[Defendant-Appellee] Plaintiff (Attorney Kim Min-young et al., Counsel for defendant-appellee)

Head of Seoul Immigration Office

September 8, 2016

Seoul Administrative Court Decision 2015Gudan17531 decided February 26, 2016

1. Revocation of the first instance judgment.

2. On January 14, 2015, the Defendant’s disposition of non-recognition of refugee status rendered to the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On April 5, 2014, the Plaintiff entered the Republic of Egypt (hereinafter “Egypt”) to and stayed in the Republic of Korea on tourism and Tong (B-2) sojourn status on April 5, 2014, and filed an application for refugee status with the Defendant on May 2, 2014, before the expiration of the period of stay ( May 5, 2014).

B. On January 14, 2015, the Defendant rendered a decision to deny refugee status (hereinafter “instant disposition”) on the ground that the Plaintiff does not constitute a case where there is a well-founded fear that the Plaintiff would be subject to persecution” as prescribed by Article 1 of the Convention on the Status of Refugees and Article 1 of the Protocol Relating to the Status of Refugees.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff was identified as the same-sex with his family in his home country.

2) Although the present Egypt does not legally stipulate that he/she is guilty of same sex in Egypt, the Egyptian government has defined same sex as "sexual conduct or salutism against Islamic" and has been punished by applying a crime of disturbing sexual intercourse to same-sexs.

3) In addition, the Plaintiff’s punishment was known to the effect that the Plaintiff was a same-sex, and was arrested by the free will party on April 20, 2014, and was forced to capture from the two months. The reason why the Plaintiff’s punishment was kidnapped was to catch the Plaintiff, the same-sex party of the free will.

4) Therefore, the Plaintiff constitutes a refugee with a high risk of being threatened with life and body as a member of a specific social group at the time of returning to Korea. Nevertheless, the instant disposition taken by the Defendant on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The situation of the same-sexs in Egypt

A) Around 2008, the Egyptian government concealeds the young children from Libybybya on the ground that he/she is the same-sex, and the above young people sought revocation of the decision of Egypt, but the Egypt court decided on April 14, 2015 that the above decision of Egypt was legitimate to prevent the spread of the same society.

B) On November 2014, 2014, the same-sex marriage news recording on the line of the Nail River was arrested as a crime of disturbing rumors by spreading marriage images to SNS, and was sentenced to imprisonment with prison labor for three years in each court.

C) On December 2014, 2014, 26 men of same-sexs were relayed by 1) the pages arrested at a single public bath in Egypt, one body, a broadcast.

D) Although Egypt does not legally stipulate that he/she is guilty of same sex, he/she shall be punished by applying a crime of disturbing a rumor instead.

2) The Plaintiff’s statement

A) On January 7, 2015, the statement made at the time of the interview to the plaintiff by the Seoul Immigration Office.

In 2012, Nonparty 1, who is the ○○, joined the Syna in Manra in 2012, and himself/herself has been subject to criminal punishment. Nonparty 1 retired from the Republic of Korea at the end of 2013 or at the beginning of 2014. On April 20, 2014, the principal, after entering the Republic of Korea, was arrested at the Syna, on the ground that he/she was the same-sex, and was arrested at the Syna in the Syna. From July 20, 2014, he/she was living in the Syna. The Syna Party was arrested Nonparty 1 to take advantage of his/her departure. However, Nonparty 1 was aware of his/her departure.

○ Same-sexs are suffering from gambling in the village.

It is known that a person who received gambling in the same case as ○ himself/herself and acquires a refugee status in Germany is aware.

○ himself has sexual interest in the same sex.

The ○ himself concealed and herself had a same-sex tendency to people.

At the time of 10s, ○ himself came to know that he had a same-sex inclination. There was no interest in the same sex, and he was interested in the same sex, and there was a sexual interest in glusing male. After 16s, he understood 16s that he is unable to be a relationship with the same person.

In 11, ○○ was the first sexual intercourse with Nonparty 3, a non-party 3, who was the same-sex relationship. He liveded 12 or 13 at the time, and was sexual intercourse on the third floor of our house. The foreign relationship was not the same-sex relationship, but there was no strong pressure or violence at the time.

From the 13th to the 17th century, a sexual intercourse with Nonparty 4 was established for a period of four years from 13 to 17 years. However, he/she frequently went to his/her house, but did not accurately have his/her sexual intercourse. Although he/she wanted to resign from the said relationship on his/her idea that he/she is not good, he/she could not have been said relationship, but the said relationship was terminated while the other party went to Saudi Arabia, and the other party first demanded a sexual intercourse to the other party. Nonparty 4 was the first person who was not a same-sex and was able to engage in a general marital life.

○○, the Egypt, the Egypt, one-year Egypted with Nonparty 4 and one-years, was sexual intercourse with Nonparty 5 and Nonparty 3, the Egypted in Spanish. Finally, on October 201, the Egypted the sexual intercourse, and was not accurately connected, and only caused the relationship according to each other’s needs. The other party was Nonparty 1’s friendship, and was frequently met, and the other party was sexual intercourse, and was sexual intercourse at his home. The Plaintiff, other than the above three persons, did not have sexual intercourse.

○ The Plaintiff played a major role as a female at the time of sexual intercourse, and did not have participated in a partnership and a same-sex group. As a matter of course, there was no outstanding from the outside. Although the Plaintiff became aware of the fact that he was a same-sex, the Plaintiff did not have been aware of the fact that he was the same-sex relationship, but the head of the sexual relationship was not dismissed. The Plaintiff knew of the fact that she was the same-sex relationship at the free will party. The punishment, together with the punishment, inform the person who was engaged in party

The ○○ himself did not have a right of reason, and he knew the same-sex tendency of himself to Nonparty 1, who is a punishment. While he was subject to social sanctions, he was not subject to legal sanctions but is subject to legal sanctions, and he is aware that he is the same-sex relationship, there is a serious problem if he is aware that he is the same-sex relationship.

