 활동중이던 반군 지도자 장 삐에르 벰바의 군대가 브라자빌에 와서 킨샤샤를 공격하여 쿠데타를 일으킬 것이라는 첩보가 입수되자, ANR은 원고를 비롯한 정보분석팀 요원 4명에게 반군들이 어떤 경로로 브라자빌에 왔는지 확인하라는 임무를 부여하였고, 이에 위 사람들은 사업가로 위장하여 2002. 5. 27.부터 2002. 6. 3.까지 브라자빌에서, 킨샤샤대학의 학생으로 위장하여 2002. 6. 9.부터 같은 달 23.까지 장 삐에르 벰바가 이끄는 반군의 거점인 베니 지역에서 각 정탐활동을 수행하였다.

(마) 원고의 일행은 베니에서 장 삐에르 벰바의 총서기인 올리비에 까미따뚜를 만났는데, 그가 원고의 출신지역인 반둔두 출신이며 그의 아버지가 유명한 정치인 까미따뚜 마삼바라는 것을 알고는 그와 허심탄회하게 대화를 나누게 되었다.

(F) The Plaintiff’s plan for the division of the bean (a plan to divide it into four regions through the counter group, namely, a plan to divide it into four regions, through which the Republic of Korea is the former president of the Congo, and the Republic of Korea is taking advantage of the support of the Hack-Ba and the Hack-Ba, which is the first president of the Congo, was the beginning of a treaty to transfer part of the territory of the bean to two countries. The main government officials of the Republic of Korea came to know of the fact that they actually participated in the said plan while carrying out a war against the surface while the main government officials of the Republic of Korea were wraped with the armed forces, but they actually come to know of the fact that they actually carried out the war.

(G) On June 29, 2002, when the contents known in the course of the party search, which is the team leader of the Plaintiff’s daily work party, are reported, the fact that it would be excessive, and the Plaintiff prepared and submitted a different report in his name and the Plaintiff’s joint name. However, the Plaintiff, separate from the official report, prepared a report on approximately 20 pages as follows, and submitted it to the President’s office and the Director General of the NNR on June 29, 2002 (a document on the division plan and various recorded tapes attached) and sent it to UDPS.

(1) A divided plan of the Congo is in progress with a foreign country's anti-military forces and the Congo government's mother to divide it into the Congo.

② The current President of the Congo was the former President of the Republic of Korea, not the latter President of the Republic of Korea, but the latter President of the Republic of Korea, the latter President of the Republic of Korea, and the latter President of the Republic of Korea is also the latter.

③ The leaders of the Government of the Congo and anti-military forces traded underground resources, such as gold dmond, with a foreign country without the permission of the authorities, and the Government officials and anti-military forces concluded a double contract with a foreign investor on underground resources in the Congo, and purchased weapons with a benefit accrued therefrom.

(4) A list of the senior executives of the government that has decomposed and the senior leaders of the government.

(h) On July 1, 2002, the Plaintiff was arrested on July 1, 2002 by the said report and detained in the confidential house within theNR, and the personnel searched the Plaintiff’s house and seized the records related to UDPS, in particular, letters exchanged with UDPS.

(i) Not only the Plaintiff, who is the Plaintiff’s club fee, prepared the report and submitted it to many persons, but also provided the report to UDPS as UDPS members. As such, the Plaintiff’s concealment was deemed to be at risk, and the Plaintiff escaped after purchasing a liver around 3:00 on July 2, 2002.

(3) The plaintiff's escape and entry circumstances

(가) 원고는 그 후 킨샤샤에 있는 친구의 집에 머물다가 2002. 7. 2. 10:00경 UN콩고평화유지군 사무실에서 예전부터 알고 지내던 사무실 직원인 미국인 크리스를 만나 콩고로부터 탈출시켜 줄 것을 부탁하였고, 렘바에 있는 친구인 아돌프 집에서 있다가 다시 빌로코라고 불리는 호텔에서 일주일간 머문 후에 UDPS 총서기인 마샴바에게 부탁하여 UDPS의 비밀장소인 미콩가 농장에서 숨어 지냈다.

(나) 그 후 엔잣지와 베야 그리고 아돌프의 도움으로 외교부에서 이름과 발행 날짜가 위조된 콩고 여권을 만들었고(다만, 콩고 정부의 추적을 피하기 위해 실제 이름인 Thona Yiombi를 사용하지 않고 Lukaku Patrick이라는 이름의 여권을 만들었고, 여권발급 일자 역시 비밀감옥에서의 탈출일자 이전으로 소급하여 위조하였다), 크리스와 함께 원고의 남동생이 원고 대신 주콩고 중국대사관에 가서 관광비자를 받은 후 2002. 7. 18. 킨샤샤 느질리 공항을 출발하여 2002. 7. 22. 중국에 입국하였다.

