The execution of repatriation against the will of the refugee applicant must be prohibited while decision of non-referral to refugee status screening is undergoing appeal proceedings
- NHRCK recommended to the Minister of Justice and others that the system be improved to protect refugee applicants’ rights in the departure waiting areas and promote their human rights generally -
On August 21, 2024, National Human Rights Commission of Korea (hereinafter referred to as the "NHRCK") made the following recommendations to the head of the ○○ Immigration Office (hereinafter referred to as the “Respondent”) and the Minister of Justice to protect the rights of refugee applicants in the departure waiting areas and promote their human rights generally:
- To the Respondent, the NHRCK recommended producing a concrete operational manual regarding the repatriation procedure in the departure waiting areas and executing the repatriation accordingly;
- To the Minister of Justice, the NHRCK recommended improving the system to ensure that repatriation is not executed for the party who clearly expressed his/her objection during the period when application for objection is permissible to the decision of non-referral to refugee status screening.
The Complainant is an activist for a refugee support organization, and the victim is a female refugee applicant with ○○○ nationality who is subject to repatriation. The Complainant filed a complaint with NHRCK, claiming that the Respondent obstructed the victim’s attempt to file a lawsuit to cancel the decision not to refer her to refugee status screening. She additionally claimed that an employee of the ○○ Immigration Office violated her human rights by using racist language and repeatedly ordering a forwarding agent to proceed with her repatriation.
The Committee on Human Rights Violations 2 dismissed the complaint in accordance with Article 39, Paragraph 1, Item 1 of the National Human Rights Commission of Korea Act, Where it is evident that the content of the petition is not true, or there is no objective proof that it is true, on the grounds of the following:
- Even though the Respondent informed the forwarding agent, which is responsible for executing the repatriation, that the victim’s repatriation was possible after the decision not to refer the victim to refugee status screening, and the forwarding agent attempted to execute the repatriation against the victim’s will, it was confirmed that the victim refused to leave the country and intended to file a lawsuit to cancel the decision not to refer her to refugee status screening;
- Contact was made with a refugee support group representative and lawyer to support the victim;
- The person who used racist language to the victim was confirmed to be a forwarding agent employee;
- The victim later left the country of her own accord.
However, it was determined that the Respondent’s actions were not fully aligned with the international standards to protect the rights of refugee applicants such as the principle of non-refoulement. Therefore, system improvements were recommended in accordance with Article 19, Paragraph 1, Item 25 of the National Human Rights Commission of Korea Act, as follows:
- The NHRCK determined that some of the shortcomings observed in the Respondent's operation of the departure waiting areas were mainly caused by the absence of a concrete procedure to fulfill the responsibilities of managing and operating the departure waiting areas. Accordingly, it recommended that the Respondent produce a concrete operational manual, including the procedures for supervising the forwarding agent's execution of repatriation for the foreigners subject to repatriation and for responding to unexpected situations while preparing repatriation so that the Respondent can fulfill its responsibilities in the repatriation process.
- On the other hand, the principle of non-refoulement stipulated in Article 33 of the Refugee Convention and Article 3 of the Refugee Act is under international law, which means refugees or foreigners who have applied for refugee status shall not be forcibly repatriated, against their will, to an area where their life or freedom may be threatened or where they are at risk of persecution. In relation to this, the Executive Committee of the United Nations High Commissioner for Refugees reaffirmed the importance of observing the principle of non-refoulement for those who would face persecution if they returned to their country of nationality, regardless of whether they officially get the refugee status, either at the border or within the territory of a country, through the Conclusion No.6, Non-refoulement, adopted in the 28th session of 1977. Also, in Conclusion No.8, Determination of Refugee Status, the Committee declared that the applicant shall be permitted to remain in the country during the period for refugee status screening or filing an objection to a court unless the refugee application is clearly abusive.
Accordingly, NHRCK recommended to the Minister of Justice that the relevant system be improved so that a party who clearly expressed his/her objection to the decision of non-referral to refugee status screening or expressed his/her specific intention to file an administrative appeal or litigation against the decision shall not be subject to repatriation against his/her will during the period where he/she can make appeal proceedings.