In re Appeal for the Cancellation of Denied Refugee Status Recognition, Seoul Administrative Court, South Korea (24 December 2009)
The claimant appealed the decision of the Minister of Justice, who denied his application for refugee status.
The claimant was a homosexual man with Pakistani citizenship. On 24 December 1996, the claimant legally entered the Republic of Korea, where he remained following the expiration of his visa. The claimant was arrested and detained on 16 February 2009. While detained, he applied for refugee status which was denied. He appealed to the Seoul Administrative Court.
Both the claimant and the Minister of Justice agreed on the following facts, set out in a report issued by the Immigration and Refugee Board of Canada. The Pakistan Penal Code criminalised same-sex sexual activity under Article 377. Relevant cases were introduced as evidence. The tribal council in Khyber province had warned two men who had married each other that they would face death if they did not leave the province. The warning was based on the men’s violation of tribal rules. In another incident two men were arrested and sentenced to being whipped after they were found having sex in a public bathroom in Khyber province. A couple in Lahore was detained when seeking a restraining order against the husband’s abusive family. Prior to marriage, the husband underwent female-to-male sex reassignment surgery. The authorities detained the couple because they considered the marriage to be same-sex and anti-Islamic. The authorities also believed that the husband and wife lied about their genders and were guilty of perjury. In 2003 three men were arrested for having sex with each other in Lahore.
Both the claimant and the Minister of Justice also accepted as fact the findings of the National Report on Pakistan published by the United Kingdom Border Agency. That report concluded that police in Pakistan routinely threatened and extorted money from homosexuals.
Whether the claimant’s sexual orientation qualified him for refugee status in the Republic of Korea.
Immigration Law, Articles 2.2 (definition of refugee) and 76.2 (recognition of a refugee).
1967 Protocol Relating to the Status of Refugees, Article I.
Pakistan Penal Code, Article 377 (punishing consensual “carnal intercourse against the order of nature” with imprisonment of between two and ten years).
Reasoning of the Court
The Court began its opinion by emphasising that Article 76.2.1 of the South Korean Immigration Law gave individuals the right only to apply for refugee status. Furthermore, the law did not guarantee refugee status even if an applicant satisfied the criteria outlined in the Convention and Protocol. This said, the Court affirmed that the law had the “clear intent of protection”.
Having interpreted the law, the Court outlined the procedure for granting refugee status in South Korea. Article 2.2 of the Immigration Law defined “refugee” according to the criteria outlined in the Convention. The Court was therefore deferential to the terms of the Convention, the Protocol and the United Nations Handbook on Procedures and Criteria for Determining Refugee Status. It focused on the requirement that the applicant must demonstrate a well-founded fear of persecution. Satisfying this requirement depended heavily on a court’s interpretation of the concepts of “persecution” and “fear”, the burden of proof being on the applicant.
Because no commonly accepted definition of “persecuted” existed, the Court referred to Paragraphs 51 and 65 of the Handbook. Paragraph 51 stated that persecution involved a threat to one’s life or physical freedom. “Unjust discrimination, suffering, and disadvantages” could also qualify. The Court understood Paragraph 65 to mean that the “main actor of the persecution should not be limited to a governmental organisation but can also be a non-governmental organisation when governmental protection is not viable”.
The Court interpreted “fear” in a similarly broad manner. It was clear under Paragraph 38 of the Handbook that the applicant must demonstrate subjective fear and objective evidence for having such fear. Additionally, as per Paragraph 195 of the Handbook, the Court held that it must also consider “the general human rights violation status of his/her country of origin … [and] other specific conditions or events in his/her country [that could] … be related to causing the applicant to feel the possibility of fear”.
Claimants have difficulty providing evidence in asylum cases. The Court recognised that their physical distance from their country of origin compromised their ability to provide compelling evidence. For this reason, the Court held that it would be “enough for the applicant’s claims to be overall reliable and credible … the arguments should be coherent and plausible while at the same time not run counter to generally known facts”. Paragraph 204 of the Handbook supported this position.
Using this framework, the Court found that the facts presented satisfied the criteria for refugee status. It also accepted that the claimant’s testimony was credible. The claimant had testified that he was arrested while waiting in a taxi before he was to engage in a homosexual act; that his wife and her family knew of his sexuality and threatened him because of it; that his father threatened to deny him his inheritance because of his sexuality; and that he had been blackmailed by people who had videos of him engaging in same-sex sexual activity. Based on this testimony as well as the report from the Canadian Immigration and Refugee Board, the report from the United Kingdom Border Agency, and Article 377 of the Pakistan Penal Code, the Court held that: “the claimant’s claims are in and of themselves coherent, plausible and overall credible and do not run counter to facts that are generally known … [It] is very likely that the claimant, in the case that he gets sent back to Pakistan … will be persecuted by Pakistani Muslims [and] the Pakistani government … for being homosexual.”
The Court overturned the Minister of Justice’s ruling and recognised the claimant as a refugee according to Article 2(2) of South Korea’s Immigration Law.
In re Appeal for the Cancellation of Denied Refugee Status Recognition, Seoul Administrative Court, South Korea (full text of judgment, PDF)