(C) After arrival in China, the Plaintiff, while staying in the Republic of Korea with the help of the Union of Myanmar female students, was considered not to be safe due to friendly relations between the Congo and China, and sought departure from Korea to Thailand. On September 15, 2002, the Plaintiff received a letter of invitation from the Republic of Korea staying in the Republic of Korea, which is known to the Gu of Myanmar, as the participation in the International Pestan, and received the visa from the Republic of Korea, and entered the Republic of Korea through the Incheon port on September 16, 2002.

(D) The Plaintiff is currently working at a factory located in Pyeong, and is going to work in a political deliberation program that gives rise to an interview with the anti-government personnel, etc. in the Congo through Internet radio to the extent of two and three times each month.

(d) Markets:

(1) Requirements and burden of proof of refugee

(A) The requirements for refugee status under the Refugee Convention and the nature of the act of recognizing refugee status under the Immigration Control Act

① The Refugee Convention and the Refugee Protocol stipulate that “a person who is outside his/her country of nationality and who is unable to obtain protection of his/her country of nationality or does not want to obtain protection of his/her country of nationality due to such fear of fear of persecution for reasons of race, religion, ethnicity, membership of a particular social group, or political opinion,” subject to the Refugee Convention and the Refugee Protocol. Such a requirement of refugee is defined in Article 2 subparag. 2-2 of the Immigration Control Act of the Republic of Korea.

On the other hand, since the requirements for refugee status under the Refugee Convention are not established, it is naturally deemed a refugee as stipulated under the Refugee Convention if the above requirements are met (see Article 28 of the "Road Manual", which is a working guide for recognition of the status of refugee issued by the International Protection Office of the United Nations Office of Refugees, referring to paragraph (28) of the "Road Status Recognition and Procedure Manual", which is a working guide for recognition of the status of refugee issued by the International Protection Office of the United Nations Office of Refugees), and the Refugee Convention does not always accept the refugee status as stipulated under the Convention and does not have any obligation to grant non-defense (see Article 12 subparagraph 1 of the Refugee Convention), (see Article 12 subparagraph 1 of the Refugee Convention), and if given, how to determine the legal status of the refugee is understood as the sovereign decision of each Contracting State.

② Article 76-2(1) of the Immigration Control Act provides that a foreigner may be recognized as a refugee at the time of a request for the recognition of a refugee from a foreigner, and does not provide for any provision as to which domestic legal status is granted to a foreigner recognized accordingly. However, it is reasonable to interpret that the purpose of subparagraph (b) granting a legitimate domestic stay within a certain scope by the above recognition of a refugee is naturally included in the same act of recognition of a refugee. Therefore, the defendant's act of recognition of a refugee under the above provision is not limited to the meaning that the applicant simply satisfies the requirements for a refugee as prescribed by the Refugee Convention, etc., and rather, it shall be deemed that the foreigner granted a certain discretion to the foreigner who meets the requirements for a refugee.

Therefore, the defendant, upon receipt of an application for recognition of refugee status by a foreigner, has first confirmed whether the applicant satisfies the requirements as a refugee prescribed in the Refugee Convention, etc., and if it is recognized as satisfying the requirements, the defendant shall exercise reasonable discretion as to whether to force a third country to leave or continue to maintain the protection status despite the recognition of a legitimate visa as a refugee under Article 76-2(1) of the Immigration Control Act, or as a refugee (Provided, That it is prohibited by Article 33 subparag. 1 of the Refugee Convention, if the defendant finds fact-finding as to whether the applicant satisfies the requirements of refugee status prescribed in the Refugee Convention, etc. before exercising the above discretionary power and fails to exercise necessary discretionary power, the disposition shall not be subject to exemption from revocation on the sole basis of the above reasons alone.

(B) Whether the requirements for refugee status under the Refugee Convention are met (a well-founded fear)

The refugee status under the Refugee Convention needs to be sufficiently-founded fears that the refugee status is likely to be injured on the grounds of race, religion, ethnicity, membership of a specific social group, or political opinion. The meaning of gambling here is not established, but it can be said that serious human rights infringement, such as the freedom of life or body can be said to fall under it, and other unfair discrimination, suffering, and coercion of disadvantage, etc. which are considered not to be permissible in the literacy society.

