In a case where a female Party A of Ethiopia, who had entered and stayed in the Republic of Korea and applied for refugee status, and the Minister of Justice sent a text message to Party A, stating that “Yuuu area Do” was a mobile phone, the case holding that the above notice was unlawful in violation of Articles 23(1) and 24(1) of the Administrative Procedures Act.

In a case where Party A of Ethiopiian nationality entered the Republic of Korea and applied for refugee status assistance, and then the Minister of Justice sent a text message to Party A as mobile phone, stating that “The Minister of Justice has applied for refugee status assistance to the cost of living,” the case holding that: (a) “decision on an applicant’s application for refugee status assistance to the cost of living does not constitute a case where it is difficult or unnecessary to undergo administrative procedures due to its nature or it does not follow procedures equivalent to administrative procedures; (b) the Administrative Procedures Act applies; (c) although Article 17(2) of the Enforcement Decree of the Refugee Act provides that “the decision on whether to grant refugee status assistance in consideration of the period of stay in Korea, job-seeking activities, whether to use refugee support facilities, whether to have dependents, living conditions, etc.,” the above notification alone cannot be seen to have violated Article 23(1) of the Administrative Procedures Act; and (d) the Minister of Justice does not have any provision that the applicant Party A, a disposition counterparty, was unable to refuse to provide a mobile text message for living expenses; and (d)

Article 40(1) of the Refugee Act; Article 17(2) of the Enforcement Decree of the Refugee Act; Articles 23(1) and 24(1) of the Administrative Procedures Act

Plaintiff (Attorney Kim-ju et al., Counsel for the plaintiff-appellant)

The Minister of Justice

May 26, 2016

1. The Defendant’s refusal to apply for living expenses, etc. against the Plaintiff on August 19, 2015 shall be revoked.

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

The same shall apply to the order.

1. Presumption

A. On October 20, 2014, the Plaintiff entered and stayed in the Republic of Korea as Ethiopia’s nationality, and on October 20, 2014, applied for refugee status on July 8, 2015.

나. 원고는 2015. 7. 23. 피고에게 난민신청자 생계비 지원 신청을 하였다. 이에 피고는 2015. 8. 19. 원고에게 휴대전화로 “You are failed to receive the living expensives. You may apply for permit to engage in employment activities 6 months after the date on which the refugee application was 주1) received.” 라는 내용의 문자메시지를 전송하였다(이하 ‘이 사건 통보’라고 한다).

[Recognition] Facts without dispute, Gap 1-4 evidence, Eul 1 evidence, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The Administrative Procedures Act shall apply to the instant notification. The Defendant’s notification of the instant case must be made in writing and presented the grounds and reasons therefor to the Plaintiff (Articles 23 and 24 of the Administrative Procedures Act). The Defendant did not explain the grounds for disposition to the Plaintiff while making the instant notification, and did not deliver a document pertaining to the disposition. The instant notification is erroneous in violation of the Administrative Procedures Act.

In addition, the defendant did not give prior notice while making the instant notification, and did not provide the plaintiff with an opportunity to state his opinion.

B. At the time of the Plaintiff’s application for living expenses, the Plaintiff did not have any income and assets and had any family or relative in Korea, and was pregnant to have no economic ability, and thus, could not be threatened with the survival if the Plaintiff is unable to receive living expenses. The Defendant notified the instant case without considering the Plaintiff’s specific and individual circumstances, which is unlawful by abusing and abusing discretion.

3. Judgment on the main defense of this case

The defendant asserts that the notification of this case does not constitute "disposition" subject to administrative litigation.

However, in full view of the following circumstances, including the content and purport of the relevant statutes, the term “right to apply for living expenses of refugee applicants” is a specific right recognized under the law or sound reasoning, and the notification of this case by the defendant who expressed his/her intention to refuse it constitutes an “disposition” which can be contested by an appeal litigation. Therefore, the defendant’s main defense to the safety of the defendant is without merit.

A. Article 40(1) of the Refugee Act provides for the principle that the defendant may support the living expenses, etc. to the refugee applicant. Article 17 of the Enforcement Decree provides for the period of subsidization of living expenses, matters to be considered when determining the amount of subsidization of living expenses, etc. Article 15 of the Enforcement Rule of the Refugee Act provides for the requirements and procedures in detail by prescribing the specific application for and decision-making procedures for living expenses.

B. The subsidization of living expenses for refugee applicants is a system to guarantee refugee applicants' right to live, rather than a simple mutually beneficial measure.

(c) A refugee applicant is entitled to the employment permit six months after the refugee application, and there is no means to maintain his/her livelihood before the refugee application.

D. Where the defendant has refused to apply for subsidization of the living expenses of refugee applicants due to mistake of facts, etc., relief procedures should be guaranteed for the refugee applicants to dispute them.

4. Judgment on the merits

A. Relevant statutes

It is as shown in the attached Form.

B. Whether procedural defects are recognized

First, we examine whether there is procedural defect in the notification of this case.

1) Whether the Administrative Procedures Act applies to the instant notice

A) As seen earlier, the instant notice constitutes a “disposition” that can be contested as an appeal litigation, and as a matter of principle, the Administrative Procedures Act applies to the instant notice.

B) Article 3(2) of the Administrative Procedures Act provides for one of the cases where the application of the Administrative Procedures Act is excluded, and Article 3(2)9 of the Administrative Procedures Act provides that “The matters deemed difficult or unnecessary to undergo administrative procedures due to the nature of the relevant administrative action, such as entry and departure of foreigners, recognition of refugee status, naturalization, or other disposition, and those prescribed by Presidential Decree, which underwent procedures equivalent

The "decision on an application for subsidization of refugee applicants for living expenses" can be deemed to fall under the "recognition of refugee status of foreigners" or "other dispositions" under Article 3 (2) 9 of the Administrative Procedures Act.

