Adjudication in the Seoul District Court on a Appeal From a Dismissal of Refugee Recognition

                    Seoul District Court

The 13th Administration

Adjudication

Case:     2002guhap 23632 Appeal from a dismissal of refugee recognition

Plaintiff: Bennacer Messaoud

Defendant: Minister of Justice

Claim: Appeal to decision on rejection of refugee recognition.

1.       Proceedings of the Judgment (처분의 경위)

The validity of the following facts under A and B are recognized if the whole intent of the argument is based on agreement between the plaintiff and the defendant, inclusion of the evidence in 갑제1호증, 1 and 2 of 을제1호증, 을제2호증, 을제5호증 and verification through UNHCR Seoul Office.

A.      The defendant, Algerian, entered Korea with Algerian passport in Dec. 31 1996. He held jobs in Seoul for a year. In Dec. 25. 1997, he was detained by immigration officials, fined for having worked illegally and was ordered to leave the country. In Switzerland, the plaintiff was detained. He destroyed his passport before arriving in Switzerland in an attempt not to be sent back to Algeria. He was sent back to Hong Kong. In Hong Kong he tried to seek asylum but was sent back to Seoul on Dec 31 1997. He was again sent out of the country via Hong Kong. In Hong Kong the carrier to Frankfurt refused to take him. He was, again, returned to Seoul in Jan 1998. On April 29 1998, he filed an application for refugee status. He was rejected in May 9 1998 because he was judged "not to have well founded fear of being persecuted" as per Article 1 of the 1951 Convention relating to the Status of refugees. On June 6 1999, UNHCR Seoul Office granted him a mandate refugee status. He reapplied on Nov 16 1999 but his application was not accepted. The defendant entered an action against the plaintiff on refusal of refugee recognition application and won. Therefore, the defendant reapplied in Oct 28 2000 (Immigration Control Act 76조 2).

B.      The plaintiff decided upon rejecting refugee recognition due to the fact that the defendant was unable to prove his assertions in which the defendant did not seem to have well-founded fear of persecution defined under 1951 Refugee Convention and 1967 Protocol relating to the status of refugees.

2.       Related Law

Immigration Law

Article 2 (Definitions)

Definitions of the terms used in this Law shall be as follows:

2.2 the term "Refugee" means a person who falls within the provisions of Article 1 of the Convention relating to the Status of Refugees (hereinafter referred to as "Refugee Convention") or the provisions of Article 1 of the Protocol relating to the Status of Refugees.

Article 76-2 (Recognition of a Refugee)

(1)       When an alien physically present in the Republic of Korea applies for recognition as a refugee under the Presidential Decree, the Ministry of Justice may recognize such an alien as a refugee.

(2)       The Application as referred to in Paragraph (1) shall be performed within sixty days from the date which an alien lands or enters the Republic of Korea (when the reasons arise during his staying in the Republic of Korea, this will be determined from the date which an alien discovers such reasons), except for other unavoidable reasons such as diseases.

(3)       When recognizing the alien as a refugee in accordance with Paragraph (1), the Minister of Justice shall deliver the certificate of refugee status, and if not, the Minister of Justice shall notify him of the reason in writing.

(4)       The procedure of examination on a recognition of a refugee under Paragraph (1) and other necessary matters, shall be prescribed by the Presidential Decree.

1951 Convention Relating to the Status of Refugees (1951 7.28)

Chapter 1: General Provisions

Article 1 Definition of the term "Refugee"

A.      For the purposes of the present Convention, the term "refugee" shall apply to any person who:

(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

1967 Protocol Relating to the Status of Refugees (1967 1. 31)

Article 1 General Provision

1.       The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.

2.       For the purpose of the present Protocol, the term "refugee" shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article 1 of the Convention as if the words "As result of event occurring before 1 January 1951 and…" "and the words"…"a result of such events", in article 1 A (2) were omitted.

[Korea signed the Refugee Convention and Refugee Protocol in 1992 12. 3.]

3. Claims of the Defendant

The defendant fled Algeria owing to well-founded fear of persecution from the government for the following reasons. If he is rejected and therefore forcefully returned to his country, he will face severe punishment or even death.

A.      Activities of the Defendant in Algeria

(1)     Due to poor eyesight, the defendant was exempt from military service in 1991. However, when he requested the exemption certificate in 1992, he was told it would not be issued. He managed to postpone military service while he was a student, in the technical college (1991-92) and the engineering school (1994-1996).

(2)     In February 1995, a member of the local militia in Batna whom the defendant recognized, shot at him but missed, purportedly because he had not voted for the then president of Algeria. There was an intensified crackdown on student demonstrations and other activities after this attack, including the death of several of his classmates. These factors led the defendant to discontinue his studies in order to distance himself from the violence.

