출입국항에서의 난민인정신청 절차에 관한 몇 가지 문제

Abstract

In Korea, Immigration Control Act had provided matters concerning asylum procedures. A new law, Refugee Act was proclaimed on February 10, 2012 and went into effect on July 1, 2013. Refugee Act allows asylum applications to be filed at ports of entry. But Refugee Act provides Minister of Justice shall decide whether to refer the applications at ports of entry to refugee status determination(RSD) procedure. The decisions raise some legal issues. This article deals with several issues regarding decision about not referring the application to the refugee status determination procedure. If the application is referred to refugee status determination procedure, immigration control officials should allow asylum-seekers to enter into Korea at least under some conditions by Enforcement Decree of Refugee Act article 5(4). If the application is not referred to refugee status determination procedure, immigration control officials may grant or refuse his or her entry into Korea by Immigration Control Act. Decision about not referring the application to refugee status determination procedure should be disposition which is object of appeal litigation. Some opinions claim the decision should be just a prerequisite of entry into Korea, thus it should not be disposition. However, decision about referring has different legal purposes and grounds from decision about entering into Korea. In addition, if the application is referred to refugee status determination procedure, the applicant has some rights to receive legal assistance from lawyers, to view and copy documents, to enter into and stay in Korea, etc. If the decision is not disposition, asylum-seekers will have no effective legal remedies. Burden of proof on legality of decision about not referring the application to refugee status determination procedure is on the administrative agency that has made the decision. Because burden of proof on legality of disposition is on the administrative agency in principle. Moreover, the contents of Enforcement Decree of Refugee Act 5(1) and purposes of allowing asylum application at ports of entry support this view.