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The draft bill addressing the determination and treatment of refugees and others 2009.07.30 16:07 7788
Writer opmanager

The draft bill addressing the determination and treatment of refugees and others has been proposed

 

A draft bill addressing the status determination and treatment of refugees and others has been proposed by 24 lawmakers of the National Assembly (Representative proposer: Woo-Yeo Hwang of the Grand National Party) on May 25th. The Ministry of Justice will amend the Immigration Control Act, and then it will be submitted to the National Assembly. However, because there are many differences between the contents of the Immigration Control Act and the contents of the draft bill addressing the determination and treatment of refugees and others, it is anticipated that many difficulties will be encountered during the revision process. 

 

After GONG-GAM made a formal agreement with the UNHCR in 2005, it started working on refugee-related lawsuits, and education and legal reform for refugees.  In response to GONG-GAM’s concern regarding legislative problems surrounding refugees in South Korea, in 2006 GONG-GAM arranged activities addressing refugee issues and created an ‘activist network’ among people who were interested in refugees for approximately half a year.

 

In 2008, GONG-GAM worked together with The Refuge Pnan, NANCEN, Amnesty International, the Christian Legal Society, and the Public Interest Commission of Bae and Kim & Lee LLC (the United Nations High Commissioner for Refugees and the National Human Rights Commission of Korea participated as observers) to create the ‘Refugee NGO Network’. As a result, GONG-GAM was able to conduct human rights research on the actual condition of refugees and the draft bill of the refugee law. Moreover, when a refugee seminar was held at the Seoul Bar Association, GONG-GAM was able to introduce the refugee related research the organization had conducted as well as actively appeal to the law and elicit support for the improvement of the human rights’ of refugees.  

 

At a seminar addressing refugee legislation held during the National Assembly Human Rights Forum in December, GONG-GAM made a presentation on the latest advancements and up-to-date research pertaining to the draft bill. As a result, the Seoul Bar Association formally requested a legislation petition be filed this year for the bill related to the refugee law. Consequently, a formal proposal of the draft bill addressing the determination and treatment of refugees and others was admitted and reviewed.

The major proposed reasons for the draft bill and its contents are below:

 

□ Reasons for the draft bill proposal

1. Within the last 15 years, although the number of refugee status applicants numbered only approximately 2,000 people, the number of people who have refugee status in Korea are less than 100 people. Compared to other developed countries, the number of people with refugee status in Korea is insufficient.  As a result, within the international community, Korea is not meeting its responsibilities.  

2. Also, as of now there are about 1,000 people who are still waiting for a status decision to be made concerning be recognized as a refugee in Korea.  Problems related to the quickness, transparency, and fairness of refugee status determination procedures have been consistently identified within Korea and abroad. 

3. In addition, methods that can allow refugee status applicants to sustain minimum livelihood in Korea were blocked.  Even in instances when refugees are legally recognized by Korea, they are not guaranteed the treatment and rights as ensured by the 1951 Convention Relating to the Status of Refugees.

 

□ Draft bill contents

A: Terms such as ‘refugee,’ ‘refugee status applicant,’ ‘humanitarian status’ and so on, should be in accordance with international law and based upon the operation of the refugee system if possible (§2, the draft bill).

B: On the basis of international law, without exception, the principle of non-refoulement is proclaimed. (§3, the draft bill)

C: Within refugee status determination procedures, accessibility of information is reinforced, and the status and possession of a refugee status applicant is clarified (§5, the draft bill).

D: At airports, harbors, and other related areas, refugee status determination procedures are stipulated and situations where applicants who are applying for refugee status are rejected by arbitrary administrations are prevented (§6, the draft bill).

E: The period of refugee status determination procedures is restricted.  Additionally, the contents of procedural guarantees, such as interviews, factual investigations, cooperation by related organizations, legal assistance by a lawyer, participation by a reliant companion, participation of the UNHCR, language translation, confirmation of a written record of interviews, rights related to accessing and copying relevant materials, confidentiality, and so on are specifically stipulated.

F: The contents with regard to easing the burden and standard of proof resulting from the particularities of a refugee’s situation are stipulated. With regard to the level of proof needed for refugee applicants, the draft bill reflects the general opinion that refugee applicants should be given “reasonable possibility” to qualify for refugee status.  As such, the standard of proof needed by refugee applicants should be under the ‘reasonable doubt level’ that is required by general judicial procedures (§9, the draft bill). 

G: Limiting detention of refugee status applicants is prohibited.  In the case of appeal procedures, procedural guarantees, such as an appellant’s right to an oral statement, should be granted. 

H: In principle, provisions on refugee status determination procedures shall be applicable to humanitarian status determination procedures (§27, the draft bill).

I. Provisions related to resettled refugees are stipulated. As such, a person recognized as a refugee abroad is provided with the possibility to resettle in South Korea (§28, the draft bill).

J. A Refugee Committee will be established to make decisions on appealed cases where persons were denied refugee status or persons whose refugee status were cancelled.  Additionally, the committee will review refugee policies. Thus, the Refugee Committee will play a role in independent appeal proceedings (§29, the draft bill).

K. With regard to treatment of refugees, a person who is recognized as a refugee shall be guaranteed the fundamentally minimum rights designated in the Convention Relating to the Status of Refugees (§36, the draft bill).

L. Guaranteeing family unity of refugees should be stipulated. In the past family unity was a customary practice, and not guaranteed in some cases.  The draft bill guarantees family unity by legal grounds (§44, the draft bill).

M. Except for the part related to immigration, persons with humanitarian status should be treated in the same way as refugees (§47, the draft bill).

N. In the case of an applicant seeking status a refugee, he or she should be principally provided with financial living support. Also, after a defined period, he or she should have an opportunity to be exceptionally employed (§48, the draft bill).

 

< Writer: Attorney Hwang, Pill-Kyu >






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