(3)     On 1 April 1995, defendant's younger brother was arrested and imprisoned for participating in pro-FIS demonstrations. Neither the defendant nor his family knows what has happened to him since his imprisonment.

(4)     The defendant claims he was not a member of any political organization, but that he did join student demonstrations denouncing political violence. He further claims that he was continuously forced to serve in the frontlines due to his non-affiliation to the Government Party. If the defendant succumbed to the order of serving in the military and refused to follow orders where he would have to target civilians, this would have led to his execution. Serving in the army would involve attacking and killing civilians and the mere fact of joining the armed forces would make him a target of armed opposition groups. He does not want to participate in either of the government or the armed Islamic opposition groups.

(5)     The defendant fled Algeria for the above reasons. The defendant's claim has sufficient elements to be considered for refugee status given the fact that UNHCR has reviewed his case and granted him a mandate refugee status.

3.       Judgment on the proceedings and legality

A.       Rules regarding refugee recognition of 1951 Refugee Convention and the Korean Immigration Law

Refugee Convention and Refugee Protocol define refugee as ‘someone who has a well founded fear of persecution because of his/her 1. race, religion, nationality, membership in a particular social group, or political opinion; 2. Is outside his/her country of origin; and 3. Is unable or unwilling to avail him/herself of the protection of that country; or to return there, for fear of persecution.' The conditions regarding refugee recognition are directly applied in 제2조 제2의2호 of the Korean Immigration Law.

However, provisions of the convention are declaratory rather than established.

According to Article 28 of Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee. We understand that it is not compulsory under the Refugee Convention for states signatory to the Convention to recognize and grant "asylum" status for all the refugees who meet the requirements of the Convention (Refugee Convention 12-1) and therefore that the recipient country generally determines the granting of asylum status and the legal status.

Under Article 76-1 of Korean Immigration Law, when foreigners apply for refugee recognition, he/she is only given the possibility of being recognized as a refugee and there are no national laws that provide information on granting what type of legal status recognized refugees are entitled to. However, by opening the possibility of recognizing these people as refugees in the first place, this shows that it involves clear intent of protection. Therefore, the rules of refugee status determination do not stop at merely confirming whether the person falls under the conditions of the Refugee Convention but rather, granting certain rights to foreigners who fulfill the necessary conditions of a refugee.

Therefore, the procedure begins with whether the person meets the conditions under the Refugee Convention. If the person meets the requirements, he/she will be recognized as a refugee under the Immigration Law Article 76-2-1 and balanced decisions will be made upon whether to grant certain protection measures or forcefully repatriate persons to a third country even if he/she is recognized as a refugee. (Under Article 33(1) of the Refugee Convention "No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."). Before exercising the above authority, if fault is observed in determining the status of refugees in regards to the conditions of the Refugee Convention, in which necessary measures are not taken, this will be considered unlawful and can lead to the annulment of the decisions already made.

B. Convention Refugee Recognition

(1)     Having Well-founded fear of persecution

A. Recognition standard and method

States must carefully assess the fundamental character of the changes in the country of nationality or origin, including the general human rights situation, as well as the particular cause for having fear of persecution, in order to analyze the situation in an objective and verifiable way.

There is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always a persecution. Other serious violations of human rights-for the same reasons-would also constitute persecution (Handbook Article 51). The applicant is responsible for providing the evidence.

To be recognized as a refugee, it is not enough to just feel the fear of persecution but should be able to fully provide evidence for having that fear. To the element of fear-a state of mind and a subjective condition- is added to the qualification "well-founded". This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term "well-founded fear" therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration (handbook Article 38). If the applicant meets the above conditions and is considered to be in fear of persecution, that fear is generally regarded as having sufficient evidence.

In order to evaluate the applicant's general experience and circumstances, general human rights violation status of his/her country of origin must be considered. Furthermore, it is important to find out what other specific conditions or events in his/her country can be related to causing the applicant to feel possibility of fear. The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant's statements. (Handbook 195).

It is generally regarded that the applicant is responsible for the evidence he/she provides. However, it should be noted that, in general, it is not possible in many cases for refugees to have relevant evidence of persecution or possibility of persecution. Therefore, refugees are not required to fully prove their statements through objective material evidence. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. (handbook 204).

As it has been reviewed, the recipient state determines the status of applicants. Even if the refugee is recognized by UNHCR, the recipient state is fully responsible for conducting investigation and analysis other than provided by UNHCR.