In addition, in order to be recognized as a refugee, it is insufficient for the applicant to feel fear of such gambling alone, and sufficient grounds for such fear are required. If a reasonable ordinary person is placed in the overall experience and situation such as given to the applicant, if it is determined that he/she caused fear of gambling, it is reasonable to view that the fear has sufficient grounds.

In addition, the determination of the overall experience and situation given to the applicant in this context means not only the general human rights situation existing in the applicant's country of nationality, but also whether the general situation of the applicant's country of nationality can be connected to the applicant's possibility of booming the applicant in any specific circumstance, and the facts in this regard should be provided by the applicant himself/herself (see Article 195 of the Manual).

(C) Burden of proof

In general, it is a general legal principle that a person who has submitted an application bears the burden of proof. However, in light of the nature of the refugee, the refugee does not have sufficient objective evidence on the contents, possibility, and cause of an imminent harm. Therefore, in the degree of proof, the refugee cannot require the refugee to prove all facts alleged by objective evidence, and only the overall credibility of his/her statement can be accepted. However, for this purpose, the refugee must be equipped with consistency and persuasiveness as his/her own facts, and should not be inconsistent with the generally known facts (see Article 204 of the Manual).

Therefore, if the claimant's assertion is considered to be reliable, unless there are reasonable grounds contrary to the claimant's assertion, the benefit by interpretation in favor of the applicant should be given to the applicant even if the evidence is insufficient (see Article 196 of the Manual).

(2) Whether to recognize the possibility of gambling for the plaintiff

(A) The Defendant asserts that it is difficult to believe the Plaintiff’s statement because the Plaintiff’s statement to the effect that the Plaintiff entered the Republic of Korea to avoid being stuffed by its government, such as the aforementioned facts in the course of multiple interviews and investigations, is inconsistent and inconsistent with the developments leading up to entry, the course of activities as the information personnel and UDPS members, the developments leading up to the acquisition of passports and visas, and the process of two times of arrest and detention. In addition, the Defendant argues that it is difficult to believe that the Plaintiff’s statement was submitted to the parties because the contents of the Plaintiff’s report, which caused the second arrest, consist of the contents that can bring about political and moral ties to the Canadian president and the high-ranking government, including the Director General, etc.

In light of the above facts, ① the Plaintiff’s statement in the process of investigating the status of the Republic of Korea, the route of entry into the Republic of Korea, and UDPS members, are inconsistent with each other in terms of detailed matters, such as the date of arrest and seizure, but the overall purport of the Plaintiff’s statement is consistent with the facts that “the Plaintiff was arrested on two occasions, including the President, before submitting a report on the fact that he/she had become aware of during his/her activities,” and it is difficult to determine the credibility of the Plaintiff’s statement as a whole by taking into account the following facts into account: (i) the fact that the Plaintiff’s statement was based on his/her own evidence, and that there was a lack of probative value; (ii) the Plaintiff’s assertion that there was a lack of evidence to prove that there was a lack of admissibility of the Plaintiff’s statement in the process of investigating the facts that he/she was not aware of, and (iii) the Plaintiff’s assertion that there was a lack of evidence to prove that there was a lack of evidence in the early interview (1, 2).

(B) Furthermore, the following facts revealed in the above facts, namely, ① the Plaintiff was imprisoned by being arrested and detained two times or more by the Information Agency of the Republic of Congo, which is the information agency of the Government of the Republic of Korea, ② the contents of the report causing the second arrest and detention are more sensitive and sensitive to the politically, and the Plaintiff sent the report to UDPS, which is the main body of the report, is also discovered, and the possibility of gambling for the Plaintiff of the Government of the Congo in the future is more high, ③ the Plaintiff appears to continue anti-government activities in the Republic of Korea through Internet broadcasting, etc., ③ the Plaintiff appears to have been easily recognized by the Government of the Republic of Korea, ④ the status of human rights of the Congo at present is considerably poor, etc., there is a high possibility that the Plaintiff may be stuffed for political activities from the Government of the Republic of Korea and its intelligence agency.

Therefore, the Plaintiff may be deemed to constitute a person who does not want to be protected by the country of nationality due to a well-founded fear of persecution by the Government of the Congo for political comments. Thus, the instant disposition otherwise reported is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition.

Judges Kim Yong-sung (Presiding Justice)