난민인정과 재판 절차의 개선 방안 = Improving the Procedure for Refugee Status Determination and Judicial Review in Korea

다국어 초록 (Multilingual Abstract)

Since Korea’s first Refugee Act came into force in 2013, the number of people seeking asylum in Korea has rapidly increased―the number of applications for refugee status was 2,896 in 2014, 5,711 in 2015, and it climbed to 7,542 in 2016. The number of refugees filing a suit for judicial review of refugee status determination in courts has also increased with 423 filings in 2014, 1,220 in 2015, and a staggering 3,161 in 2016. But the rates of refugee recognition in Korea have been decreasing, and they still remain far less than the average rate of refugee recognition among OECD countries. It has been argued that Korea’s low rate of refugee recognition is caused, at least partially, by the fact that the procedure for refugee status determination has not been designed and operated in a manner that is fair and efficient.
The procedure for refugee status determination requires considerable expertise because not only must decision makers determine whether claimants are likely to be persecuted in their countries of origin, but they must make these determinations under challenging circumstances. These decisions frequently rely on scant and unreliable evidence, often based solely on testimony by claimants who do not speak the local language and who have a strong interest in the outcomes of their claims. These decisions also pose significant risk because false negatives may result in refugees being deported to countries where they face persecution, torture, or even death―a result that would put Korea in breach of international law. Despite these challenges and risks, decision makers―including government officers, adjudicators and judges who are already burdened with heavy caseloads―are encouraged to decide cases as quickly as possible to not only stabilize the status of claimants, but to also prevent those who are not refugees from trying to use the asylum procedure as a means of extending their stay in Korea while they seek a work permit. Experience shows that the longer the procedure is protracted, the more likely the procedure is to be abused. Due to these special characteristics of the refugee status determination procedure, it is important that the procedure be thoroughly designed and performed in a manner that is fair and efficient.
This research examines the current state of Korea’s procedure for refugee status determination and judicial review, and offers suggestions for devising a fairer and more efficient asylum procedure that could better meet the goal of the system. In doing so, this research examines the following. First, this research examines how Korea’s procedure for refugee status determination and judicial review have been designed and performed, and identifies problems in the current procedural system. To accomplish this, the present research examines provisions of the Refugee Act and the relevant regulations on the refugee status determination procedure; it also analyzes statistical data provided by the Ministry of Justice and the National Court Administration on the rates of refugee recognition and of appeals at each stage of the procedure. In addition, this research analyzes the results of interviews and surveys of experts, including refugee adjudicators, judges, professors, public interest lawyers, and legal officers from the United Nations High Commissioner for Refugees (UNHCR) regarding the state of the current procedure. By doing so, this research shows that the current procedure needs to be improved to be fairer by improving the claimants’ procedural satisfaction from the refugee status application stage through the judicial review stage, and to be more efficient by developing procedural safeguards that prevent those with manifestly unfounded claims from abusing the procedure.
Second, this research conducts a comparative legal analysis of procedures for refugee status determination and judicial review in other countries―including the United States, the United Kingdom, Canada, Australia, New Zealand, Germany, France, and Japan― which may shed light on how Korea could improve its refugee adjudication and trial procedure. In particular, this research provides an overview of each countries’ refugee laws, policies, and procedures, and examines what kinds of procedural mechanisms were adopted to make the procedure fair and expedient. It also introduces international standards on the procedures for refugee determination, particularly developed by the UNHCR and European Union.
Finally, this research offers suggestions for improving each and every stage of the procedure, from the refugee status application stage through the judicial review stage. In the pursuit of protecting refugees’ human rights, the values of efficiency and fairness often come into conflict. In a system burdened by many applicants and few decision makers, efficiency often becomes the prevailing value; however, while efficiency is undoubtedly important, fairness must be the ultimate goal. With these principles in mind, this research introduces suggestions for improving both fairness and efficiency. By offering these recommendations, this research aims to help establish a fairer and more efficient asylum procedure in Korea.