Meanwhile, considering the contents of the provisions of the Administrative Procedures Act in light of the legislative purpose of the Administrative Procedures Act, aiming at securing the citizen’s participation in the administrative process and ensuring the fairness, transparency, and reliability of administration, and protecting the rights and interests of the people, even if matters pertaining to the recognition of refugee status are not wholly excluded from the application of the Administrative Procedures Act, the application of the Administrative Procedures Act shall be deemed excluded only in cases of dispositions that are deemed difficult or unnecessary due to their nature, or dispositions that are subject to procedures equivalent to administrative procedures (see, e.g., Supreme Court Decision 2011Du30687, Jan. 16, 2013).

According to this, the "decision on the application for subsidization of living expenses of refugee applicants" should be deemed excluded from the application of the Administrative Procedures Act only when it is deemed difficult or unnecessary to complete administrative procedures due to its nature or it requires procedures equivalent to administrative procedures.

C) Based on the above legal doctrine, we examine whether the Administrative Procedures Act applies to the instant notice. The reasons are as follows.

(1) In order to determine whether the Plaintiff, who is the other party, was dissatisfied with the instant notification, it is necessary to know whether he was unable to receive living expenses for any reason. On the other hand, when making the instant notification, if the instant notification requires the presentation of the reason for the disposition, the objective of the relevant disposition cannot be deemed to be impossible. Furthermore, there is no evidence to deem that the instant notification constitutes “where it is difficult or deemed unnecessary to undergo administrative procedures due to its nature.”

(2) As to the recognition of refugee status, Articles 18 and 21 of the Refugee Act stipulate in detail the procedures that need to be recognized as refugee status due to the lack of refugee status, and do not stipulate the relevant provisions regarding the “support for living expenses of refugee applicants”. In relation to the instant notification, not only does it stipulate that the instant notification requires the procedures corresponding to administrative procedures, but also does not follow the procedures such as providing reasons or notifying methods of dissatisfaction.

2) Whether Article 23(1) of the Administrative Procedures Act is violated

A) Article 23(1) of the Administrative Procedures Act provides that, when an administrative agency takes a disposition, the administrative agency shall present the grounds and reasons therefor to the parties. This purport is to exclude the arbitrary decision of the administrative agency and to enable the parties to properly cope with the administrative remedy procedure. Therefore, the grounds and the degree of presentation of the grounds for the disposition shall be sufficiently known as to what grounds and reasons the parties were made at the time of the disposition, by comprehensively taking into account the contents indicated in the disposition document, relevant statutes, and the overall process, etc. up to the time of the disposition, so that it can be sufficiently known that there is no particular obstacle to the administrative remedy procedure (see Supreme Court Decision 2011Du18571, Nov. 14, 2013).

B) The notification of this case only provides that “An application for subsidization of living expenses was rejected.” While Article 17(2) of the Enforcement Decree of the Refugee Act provides that “the determination of whether to provide assistance for living expenses shall be made in consideration of the period of stay in the Republic of Korea of refugee applicants, whether to work, whether to use refugee support facilities, whether to have dependent family members, living conditions, etc.” However, the notification of this case by the Plaintiff, the party to the disposition, who is the other party to the disposition, cannot be seen entirely as to what grounds and reasons the notification of this case was made.

Meanwhile, Article 23(1)2 and 3 of the Administrative Procedures Act provides that “In cases of simple and repetitive dispositions or minor dispositions where a party is clearly aware of the grounds therefor,” or “in cases where it is necessary to urgently take such dispositions,” the relevant party does not present the grounds and reasons. However, the data submitted by the Defendant alone does not constitute “a case where it is necessary to take simple and repetitive dispositions or minor dispositions” or “cases where it is necessary to take urgent dispositions.”

C) Therefore, the instant notification is deemed to have violated Article 23(1) of the Administrative Procedures Act.

3) Whether Article 24(1) of the Administrative Procedures Act is violated

The Defendant’s notification of the instant case to the Plaintiff on August 19, 2015 using mobile phone text messages is as seen earlier.

There is no provision that the Defendant may refuse to apply for living expenses by mobile phone text messages, and there is no data that the Plaintiff consented thereto. In addition, the proviso of Article 24(1) of the Administrative Procedures Act provides that “Where it is necessary to process them promptly or the case is insignificant, it may be done orally or in other cases.” However, the instant notification cannot be deemed to fall under such provision.

Therefore, the instant notification is deemed to have violated Article 24(1) of the Administrative Procedures Act.

4) Whether Article 21(1) and Article 22(3) of the Administrative Procedures Act are violated

According to Articles 21(1) and 22(3) of the Administrative Procedures Act, “Administrative agencies shall give prior notice to the parties and give them an opportunity to present their opinions in cases where they impose obligations on the parties or impose dispositions that restrict their rights and interests.”

However, given that the instant notification cannot be deemed a disposition that restricts the Plaintiff’s rights and interests already given, the Defendant cannot be deemed to have violated Articles 21(1) and 22(3) of the Administrative Procedures Act.

C. Sub-committee

Since the notification of this case is defective in violation of Articles 23(1) and 24(1) of the Administrative Procedures Act, the notification of this case must be revoked in an unlawful manner without examining the remainder of the plaintiff's remaining arguments.

5. Conclusion

The plaintiff's claim is justified and accepted.

[Attachment] Relevant Statutes: omitted

Judges Hong Jin-ho (Presiding Judge)

Note 1) If this translation is translated into Korean, "I have rejected an application for subsidization for the living expenses of you. I may apply for employment permit if six months have elapsed after the application for the refugee."