난민심사절차에서 ‘대안적 국내보호’ 요건의 체계적 지위와 의미

Abstract

Internal Protection Alternative (IPA) means that refugee status is denied in a case where a person, in danger of being persecuted in one place, is able to find other secure places to relocate within his or her country of origin. The Convention Relating to the Status of Refugees only stipulates that a refugee refers to a person who has a ‘well-founded fear of being persecuted’ and is ‘unwilling to avail himself of the protection of his country of origin,’ but does not clearly specify the concept of IPA. Moreover, it does not require whether the fear of being persecuted exists over the entire territory as a standard for determining a refugee. IPA derives from the fundamental premise of refugee protection󰡈surrogate protection󰡈which means that it comes into play only when a claimant faces a persecution on the grounds as prescribed in the Convention and protection from such risk is not available in his or her country of origin. In many other jurisdictions, detailed interpretation and judicial decisions regarding IPA have been accumulated, whereas, in Korea, it is hard to find academic discussions about IPA. In this article, I will introduce and elaborate the meaning and status of IPA in the procedure for Refugee Status Determination according to international standards such as the Michigan Guidelines and judicial decisions. IPA functions as an exclusion clause in that it denies presumptive refugee status if meaningful protection can be provided in some area of the asylum seeker’s country of origin. As the inquiry into the existence of IPA is predicated on the existence of a well-founded fear of persecution, whether there exists such fear should be examined preferentially, and the examination regarding IPA should be progressed when such fear is determined to exist. To deny refugee status, citing the possibility of IPA, some area in a claimant’s country of origin should be securely accessible to him or her as an alternative region, and there must be reason to believe that the reach of the agent of persecution is likely to remain outside the designated place of the IPA. Also, the claimant should have no new risk of being persecuted or refoulement to the region of origin, and minimum affirmative state protection should be available in the proposed IPA. These elements should be scrutinized while examining the existence of IPA. Furthermore, procedural safeguards are emphasized in the issue of IPA. The decision-maker must give clear and adequate notice to the applicant that adjudicating authority intends to canvass the possibility of denying refugee status on internal protection grounds. This includes notice as to a specific location which is proposed as an IPA, with an adequate opportunity to prepare a case in rebuttal. The purpose of this notice is, in turn, to allow a person to prepare an adequate response to that case. It is not allowed to ‘spring’ the allegation of an IPA without notice that it will be in issue at the hearing. Since internal protection is considered only after the claimant has established a prima facie case of risk in his or her place of origin, internal protection is effectively treated as an issue of exclusion from refugee status in relation to which the government bears the evidentiary burden of proof. Analysis of judgments rendered by lower courts in Korea shows that the application of IPA is based on rather brief and perfunctory examination. Many cases rely on formal constitutional principles such as freedom of religion or freedom of movement. Therefore, IPA is rather abused as a reason to deny refugee status on the grounds that the claimant could flee(or should have fled) to the other area of his/her country of origin. However, as IPA can deny the claimant’s refugee status even when a well-founded fear of persecution exists, careful and practical examination is required. Especially in determining refugee status, it is necessary to consider both general and objective circumstances of a nation and concrete and subjective circumstances of the claimant.