○ Family members were aware of the fact that they were same-sexs, and they could not change their contacts even though Nonparty 1 had been able to change the same-sex orientation of himself.

○ 본인은 대한민국에 입국한 후 ○○○○○라는 동성애자 어플을 통해 ‘△’이라는 남성과 2번 성관계를 가졌다. 지금은 그와 연락하지 않으며, 핸드폰을 잃어버려 새로 샀다.

The (site name omitted) site in Egypt, which was located in Egypt, was not under the control, and the mechanism has no same-sex site, and since it was concealed the same-sex situation from the time of Egypt, there is a same-sex organization in Egypt. Although it was known through broadcast media that same-sexs have a confidential place, it is difficult to find the place.

B) Contents of the statement at the time of questioning the Plaintiff’s principal in the trial court

○ The Plaintiff has sexual intercourses with the same-sex male. From May to July, the Plaintiff began to feel her sexual identity. There was no effort to live the same-sex who is not the same-sex. Although the ban under the Egypt Act was severe and did not have a same-sex relationship, the Plaintiff maintained two-month relationship.

○ The Plaintiff did not have any restriction with women. The Plaintiff had been able to change her sexual orientation from Nonparty 1, who was an offender, and attempted to change her. However, the Plaintiff could not change her position.

The same-sexs in Egypt shall not be assisted and shall be denied. The same-sexs shall be punished when the fact that they are same-sexs is known.

At the time of 5 to 7 suicide, the Plaintiff became the first sexual intercourse with Nonparty 6, which had a larger age than the Plaintiff, around 10 to 11. The Plaintiff became the sexual intercourse with Nonparty 7, who had been in Spanish between 2010 and 2012 before entering the Republic of Korea.

○ The Plaintiff entered the Republic of Korea and has a gender relationship with the male, “△△”.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 3, Eul evidence 3, each entry of Eul evidence 3, the plaintiff's principal examination result in the party court's examination, the purport of the whole pleadings

D. Determination

(i) the requirements and burden of proof of refugee;

In full view of the provisions of Article 1 of the Convention on the Status of Refugees and Article 1 of the Protocol Relating to the Status of Refugees, the Minister of Justice shall recognize a foreigner in the Republic of Korea who is unable to be protected or does not want to be protected of the country of his/her nationality due to a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group, or political opinion, as a refugee under the Refugee Convention. In this case, the term “persecution” which is a requirement for recognition of refugee status can be deemed as “an act causing serious infringement or discrimination on the essential human dignity, including threats to life, body or freedom,” and such “an act of causing serious infringement or discrimination on the fundamental human dignity.” However, considering the special circumstances of the refugee, the foreigner who files an application for recognition of refugee status shall prove the consistency and persuasive nature of his/her statement, and the period of application for refugee status, circumstances leading to entry, subjective fear of the country of his/her nationality, degree of fear, the applicant’s overall declaration of credibility in light of 2070 years, etc.

2) Whether there exists a well-founded fear for the Plaintiff to be stuffed

Considering the following circumstances that can be seen in light of the aforementioned legal principles, it is reasonable to view that the Plaintiff constitutes a refugee under Article 2 subparag. 1 of the Refugee Act, since it is determined that Egypt has a well-founded fear to be harmed solely on the ground that the Egypt government, etc. was same-sexd in Egypt.

A) On January 7, 2015, according to the Plaintiff’s statement at the time of the interview with the Plaintiff at the Seoul Immigration Office and the Plaintiff’s statement at the trial court at the time of the interview with the Plaintiff, etc., the Plaintiff made a consistent statement to a certain extent as to how he/she became aware of his/her sexual identity, how he/she became aware of his/her sexual identity, how he/she became active before entering the Republic of Korea, how he/she became subject to sanctions against the same-sexs, and how he/she became aware of his/her sanctions against the same-sexs, correspond to the objective situation of the Egypt. Furthermore, considering the Plaintiff’s attitude of statement at the trial court at the time of Egypt’s investigation, even if the Plaintiff’s statement at the time of the interview with the time of the Plaintiff’s sexual relation, etc., and the time of the Plaintiff’s sexual relation at the above trial court at the above trial court, the Plaintiff’s statement as a whole can be recognized as credibility of the Plaintiff’s statement as a whole.

B) According to the circumstances of the same-sexs in Egypt as seen earlier, if it is revealed that they are the same-sexs, the risk of gambling seems to be high, and in light of the purport of the Convention on the Status of Refugees seeking to guarantee a wide range of exercise of the basic rights and freedom of refugees, if their sexual identity is not expressed externally due to such concerns, it may be viewed as a kind of gambling itself.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim.

[Attachment]

Judges Yoon Sung-won (Presiding Judge)

1) According to the statements in Gap evidence No. 3, the court seems to have acquitted them, and it is difficult for the above statements to find out the specific reasons, but at least it seems that the above judgment did not reflect the liquor atmosphere of Egypt.

2) Considering the fact that 5 to 7 suicide, which the Plaintiff stated in the first instance court at the time of the Plaintiff’s question at the time of the Plaintiff’s question, appears to have a sexual relationship within a normal meaning, the above statement’s sexual relationship may not be a sexual relationship within a normal meaning. The above statement is a suspicion that the Plaintiff did not understand properly the Plaintiff’s question during the interpretation process.