(2)     Possibility of persecution by the Algerian government

A. General Situation of Algeria

Algeria is situated in Northern Africa, bordering the Mediterranean Sea. After a century of rule by France, Algeria became independent in 1962. The surprising first round successes of the fundamentalist FIS (Islamic Salvation Front) party in the December 1991 balloting caused the army to intervene, crack down on the FIS, and postpone the subsequent elections. The fundamentalist response has resulted in a continuous civil conflict with the secular state apparatus. In the initial stage, FIS targeted the government but expanded its sphere to civilians, foreigners and journalists cooperating with the Government. The Government also irrationally ferreted out civilians related to FIS.

However, the 1995 elected president Liamine Zeroual persistently tried to reach a peaceful agreement with FIS and finally the agreement was reached. In 1996.4. the first free presidential election took place. The elected president, Butipullica, continued Zeroual's line of national reconciliation and in 1996 6.6.the leader of FIS's armed wing, Madani Mezrague declared that his army will stop fighting and protect the people of Algeria. The president in return promised to introduce a new bill to remove the current illegal status of FIS. (을 제6호증, 을제7호증의 1,2,을제8호증)

B. Possibility of persecution by the Algerian Government to the Defendant

As it has been stated, the defendant has the responsibility in providing evidence for his/her fear of persecution regarding race, religion, nationality, membership in a particular social group or political opinion. However, the defendant did not provide any objective or credible evidence regarding his claim. According to his assertion, he was not part of a political group but was involved in student demonstrations denouncing political violence and furthermore he was persistently forced to join the military in which he was to be placed at the frontlines for not having been part of the Government party.

In February 1995, a member of the local militia in Batna whom the defendant recognized, shot at him but missed, purportedly because he had not voted for the then president of Algeria. On 1 April 1995, defendant's younger brother was arrested and imprisoned for participating in pro-FIS demonstrations. Neither the defendant nor his family knows what has happened to their son/brother since his imprisonment.

However, the presidential election took place not before February 1995 but on November 16 1995 as the defendant claimed. Also, the fact that the government, which illegally forced the defendant who has been exempt from serving in the military, allowed the defendant to continuously postpone military service and issued formal passport, shows that the claims for fear of persecution asserted by the defendant do not seem credible.

Furthermore, the defendant mentioned that his initial reasons for coming to Korea was his cousin. The defendant's cousin happened to work in Korea and told the defendant that it would be easy for him to get a job in Korea (을제2호등). At the point of his entry in 1996 12.31 until approximately 1 year after, he did not claim refugee status until he was caught as an illegal sojourner and was at the brink of being forced to deport. Furthermore, the defendant's brother who was jailed is now out of prison and is helping his elder brother's business (갑제7호증). Therefore, due to the set circumstances, it is difficult to regard the defendant to be having the possibility of being persecuted for having participated in an anti-governmental student demonstration.

C. Possibility of persecution due to illegal sojourn outside his/her country of origin and for applying refugee status

The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. Even if the person leaves his/her country without well-founded fear of persecution, he/she can be considered as meeting the conditions of a refugee. This would depend on the applicant's actions after his flight from the country of origin. If actions such as involvement in anti-governmental organizations outside his country of origin and the act of applying for refugee status can be the causes for having well-founded fear of persecution due to race, religion, nationality, membership in a particular social group or political opinion and in which this can lead to threats to life and causes for severe punishment, the applicant can be considered as having the conditions for becoming a refugee.

However, it is important to carefully look into the motive of his actions because his actions can directly be the cause of persecution. It is against the purpose of the Refugee Convention if the boundary of protection is extended to those who themselves make reasons to be persecuted in order to be recognized as a refugee. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances.(Handbook 96조).

The defendant entered Korea illegally after leaving Algeria. He destroyed his passport, applied for refugee status and as it has been observed, he was not part of any anti-governmental organization. Furthermore, the Algerian government does not seem to have any suspicion on the defendant. Therefore, even if the Algerian Government strongly urges the Korean government to repatriate him, there is much room to interpret his government's actions as just routine procedure for nationals who depart from the country in an unlawful manner or remain abroad without authority in order to prevent further actions of such. Thus, it is difficult to determine the possibility for well-founded fear of persecution based on the applicant's actions after his flight from his country of origin.

(3)     Concluding remarks

Therefore, the defendant does not seem to have ‘well-founded fear of persecution' and does not seem to meet the definition of a refugee under the Korean Immigration Law 제2조 Article 2-2.

4.       Conclusion

It follows from the foregoing that the rejection of appeal based on Article 76-2 of Korean Immigration Law is lawful in which the defendant's appeal is found groundless. The court, therefore, dismisses the defendant's appeal.