Tunisian Woman Denied Refugee Review Over Ex-Husband's Abuse... Supreme Court: "Eligible for Refugee Review"

The Supreme Court has ruled that it was unjust to deny refugee status review to a Tunisian woman who applied for asylum in Korea, citing that she was not protected by her country's police despite being assaulted by her ex-husband.

Supreme Court, Seocho-gu, Seoul.

According to the legal community on July 30, the Supreme Court's Second Division (Presiding Justice Oh Kyungmi) overturned the lower court's ruling and remanded the case to the Seoul High Court in the lawsuit filed by A (26), a Tunisian national, against the Commissioner of the Incheon Airport Immigration Office, seeking to cancel the decision not to refer her case for refugee status review.

In August 2023, A entered T?rkiye on a medical visa and stayed there, then departed in November of the same year and arrived at Incheon International Airport. The Incheon Airport Immigration Office guided her to the re-examination room (investigation room), stating that her purpose of entry was unclear. A applied for refugee status, stating, "I was continuously and severely assaulted by my ex-husband in Tunisia, which led to our divorce. Even after the divorce, I continued to be harassed, but I did not receive adequate protection from the Tunisian police. If I am deported, I fear persecution due to my identity." However, the immigration office decided not to refer her case for refugee status review, citing that she came from a safe country where there is no possibility of persecution, or that her application was clearly unfounded, both of which are grounds under the enforcement decree for not referring an application for review. In response, A filed an administrative lawsuit.

The first trial ruled in favor of A, but the second trial ruled against her, stating that "it cannot be hastily concluded that her refugee application would have been unjustly denied in T?rkiye, and it also appears that A may have come to Korea for economic reasons."

The Supreme Court's judgment differed from the second trial. The Supreme Court accepted the plaintiff's appeal, stating, "The lower court misunderstood the legal principles regarding the burden and degree of proof under the Refugee Act Enforcement Decree, which affected the judgment."

The Supreme Court determined that A did not fall under the category of "coming from a safe country." The court stated, "T?rkiye limits grounds for persecution to cases that occurred in European countries. For incidents that occurred outside Europe, only a conditional refugee status is granted, which allows temporary stay with limited rights, rather than full refugee status." The court thus found that if A were to re-enter T?rkiye, it would be difficult for her to be guaranteed rights as a refugee applicant.

Regarding the "clearly unfounded application" criterion, the court stated, "This only applies when the content of the application itself clearly presents a reason that is legally unacceptable, or when there are not just doubts about the main facts related to refugee requirements, but the claim itself contains serious contradictions or is clearly inconsistent with objective evidence to the extent that its lack of merit is obvious." The court further stated, "If the lack of merit can only be revealed through an accurate investigation of the facts, then the application cannot be deemed clearly unfounded."

The court also stated, "If violence by an ex-husband is institutionally, organizationally, or systematically caused, encouraged, or tolerated on the basis of traditional, cultural, or religious reasons, resulting in direct harm and severe suffering to women and infringing on human dignity, it cannot be categorically excluded from being considered 'persecution' inflicted on a member of a particular social group." The court added, "There is a possibility that the lack of merit in this application can only be revealed through a precise investigation of the facts."