By Lee Jae-min*
Korea Herald
Nov 28, 2017
Korea’s low acceptance rate of foreign nationals’ political asylum draws our attention. Between January 1994 and October 2017, 30,082 applications were submitted by foreigners for the recognition of their status as refugees in Korea. Among these, only 767 applications were approved. This is just a 2.5 percent acceptance rate. It stands out compared to the global average of 37 percent reported by UNHCR.
The Refugee Act of 2013 is the governing law here, which was enacted to implement UN Refugee Convention to which Korea acceded in 1993. The legal requirement under the act for the recognition of refugee status is rather simple: whether an applicant shows well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The simple legal requirement becomes tricky in practice, though. It is the applicant that should prove possible persecution back in the home country, but carrying this burden is anything but easy. Note that here we are talking about people who fled their countries. More often than not, those seeking shelter in this far corner of Asia have left their hometowns and countries hurriedly and in secret. Perhaps the last thing they could think of in the moment of terror and physical harm would be some documentation or certification that they can attach to their future applications in foreign countries for the status of refugee. So, it is not uncommon pieces of evidence and materials are either elusive or unreachable when their application is pending before Korean agencies or courts. Unfortunately, the agency and the judiciary apparently demand “concrete evidence” in their refugee status review proceedings. Mere circumstantial evidence is likely to lead to rejection of the application.
Situations get more complicated when an applicant’s statements during interviews and hearings are inconsistent. Absence of solid consistency sows suspicion in the minds of agency officials and judges, also leading to ultimate rejection of the application. But here also it should not be forgotten that interviews, at least initial ones, are sometimes done within the confinement of limited resources of translation and interpretation. These applicants’ early encounters in a foreign country tend to proceed in a completely different environment and culture. Expecting them to come up with watertight explanations may be setting the bar too high for them.
Presumably, the high thresholds explain the substantially low acceptance rate of refugee status. A high-profile decision from the Korean Supreme Court in the past July prompts us to contemplate on these practical aspects. On July 11, 2017, the Korean Supreme Court overturned a lower court (Seoul High Court) decision granting political asylum to an Egyptian national for fear of persecution in his home country due to his sexual orientation. The case was then remanded to the lower court for further review.
In the judgement, the Supreme Court focused on the above legal criterion whether the applicant proved possible persecution in his home country. In the view of the nation’s highest court, the applicant failed to provide concrete evidence in this regard, other than the applicant’s own assertion and some circumstantial evidence. Inconsistent statements from the applicant also caused the Supreme Court to reject the applicant’s petition. The core part of the judgement covering the two issues reads, in my own translation: “the plaintiff’s statements show a lack of consistency and persuasiveness … and there does not exist sufficient material to prove whether the statements are compatible with the objective circumstances of the country at issue.” The highest court then reversed the lower court’s judgment for the applicant.
The overturning decision of the highest court attracted attention because the lower court did find the associated evidence sufficient, citing widespread discriminatory environment in his home country. The case is still pending, so we do not know the final outcome yet. But it does show that the issue of sufficiency in the refugee status context can be elusive and debatable.
High legal thresholds will certainly help identify and deter fraudulent applications. Nonetheless, the increasing gap between the global refugee acceptance rate and Korea’s indicates that the thresholds are not reflective of the reality refugee applicants face.
*Lee Jae-min is a professor of law at Seoul National University. He can be reached at jaemin@snu.ac.kr.
